The Maine Administrative Procedure Act (“Act”) is found in Title 5, Part 18, Chapter 375 of the Maine Revised Statutes Annotated. According to this statute, if there is an existing or newly adopted statutory provision which is inconsistent with the Act, then that statutory provision will be governed by the Act, unless otherwise expressly authorized by the statute. Further, the Act does not apply to adjudicatory proceedings and licensing proceedings initiated prior to July 1, 1978, judicial review of adjudicatory and licensing procedures initiated prior to July 1, 1978 and state personnel rules negotiated as part of any collective bargaining agreement. The provisions of the Act are applicable to the Governor’s Office of Health Policy and Finance or its successor agency.
All agencies must adopt rules of practice governing the conduct of adjudicatory and licensing proceedings and interpreting advisory rulings. This must be in addition to the rule-making requirements imposed by law. Before adopting a rule, an agency must give 20 days notice and must hold a public hearing if required by statue or requested by at least five persons. The notice must contain:
- Statement of statutory authority concerning the proposed rule;
- Time and place of scheduled public hearing;
- Manner in which a hearing will be requested;
- Manner and time within which data and views must be submitted to the agency for consideration;
- Contact details of person responsible for providing additional information;
- Express terms or substance of the proposed rule;
- Subject and issues involved in the proposed rule;
- Place where copy of proposed rule or a copy of the statement of impact on small business is available;
- Reference to substantive state or federal law which will be implemented by the proposed rule;
According to 5 M.R.S. § 8054, an agency can adopt emergency rules by not complying with other rule-making procedures if it finds that there is imminent and immediate threat to public health, safety and welfare. But agency can avoid only minimum procedures which facilitate adoption of rules necessary to alleviate the threat found. Emergency rules will be effective only for a period of 90 days unless it is thereafter adopted in the proper manner, resorting to all rule-making procedures.
5 M.R.S. § 8055 provides that any person can petition the agency for the adoption or modification of any rule. Within 60 days after the receipt of the petition, the agency can either initiate proceedings for rule-making or can deny it stating the reasons for denial in writing.
According to 5 M.R.S. § 8056, the agency must submit the rule to the attorney general for approval as to form and legality. After the approval, the agency must file the original rule signed by the attorney or his assistant before the secretary of state. The secretary of state must compile, index and arrange for publication and distribution, all current rules of state agencies depending on the available resources.
At the time of adopting a rule the agency must consider the purpose of the rule, possible alternatives to achieve the purpose of the rule, the impact of the rule.
According to 5 M.R.S. § 8058, any person can have judicial review of an agency rule if s/he is aggrieved in an action for declaratory judgment in the superior court. The court can invalidate a rule if that rule exceeds the rule-making authority of the agency or if the court finds the error to be substantial and related to matters of such importance to that rule that the rule will be changed if the error has not occurred. Failure to seek judicial review of an agency rule does not prevent a person from seeking judicial review in a civil or criminal proceeding.
5 M.R.S. § 9001 provides that if a person makes a request in writing, an agency can make an advisory ruling as to the applicability of any rule or statute administered by that agency, to that person or his/her property or actual state of facts. All advisory rulings must be in writing. The advisory rulings are not binding on the agency. However if any person justifiably depends upon the ruling, it shall be considered in order to mitigate any penalty sought to be assessed. An agency can allow any interested person to participate in the hearing as a full or limited party to the proceeding. If the participation of a person is limited or denied the agency must include in the record the reasons for denial. An agency can also allow any of its staff to appear and participate in the adjudicatory proceeding.
According to 5 M.R.S. § 9061, every agency decision made at the conclusion of an adjudicatory proceeding must be in writing. It must contain the factual findings sufficient to evaluate the basis for the decision. The copy of the decision must be mailed to each party along with a written notice containing the party’s right to appeal or review of that decision.
An agency can authorize any member or employee or agent to act as the presiding officer for agency hearings. A presiding officer will be disqualified if he is charged with bias.
According to 5 M.R.S. § 9064, an agency can enforce its order in the courts by way of injunction or other appropriate legal remedy.
Further 5 M.R.S. § 10002 provides that when a licensee applies for renewal of license in a timely and sufficient manner, then the existing license will not expire until the concerned agency determines the matter. An agency cannot amend, modify or refuse to renew a license without giving the licensee an opportunity for agency hearing. If the agency’s licensing decision does not include any adjudicatory proceeding, then the decision must be on the basis of evidence of the case and it must be in writing. If the request for license is denied or conditionally approved then the reasons for denial should also be written in the decision. The district court will have the jurisdiction to deal with any complaints relating to licensing.
According to 5 M.R.S. § 11001, any aggrieved person can seek judicial review of a final agency action in the superior court of the county where the petitioner resides or has principal place of business, or where the agency has its principal office or where the activity or property which is the subject matter of the proceeding is located.
According to 5 M.R.S. § 11007, a review by the court will be conducted without a jury unless provided by the statute. The court cannot substitute its judgment for the agency’s, on question of facts. The court can affirm the decision of the agency, remand the case for further proceedings or reverse or modify the decision.