Opinion
ROCSC-CV-12-063
03-12-2014
JOHN STEWART, Plaintiff v. MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant
DECISION AND JUDGMENT
A. M. HORTON JUSTICE, SUPERIOR COURT
In this declaratory judgment action, Plaintiff John Stewart asks the court to invalidate a rule promulgated by the Defendant Maine Department of Health and Human Services (DHHS) that establishes registration fees to be paid by dispensaries and caregivers under the Maine Medical Use of Marijuana Program.
The legal issue presented is: Under the rulemaking provision of the Maine Medical Use of Marijuana Act, 22 M.R.S. § 2424(1), may the DHHS adopt a rule establishing registration fees for the Maine Medical Use of Marijuana Program (MMMP), 10-144- C.M.R. ch. 122, § 7, as a "routine technical rule" for purposes of the Maine Administrative Procedure Act? See 5 M.R.S. § 8071(2), (3) (defining the categories of rules and rulemaking requirements for each).
Plaintiff asserts that, because section 7 of the MMMP rules sets agency fees that are not within any cap or range defined by the Maine Use of Medical Marijuana Act, 22 M.R.S, § 242 et seq., section 7 must be deemed a "major substantive rule, " and it must be invalidated because it has not been subjected to the formal rulemaking and legislative approval process that the Maine Administrative Procedure Act (Maine APA) mandates for "major substantive rules". DHHS asserts that, because the Maine Medical Use of Marijuana Act expressly provides that rules adopted pursuant to the Act are "routine technical rules" for purposes of the Maine APA, the court should uphold the challenged rule and does not need to decide whether it does or does not set agency fees within a statutory cap or range.
Factual Background
The parties have filed a Joint Stipulated Record in which the following facts are stipulated for purposes of this case. See DeCambra v. Carson, 2008 ME 37, ¶ 2, 953 A.2d 1163.
Plaintiff is a resident of Town of Washington, County of Knox, State of Maine, and is a registered caregiver under the Maine Medical Marijuana Program. (Joint Stip. Rec. ¶ 1). Pursuant to 22 M.R.S. § 2424(3), DHHS adopted and continues to enforce "Rules Governing the Maine Medical Use of Marijuana Program 10-144 C.M.R, Chapter 122" (the "Rules") as "routine technical rulers]" that have not been approved by the Maine Legislature pursuant to 5 M.R.S.A. § 8072(1). {See Joint Stip. Rec. ¶ 8), Section 7 "Fees" of the Rules establishes registration fees that must be paid by caregivers and dispensaries under the MMMP. (Joint Stip. Rec. ¶ 8).
22 M.R.S. § 2424(3), in relevant part, provides as follows:
5 M.R.S. § 8072(1), in relevant part, provides as follows:
Pursuant to Section 7 "Fees" of the Rules, Plaintiff Stewart made the following registration payments: $300 on March 3, 2011; $300 on April 27, 2011; $900 on April 30, 2012; $331 on February 15, 2013, and $900 on April 25, 2013, (Joint Stip. Rec. ¶ 9(a)-(e), all of which payments were accepted by DHHS, (Joint Stip. Rec. ¶ 10).
In his initial and supplemental complaints, Plaintiff Stewart alleges that he also paid fees as a registered patient under the MMMP, but the DHHS in its original and supplemental answer disclaimed knowledge as to the truth of that assertion. The court does not view the divergence in positions as material.
Although it is not part of the stipulations, the Plaintiff does not appear to dispute that the DHHS Rules Governing the Maine Medical Use of Marijuana Program 10-144 C.M.R. Chapter 122, have been validly promulgated and adopted under the procedure applicable to "routine technical rules, " his point being that section 7 "Fees" of the Rules does not qualify as a "routine technical rule."
Procedural Background
On November 20, 2012, Plaintiff Stewart filed the instant action, seeking a declaratory judgment invalidating the fees section of the Rules Governing the Maine Medical Use of Marijuana Program, 10-144 C.M.R. ch. 122, § 7, because it is a "major substantive rule" that under the Maine APA had to be promulgated under formal rulemaking procedures and approved by the Maine Legislature. See 5 M.R.S.A, § 8072(l).
On August 7, 2013, by agreement of the parties, the court entered a scheduling order pursuant to which briefing on the stipulated record was bifurcated to focus on two separate issues. The first question to be resolved is whether the provision of the Maine Medical Use of Marijuana Act that authorizes DHHS to promulgate rules for the Maine Medical Use of Marijuana Program as "routine technical rules" within the meaning of 5 M.R.S.A. § 8071(2), included the authority to adopt a rule setting fees for MMMP as a "routine technical rule." If that question is were resolved in favor of DHHS, the court would uphold the rule and enter judgment for DHHS. However, if the first question were resolved in Plaintiff Stewart's favor, i.e., that the Maine Medical Use of Marijuana Act does not authorize DHHS to adopt a "routine technical rule" establishing fees regardless of any contrary provision in the Maine APA, the parties would then brief, and the court would decide, the second issue: whether the fees prescribed by Section 7 "Fees" of the Rules were established "under a cap or within a range set in the statute, " within the meaning of the Maine APA, 5 M.R.S. § 8071(3), thus qualifying the rule as a "routine technical rule."
