Kangaroo Courts - Maine Bar Journal- Spring 2009- JMRP Article

S P R I N G 2 0 0 9 M A I N E B A R J O U R N A L C1

MAINE BAR

THE QUARTERLY PUBLICATION OF THE MAINE STATE BAR ASSOCIATIONV O L U M E 2 4 ■ N U M B E R 2 ■ S P R I N G 2 0 0 9

Ethics and Metadata: The pitfalls of digging too deeply

World Wide Web or Wild, Wild West: Why basic rules have not tamed cyberspace

Double Secret: The unique confidentiality of substance abuse medical records

Beyond the Law: Frank Coffin, sculptor

Kangaroo Courts? Time to reexamine Maine’s Administrative Procedures Act

1 0 8 m a I N e b a R j o u R N a l • S P R I N G 2 0 0 9

It is time to re-examine Maine’s Administrative Procedures Act

In 1977 the Legislature enacted the Maine Administrative Procedure Act. 5 M.R.S.A. §§ 8001–11008 (the “APA”). The APA was a comprehensive codification of the rules governing state agency rulemaking, licensing, adjudication, and the

standards and procedure for judicial review. Among the most important provisions in the APA as first enacted was the separation of the administrative functions of investiga-tion and adjudication in licensing board disciplinary proceedings. Under the original APA, agencies were entitled to investigate complaints against regulated persons or enti-ties and initiate disciplinary actions if warranted.

However, all adjudicatory responsibilities were delegated exclusively to the independent Administrative Court. Regret-tably, since 1977 that original structure of the APA has been entirely undone. The Administrative Court has been abolished and agencies have now resumed the pre-APA combined roles of investigator, prosecutor, grand jury, and trial jury. This article argues that we need to re-examine these changes to the APA and install new due process safeguards.

Before 1961, the rules governing the operation of state administrative agencies were a confusing hodge-podge of statutory and judicially created standards. In an initial effort to provide some measure of uniformity, the Legislature that year adopted the so-called Administrative Code.1 While the Administrative Code represented an attempt to improve the

consistency of agency rule making and adjudicative func-tioning, the Code on the whole was poorly drafted and left many issues unaddressed.2 One problem was that the Code applied to only twenty-seven named agencies, leaving many others in a procedural limbo.

In addition, and notwithstanding the enactment of the Code, the procedures by which the agencies did their busi-ness remained disorganized, inconsistent, and arbitrary. The procedure for agency rulemaking remained haphazard, with public notice of proposed rulemaking action usually non-existent. Once agencies adopted rules, they could often not be easily located even by those affected by them. Administrative agency hearings were most often undertaken pursuant to ad hoc rules of procedure, and often violated fundamental due

by john m. R. Paterson

Kangaroo courts?

S P R I N G 2 0 0 9 • m a I N e b a R j o u R N a l 1 0 9

process principles. Further, the Code contained no compre-hensive and uniform procedure governing judicial review of agency rulemaking or adjudications. This lack of clarity in the appellate process was further exacerbated by an incomplete, inconsistent, and confusing set of standards enunciated by the Law Court under the then-existing version of Rule 80B of the Rules of Civil Procedure.3

Recognizing the Code’s inadequacies, in 1976 the Office of the Attorney General, under then-Attorney General Joseph Brennan, in collaboration with the Administrative Law Section of the Maine State Bar Association, undertook a year-long project to comprehensively revise Maine’s statutory administrative procedures.4 Draft legislation was presented to the Legislature in 1977 along with a comprehensive explanatory report describing the need for the Act and the intent of each of its various sections. The proposed law was modeled on the then-current version of the Model Administrative Procedure Act, the federal Administrative Procedure Act, and portions of similar laws in other states. The explanatory report itself was unique, especially for legislation crafted at a time before the exis-tence of legislative committee staff.

