MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	     2018	ME	127	
Docket:	       BCD-18-228	
Argued:	     	 July	18,	2018	
Decided:	      August	23,	2018	
	
Panel:	      	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	   	 SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:		 SAUFLEY,	C.J.,	and	MEAD,	J.	
Dissent:		   	 ALEXANDER,	J.		
	
	
               MAINE	EQUAL	JUSTICE	PARTNERS	et	al.	
                                	
                               v.	
                                	
     COMMISSIONER,	DEPARTMENT	OF	HEALTH	AND	HUMAN	SERVICES	
	
	
JABAR,	J.		

       [¶1]		Before	us	is	the	Department	of	Health	and	Human	Services’	motion	

asking	us	to	stay	the	effect	of	a	partial	judgment	entered	in	the	Business	and	

Consumer	 Docket	 (Murphy,	 J.)	 dated	 June	 4,	 2018,	 and	 to	 issue	 an	 expedited	

briefing	 schedule	 governing	 the	 Department’s	 appeal	 from	 that	 partial	

judgment.	 	 There	 are	 substantial	 unresolved	 issues	 surrounding	 the	

petitioners’	 appeal	 filed	 pursuant	 to	 M.R.	 Civ.	 P.	 80C,	 and	 it	 is	 clear	 from	 the	

limited	 record	 before	 us	 that	 those	 issues	 must	 be	 resolved	 before	 we	 can	

consider	 the	 matter	 on	 the	 merits.	 	 Because	 an	 appeal	 of	 the	 Superior	 Court	

order	 mandating	 the	 implementation	 of	 only	 one	 provision	 of	 the	 citizen	

initiative	expanding	Medicaid	coverage	is	interlocutory	and	because,	on	these	
2	

unique	facts,	no	exception	to	the	final	judgment	rule	exists,	we	deny	the	motion	

for	an	expedited	briefing	schedule	and	dismiss	the	Department’s	appeal.			

                                           I.		BACKGROUND	

         [¶2]	 	 On	 November	 7,	 2017,	 the	 voters	 of	 Maine	 approved	 a	 citizen	

initiative	 entitled	 “An	 Act	 to	 Enhance	 Access	 to	 Affordable	 Health	 Care”	 (the	

Act).	 	 See	 L.D.	 1039,	 ch.	 1,	 §§	 A-1	 to	 B-3	 (referred	 to	 the	 voters,	

128th	Legis.	2017)	 (effective	 Jan.	 3,	 2018)	 (to	 be	 codified	 at	 22	 M.R.S.	

§	3174-G(1)(H)1).		The	Act,	which	expands	Medicaid	coverage,	was	 not	acted	

upon	by	the	Legislature	but	nonetheless	became	the	law	after	enactment	by	the	

people.		See	L.D.	1039,	ch.	1,	§§	A-1	to	B-3;	see	also	Me.	Const.	art.	IV,	pt.	3,	§	19;	

Opinion	of	the	Justices,	2017	ME	100,	¶¶	43-44,	162	A.3d	188.		Title	22	M.R.S.	

§	3174-G(1)	requires	the	Department	to	“provide	for	the	delivery	of	federally	

approved	Medicaid	services	to	the	following	persons,”	now	including,	pursuant	

to	the	Act,	

         H.		No	later	than	180	days	after	the	effective	date	of	this	paragraph,	
         a	 person	 under	 65	 years	 of	 age	 who	 is	 not	 otherwise	 eligible	 for	
         assistance	 under	 this	 chapter	 and	 who	 qualifies	 for	 medical	
         assistance	 pursuant	 to	 42	 United	 States	 Code,	 Section	
         1396a(a)(10)(A)(i)(VIII)	when	the	person’s	income	is	at	or	below	
         133%	plus	5%	of	the	nonfarm	income	official	poverty	line	for	the	

     1	 	 The	 Maine	 Revised	 Statutes	are	 current	 only	 through	 changes	 made	during	 the	 First	Special	

Session	of	the	128th	Legislature;	because	this	bill	was	approved	by	voters	on	November	7,	2017,	it	
does	not	yet	appear	in	the	Maine	Revised	Statutes.			
                                                                                                                 3	

      applicable	family	size.		The	department	shall	provide	such	a	person,	
      at	a	minimum,	the	same	scope	of	medical	assistance	as	is	provided	
      to	a	person	described	in	paragraph	E.		
      	
