Drake v. Smith

• Decision Date: 31 August 1978
• Citation: 390 A.2d 541
• Parties: Kenneth L. DRAKE d/b/a Machias Valley Nursing Home, Inc., et al. v. David E. SMITH, Commissioner of Maine Department of Human Services.
• Court: Maine Supreme Court

Page 541

390 A.2d 541

Kenneth L. DRAKE d/b/a Machias Valley Nursing Home, Inc., et al. v. David E. SMITH, Commissioner of Maine Department of Human Services.

Supreme Judicial Court of Maine.

Aug. 31, 1978.

Farris & Foley, P.A., by Ralph W. Farris, Jr. (orally), Augusta, for plaintiff.

Rudman, Winchell, Carter & Buckley by Robert E. Sutcliff, Gene Carter, Bangor, for plaintiffs/intervenors.

Sarah L. Downs (orally), Joseph M. Kozak, Asst. Attys. Gen., Department of Human Services, Augusta, for defendant.

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

WERNICK, Justice.

On July 28, 1970 plaintiff Kenneth L. Drake d/b/a Machias Valley Nursing Home, Inc., commenced a civil action in the Superior Court (Kennebec County) claiming that the named defendant, Dr. Dean Fisher, in his capacity as Commissioner of the department of government of the State of Maine then known as the Department of Health & Welfare, had acted wrongfully in reducing the payments made by his Department to plaintiff's nursing home from $350.00 per patient per month to $260.00 per patient per month. Plaintiff asked for damages computed on the basis of the $90.00 differential per patient per month. Initially, plaintiff's claim of damages was limited to the month of June 1970, but plaintiff later amended his complaint to ask damages, additionally, for the months of July and August 1970.

On October 7, 1974 the parties ¹ agreed to a reference of the case with rights of appeal reserved (Rule 53 M.R.Civ.P.). After a hearing the Referee found in favor of plaintiff. More specifically, the Referee decided that the failure of plaintiff to meet licensing requirements did not justify the reduction in payments because (1) defendant Commissioner had lodged no complaint about the quality of the care rendered at the plaintiff's nursing home; (2) until August 5, 1970 the Commissioner had taken no action to close the plaintiff's facility for non-compliance with State licensure requirements; (3) the facility had continued in operation without the corrections required by the State Inspectors; and, (4) notwithstanding that the nursing home was an unlicensed facility during the months at issue, since in all the circumstances both plaintiff and the Commissioner "were seeking to provide a firm basis for continuance of the nursing home service(s)", the services rendered by plaintiff on the Commissioner's authority were sufficient to entitle plaintiff to the payments demanded in plaintiff's complaint.

While the report of the Referee was awaiting action upon it by a Justice of the Superior Court, a statute was enacted changing the Department of Health & Welfare into the Department of Human Services, and David E. Smith became the Commissioner of the Department of Human Services. In view of these circumstances David E. Smith in his capacity as Commissioner of the Department of Human Services was ordered substituted as the defendant in the action.

Ultimately, the Justice presiding in the Superior Court accepted the report of the Referee which recommended in terms that judgment be entered against "Dean Fisher, Commissioner of the State of Maine Department of Health & Welfare, Or his successor." (emphasis supplied) Accordingly, judgment was entered in the Superior Court adjudicating that the action of the defendant was unlawful and awarding plaintiff damages in the amount of $10,987.60.

From this judgment defendant has appealed.

We conclude that the sovereign immunity of the State of Maine requires that we sustain the appeal and order dismissal of plaintiff's action.

1.

The issue of the sovereign immunity of the State of Maine was not raised in this proceeding until after the report of the Referee had been filed and was pending for action upon it by the Justice presiding in the Superior Court. For this reason, plaintiff contends that it must be deemed waived for the purposes of this proceeding.

We disagree. The immunity of the sovereign from suit is one of the highest attributes inherent in the nature of sovereignty. Accordingly, the large majority of jurisdictions hold it necessary that the sovereign's consent to be sued be given by the Legislature, as the only appropriate body to speak in this regard on behalf of the sovereign. In the absence of specific authority conferred by an enactment of the Legislature, therefore, the sovereign's immunity from suit cannot be waived through the imposition of procedural requirements or be deemed forfeited by procedural defaults. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Bullock v. Electro-Science Investors, Inc., 533 S.W.2d 892 (Tex.Civ.App.1976); Horak v. State, 171 Conn. 257, 368 A.2d 155 (1976); Charles E. Brohawn Bros. v. Board of Trustees of Chesapeake College, 269 Md. 164, 304 A.2d 819 (1973); Orange County v. Heath, 282 N.C. 292, 192 S.E.2d 308 (1972); Hathaway v. New Mexico State Police, 57 N.M. 747, 263 P.2d 690 (1953); McNair v. State, 305 Mich. 181, 9 N.W.2d 52 (1943); but see Lister v. Board of Regents of the University Wisconsin System et al., 72 Wis.2d 282, 240 N.W.2d 610, 619, 620 (1976).

