Calnan v. Hurley

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
Docket No. CV-22-188

)
CHRIS CALNAN et al., )

Plaintiffs,
Vv. )

SAM HURLEY, in his official role as ) ORDER ON PENDING MOTIONS
Maine Emergency Medical Services )
Director, )
and )
)
MAINE EMERGENCY MEDICAL )
SERVICES,
Defendants. )
)
Plaintiffs Calnan et al. (collectively <Plaintiffs=) have filed this declaratory
judgment action against Defendant Sam Hurley, in his official capacity as Director of
Maine Emergency Medical Services, as well as Maine Emergency Medical Services
(collectively, <Defendants=). For relief, Plaintiffs seek to invalidate a rule promulgated by
the Maine Emergency Medical Services Board (<MEMS Board=) imposing certain
vaccination requirements on EMS workers. Before the court are two dispositive motions:
(1) Defendants9 motion to dismiss and (2) Plaintiffs9 motion for summary judgment. Also
pending are Plaintiffs9 motion for leave to amend their statement of material facts and
Plaintiffs9 motion to exempt the parties from the ADR process.

BACKGROUND

The challenged immunization rule was promulgated in the wake of the Department
of Health and Human Services9 (<DHHS=) vaccination rule for healthcare workers, which
excluded EMS and dental personnel from its scope. See Pls.9 Compl. 4 13-23. On August
26, 2021, MEMS issued an emergency immunization rule. Pls.= Compl. § 24.
Simultaneously, MEMS began the process of promulgating a permanent immunization rule
for its workers. Pls.9 Compl. { 25. The permanent immunization rule4titled <Chapter 21
Immunization Requirements=4was ultimately adopted and went into effect on August 7,
2022. See Pls.9 Compl. Ex. A. The immunization rule essentially requires all EMS workers
who provide <direct patient care=! to provide proof of vaccination against COVID-19 and
to obtain an annual flu shot. See id. EMS workers are considered vaccinated against
COVID-19 when they have received all the recommended doses in the primary series. /d.
For statutory authority supporting the rule9s promulgation, MEMS cited 32 M.R.S. §
84(1)(A). Id.

This lawsuit was initiated in December 2022 by <individuals who lost employment
as EMS workers as a result of the implementation of the Immunization Rule.= Pls.= Compl.
{ 10. Plaintiffs characterize this matter as 88an action to determine the validity of the
[immunization rule]= pursuant to 5 M.R.S. § 8058 (see Pls.9 Compl. 7 1, 4), although they
reference MLR. Civ. P. 80C in a number of places as well. E.g., Pls.9 Compl. 7. As grounds
for challenging the rule, Plaintiffs assert that MEMS (1) lacked statutory authority to
promulgate the rule; (2) <may have also violated the rule-making procedures required
under the Administrative Procedures Act=; and (3) increased EMS worker shortages in
violation of its duties under the Emergency Medical Services Act (<EMS Act=). See Pls.9
Compl. {] 33-37, 54-55. Plaintiffs ask the court to invalidate the immunization rule; award
<compensation for lost wages and lost benefits under M.R. Civ. P. 80(C)(i) and 14 M.R:S.
§ 5960=; and award <compensation for other costs incurred under 14 M.R.S. § 5962.=

Defendants filed a motion to dismiss, which was followed by Plaintiffs9 motion for
summary judgment. Several additional motions are also pending, as noted below.

' <Direct Patient Care= means any activity that places an individual within six feet of a patient
for a period of fifteen minutes or more. Pls.9 Compl. Ex. A.
STANDARD OF REVIEW

Motion to Dismiss Standard

Defendants seek to dismiss the complaint pursuant to M.R. Civ. P. 12(b)(1),
12(b)(2), and 12(b)(6).

