Robbins v. Maine Commission on Indigent Legal Services

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss CIVIL ACTION
DOCKET NO. KENSC-CV-22-54

ANDREW ROBBINS, et al., )
)
Plaintiffs, )
)
V. )
) ORDER ON MOTION
) TO DISMISS
MAINE COMMISSION ON INDIGENT )
LEGAL SERVICES, et al. )
)
Defendants )
)

Before the Court is State of Maine's I Motion to Dismiss Plaintiffs' Complaint. The State

moves to dismiss both of Plaintiffs claims -Count I, a 42 U.S.C. § 1983 claim for violation of

the Sixth Amendment, and Count II, a claim for failure to promulgate rules under 5 M.R.S. §

8058. 2 First, the State argues that Count I does not allege circumstances that constitute actual or

constructive denial of counsel, or prejudice resulting from such a denial. Therefore, the State

argues, Plaintiffs do not have standing to pursue Count I. The State next argues that Count I fails

to state a claim upon which relief can be granted because the Court cannot order Maine

Commission on Indigent Legal Services ("MCILS") to fund the indigent criminal defense

system. Finally, the State argues that Count II should be dismissed because Plaintiffs do not state

a cognizable or timely claim.

1 Although the Motion states that it was filed by Defendants collectively, at the hearing on the Motion to Dismiss on

5/26/2022. Assistant Attorney General Magen is clarified that he represents the State of Maine. Executive Director
for MCI LS Justin Andrus stated that the positions taken by the State are not necessarily representative of MCILS
and that the agency's request for separate counsel was "denied." Therefore the Court understands the Motion to be
brought only by the State of Maine.
2 Plaintiffs have also filed a Motion for Class Certification, which the Court will rule on separately.
The Court held a hearing on the Motion to Dismiss on 5/26/2022. 3 Plaintiffs, five

indigent defendants currently assigned appointed counsel in criminal proceedings in Maine, were

represented by Attorney Zachary Heiden of the American Civil Liberties Union of Maine, and

the State was represented by Assistant Attorney General Sean Magenis. For the following

reasons, the Court denies the State's Motion as to Count I and grants the Motion as to Count 11.

Lega1 tandard

Dismissal is appropriate where the court lacks subject matter jurisdiction. M.R. Civ. P.

12(b)(l). When a motion to dismiss is based on the court's lack of subject matter jurisdiction, the

court does not make inferences favorable to the nonmoving party. Tomer v. Me. Human Rights

Comm 'n, 2008 ME 190, ~ 9, 962 A.2d 335. "A necessary element of justiciability is standing, the

absence of which impairs the subject matter jurisdiction of the court." Smith v. Allsrate Ins. Co.,

483 A.2d 344, 346 (Me. 1984) (citation omitted); see also Connors v. Int 'l Harvester Credit

Corp., 447 A.2d 822, 824 (Me. 1982). Standing requires a concrete and pa1ticularized injury

which is actual or imminent. Madore v. Me. Land Use Regulation Comm 'n, 1998 ME 187, ~ 13,

715 A.2d 157.

On a Rule 12(b )( 6) motion to dismiss, the court construes the complaint in the light most

favorable to the nonmoving party to determine whether the complaint alleges the elements of a

cause of action or facts that may justify relief on any legal theory. Stevens v. Bouchard, 532 A.2d

1028, 1030 (Me. 1987).

3 At that hearing, the Court approved Defendant's M.R. Civ. P. 25(d) Notice of Substitution regarding a
Commissioner of MCILS, a named patty in this lawsuit. Mr. Robert Cummins, the former Commissioner, has
resigned and is no longer a patty to this case in his official or individual capacity.

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Discussion

The State makes three arguments in support of its Motion. First, it argues that the

Complaint does not allege a justiciable controversy. Specifically, it argues that Plaintiffs do not

have standing because they do not allege adequate harm . The Court disagrees . Contrary to the

State's assertions, Strickland v. Washington, 466 U.S. 668 ( 1984 ), does not establish the standard

for a claim that counsel is ineffective currently; the Strickland standard applies retrospectively.

Luckeyv. Harris,860F.2d 1012, 1017(11thCir.1988)(holdingthattheStrick/andprejudice

standard is "inappropriate for a civil suit seeking prospective relief."). Instead, a Plaintiff seeking

prospective relief must show "the likelihood of substantial and immediate irreparable injury, and

the inadequacy ofremedies at law." 0 'Shea v. Littleton, 414 U.S. 488, 502 (1974). Plaintiffs

allege that they have been denied counsel, both actually and constructively, because Maine's

system for providing counsel to indigent defendants is inadequate under Sixth Amendment

standards. 4 The Court finds that the harm alleged is sufficient to establish standing. Therefore,

the State's first argument for dismissal fails.