      .	.	.	.		
      	
      No	later	than	90	days	after	the	effective	date	of	this	paragraph,	the	
      department	 shall	 submit	 a	 state	 plan	 amendment	 to	 the	 United	
      States	 Department	 of	 Health	 and	 Human	 Services,	 Centers	 for	
      Medicare	and	Medicaid	Services	ensuring	MaineCare	eligibility	for	
      people	 under	 65	 years	 of	 age	 who	 qualify	 for	 medical	 assistance	
      pursuant	       to	    42	      United	      States	      Code,	      Section	
      1396a(a)(10)(A)(i)(VIII).	
      	
      The	 department	 shall	 adopt	 rules,	 including	 emergency	 rules	
      pursuant	 to	 Title	 5,	 section	 8054	 if	 necessary,	 to	 implement	 this	
      paragraph	in	a	timely	manner	to	ensure	that	the	persons	described	
      in	this	paragraph	are	enrolled	for	and	eligible	to	receive	services	
      no	 later	 than	 180	 days	 after	 the	 effective	 date	 of	 this	 paragraph.		
      Rules	 adopted	 pursuant	 to	 this	 paragraph	 are	 routine	 technical	
      rules	as	defined	by	Title	5,	chapter	375,	subchapter	2-A.			
      	
L.D.	1039,	ch.	1,	§	A-3.	
	
	     [¶3]		April	3,	2018,	marked	the	passage	of	ninety	days	without	action	by	

the	Department,	contrary	to	the	Act’s	mandate	to	file	a	state	plan	amendment	

(SPA)	 within	 ninety	 days	 after	 the	 effective	 date.2	 	 On	 April	 30,	 2018,	 Maine	

Equal	Justice	Partners	(MEJP)	and	others3	filed	a	petition	for	review	pursuant	


   2	 	 Although	 the	 parties	 dispute	 the	 precise	 effective	 date	 of	 the	 legislation,	 the	 Superior	 Court	

found	that	more	than	ninety	days	had	passed	since	either	date	proposed	by	the	parties.			
   3		In	addition	to	MEJP,	petitioners	consist	of	Consumers	for	Affordable	Health	Care,	Maine	Primary	

Care	Association,	Penobscot	Community	Health	Care,	and	numerous	individuals	newly	eligible	for	
MaineCare	pursuant	to	the	Act’s	provisions.			
4	

to	M.R.	Civ.	P.	80C	and	5	M.R.S.	§	11001(2)	(2017)	based	on	the	Department’s	

failure	to	initiate	the	implementation	of	the	Act.		As	relief,	petitioners	requested	

that	the	Superior	Court:	

      a. Declare	 that	 the	 Commissioner	 is	 under	 an	 existing	 statutory	
         obligation	 pursuant	 to	 22	 M.R.S.	 §	 3174-G(1)(H)	 to	 submit	 a	
         state	 plan	 amendment	 to	 the	 United	 States	 Department	 of	
         Health	and	Human	Services,	Centers	for	Medicare	and	Medicaid	
         Services	 ensuring	 MaineCare	 eligibility	 for	 people	 under	
         65	years	of	age	who	qualify	for	medical	assistance	pursuant	to	
         42	United	States	Code,	Section	1396a(a)(10)(A)(i)(VIII);	
         	
      b. Order	that	DHHS,	within	3	days,	submit	the	required	state	plan	
         amendment	to	CMS;	
      	
      c. Declare	 that	 DHHS	 is	 under	 an	 existing	 statutory	 obligation	
         pursuant	to	22	M.R.S.	§	3174-G(1)(H)	to	adopt	rules,	including	
         emergency	rules	pursuant	to	Title	5,	section	8054	if	necessary,	
         to	implement	§	3174-G(1)(H)	in	a	timely	manner	to	ensure	that	
         people	under	65	years	of	age	who	qualify	for	medical	assistance	
         pursuant	     to	    42	   United	       States	  Code,	      Section	
         1396a(a)(10)(A)(i)(VIII)	are	enrolled	for	and	eligible	to	receive	
         services	no	later	than	July	2,	2018;		
      	
      d. Order	that	DHHS	adopt	the	required	rules	in	a	timely	manner	to	
         ensure	that	eligible	individuals	are	enrolled	for	and	eligible	to	
         receive	services	no	later	than	July	2,	2018;	and	
      	
      e. Grant	 Petitioners	 such	 other	 and	 further	 relief	 as	 it	 deems	
         appropriate.	
	