The draft act received a warm reception from the State Government Committee and was enacted into law that same year.5 The Act, codified at 5 M.R.S.A. §§ 8001–11008, replaced the old Code and set out a comprehensive and uniform mechanism for the adoption of agency rules, basic standards for the conduct of agency hearings, both with respect to the issuance of licenses and permits of various kinds and in disciplinary actions, and established a uniform procedure for judicial review of agency rulemaking and adjudications. There is no doubt that the Act represented an enormous improvement in the manner in which state agencies did their public business.

Prior to enactment of the APA, administrative agencies often conducted disciplinary hearings with little regard for fundamental notions of due process.6 It was commonplace for professional and occupational licensing boards, when pursing a disciplinary matter, to act as investigator, grand jury, prosecutor, judge, and jury. Such boards made no attempt to separate those functions among different members or staff of

the agency or to screen one function from another. The orig-inal 1977 version of the APA changed all that. To that end, the APA expanded the jurisdiction of the then-Administrative Court. Although the Administrative Court already existed, up to that time it had acted largely as an appellate court and heard few cases of any kind. The 1977 APA divested profes-sional licensing boards of the power to exercise the multiple functions of investigation, prosecution, judging and meting out discipline (i.e., imposing fines, suspensions, revocations, or other disciplinary action). Instead, the Act provided that while an agency could investigate complaints and decide whether or not to commence a disciplinary proceeding, the agency’s

complaint had to be tried before and decided by the Administrative Court. The Administra-tive Court was vested with exclusive authority to adjudicate agency disciplinary actions. By any measure, this was a remarkable reform in the operation of Maine state agencies.

Unfortunately, in the years since the enact-ment of the APA in 1977, this singular reform has now been entirely undone. In a series of amendments beginning almost immediately after passage of the APA, the Legislature began to whittle away that law, presumably at the behest of the agencies, by adding wholesale exceptions to the Administrative Court’s exclu-sive jurisdiction. As a result, by 1989, this original and essential jurisdictional mandate of the APA had been completely emasculated.

The main beneficiaries of this change to the APA have been Maine’s professional and occupa-

tional licensing boards and agencies. Under §10051(1) of the APA, virtually all the professional and occupational licensing agen-cies of the state are now exempt from the requirement that their enforcement actions proceed in Court. The various licensing boards and agencies within the Department of Professional and Financial Regulation—the department which encompasses all the professional and occupational licensing agencies in the state—now have disciplinary authority that is “concurrent” with that of the court. No longer is it required that agency enforce-ment actions be brought to the District Court.7 As a result, the original reform envisioned by the APA has been erased.

Since this legislative reversal of course, there has unfortu-nately been no comprehensive reassessment of the consequences. As far as is known, no study has been done to systematically gather data on administrative practices. However, based on extensive anecdotal evidence, the following is a brief descrip-tion of how most agencies now operate.

john m.R. Paterson is trial attorney at bernstein Shur in Portland, maine. His practice concentrates on civil business litigation, as well as the representation of licensed professionals before a variety of state professional and occupational licensing boards.

The legislature

began to whittle

away the law,

presumably at

the behest of

the agencies, by

adding wholesale

exceptons to the

Administrative

Court’s exclusive

jurisdiction.


Upon receipt of a complaint against a licensee, the state agency or board will typically undertake to investigate the charges. For those boards that have a staff, the investiga-tive function is delegated to a staff person. For the agencies without an investigator, the agency designates one of its board members to act as the investigating or complaint officer.

Usually, the only contact with the licensee is a letter from the complaint officer to the licensee requesting a written response to the complaint. The extent to which a complaint officer gathers information and data from third parties—that is, from persons other than the complainant and licensee—varies widely, and depends on the professional experience of the investigator. Rarely does the complaint officer actually interview the licensee, although it is not uncommon to inter-view the consumer complainant. The complaint officer will gather such information as he or she thinks necessary, but rarely does he or she share that additional information with the licensee to get the licensee’s full perspective on the matter.