The State next argues that Count I does not assert a claim upon which relief can be

granted because it improperly requests funding. The State is correct that the Maine Constitution's

separation of powers requirement is "much more rigorous" than that in the United States

Constitution, Bates v. Dept. ofBehavioral & Developmental Servs., 2004 ME 154, ~ 84, 863

A.2d 890. However, even Maine's robust separation of powers requirement does not prevent a

court from ordering MCILS to comply with the Constitution if a constitutional violation has

4 Plaintiffs allege the harm they have alleged runs afoul of Gideon v. Wainwright, 372 U.S. 335 (1963) (appointment

of counsel), and United States v. Cronic, 466 U.S. 648 ( 1984) (constructive denial of counsel). In addition, Plaintiffs
argue the harm meets the standard for prospective relief from systemic Sixth Amendment violations, which has been
recognized in other jurisdictions. As examples, Plaintiffs cite to Kuren v. Luzerne Cty., 146 A.3d 7 I 5, 743 (Pa.
2016); Hurrell-Harring v. State, 930 N.E.2d 217, 226-7 (N .Y. 2010) ; Luckey v. Harris , 860 F.3d 1012, 1018 (I Ith
Cir. 1988); Tu cker v. State, 394 P.3d 54, 62-3 (Idaho 2017) ; Duncan v. Stal e, 284 Mich. App. 246, 3 I 1-2 (2009).

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occurred. See Dept. ofCorrections v. Superior Ct., 622 A.2d 1131, 1134 (Me. 1993 ). While the

Court agrees it has no authority to direct a specific appropriation, Plaintiffs do not request that

relief. See Burr v. Dept. ofCorrections, 2020 ME 130, ~~ 26-7, 240 A.3d 371 (2020). Moreover,

ensuring adequate funding is only a part of the remedy sought. The Court agrees with Plaintiffs

that their "requests for declaratory and injunctive reliefleave ample room for the Court to issue

an order that accords with the Commission's role in the statutory scheme." Opposition to Motion

to Dismiss at 13; see also 4 M.R.S. §§ 1801 (requiring the Commission work to ensure adequate

funding), 1805 (requiring the Executive Director to apply for and accept available funds). The

Court would obviously have to be cognizant of the separation of powers doctrine if any remedy

were ordered. However, this case is quite far from any Plaintiff, or class of Plaintiffs, being in a

position to request any remedy at all. Therefore, the Court finds that the State's second argument

for dismissal fails.

Finally, the State argues that Count II should be dismissed, first, because MCILS is not

required to engage in formal rulemaking, and second, because Plaintiffs did not file a proper or

timely claim. Title 4 M.R.S. section 1804 subsection 2 states "[t]he Commission shall develop

standards governing the delivery of indigent legal services." The State argues that the

"standards" the Commission is required to develop are not formal rules. A "rule" is defined in 5

M.R.S. § 8002(9)(A) as

the whole or any part of every regulation, standard, code, statement of policy, or

other agency guideline or statement of general applicability ... that is or is

intended to be judicially enforceable and implements, interprets or makes specific

the law administered by the agency, or describes the procedures or practices of the

agency.

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The State claims that the standards contemplated by section 1804 are instead "[p]olicies or

memoranda concerning only the internal management of an agency or the State Government and

not judicially enforceable." 5 M.R.S. § 8002(9)(B)(l); see also DownEast Energy Corp. v. Fund

Ins. Review Bd., 2000 ME 151, ~ 23, 756 A.2d 948. The Court agrees that "standards" as used in

§ 1804(2) do not mean formal rules. At the outset, there is no indication these standards are

meant to be judicially enforceable. Further, the Court notes that the Legislature used the word

"may" when it empowered the Commission to "adopt rules to carry out the purposes of this

subchapter." 4 M.R.S. § 1804(4). Compare§ 1804(4) ("The commission may ... "), with§

1804(1) ("The commission shall ... "), and§ 1804(2) ("The commission shall ... "), and§ 1804(3)

("The commission shall. .. "). The Court believes that the Legislature would have required the

Commission to engage in rulemaking if that was its intention. Because the Court does not find

that the Commission should have promulgated rules when the Legislature intended that power to

be discretionary, Plaintiffs' Count II should be dismissed. 5 The Court need not reach the State's

contention that Plaintiffs have made an improper filing under 5 M.R.S. § 11001(2).

Conclusion

For the foregoing reasons, the State's Motion to Dismiss is denied as to Count I and

granted as to Count II.

The entry is:

5 If the Plaintiffs are alleging that the Commission is failing to require adherence to the standards they have created

or that their standards are inadequate, those claims may be relevant to Count I. The Court will leave it to Plaintiffs to
decide if they wish to seek leave to amend to add such an allegation.

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' r •

The State's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

Plaintiffs' Count II is DISMISSED. The State must file an Answer to Count I no later than June

20, 2022. Oral argument on the fully-briefed Motion for Class Certification shall be scheduled as

soon as practicable after that date.

The clerk may incorporate this ruling into the docket by reference pursuant to M.R. Civ. P. 79(a).

DATE:- - - - - ­
M. Michaela Murphy
Justice, Superior Court

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