M.R. Civ. P. 12(b)(1). To the extent Defendants challenge this court9s subject matter
jurisdiction over Plaintiffs9 claims, that presents a question of law. Tomer v. Me. Human
Rights Comm'n, 2008 ME 190, § 9, 962 A.2d 335. <When a motion to dismiss is based on

the court's lack of subject matter jurisdiction, [the court] make[s] no favorable inferences
in favor of the plaintiff.= Jd.

M.R. Civ. P. 12(b)(2). With respect to rule 12(b)(2) motions challenging personal
jurisdiction, the court is not confined to the four corners of the complaint. Dorf v.
Complastik Corp., 1999 ME 133, 4] 12, 735 A.2d 984 (8Facts regarding jurisdictional
questions may be determined by reference to affidavits, by a pretrial evidentiary hearing,
or at trial when the jurisdictional issue is dependent upon a decision on the merits.9=).
<When the court proceeds only upon the pleadings and affidavits of the parties, the plaintiff
need only make a prima facie showing that jurisdiction exists, and the plaintiffs written
allegations of jurisdictional facts should be construed in its favor.= Jd. § 14 (quotation
marks omitted).

M.R. Civ. P. 12(b)(6). Finally, a motion to dismiss under rule 12(b)(6) <tests the
legal sufficiency of the complaint.= Livonia v. Town of Rome, 1998 ME 39, § 5, 707 A.2d
83. <For purposes ofa Rule 12(b)(6) motion, the material allegations of the complaint must
be taken as admitted.= /d. <In reviewing a dismissal, [the court] will examine the complaint
in the light most favorable to the plaintiff to determine whether it sets forth elements of a
cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some
legal theory.= Jd. <A dismissal should occur when it appears beyond doubt that a plaintiff
is entitled to no relief under any set of facts that he might prove in support of his claims.=
Id. (quotation marks omitted).
The general rule is that only the facts alleged in the complaint may be considered
on a motion to dismiss. Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, 4 8, 843

A.2d 43. However, <official public documents, documents that are central to the plaintiff's
claim, and documents referred to in the complaint may be properly considered on a motion
to dismiss without converting the motion to one for a summary judgment when the
authenticity of such documents is not challenged.= Jd. § 11.

Summary Judgment Standard

<A summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, referred to in

the statements [of material fact] show that there is no genuine issue as to any material fact
set forth in those statements and that any party is entitled to a judgment as a matter of law.=
Platz Assocs. v. Finley, 2009 ME 55, § 10, 973 A.2d 743 (quoting MLR. Civ. P. 56(c)). In
assessing whether this standard has been met, the court must view the facts in the light
most favorable to the non-moving party. Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME
24, | 6, 816 A.2d 63.

DISCUSSION

I. Defendants9 Motion to Dismiss

Defendants move to dismiss the complaint on three grounds. First, they seek
dismissal under M.R. Civ. P. 12(b)(2), arguing that Plaintiffs failed to name the proper
party. Second, they ask the court to dismiss any Rule 80C claims for lack of subject matter
jurisdiction pursuant to M.R. Civ. P. 12(b)(1). And finally, Defendants argue that dismissal
is required under MLR. Civ. P. 12(b)(6) because Plaintiffs9 Section 8058 challenge to the
immunization rule fails as a matter of law. These contentions are addressed below.

A. M.R. Civ. P. 12(b)(2)

Plaintiffs name Maine Emergency Medical Services and Sam Hurley, in his official
capacity as EMS Director, as defendants in this action. Defendants argue that dismissal is
warranted under M.R. Civ. P. 12(b)(2) because Plaintiffs failed to name the proper
defendant. According to Defendants, the EMS Board is the proper party because it is the
entity that has been vested with the authority to promulgate rules. The named defendants,
by contrast, <lack rulemaking authority= and <did not promulgate the rule= challenged in
this action. Defs.9 Mot. Dismiss 8.
<When a party seeks to sue an agency of the State, the proper party defendant is any
officer, office, department, agency, authority, commission, board, or institution against