And it is usually even rarer that the investi-gator will attempt to gather independent facts through witness interviews or examination of third-party documents to test the accuracy or reliability of statements of either the complainant or licensee. More importantly, such independent fact-gathering, regardless of its extent, is almost never disclosed to the licensee at the investi-gative stage in order to afford the licensee an opportunity to respond.

Armed with the results of that “investigation,” the complaint officer meets with the board, of which he may even be a member, to review the results. The board’s assigned attorney, normally an assistant attorney general, is ordinarily present. The licensee may be—but some-times is not—informed of the meeting. However, even if the licensee is informed and attends the meeting, the licensee is not entitled to speak. The board confers with the investigating staff or board complaint officer and the assistant attorney general to determine whether to proceed with a disciplinary action. Although it depends on the individual style of the particular board attorney, it is not unusual for the board’s attorney, along with the complaint officer, to advocate for or encourage the board to act one way or another, e.g., either to dismiss the complaint or to initiate an enforcement action. In

this regard there is no uniformity of practice among board attorneys.

In essence, during the complaint presentation, the board acts like a grand jury, deciding by majority vote on the basis of the investigation presented to it whether there is a sufficient basis to believe that disciplinary action against a licensee is warranted. The licensee is not entitled to address the board at this stage to attempt to persuade it to not issue a complaint, but must sit mute while his or her fate is decided.

As part of this ex parte process, it is not unusual for some boards to simultaneously vote on the terms of a proposed “consent agreement” to be presented to the licensee. The board may discuss and vote on certain terms of the consent agreement, including designating the rule or law allegedly violated and the kind of discipline, sanctions, fine, or other conditions to be imposed on the licensee.8

Following this grand jury-like process, the board’s attorney drafts a complaint or consent agreement, or both, and serves them on the licensee. The complaint will usually contain a general statement of the statute or rule that the licensee is alleged to have violated and will contain a notice of a hearing date. Often, however, the complaint will not contain a state-ment of the specific factual allegations that constitute the alleged misconduct. Normally the complaint will notify the licensee of a pre-set hearing date, which is rarely more than thirty to sixty days following the date of the complaint notice. The hearing date is set without prior

consultation with or regard for any scheduling difficulties it may present for the licensee or the licensee’s attorney. In the event that only a proposed consent agreement is served, the letter of transmittal will contain an explicit warning that an adjudicatory hearing will be scheduled if the licensee does not accept the consent agreement.

Such simultaneous service of a complaint and consent agreement immediately puts the licensee on the horns of a dilemma. If the licensee enters into settlement negotiations, but those negotiations prove unsuccessful, the licensee then has to face at a hearing the very same board that tendered the proposed settlement terms. The licensee is placed in an impos-sible situation: either settle with the board or face it as a jury,

if the licensee

enters into

settlement

negotiations, but

those negotiations

prove unsuccessful,

the licensee then

has to face at

a hearing the

very same board

that tendered

the proposed

settlement terms.


knowing that the jury will likely think the licensee was unrea-sonable for not having accepted a settlement before the hearing. Nothing like this happens in any other adjudicatory setting. It is a little like the accused being offered a plea bargain by the trial jury based only on what the jury heard from the pros-ecutor before the trial begins. And it surely raises questions as to whether the finder of fact can thereafter be impartial.

If a licensee does not accept the offered consent agreement, or other terms cannot be agreed upon, the board proceeds with an adjudicatory hearing. Once the matter moves into the adju-dicatory hearing phase, the same board that acted as a grand jury becomes the petite jury to judge whether the licensee did in fact commit the violations. In other words, the board that decided that there was sufficient evidence to believe a violation occurred is the same board that will decide if those violations actually did occur. By way of analogy, this switching of roles by the board is akin to a grand jury in a court proceeding, having met privately with the prosecutor and police investigators, and having returned an indictment, then being converted into the trial jury to hear evidence presented by the very prosecutor with which the jury met as part of its private grand jury inquiry. In reality, the board—having previ-ously decided to issue a complaint to start the proceeding—is usually primed to find a violation.