      [¶4]		On	June	4,	2018,	the	Superior	Court	entered	a	partial	judgment	in	

favor	of	the	petitioners	on	the	merits	of	a	portion	of	the	Rule	80C	appeal.		In	its	

order,	 the	 court	 addressed	 the	 Commissioner’s	 argument	 that	 “because	
                                                                                       5	

180	days	have	not	passed	since	the	effective	date	of	[the	Act],	the	question	of	

whether	or	not	the	Commissioner	is	required	to	promulgate	rules	or	provide	

coverage	is	not	yet	ripe”	and	concluded	that	“only	the	questions	concerning	the	

filing	 of	 the	 SPA	 are	 ripe,	 not	 those	 pertaining	 to	 rulemaking	 or	 coverage	

because	the	deadlines	for	those	actions	are	still	on	the	horizon.”				

      [¶5]		The	court’s	preliminary	order	regarding	the	filing	of	the	SPA	did	not	

address	all	of	the	 requests	for	relief	that	the	petitioners	sought	or	otherwise	

address	 the	 Department’s	 obligation—or	 lack	 thereof—to	 implement	 the	

statute’s	 directives	 regarding	 rulemaking	 or	 the	 full	 implementation	 of	

expansion,	because	it	concluded	that	those	particular	issues	were	not	ripe	for	

its	review.		The	court	therefore	addressed	only	the	relief	requested	pursuant	to	

sections	a	 and	b	of	the	petition	quoted	 above	 and	concluded,	without	factual	

findings,	that	the	plain	language	of	the	statute	required	the	Commissioner	to	

submit	the	SPA	by	April	3,	2018.		It	therefore	ordered	the	Department	to	submit	

the	SPA	to	the	United	States	Department	of	Health	and	Human	Services,	Centers	

for	Medicare	and	Medicaid	Services,	by	June	11,	2018.			

	     [¶6]	 	 On	 June	 7,	 2018,	 the	 Department	 filed	 a	 notice	 of	 appeal	 and	 a	

motion	 to	 expedite	 the	 appeal	 with	 us.	 	 In	 its	 motion,	 the	 Department	 also	

contended	that	the	judgment	on	the	Rule	80C	petition	was	automatically	stayed	
6	

pending	the	resolution	of	this	appeal.		MEJP	opposed	the	Department’s	motion.		

On	 June	 11,	 2018,	 the	 same	 day	 that	 MEJP	 filed	 its	 opposition,	 we	 issued	 an	

order	directing	the	Superior	Court	“to	determine	the	immediate	enforceability	

of	[its]	order	pending	appeal	or	for	any	stay	or	injunction	pending	appeal.”		On	

June	15,	2018,	the	Superior	Court	denied	the	Department’s	motion	for	a	stay.			

       [¶7]	 	 On	 June	 18,	 2018,	 the	 Department	 again	 asked	 us	 to	 stay	 the	

execution	of	the	judgment	and	expedite	the	appeal.		On	June	20,	2018,	we	issued	

an	order	setting	a	hearing	on	the	Department’s	renewed	motion	and	issued	a	

temporary	stay	in	order	to	preserve	the	status	quo	in	the	interim.		On	July	18,	

2018,	 we	 heard	 argument	 on	 the	 procedural	 status	 of	 this	 appeal.	 	 We	 now	

address	 the	 partial	 judgment	 of	 the	 trial	 court	 based	 on	 our	 review	 of	 the	

limited	record	before	us.			