whom the plaintiff has alleged a right to final relief.= Me. State Empl. Ass'n SEIU Local
1989 v. Dep't of Corr., 682 A.2d 686, 689 (Me. 1996). Moreover, the Law Court has held
that <[t]he mere misidentification of an agency of the State does not necessitate the
dismissal of the complaint.= /d. at 690. Rather, upon learning of the misidentification, the
court <should simply change the title of the case to reflect correctly the adversary parties
involved.= Id.
To place Defendants9 contention in context, it is helpful to review the Maine
Emergency Medical Services Act. The Act defines <Maine Emergency Medical Services=
to include <the board, the emergency medical services director and staff within the
Department of Public Safety responsible for carrying out the purposes of this chapter.= 32
M.R.S. § 83(16-A). The board is primarily responsible for carrying out the purposes of the
Act and has been vested with rulemaking authority. See 32 M.R.S. §§ 84, 88. The director
is charged with <administer[ing]
Maine Emergency Medical Services.= 32 M.R.S. § 88-A.
The board, director, and Maine EMS staff are <all under the auspices of the Department of
Public Safety.= Berard v. McKinnis, 1997 ME 186, ] 7 n.6, 699 A.2d 1148.
Here, Plaintiffs have appropriately named MEMS, a statutorily defined entity of
which the Board is a part. Plaintiffs also seek compensation for lost wages and benefits4
relief that if granted, would seemingly be enforceable against the director as head
administrator. See SEJU Local 1989, 682 A.2d at 689 (finding bureau was properly named
as a party where, inter alia, it could <be charged with providing part of the relief sought ...
or with insuring the Department's compliance with any judgment=). Moreover, even if
either party was misnamed, dismissal is not the appropriate remedy. Rather, the court
should simply recaption the matter to reflect the Board as the proper defendant. See id. 690.
B. M.R. Civ. P. 12(6)(1)
Although Plaintiffs9 complaint primarily relies on 5 M.R.S. § 8058 as the source for
this court9s jurisdiction, the complaint also references Rule 80C and asserts that the
challenged <rule is a final agency action affecting the rights, duties and privileges of the
individual Plaintiffs.= Pls.9 Compl. { 7. Defendants seek to dismiss any claims based on
Rule 80C for lack of jurisdiction because Plaintiffs fail to point to any adjudicatory decision
rendered by the agency; rather <the only agency-related action Plaintiffs appear to
challenge is the Board9s promulgation of the Rule.= Defs.9 Mot. Dismiss 8-10. Plaintiffs
suggest in reply that they are not making a separate claim for relief under Rule 80C, noting
that the rule is <only relevant to the Plaintiffs9 case insofar as 80C case law supports the
damages claims Plaintiffs are making under their declaratory action.= Pls.9 Reply to Defs.9
Omnibus Mem. 3 n.2.
Based on Plaintiffs9 filings, the court considers this action to be a challenge to the
agency9s rulemaking pursuant to 5 M.R.S. § 8058. There is no dispute regarding this
court9s ability to exercise jurisdiction under that provision. Thus, the primary question, as
discussed next, is whether Plaintiffs have stated a claim for relief under Section 8058.

C. M.R. Civ. P. 12(b)(6)
Defendants argue that Plaintiffs9 <Section 8058 claim seeking a declaratory
judgment that the rule is invalid should be dismissed as a matter of law.= Defs.9 Mot.
Dismiss 11. Section 8058 is the provision of the Administrative Procedure Act (<APA=)
addressing judicial review of rules and the rulemaking process. Cumberland Farms N., Inc.
v. Maine Milk Comm'n, 428 A.2d 869, 873 (Me. 1981). Under that provision, <judicial
review of an agency rule ... may be had by any person who is aggrieved in an action for
declaratory judgment in the Superior Court[.]= 5 M.R.S. § 8058(1).