Similarly, the assistant attorney general assigned to the board as the board’s attorney takes on the role of prosecutor before the very board to which he previously acted as legal counsel. Thus the same lawyer on whom the board relies for everyday legal advice, practical guidance and often institutional memory is the same lawyer who present the case to his “client” board to persuade the board to find that the licensee has violated an ethical standard, law, or a board regulation. This special relation-ship between the “prosecutor” and the “jury” plainly puts the licensee in a decided disadvan-tage during the hearing. Human nature being what it is, most boards are naturally more inclined to be persuaded by an argu-ment from their own lawyer than by the licensee’s lawyers. While it is sometimes possible to persuade a board to change its mind, the accused licensee nonetheless enters the proceed-ings before a board that has already found probable cause to believe that the licensee committed the offense of which he or she is accused.

Before the hearing there is limited opportunity for the licensee to learn the details of the evidence in support of the complaint. Neither the APA nor the rules of any of the boards provide a mechanism for the licensee to have the benefit of any

“discovery.” While most of the board “prosecutors” will volun-tarily provide a list of witnesses and exhibits they intend to use, this is not always the case. Moreover, even when a witness list is supplied, there is no sure way to find out in advance of the hearing what any of the board witnesses will say. Requests for depositions of board witnesses are routinely denied. So the licensee has to enter the hearing essentially “flying blind.” Unlike the board, which may have taken months to gather evidence, the licensee usually has only thirty to sixty days to prepare, and has to do so with only the most limited knowledge of the claims and evidence that he or she will have to rebut.

At the hearing, the board will often hear testimony from its staff member or the investigating board member. Sometimes, a board member may even testify as an expert. If the investiga-tion was conducted by a board member, or if a board member testifies at the hearing, that member will recuse himself

from any deliberations, but in a battle of cred-ibility, the testifying board member usually wins. When faced across the hearing table by a board member colleague or staff member with whom the board has a regular collegial working rela-tionship, and with that board member or staff person testifying as fact or expert witness, it is the rare board indeed that finds their colleague to be less credible than the accused licensee.

At the hearing itself, judicial rules of evidence do not apply. The APA expressly provides that:

“Evidence may be admitted if it is the kind of evidence upon which reasonable persons are accus-tomed to rely in the conduct of serious affairs. Agencies may exclude irrelevant or unduly repeti-tious evidence.” 5 M.R.S.A. § 9057(2). On its face, this language would seem to require the hearing

officer to make a threshold determination of whether the partic-ular piece of evidence is the kind of evidence that “serious people would rely on in the conduct of serious affairs” (e.g., would a

“serious” person decide whether to make a “serious” decision in his or her life based on unreliable information). But in practice, that statutory requirement is customarily applied in such a way that almost any evidence tendered at a hearing is admitted, including wide-ranging hearsay and double-hearsay from sources such as

The board that

decided that there

was sufficient

evidence to

believe a violation

occurred is the

same board that

will decide if those

violations actually

did occur.


newspaper articles, unauthenticated information on websites, unauthenticated letters and e-mails, and oral “statements” from persons who are themselves not present to testify.

Although most board hearings are presided over by a so-called “hearing officer” who makes rulings on procedural issues that arise in a hearing before the board, as a practical matter this provides little protection for the rights of the licensee. Most boards are routinely served by the same hearing officer, sometimes a state employee but often an attorney in private practice who is paid by the agency or the Department of Professional and Financial Regulation. In some cases, the hearing officer may even be another assistant attorney general.

Because the hearing officers tend to regu-larly advise the same boards, an outside observer might fairly question whether such hearing offi-cers lack true independence or whether they defer to their client board. Human nature being what it is, one might also fairly ask whether such hearing officers have an incentive, either economic or based on longer standing personal or professional relationships, not to make evidentiary or procedural rulings that might displease their client agencies. In any event, and whatever the reason, long observation of the process cannot help but lead to the conclusion that the typical relationship of the hearing officer to the client board is not one of arms-length independence.