                                    II.		DISCUSSION	

	      [¶8]	 	 “A	 final	 judgment	 or	 final	 administrative	 action	 is	 a	 decision	 that	

fully	 decides	 and	 disposes	 of	 the	 entire	 matter	 pending	 before	 the	 court	 or	

administrative	 agency,	 leaving	 no	 questions	 for	 the	 future	 consideration	 and	

judgment	of	the	court	or	administrative	agency.”		Brickley	v.	Horton,	2008	ME	

111,	 ¶	 9,	 951	 A.2d	 801	 (quotation	 marks	 omitted);	 see	 also	 Bank	 of	 N.Y.	

v.	Richardson,	 2011	 ME	 38,	 ¶	 7,	 15	 A.3d	 756	 (“A	 judgment	 is	 final	 only	 if	 it	
                                                                                                   7	

disposes	 of	 all	 the	 pending	 claims	 in	 the	 action,	 leaving	 no	 questions	 for	 the	

future	consideration	of	the	court.”)	(quotation	marks	omitted)).		Even	where	

neither	party	has	raised	the	issue	of	a	judgment’s	finality,	“we	may	dismiss	[an]	

appeal	 sua	 sponte[4]	 if	 we	 determine	 that	 the	 appeal	 is	 unripe.”	 	 Brickley,	

2008	ME	111,	¶	9,	951	A.2d	801.		When	there	is	further	action	to	be	taken	in	a	

given	 case,	 that	 case	 is	 interlocutory	 and	 not	 ripe	 for	 appellate	 review.	 	 See	

Taylor	v.	Walker,	2017	ME	218,	¶	8,	173	A.3d	539.		When	a	“decision	from	us	at	

this	stage	would	be	entirely	premature,”	dismissal	of	the	interlocutory	appeal	

is	proper.		Brickley,	2008	ME	111,	¶	10,	951	A.2d	801.			

	       [¶9]		 We	conclude	that	this	appeal	is	interlocutory	“because	 a	decision	

from	us	at	this	stage	would	be	entirely	premature.”		Id.		The	initiating	petition	

in	this	case	requested	numerous	forms	of	relief.		See	infra	¶	3.		No	factual	record	

was	 created,	 and	 the	 Superior	 Court	 addressed	 only	 one	 component	 of	 the	

requested	 relief	 because	 it	 concluded	 that	 certain	 key	 components	 and	

deadlines	of	the	Act	were	“still	on	the	horizon”—namely,	the	Act’s	mandate	that	

the	 Department	 “[n]o	 later	 than	 180	 days	 after	 the	 effective	 date	 of	 this	

paragraph	.	.	.	shall	provide”	newly	eligible	persons	“at	a	minimum,	the	same	



    4		Sua	sponte	means	“[w]ithout	prompting	or	suggestion;	on	its	own	motion.”		Sua	sponte,	Black’s	

Law	Dictionary	(10th	ed.	2014).			
8	

scope	 of	 medical	 assistance	 as	 is	 provided	 to	 a	 person	 described	 in	

paragraph	E.”		See	infra	¶	2.		On	remand,	the	court	will	determine	whether	any	

ripeness	issues	remain.				

      [¶10]		Although	much	of	the	analysis	developed	by	the	 parties	and	the	

court	has	focused	on	the	plain	language	of	the	Act,	the	implementation	must	be	

done	in	accordance	with	the	Maine	Constitution,	article	IV,	part	3,	section	19,	

which	states	that		

      any	measure	referred	to	the	people	and	approved	by	a	majority	of	
      the	votes	given	thereon	shall,	unless	a	later	date	is	specified	in	said	
      measure,	 take	 effect	 and	 become	 a	 law	 in	 30	 days	 after	 the	
      Governor	has	made	public	proclamation	of	the	result	of	the	vote	on	
      said	measure	.	.	.	;	provided,	however,	that	any	such	measure	which	
      entails	 expenditure	 in	 an	 amount	 in	 excess	 of	 available	 and	
      unappropriated	 state	 funds	 shall	 remain	 inoperative	 until	 45	 days	
      after	the	next	convening	of	the	Legislature	in	regular	session.	
	
(Emphasis	added.)		Whether	the	Act	has	become	operative,	with	or	without	any	

Legislative	action,	must	be	determined	initially	by	the	trial	court.					