Consistent with the terms of Section 8058, the Law Court has approached
rulemaking challenges in three steps: (1) <If the rule exceeds the rule-making authority of
the agency, it [will be deemed] invalid=; (2) <If a rule does not exceed the rule-making
authority, the court next reviews 8any other procedural error9 related to the promulgation
of the rule=; and (3) <if the rule is procedurally correct and within the agency's rule-making
authority, it is reviewed substantively 8to determine whether the rule is arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with law.9= Conservation
Law Found. v. Dep't of Env9t Prot., 2003 ME 62, § 21, 823 A.2d 551.

Plaintiffs9 complaint poses a theory of relief that fits into each category. First,
Plaintiffs argue that the agency lacks statutory authority to promulgate rules governing
immunization. Second, they assert that the <agency may have also violated the rule-making
procedures required under the Administrative Procedures Act.= Pls.9 Compl. 4 55.
Plaintiffs later elaborate on this vague claim in their motion papers, contending that the
rule was improperly characterized as a <routine technical rule= and was promulgated
without the necessary legislative review and approval. Finally, Plaintiffs argue that the
<agency's rule making actions violated its duties and obligations under the Emergency
Medical Services Act by substantially increasing worker shortages and otherwise hindering
and preventing the provision of necessary and essential services to Maine communities.=
Pls.9 Compl. § 54. Each claim is addressed below.

1. The Agency9s Authority to Promulgate the Immunization Rule.

<State agencies may exercise only that power which is conferred upon them by law.=
Molasses Pond Lake Assoc. v. Soil & Water Conservation Com., 534 A.2d 679, 681 (Me.
1987). <*The source of that authority must be found in the empowering statute, which
grants not only the expressly delegated powers, but also incidental powers necessary to the
full exercise of those invested.9= Jd. Indeed, an authorizing statute may <grant{] such
powers as may be fairly implied from its language.= State v. Fin & Feather Club, 316 A.2d
351, 355 (Me. 1974). <These powers are: [1] those necessarily arising from powers
expressly granted, [2] those reasonably inferred from powers expressly granted, [and] [3]
those essential to give effect to powers expressly granted.= /d. <[A]n agency's construction
of the enabling statute is entitled to great deference= by the court. Molasses Pond, 534 A.2d
at 681.
In adopting the immunization rule, the Board relied on the authority conferred to it
in 32 M.R.S. § 84(1)(A). That provision states:

1. Powers and duties. The board has the following powers and duties.
A. The board shall conduct an emergency medical services program to
fulfill the purposes, requirements and goals of this chapter. The board
shall adopt the forms, rules, procedures, testing requirements, policies and
records appropriate to carry out the purposes, requirements and goals of
this chapter.

32 MLR.S. § 84(1)(A) (emphasis added); see also 32 M.R.S. § 88(2)(B) (<With the advice
of the commissioner, the board shall adopt rules in accordance with the Maine
Administrative Procedure Act to carry out this chapter.=).
Thus, the Board is vested with broad rulemaking authority that is limited only by
the requirement that the rule be appropriate to carry out a purpose, requirement, or goal
of the EMS Act. Jd. The purposes and goals of the Act are identified in Section 81-A:

It is the purpose of this chapter to promote and provide for a comprehensive
and effective emergency medical services system to ensure optimum patient
care. The Legislature finds that emergency medical services provided by an
ambulance service are essential services. The Legislature finds that the
provision of medical assistance in an emergency is a matter of vital concern
affecting the health, safety and welfare of the public.

It is the intent of the Legislature to designate that a central agency be
responsible for the coordination and integration of all state activities
concerning emergency medical services and the overall planning, evaluation,
coordination, facilitation and regulation of emergency medical services
systems. Further, the Legislature finds that the provision of prompt, efficient
and effective emergency medical dispatch and emergency medical care, a
well-coordinated trauma care system, effective communication between
prehospital care providers and hospitals and the safe handling and
transportation, and the treatment and nontransport under appropriate
medical guidance, of the sick and injured are key elements of an emergency
medical services system. This chapter is intended to promote the public
health, safety and welfare by providing for the creation of a statewide
emergency medical services system with standards for all providers of
emergency medical services.