As a result, counsel’s objections to any of the foregoing procedures on the basis of due process considerations are routinely denied by the hearing officers.9 Indeed, it is not unusual for lawyers about to defend a case before the board to be warned by the hearing officer in the pre-hearing conference to be careful about challenging the board too much and to be reminded that the lawyer is not in a court of law and that the lawyer should not be too aggressive.10

While it is true that a licensee can appeal any adverse action by a board, as a practical matter this is a hollow option. In its original formulation, an adverse decision from the then-Administrative Court could be appealed to the Superior Court. But with the change in the APA as set out above, the appellate remedies were also altered. Even more confusingly, the current appellate rights are now found not in the text of the APA, but rather in the statutes governing the Department of Professional and Financial Regulation.

And to make it more confusing, the nature of the appel-late right depends on the type of action taken by the board. If the board acts to revoke a license, the licensee may appeal to the District Court and obtain a trial de novo. 10 M.R.S.A. §§ 8003(5)(G) and (5-A)(G).11 If, however, the disciplinary action is anything short of revocation, including, for example, a lengthy suspension or the imposition of a fine, the appeal is to the Superior Court and, except for very limited circum-

stances, is limited to an appeal on the record. 5 M.R.S.A. § 11005. Under the APA, the Supe-rior Court must sustain the findings of the fact made by the board if there are any facts in the record on which the board could have reason-ably relied, even if the Superior Court would itself have not reached the same conclusion. 5 M.R.S.A. §11007(4)(C)(5).

Thus, except in the case of license revocations, it is impossible for the accused licensee to have the facts decided by an impartial fact finder. The reasons for this disparate appellate treatment of license suspensions and revocations are not stated in the statute or legislative history.

Frankly, the distinction is not rational or fair. As a practical matter, fines can be large, and

extended suspensions from employment can be devastating and end a professional career just as surely as a license revoca-tion.12 Why the statutes make such a distinction is a mystery.

Finally, since enactment of the APA in 1977, the role of the attorney general has been altered in a way never contemplated by the original APA. Under Title 4 M.R.S.A. § 152(9) the attorney general has independent authority to initiate a license disciplinary proceeding in the District Court “if the licensing agency fails or refuses to act within a reasonable time.” If the attorney general, having met with the agency in an ex parte grand jury-style proceeding, disagrees with an agency’s deci-sion not to initiate disciplinary action, the attorney general may nonetheless file such an action on her own without regard to the agency’s decision.

Even more remarkably, no professional or occupational licensing board may execute an administrative consent decree without the agreement of the attorney general. 10 M.R.S.A. §§ 8003(5)(B) and (5-A)(C). Similarly, with respect to consent agreements, the attorney general has independent enforcement authority. Id. Thus, even if an agency thinks a proposed settle-ment of a pending administrative action is satisfactory, the

Fines can be large,

and extended

suspensions from

employment can

be devastating and

end a professional

career just as

surely as a license

revocation.


attorney general may veto it. And such a consent agreement, once entered, may not be modified by the agency or board without the consent of the attorney general. Id. As a result of all this, the attorney general effectively has authority identical to that of the professional and occupational licensing boards, and for disciplinary purposes can act as a de facto licensing board. None of this was in the original APA.

For whatever reason, none of the procedural concerns raised here have been addressed by the Maine courts. It may well be that as a practical matter the costs of appeal are simply too daunting, especially a trial de novo in the District Court. Further, an appeal on the record from a suspen-sion only gets the successful appellant a new administrative trial before the same judge and jury. The reality is that the overwhelming number of such enforcement actions are, not surprisingly, resolved through a consent agreement.