	     [¶11]	 	 To	 be	 clear,	 we	 do	 not	 reach	 the	 merits	 of	 this	 appeal	 at	 this	

juncture	 because	 MEJP’s	 petition	 has	 not	 been	 disposed	 of	 in	 its	 entirety.		

Before	 an	 appeal	to	us	is	proper,	all	factual	and	legal	issues	 and	requests	for	

relief	must	be	litigated,	dismissed,	or	withdrawn.		That	has	not	happened	here,	

and	 as	 a	 result,	 we	 must	 dismiss	 this	 appeal	 as	 interlocutory.	 	 Because	 we	

dismiss	 the	 appeal,	 our	 stay	 preserving	 the	 status	 quo	 is	 lifted,	 and	 the	
                                                                                                  9	

    Department’s	renewed	motion	for	a	stay	and	to	expedite	the	appeal	is	denied.		

    We	 direct	 the	 Superior	 Court	 to	 dispose	 of	 the	 remaining	 requests	 in	 the	

    petition,	 as	 well	 as	 any	 issues	 that	 may	 have	 arisen	 now	 that	 the	 180-day	

    deadline	has	passed,	in	as	timely	a	manner	as	possible,	and	we	clarify	that,	in	

    the	interim,	the	June	4,	2018,	and	June	15,	2018,	orders	of	the	Superior	Court	

    remain	in	effect.			

           The	entry	is:	

                           Appeal	dismissed.			
	
                                     	      	      	       	      		

                                              	
    SAUFLEY,	C.J.,	with	whom	MEAD,	J.,	joins,	concurring.	
    	
         [¶12]	 	 We	 concur	 in	 the	 opinion	 of	 the	 Court	 dismissing	 the	 appeal	 as	

    interlocutory.				

           [¶13]		We	write	separately	to	indicate	that,	although	we	agree	with	our	

    colleague	 in	 dissent	 that	 attention	 must	 be	 paid	 to	 the	 Legislature’s	

    constitutional	authority	and	responsibility	for	funding	government	programs,	

    see	 Me.	 Const.	 art.	 V,	 pt.	 3,	 §	 4,	 and	 the	 specific	 language	 of	 the	 Constitution	

    addressing	implementation	of	the	people’s	initiative,	see	Me.	Const.	art.	IV,	pt.	3,	

    §	 19,	 we	 conclude,	 as	 has	 the	 Court,	 that	 any	 legal	 determination	 related	 to	

    those	concerns	is	premature.		Because	the	order	of	the	trial	court	is,	in	practical	
10	

terms,	 wholly	 preliminary,	 there	 is	 no	 basis	 for	 the	 Law	 Court	 to	 act	 in	 this	

piecemeal	appeal	from	the	action	of	the	court.		

        [¶14]	 	 Given	 the	 current	 state	 of	 the	 record,	 the	 trial	 court’s	 mandate	

regarding	the	submission	of	a	plan	will	likely	have	no	practical	effect.5			

        [¶15]		To	be	clear,	the	Legislature	could	have,	but	did	not,	repeal	the	law	

enacted	by	the	people’s	initiative.		Cf.	Opinion	of	the	Justices,	2017	ME	100,	¶	52,	

162	 A.3d	 188.	 	 Accordingly,	 the	 law	 exists,	 and	 there	 are	 now	 two	 identified	

routes	to	resolving	the	conflict	that	is	pending	before	the	Superior	Court.		Either	

(1)	 the	 Legislative	 Branch	 can	 allocate	 a	 reasonable	 amount	 of	 appropriate	

funding	for	the	expanded	group	of	recipients,	or,	in	the	absence	of	such	funding,	

(2)	 the	 Judicial	 Branch	 must	 analyze	 and	 effectuate	 the	 constitutional	

provisions	 that	 address	 the	 operation	 of	 the	 people’s	 initiative	 and	 the	

judiciary’s	authority	to	effectuate	the	provisions	of	the	Maine	Constitution.		See	

Me.	Const.	art.	III,	§	2;	Me.	Const.	art.	IV,	pt.	3,	§	19;	Me.	Const.	art.	V,	pt.	3,	§	4.				