We adopt this large majority view. ² Finding it presently unnecessary to analyze whether the end result is to be rationalized on jurisdictional grounds (see Edelman v. Jordan, supra; Hathaway v. New Mexico State Police, supra), or in terms of the absence of a cause of action (McNair v. State, supra), we conclude that we must take cognizance in this appeal of the merits of the issue of the sovereign immunity of the State of Maine.

2.

The essence of the instant action is that plaintiff wants to recover money, and even though a State official is the nominal defendant in the action, plaintiff makes no claim that the named defendant has a Personal liability to pay the money plaintiff seeks to recover. Rather, the liability to pay money to plaintiff is asserted as arising by virtue of the named defendant's activity in his official capacity as a public officer of the State of Maine. This is shown not only by the substitution as party defendant of the person who succeeded the originally named defendant in office but also by the report of the Referee adjudicating that the liability is against the originally named Commissioner or his Successor in office. Moreover, the judgment entered in the Superior Court is not directed to the original defendant but is against his successor in office.

Plainly, then, the reach of the present action is against the State of Maine as the party to be adjudicated liable to pay the money claimed by plaintiff. Thus, even though action has been brought nominally against a State official, the State of Maine is a necessary party to the action, and sovereign immunity has applicability ³ to require dismissal of the action unless the State, acting through the Legislature, has given its consent that the present action be brought against it.

At oral argument counsel for plaintiff sought to avoid dismissal of the action on sovereign immunity grounds by stating that he would forego a judgment adjudicating liability for payment of money and would accept an adjudication deciding only that the Commissioner was guilty of wrongful action toward plaintiff.

This tactic gains nothing for plaintiff.

First, plaintiff does not thereby provide a proper foundation for an adjudication as to whether the Commissioner had acted in excess of his statutory powers, thus to remove the applicability of sovereign immunity by allowing the action to be characterized as an action (sounding in equity or mandamus) against a State official rather than against the State itself. Here, the error of the Commissioner, if any, was not that he acted outside the bounds of his statutory authority but, rather, that he wrongly exercised statutory powers he plainly possessed. See Lister v. Board of Regents of the University Wisconsin System et al, 72 Wis.2d 282, 240 N.W.2d 610, 622, 623 (1976).

Second, in any event the circumstances of this case would preclude resort to merely declaratory relief. Absent an undertaking to have the State pay money to the plaintiff as plaintiff's due, a merely declaratory adjudication concerning the Commissioner's actions relative to plaintiff would serve no useful purpose, and the case would thus loss justiciability. The matters involved occurred almost 8 years ago, and plaintiff has gone out of the nursing home business. It is plain, therefore, that a declaration whether the Commissioner acted erroneously toward plaintiff will not serve to govern, or assist, the plaintiff and the Commissioner in any relations likely to exist between them in the immediate future. In this respect, the case at bar is patently different from Ottman v. Fisher, Commissioner, Me., 319 A.2d 56 (1974) and Brooks v. Smith, Commissioner, Me., 356 A.2d 723 (1976). Moreover, the issues involved are capable of being adjudicated in other litigation to provide guidance for official conduct and lack the kind of public importance which might otherwise induce this Court, on public interest grounds, to strain to find justiciability as a basis for rendering a merely declaratory adjudication. As this point was cogently summarized in Lister v. Board of Regents, supra:

" 'The immunity of the state from suit, a much abused concept, is not altered or modified by the Declaratory Judgments Act. On several occasions an effort has been made to obtain a declaration of the state's duty to refund or pay money, not for the purpose of executing the judgment, which was not under the law possible, but merely to obtain an adjudication of legal rights. Its persuasive effects, to induce a legislature to make an appropriation, might be considerable. Needless to say, such a proceeding is not sustainable and a court should decline jurisdiction, even though an ostensibly suable public officer is made defendant as an Alter ego for the state.' Borchard, Declaratory Judgments (2d ed. 1941), p. 374. ...