It must be acknowledged that some of these practices would probably pass constitutional muster—assuming, of course, that the Maine Law Court follows existing case law. The combining of investigative and fact-finding functions as described above has almost uniformly been held to meet the test of constitutional due process. See, e.g., Withrow v. Larkin, 421 U.S. 35 (1975).13 Although it is conceivable that the Law Court might chart a different course by holding such combining of functions to be inconsistent with the due-process provisions of the Maine Constitution, it would be a brave court indeed that would do so in light of the substantial body of jurisprudence on this issue from other jurisdictions, and in the face of a virtu-ally uniform practice by all Maine boards.

The issue with respect to the admissibility of hearsay in such proceedings is more muddy. Some federal courts have held that hearsay is admissible and may form the basis, without more, for an agency decision to impose disci-plinary sanctions.14 On the other hand, other federal courts have held that consideration of hearsay in an administrative proceeding constitutes a denial of due process.15

Regardless of whether these practices pass constitutional muster, fundamental public policy issues remain. Are these practices ones which we believe satisfy our fundamental notions

of fair play? Clearly, we do not accept anything like the fore-going in civil or criminal court. The prosecution of a simple speeding ticket, which might result in at most a fine of a few hundred dollars, will entail greater due process protection than does a proceeding to revoke a license to practice a profession or occupation or to impose a fine that could total in the thousands of dollars.16 The stakes in administrative disciplinary actions often carry the potential for occupational “capital punishment,” since a serious administrative sanction—even a sanction less than license revocation—may mean the end of a career.

It is also particularly instructive to compare the above-described system of professional discipline to that applied to lawyers through the Maine Bar Rules. Unlike the system applied to other professionals and occu-pations, that the Maine Law Court has crafted a system of professional discipline for lawyers that incorporates rigorous standards of procedural due process. Under the system of professional disci-pline set forth in Rule 7 of the Maine Bar Rules, there is scrupulous separation of functions between those panels that act as grand juries and those that act as finders of fact. No members of the Grievance Commission assigned to a case may serve in both capacities. Any disciplinary action more serious than a public reprimand requires a hearing before a single justice of the Law Court applying the Rules of Civil Procedure and the Rules of Evidence. Me. Bar Rule 7.2.

Indeed, even in the case of a reprimand, the lawyer is entitled as a matter of right to demand a full evidentiary hearing. Id. An outside observer might find it ironic at best, and hypocritical at worst, that the legal profession is able to craft for itself a system of discipline that provides full due process protections to its members but then argues against the application of such procedures to other licensed professionals.

There is no doubt that the boards, the assis-tant attorneys general, and the hearing officers take very seriously the fact that their decisions

have a significant impact on a licensee’s life. The motives of the players—to protect the public—are undoubtedly well inten-tioned. There is also probably little doubt that the vast majority of board actions are justified and just. There is, however, absolute certainty that the path to final resolution of disciplinary actions

The prosecution of

a simple speeding

ticket, which might

result in at a most

a fine of a few

hundred dollars,

will entail greater

due process than

does a proceeding

to revoke a license

to practice a

profession or

occupation or

to impose a fine

that could total in

the thousands of

dollars.


is fraught with due-process peril that can lead to true unfairness, if not complete injustice.

Despite the foregoing, and notwithstanding the brief inter-lude from 1977 to 1989 when exclusive jurisdiction was vested in the Administrative Court, the Maine legal system has judged the fairness of administrative proceed-ings by a different standard. We have done so because we indulge in a number of legal fictions: that a professional “expert” board can remain objective in deciding the validity of the very charges it has lodged against the licensee; that a panel of “experts” in the particular profession or occupation is better suited to mete out discipline than judges who are mere “generalists”; that the ongoing relationship between the prosecutor and his client board will not affect the outcome of the proceeding; that the relationship between the board as jury and its own testifying members and staff will not influence a board’s ability to objectively assess credibility; and that an “expert” board can properly distinguish between properly admissible testimony and hearsay and give each its proper weight. In the real world, of course, we know these propositions are simply not true.