Consistent with the scheduling order, this Decision and Judgment addresses the first issue only, and resolves it in favor of DHHS, for the reasons set forth below.
Standard Of Review
"The standard of review for a challenge to the validity of a rule, whether raised in a declaratory judgment action or a Rule 80C petition, is contained in 5 M.R.S.A. § 8058(1)." Conservation Law Found., Inc. v. Dep't Of Envtl. Prot., 2003 ME 62, ¶ 21, 823 A.2d 551. The Court has authority to review rules to determine if an agency has exceeded its rulemaking authority and declare them invalid. 5 M.R.S.A, § 8058(l). If the court finds that the rule is not in excess of the agency's rulemaking authority, its substantive review of that rule is "to determine whether the rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Id.
Discussion
The issue presented focuses on the interplay between the Maine Administrative Procedure Act, 5 M.R.S. ch. 375, enacted in 1977, and the Maine Medical Use of Marijuana Act, 22 M.R.S. ch. 558-C, enacted in 2009.
The Maine APA Framework
In 1995, the Maine Legislature amended the Maine APA to establish a mechanism for the legislature to exert additional oversight over agency rules to ensure that rulemaking by agencies does not exceed the intent of authorizing legislation, As a result of the amendment, the Maine APA defines two categories of state agency rules-"routine technical rules" and "major substantive rules-and two separate procedures for rulemaking and adoption. See 5 M.R.S. § 8071(2)(S).
"Major substantive" rules are defined as "rules that. . . [r]equire the exercise of significant agency discretion or interpretation in drafting;" or "are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on units of local government... or other serious burdens on the public or units of local government." 5 M.R.S. § 807l(2)(B). "Major substantive rules" are subject to a full rulemaking procedure and, after being provisionally approved by the agency, must be submitted to the Legislature for review and authorization before final adoption, 5 M.R.S. § 8072(1).
The Maine APA defines "routine technical" rules as follows:
Routine technical rules are procedural rules that establish standards of practice or procedure for the conduct of business with or before an agency and any other rules that are not major substantive rules . . . Routine technical rules include, but are not limited to, forms prescribed by an agency; they do not include fees established by an agency except fees established or amended by agency rule that are below a cap or within a range established by statute.5 M.R.S. § 8071(2)(A) (emphasis added).
"Routine technical rules" are subject to a more limited rulemaking procedure and may be adopted by the agency without prior legislative approval. See 5 M.R.S. § 8071(3)(A)
The Legislature reserved to itself the authority assign an agency's rules to one category or the other, and it does so at the time it adopts the legislation authorizing the agency to promulgate the rules. See id. § 8071(1).
The Maine Medical Use of Marijuana Act Rulemaking Provision
In enacting the Maine Medical Use of Marijuana Act, the Maine Legislature authorized DHHS to promulgate rules, and specifically designated those rules as "routine technical rules" for purposes of the Maine APA;
1. Rulemaking. The department may adopt rules to carry out the purposes of this chapter. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
22 M.R.S. § 2424(1) (emphasis added).
The same section of the Act directs the DHHS to promulgate a rule regarding fees:
The department's rules must require the submission of an application, must require replacement of a registry identification card that has been lost, destroyed or stolen or that contains information that is no longer accurate and must establish application and renewal fees that generate revenues sufficient to offset all expenses of implementing and administering this chapter ...
22 M.R.S. § 2424(3)
Thus, the intent of the Legislature could not be clearer: to implement the Act, the DHHS was to adopt rules, including a rule on fees, that would be categorized as "routine technical rules."
Plaintiff Stewart argues that, because section 7 of the MMMP rules establishes fees, and because the Maine Medical Use of Marijuana Act does not set a cap or a range for fees, section 7 does not fit within the Maine APA definition of "routine technical rule" and therefore is a "major substantive rule" subject to the Maine APA's more stringent requirements, including legislative approval. His Trial Brief appears to assert that, in enacting the Maine Medical use of Marijuana Act, the Legislature could not label rules as "routine technical rules" unless they fit the Maine APA definition of "routine technical rules":
While the Legislature may potentially use catch-all language to establish a large number of agency rules as routine technical rather than major substantive, the clear language of the APA does not allow for the Legislature to circumvent the APA's intent as to agency fees and those rules which are reasonably expected to have great financial impact by simply classifying all rules to be created by a legislative act as "routine technical.
