376 A.2d 456 (Me. 1977), National Hearing Aid Centers, Inc. v. Smith

Citation:376 A.2d 456
Opinion Judge:ARCHIBALD,
Party Name:NATIONAL HEARING AID CENTERS, INC. v. David E. SMITH, Commissioner, Department of Health and Welfare of the State of Maine.
Attorney:Bernstein, Shur, Sawyer & Nelson by Eric F. Saunders, Gregory A. Tselikis, Portland, for plaintiff. Michael A. Feldman, James Eastman Smith, Asst. Attys. Gen., Augusta, for defendant.
Judge Panel:Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.
Case Date:July 27, 1977
Court:Supreme Judicial Court of Maine

Page 456

376 A.2d 456 (Me. 1977)

NATIONAL HEARING AID CENTERS, INC.

v.

David E. SMITH, Commissioner, Department of Health and

Welfare of the State of Maine.

Supreme Judicial Court of Maine.

July 27, 1977

Page 457

[Copyrighted Material Omitted]

Page 458

Bernstein, Shur, Sawyer & Nelson by Eric F. Saunders, Gregory A. Tselikis, Portland, for plaintiff.

Michael A. Feldman, James Eastman Smith, Asst. Attys. Gen., Augusta, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

ARCHIBALD, Justice.

National Hearing Aid Centers, Inc., filed a complaint in Superior Court which attacked the constitutionality of certain provisions contained within P.L. 1975, ch. 463, subsequently codified in 32 M.R.S.A. § 1658 et seq., effective October 1, 1975. The defendant is the Commissioner of the Department of Health and Welfare of the State of Maine, the agency charged with enforcement of the challenged statute, who moved to dismiss the complaint pursuant to Rule 12(b) (6), M.R.C.P., for "failure to state a claim upon which relief could be granted". Following a hearing on both the complaint and the motion to dismiss, the Justice below ordered the action dismissed. The reasons listed for this ruling were that the complaint fails "to allege a justiciable controversy" and also "fails to show that any of the events and conditions it mentions have invaded or threaten to invade any legally protected interest of the plaintiff." The plaintiff has appealed.

We sustain the appeal and remand for entry of judgment consistent with this opinion.

JUSTICIABILITY

Although the plaintiff brought this action under Maine's Declaratory Judgments Act, 14 M.R.S.A. § 5951 et seq., it was not thus excused from properly establishing a justiciable controversy.

"Our declaratory judgment statute, although worded in general terms, is operative only in cases where a genuine controversy exists. The existence of a controversy is essential in any case, for otherwise this Court would be merely giving an advisory opinion without authority of law."

Lund ex rel. Wilbur v. Pratt, 308 A.2d 554, 559 (Me.1973). See also Berry v. Daigle, 322 A.2d 320, 325 (Me.1974); cf. Hazzard v. Westview Golf Club, Inc., 217 A.2d 217, 224 (Me.1966); Drummond v. Inhabitants of Town of Manchester, 161 Me. 376, 212 A.2d 701 (1965).

In determining justiciability we must ascertain whether the complaint alleged a claim of right justifying relief and whether a sufficiently substantial interest is asserted to warrant judicial protection. Berry v. Daigle, supra at 326; Jones v. Maine State Highway Commission, 238 A.2d 226, 229 (Me.1968). The claim asserted is the right to conduct business freely without undue legislative interference. We have previously recognized the constitutional guarantee 1 against unjustifiable impairment of one's property rights.

"A constitutional guarantee protects one's property rights not only from confiscation by legislative acts but also from an unjustifiable impairment of those rights. A deprivation of a person's property, within the meaning of this constitutional guarantee, may take place by destroying its value, restricting its profitable use or imposing such conditions as to

Page 459

the use of it that seriously impairs its value."

State v. Union Oil Co. of Maine, 151 Me. 438, 446-47, 120 A.2d 708, 712 (1956).