With respect to standards of evidence, it may well be that admissibility of hearsay in initial licensing hearings or hearings on permitting matters such as before the Board of Environmental Protec-tion, the Land Use Regulation Commission, or similar agencies may make sense and satisfy our sense of fair play. In permitting hearings before those bodies, the issues to be decided involve considerations of public policy (e.g., whether a proposed devel-opment constitutes an unreasonable alteration of the natural environment or undue intrusion on scenic vistas) far more than considerations of the credibility of evidence, as in cases of profes-sional misconduct (e.g., whether the licensee engaged in specific conduct that violated a statute or rule). In the former, admitting hearsay may well be appropriate. But in matters of career termi-nation or suspension, admissibility of hearsay ought not to be permissible. Regrettably, the original version of the APA failed to make this distinction. That error ought to be corrected.

Reform would not be difficult. All that is needed is to require that administrative disciplinary complaints must be heard by the District Court pursuant to the Rules of Civil Procedure and the Rules of Evidence. Such simple change

entails no additional cost to state government and would instantly create a fair and balanced system of justice.

It is, of course, undeniably true that many persons who are subjected to discipline by professional and occupational boards have in fact committed an act that warrants an appro-

priate sanction. But that fact begs the question of whether the underlying process is fair. The fact that most people who are accused of crimes are found guilty, or plead guilty, does not mean that we are therefore justified in creating a system of judicial justice that shortcuts funda-mental due process. Indeed, we afford more procedural protections in an action to enforce a traffic infraction under Rule 80F, to enforce a municipal land use ordinance violation under Rule 80K, or for forcible entry and detainer under Rule 80D, than we do in an administra-tive proceeding that could terminate one’s right to pursue a profession.

A licensee is entitled to a fair unbiased process. And perhaps equally important, licensees are entitled to a system where disci-plinary action is the result of a process that is perceived to have been conducted in a fair fashion, and not one resembling a “kangaroo court.” The regulatory mission of these agencies is undeniably laudatory—but government,

acting through these various agencies, has an obligation to dispense justice fairly, whatever the forum. We do it for our own legal profession. We should afford the same fundamental due process safeguards to other professions, as well.

1. Me. Public Laws 1961, ch. 394. 2. For a useful commentary on the shortcomings of the original

Administrative Code see Comment, “The Quest for Justice in Maine Administrative Procedure: The Administrative Code in Application and Theory,” 18 Me.L.Rev. 218 (1966).

3. In Re Maine Clean Fuels, 310 A.2d 736 (ME 1973); Frank v. Asses-sors of Skowhegan, 329 A.2d 1974 (Me. 1974); Small v. Gartley, 363 A.2d 724 (Me. 1976); Gagne v. Lewiston Crushed Stone Company, 367 A.2d 613 (Me. 1976); Carlson v. Oliver, 372 A.2d 226 (Me. 1977); In the Matter of Lappie, 377 A.2d 441 (Me. 1977); Gashgai v. Board of Registration in Medicine, 390 A.2d 1080 (Me. 1978); Reed v. Halperin, 393 A.2d 160 (Me. 1978)

4. The author was at the time deputy attorney general and was responsible for developing and supervising the project.

5. Me. Public Laws 1977, chs. 551 and 694. 6. For an example of particularly egregious behavior by a

licensing board, see Gashgai v. Board of Registration in Medicine, 390 A.2d 1080 (Me. 1978)

7. In 1999, as a part of a general court reorganization, the Legisla-ture abolished the Administrative Court and transferred its functions

reform would not

be difficult. All

that is needed is

to require that

administrative

disciplinary

complaints must

be heard by the

District Court

pursuant to the

rules of Civil

Procedure and the

rules of evidence.


to the District Court. Public Laws 1999, ch. 547. The District Court now has statutory jurisdiction of complaints to revoke or suspend licenses issued by an agency. 4 M.R.S.A. §§ 152 and 184.