32 MLR.S. § 81-A.
Some purposes and goals of the EMS Act, therefore, are <ensur[ing] optimum
patient care,= the <safe handling and transportation ... of the sick and injured,= and
<promot[ing] public health, safety and welfare.= /d. Thus, the court concludes that the
agency was acting pursuant to its statutory authority in promulgating the rule: by requiring
EMS workers who provide direct patient care to become vaccinated against transmissible
and potentially deadly diseases, the Board was taking <appropriate= action <to carry out= a
purpose or goal of the Act, 1.e., ensuring optimum and safe patient care and promoting
public health, safety, and welfare. See 32 M.R.S. §§ 81-A, 84(1)(A).

Moreover, contrary to Plaintiffs9 suggestions, the Legislature need not explicitly
grant the Board the power to adopt immunization requirements4as it did with DHHS4in
order for the Board to promulgate rules governing the vaccination of EMS workers.
Compare 22 M.R.S. § 802(1)(D)(3) (<[DHHS] may establish procedures for control,
detection, prevention and treatment of communicable, environmental and occupational

diseases, including public immunization and contact notification programs=). The Law
Court has explained that authority may be <reasonably inferred from powers expressly
granted.= Fin & Feather Club, 316 A.2d at 355. And here, the power to promulgate the
vaccination rules was gleaned by reasonable inference from the powers expressly set forth
in 32 MLR.S. § 84(1)(A); see also id. § 81-A.
Nor does the Legislature9s grant of immunization authority to DHHS preclude the
Board from adopting vaccination rules applicable to its own licensees. The notion that the
Board be allowed to adopt vaccination rules in an area where DHHS has not acted is fully
consistent with the considerable discretion professional boards have in policing their
licensees, as well as the Board9s prerogative to protect public health, safety, and welfare
through rules that reasonably regulate the occupation. See 32 M.R.S. §§ 81-A, 84(1)(A).
For all the forgoing reasons, the court concludes that the Board acted within its authority
when it adopted the challenged rule.
2. Alleged Procedural Errors Related to the Adoption of the Immunization
Rule.
Plaintiffs further assert that the Board improperly characterized the immunization
rule as a <routine technical rule94as opposed to a <major substantive rule9 4and
promulgated it without the necessary legislative review and approval. In response, the
Board maintains that the rule9s designation as <routine technical= was appropriate because
the enabling statute (32 M.R.S. § 84(1)(A)) was enacted in 1982, a time when all rules
were routine technical.

In 1995, the Maine Legislature amended the APA with legislation titled <An Act to
Ensure That Rulemaking by Agencies Does Not Exceed the Intent of Authorizing
Legislation.= See L.D. 1123 (117th Legis. 1995). Those amendments were designed <to
provide for greater legislative oversight of certain new agency rules.= L.D. 1123, Statement
of Fact (117th Legis. 1995). As a result of this amendment, the APA now recognizes two
categories of rules4<routine technical rules= and <major substantive rules= 4and for each
category, establishes a different rulemaking procedure. See 5 M.R.S. § 8071(2). <Major
substantive rules= are:
rules that, in the judgment of the Legislature:

(1) Require the exercise of significant agency discretion or interpretation
in drafting; or
(2) Because of their subject matter or anticipated impact, 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 as defined in the Constitution of Maine, Article
IX, Section 21, or other serious burdens on the public or units of local
government.
5 MLR.S. § 8071(2)(B). This category is 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; Stewart v. Maine Dep't
of Health and Human Services, ROCSC-CV- 12-063, (Mar. 12, 2014).