In support of this claim of right plaintiff alleged that it is a Maine corporation doing business within the State and, therefore, subject to the provisions of the statute. Generally speaking, those persons who are engaged in a business directly affected by a statute are considered to have a sufficient interest to create a justiciable issue when contesting that statute's validity. Portland Pipe Line Corp. v. Environmental Improvement Comm., 307 A.2d 1 (Me.1973); Hoagland v. Bibb, 12 Ill.App.2d 298, 139 N.E.2d 417, 420 (1957); see Ace Tire Co. v. Municipal Officers of Waterville, 302 A.2d 90 (Me.1973); 174 A.L.R. 558.

Moreover, plaintiff alleges that it "will suffer immediate and irreparable harm upon the effective date of the Act." Although the complaint does not allege in nonconclusory form the specific injury that will result, the complaint cannot be fatally defective on that basis alone. See Field, McKusick & Wroth, Maine Civil Practice, § 12.11 (2d ed. 1970). A complaint is sufficient to withstand a 12(b)(6) motion to dismiss if from a liberal construction of the pleadings and possible amendments thereto, the court can determine that a plaintiff can prove a set of facts to support his claim. Nelson v. Maine Times, 373 A.2d 1221 (Me. opinion June 3, 1977); Ace Ambulance Service, Inc. v. City of Augusta, 337 A.2d 661, 662 (Me.1975); Richards v. Ellis, 233 A.2d 37, 38 (Me.1967).

We conclude that plaintiff's complaint alleges sufficient interest to give rise to standing. Assuming proof of the alleged facts, as a hearing aid dealer the plaintiff corporation is in the business that the challenged statute licenses and regulates.

The commencement of this action for a declaratory judgment before the effective date of the statute poses no problem. The statute is certain to become effective. It is to be presumed that the Department of Health and Welfare will take steps to enforce the provisions of the statute. The issue raised is ripe for decision. Maine Sugar Industries, Inc. v. Maine Indus. Bldg. A., 264 A.2d 1, 5 (Me.1970); Hoagland v. Bibb, supra, 12 Ill.App.2d 298, 139 N.E.2d at 420; Department of Financial Institutions v. General Finance Corp., 227 Ind. 373, 86 N.E.2d 444, 446 (1949); Acme Finance Corp. v. Huse, 192 Wash. 96, 73 P.2d 341 (1937).

It is apparent that a sufficiently justiciable claim was pleaded and that the Justice erred in dismissing the action. The plaintiff sought protection from an allegedly unreasonable exercise of the State's police power, buttressed by the assertion of sufficient interest in the plaintiff as one engaged in the business regulated and licensed under the challenged statute. All the elements were present to give rise to a right to an adjudication of the claim presented.

CONSTITUTIONALITY

Having determined that the Court below improperly dismissed the action, we normally would remand the case for further proceedings. However, since the case comes before us with a complete record, we believe this is an appropriate time to entertain this claim for declaratory relief as an original matter. Berry v. Daigle, 322 A.2d 320, 324 (Me.1974). By remanding to the Superior Court we could reasonably expect the issue of constitutionality to be immediately referred to us for decision. Therefore, we now reach the question of the statute's constitutionality.

32 M.R.S.A. § 1658-B provides:

"At the time of purchase of one or more hearing aids, the seller-licensee may demand and accept no more than 50% of the purchase price. Not less than 20 days nor more than 35 days after the purchase of one or more hearing aids, the seller-licensee shall make personal contact with the purchaser and provide, free of charge, any service, fitting or repair that may be necessary for the beneficial and comfortable use of the hearing aid. The purchaser, during this trial period, may cancel

Page 460

the transaction by notifying the seller-licensee on or before the day of personal service contact and shall have the right to a refund. If at the time the seller-licensee makes personal contact with the purchaser, the purchaser in writing expresses his satisfaction with the hearing aid, then the balance of the purchase price is due and payable to the seller-licensee. If service or repair of the hearing aid is necessary, there shall be further trial period of the same duration, with the same right of cancellation."