8. Some agencies also issue “letters of guidance” advising the licensee of his ethical or legal obligations and encouraging appro-priate remedial action to ensure future compliance. 10 M.R.S.A. § 8003(5-A)(F). “Letters of guidance” may be issued without affording a hearing to the licensee. Although by statute they are deemed not to constitute “adverse disciplinary action,” the letters may contain factual statements and legal conclusions regarding the licensees conduct. The letters may be placed in a licensee’s file for up to ten years and are a public record. The law is unclear as to whether such letters constitute “final agency action” under 5 M.R.S.A. § 11002 entitling the licensee to appeal.

9. It is also worth noting that the hearing itself is recorded by means of a passive voice activated electronic recorder. No court reporter takes the transcript. Unless the speaker identifies him/herself, it may well be difficult to produce an accurate transcript, since a later typed transcription of the recording may not accu-rately identif y the speaker. Further, if two people speak at the same time, the transcription is often garbled. Thus, if the licensee wants to ensure that an accurate transcript is prepared, the licensee must provide and pay for a court reporter.

10. The relationship among the prosecuting A AG, the Board members, the testif ying board staff or complaint officer and the hearing officer are so close that it is not unusual for all of them to share lunch or dinner during a break in an adjudicatory hearing, while the licensee and his or her counsel must fend for themselves.

11. The provisions of sub-sections (5) and (5-A) of § 8003 are largely overlapping and identical.

12. A board within the Department of Professional and Financial Regulation board may impose a fine of up to $1,500 and enter an order of suspension for up to 90 days for “each violation.” 10 M.R.S.A. §§ 8003(5)(A-1)(2) and (5)(A-1)(3). For complaints with multiple viola-tions, the potential suspensions and fines can be significant. In addition, for health care professionals, a license suspension will result in a federal and state exclusion from participation in all federal health care programs, like Medicare and Medicaid (MaineCare). In Maine, such an exclusion effectively precludes any employment in the health field, even as a billing or filing clerk or receptionist, for at least as long as the suspension lasts. Even if a board later reinstates the licensee, reinstatement into the federal health care system is not a foregone conclusion.

13. For a thorough discussion of whether an agency must separate the functions of investigation and fact finding in order to meet due process requirements, see Pierce, Administrative Law Treatise, §§ 9.8 and 9.9 (4th ed. 2002).

14. See, e.g., People’s Mujahedin Organization v. Department of State, 182 F.3d 17 (D.C.Cir. 1999); Johnson v. United States, 628 F.2d 187 (D.C. Cir. 1980; Felzcerek v. INS, 75 F.3d 112 (2d Cir. 1996); Calvin v. Chater, 73 F.3d 87 (6th Cir. 1996): Bennett v. NTSB, 55 F.3d 495 (10th Cir. 1995); Gray v. Department of Agriculture, 39 F3d 670 (6th Cir. 1994 (upholding finding of fact based entirely on hearsay evidence); Crawford v. Department of Agriculture, 50 F.3d 46 (D.C. Cir. 1995) (upholding finding of fact based on hearsay evidence in an administrative civil penalty hearing); Pascal v. United States, 543 F.2d 1284 (Ct.Cl.1976).

15. See for example Doty v. United States, 53 F.3d 1244 (Fed. Cir. 1995); Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999); Yancey v. Apfel, 145 F.3d 106 (2d Cir. 1998); Flatford v. Chater, 93 F.3d 1296 (6th Cir. 1996); Demenech v. Department of Health and Human Services, 913 F.2d 882 (11th Cir. 1990); Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990).

16. Although in some communities in Maine the police prosecute their own speeding tickets, they do not act as legal advisor to the judge who will decide the case. Further, they are subject to cross-examination by the alleged speeder or his law yer, as provided for under the Maine Rules of Evidence.

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Kangaroo Courts - Maine Bar Journal- Spring 2009- JMRP Article

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