Plaintiffs Trial Brief at 6.
This is not a case of circumvention. Even assuming that the fee rule that Plaintiff challenges does not fit within the "routine technical definition" of the Maine APA, the Legislature was free to depart from the APA in enacting the Maine Medical Use of Marijuana Act, It is a basic constitutional principle that no legislative act is binding upon future legislatures; a bill calling upon future legislatures to take certain action stands "on equal footing with every other law passed by the legislature" and subsequent sessions of the legislature may choose to follow it or may choose to repeal it. Opinion of the Justices, 673 A.2d 693, 695-96 (Me. 1996). Thus, the Maine Legislature is always free, in enacting legislation, to designate the agency rules it authorizes as "routine technical rules, " whether or not those rules literally fit within the Maine APA definition of "routine technical rules, "
To the extent that the Plaintiff is arguing that the Legislature's designation of the MMMP rules, including the rule on fees, as "routine technical rules" was a mistake or oversight, that argument is rebutted by the several other Maine statutes that authorize agencies to promulgate rules on fees and designate those rules as "routine technical rules, " even though the enabling statutes in question establish neither an explicit cap nor a range for such fees. See, e.g., 12 M.R.S. § 8867-F; 22 M.R.S. § 337(7); 29-A M.R.S, § 202. The existence of these multiple similar statutes plainly indicates that the Legislature's designation of the MMMP rules, including the rule on fees that it mandated, as "routine technical rules" was no mistake or oversight.
Which in relevant part provides as follows: "Fee Schedule. The bureau shall establish a schedule of fees through rulemaking for the administration of sections 8867-D and 8867-E, Notwithstanding Tide 5, section 8071, subsection 2, paragraph A, rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A, The bureau may not issue an approval, certificate, special exception or variance until the required fee has been paid, "
Which in relevant part provides as follows: "Fees. The department shall adopt rules setting minimum and maximum filing fees under this chapter, . . . Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A."
Which in relevant part provides as follows; "Agents may charge an applicant a fee over the required fees for each renewal or duplicate issued.... Rules adopted pursuant to this section are routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A."
Finally, DHHS's position is bolstered by the rule of statutory interpretation that "favor[s] the application of a specific statutory provision over4 the application of a more general provision when there is any inconsistency, " Central Maine Power Co, v. Devereux Marine, Inc., 2013 ME 37, ¶ 22, 68 A.3d 1262 (citation omitted). Because 22 M.R.S.A §2424(1) applies specifically to the MMMP rule at issue here, whereas the Maine APA provision defining "routine technical rules" applies far more broadly, the court must give effect to the specific expression of legislative intent to designate the MMMP rules as "routine technical rules, " It is also worth noting that to adopt the Plaintiffs view would convert the fee rule under challenge into a "major substantive rule" when the Legislature has specifically said that it and the other rules it authorized are not.
Accordingly, judgment will be granted to Defendant DHHS.
IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
1. The court hereby declares
(a) that the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421 et seq. authorizes the Defendant Maine Department of Health and Human Services to promulgate rules on fees for the Maine Medical Use of Marijuana Program as "routine technical rules" for purposes of the Maine Administrative Procedure Act, and
(b) that section 7 of the Rules Governing the Maine Medical Use of Marijuana Program, 10-M4 CM.R, ch. 1$$, § 7 is a "routine technical rule" for purposes of the Maine Administrative Procedure Act.
2. Judgment is hereby granted to the Defendant Maine Department of Health and Human Services against Plaintiff John Stewart. The Defendant is also awarded costs as the prevailing party.
Pursuant to M, R. Civ. P, 79(a), the Clerk is hereby directed to incorporate this Decision and Judgment by reference hi the docket. Dated March 12, 2014
Registry identification cards. The department shall adopt rules governing the manner in which it considers applications for and renewals of registry identification cards for registered patients, registered primary caregivers, principal officers, board members and employees of dispensaries and staff of hospice providers and nursing facilities designated as primary caregivers. The department's rules . . . must establish application and renewal fees that generate revenues sufficient to offset all expenses of implementing and administering this chapter and that are consistent with the provisions of section 2425, subsection 12. The department may establish a sliding scale of application and renewal fees based upon a registered patient's family income and status as a veteran of the Armed Forces of the United States.
Preliminary adoption of major substantive rules. An agency proposing a major substantive rule other than an emergency rule, after filing the notice of proposed rulemaking required by section 8052, shall proceed with rule-making procedures to the point of, but not including, final adoption. At that point, known in this section as "provisional adoption, " the agency shall file the provisionally adopted rule and related materials with the Secretary of State as provided in section 8056, subsection 1, paragraph B and submit the rule to the Legislature for review and authorization for final adoption as provided in this section. The rule has legal effect only after review by the Legislature followed by final adoption by the agency.