As we turn to consider the constitutionality of § 1658-B, we are guided by certain well established precepts. The legislature, in the exercise of the police power of the State, does not violate substantive due process if its exercise of that power is reasonable. State v. Rush, 324 A.2d 748, 752 (Me.1974); West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Nebbia v. People, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934).

"Too much significance cannot be given to the word 'reasonable' in considering the scope of the police power in a constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restrictions it imposes on rights secured to individuals by the...

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26 practice notes
  • 404 A.2d 1020 (Me. 1979), Harmon v. Harmon
    • United States
    • Maine Supreme Judicial Court of Maine
    • August 23, 1979
    ...failure to state a claim upon which relief may be granted or for want of standing. See National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456 (1977); Rodway v. Wiswall, Me., 267 A.2d 374 (1970); Warren v. Waterville Urban Renewal Auth., Me., 259 A.2d 364 (1969); Richards v. Ellis, M......
  • 444 A.2d 433 (Me. 1982), Culbert v. Sampson's Supermarkets Inc.
    • United States
    • Maine Supreme Judicial Court of Maine
    • April 30, 1982
    ...of the complaint as admitted. See Harmon v. Harmon, Me., 404 A.2d 1020 (1979); National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456 (1977). We must also accept as true the uncontroverted facts properly before the lower court which granted defendant Sampson's motion for summary jud......
  • 577 A.2d 1173 (Me. 1990), Maine Medical Center v. Cote
    • United States
    • Maine Supreme Judicial Court of Maine
    • July 11, 1990
    ...regulatory means must bear a rational relationship to the evil sought to be corrected." National Hearing Aid Centers, Inc. v. Smith, 376 A.2d 456, 461 (Me.1977). The stated purpose of the tort reform bill was "to expedite the resolution of medical liability claims in order to decr......
  • 414 A.2d 220 (Me. 1980), Travelers Indem. Co. v. Dingwell
    • United States
    • Maine Supreme Judicial Court of Maine
    • May 12, 1980
    ...that a plaintiff can prove a set of facts to support his claim. (Citations omitted.) National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456, 459 (1977). See also Gosselin v. Better Homes, Inc., Me., 256 A.2d 629, 633 (1969); R. Field, V. McKusick and L. Wroth, supra, at § 12.11. Whe......
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25 cases
  • 404 A.2d 1020 (Me. 1979), Harmon v. Harmon
    • United States
    • Maine Supreme Judicial Court of Maine
    • August 23, 1979
    ...failure to state a claim upon which relief may be granted or for want of standing. See National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456 (1977); Rodway v. Wiswall, Me., 267 A.2d 374 (1970); Warren v. Waterville Urban Renewal Auth., Me., 259 A.2d 364 (1969); Richards v. Ellis, M......
  • 444 A.2d 433 (Me. 1982), Culbert v. Sampson's Supermarkets Inc.
    • United States
    • Maine Supreme Judicial Court of Maine
    • April 30, 1982
    ...of the complaint as admitted. See Harmon v. Harmon, Me., 404 A.2d 1020 (1979); National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456 (1977). We must also accept as true the uncontroverted facts properly before the lower court which granted defendant Sampson's motion for summary jud......
  • 577 A.2d 1173 (Me. 1990), Maine Medical Center v. Cote
    • United States
    • Maine Supreme Judicial Court of Maine
    • July 11, 1990
    ...regulatory means must bear a rational relationship to the evil sought to be corrected." National Hearing Aid Centers, Inc. v. Smith, 376 A.2d 456, 461 (Me.1977). The stated purpose of the tort reform bill was "to expedite the resolution of medical liability claims in order to decr......
  • 414 A.2d 220 (Me. 1980), Travelers Indem. Co. v. Dingwell
    • United States
    • Maine Supreme Judicial Court of Maine
    • May 12, 1980
    ...that a plaintiff can prove a set of facts to support his claim. (Citations omitted.) National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456, 459 (1977). See also Gosselin v. Better Homes, Inc., Me., 256 A.2d 629, 633 (1969); R. Field, V. McKusick and L. Wroth, supra, at § 12.11. Whe......
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