10
Meanwhile, <routine technical rules= are defined as <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... .= 5 M.R.S. § 8071(2)(A). These
rules are subject to a comparatively limited rulemaking procedure and may be adopted by
the agency without prior legislative approval. See 5 M.R.S. § 8071(3)(A); Stewart,
ROCSC-CV- 12-063.

Under Section 8071, <[t]he Legislature reserved to itself the authority to 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.= Stewart, ROCSC-CV-12-063 (emphasis
added). This is the reason why some authorizing statutes, such as the enabling statute under
which the Board acted in this case (see 32 M.R.S. § 84(1)(A)), do not specify whether the
agency rules to be promulgated are <routine technical= or <major substantive=: They were
enacted by the Legislature before the 1995 amendments and rule classification scheme took
effect.

For rules promulgated pursuant to 32 M.R.S. § 84(1)(A)4which is an authorizing
statute enacted prior to the 1995 amendments that has not been given a designation4the
<major substantive= classification and corresponding legislative approval requirement does
not apply. Rather, rules adopted under 32 M.R.S. § 84(1)(A) are subject to standard
rulemaking procedures4i.e., the procedures that apply to <routine technical rules.= See
L.D. 1123, Statement of Fact (117th Legis. 1995) (indicating in the statement of fact
accompanying the 1995 amendments that <[r]outine technical rules are subject to current
rule-making requirements=).

Indeed, Section 8071 is clear that <rules adopted pursuant to rule-making
authorization delegated to an agency after January 1, 1996 are subject to= the
classification scheme and other procedures established by the 1995 amendments. 5 M.R.S.
§ 8071 (emphasis added). Even the title of the subchapter in which the classification
scheme appears is telling: <Rulemaking Procedures Governing Rules Authorized and
Adopted after January 1, 1996.= In other words, it is not enough that the rules be adopted

1]
after January |, 1996; the statutory authorization allowing the agency to promulgate the
rules also has come after 1996.

Thus, because 32 M.R.S. § 84(1)(A) is a pre-1996 enabling statute and because the
Legislature has not subsequently amended the provision to include a <major substantive=
designation, the Board appropriately treated the immunization rule as a <routine technical=
rule that did not require legislative scrutiny or approval.

3. Whether the Immunization Rule Violated the A gency9s Duties and Obligations
Under the EMS Act by Increasing Worker Shortages.

Plaintiffs further maintain that the immunization rule contravenes the applicable
statutory scheme by increasing worker shortages, thereby preventing local governments
from maintaining the staff necessary to serve Maine communities. <When an agency
utilizes its expertise in setting policy, as long as it does not contravene its statutory
authority, [the court will] defer to its policy determinations.= Conservation Law Found.,
2003 ME 62, § 31, 823 A.2d 551.

As discussed above, the Board acted within its statutory authority when it
promulgated the immunization rule. Adopting a vaccination rule to promote public health
and safety4even if it ultimately had adverse effects on staffing4is a classic policy
decision that warrants deference by the court.

Because Plaintiffs9 challenges to the immunization rule fail as a matter of law,
Defendants9 motion to dismiss will be granted.

Il. Plaintiffs9 Motion for Summary Judgment and Other Pending Motions

Also pending are Plaintiffs9 (1) motion for summary judgment, (2) motion for
leave to amend their statement of material facts, and (3) motion to exempt the parties
from the ADR process. Having granted Defendants9 motion to dismiss, these motions
will be dismissed as moot.

The entry is:

e Defendants9 motion to dismiss is GRANTED;

12
e Plaintiffs9 motion for summary judgment is DISMISSED as moot;

e Plaintiffs9 motion for leave to amend their statement of material facts is
DISMISSED as moot; and

e Plaintiffs9 motion to exempt the parties from the ADR process is
DISMISSED as moot.

The clerk is directed to incorporate this order on the docket by reference pursuant

to MLR. Civ. P. 79(a).

Date: July 14, 2023 < Ve )

Michaela Murphy ~
Justice, Maine Superior Court
Entered on the docket 4+ | 3/22 .