        [¶16]		Neither	of	those	events	has	been	accomplished	to	date,	leaving	the	

question	 of	 funding	 unresolved.	 	 Yet,	 as	 the	 parties	 acknowledge,	 the	 federal	




   5		Although,	in	contrast	to	the	dissent,	we	assume	that	the	Executive	Branch	will	comply	with	the	

trial	 court’s	 order	 to	 submit	 “a	 plan,”	 that	 submission	 cannot,	 in	 practical	 terms,	 meet	 the	
requirements	of	the	federal	law	at	this	stage	of	the	trial	court’s	proceeding.		Cf.	42	U.S.C.S.	1396a(a)(2)	
(LEXIS	through	Pub.	L.	No.	115-108).			
                                                                                     11	

Medicaid	 program	requires	that	 any	Medicaid	 plan	or	state	plan	 amendment	

must	include	information	regarding	the	extent	of	state	financing	for	the	plan.		

See	42	U.S.C.S.	1396a(a)(2)	(LEXIS	through	Pub.	L.	No.	115-108).				

      [¶17]		Accordingly,	on	the	limited	record	before	us,	where	the	Legislature	

has	 not	 acted	 and	 the	 trial	 court	 has	 not	 even	 reached	 the	 constitutional	

analysis	regarding	the	implementation	of	the	initiative,	it	is	likely	that	any	plan	

submitted	by	the	Executive	Branch	will,	by	definition,	have	to	report	candidly	

that	 no	 legislative	 action	 or	 judicial	 adjudication	 regarding	 funding	 has	 been	

completed.		 Because	such	a	 plan	 appears	to	have	no	reasonable	likelihood	of	

meeting	the	approval	of	the	administrators	of	the	federal	Medicaid	 program,	

there	is	little	risk	that	“substantial	rights	of	a	party	will	be	irreparably	lost	if	

review	is	delayed	until	final	judgment.”		Bruesewitz	v.	Grant,	2007	ME	13,	¶	8,	

912	A.2d	1255.		Therefore,	it	is	neither	appropriate	nor	necessary	for	the	Law	

Court	to	consider	this	interlocutory	appeal.					

      [¶18]		As	the	Court	indicates,	the	matter	should	be	returned	to	the	trial	

court	for	an	expedited	and	thorough	analysis	of	the	facts	and	law,	with	a	careful	

review	of	the	constitutional	provisions	that	must	guide	the	courts	in	this	inter-

branch	proceeding,	particularly	Me.	Const.	art.	IV,	pt.	3,	§	19.		Court’s	Opinion	

¶¶	10-11.	
    12	

	
                                 	      	     	      	     		

                                              	
    ALEXANDER,	J.,	dissenting.	

    	     [¶19]		Today	the	Court	orders	that	“the	June	4,	2018,	and	June	15,	2018,	

    orders	of	the	Superior	Court	remain	in	effect”	and	that	“our	stay	preserving	the	

    status	quo	is	lifted.”		Court’s	Opinion	¶	 11.		With	the	stay	lifted,	the	Superior	

    Court’s	mandate	to	submit	the	Medicaid	expansion	implementation	plan	to	the	

    federal	Centers	for	Medicare	and	Medicaid	Services	is	“in	effect.”		Id.	

          [¶20]		The	deadline	set	for	submission	of	the	expansion	plan	has	already	

    passed.		If	the	Commissioner	of	the	Department	of	Health	and	Human	Services	

    is	unable	to	prepare	and	submit	that	plan	almost	immediately	after	this	Court’s	

    opinion	issues,	the	plaintiffs	will	be	able	to	seek	action	by	the	Superior	Court	to	

    enforce	its	mandate.		That	enforcement	action	could	result	in	appointment	of	a	

    receiver,	 or	 other	 judicial	 action	 to	 usurp	 the	 executive	 authority	 of	 the	

    Commissioner	and	perhaps	the	Governor,	to	draft	and	submit	a	plan.	

          [¶21]		I	respectfully	dissent	from	the	Court’s	actions	lifting	the	stay	and	

    freeing	 the	 Superior	 Court	 to	 enforce	 its	 mandate	 that	 the	 Commissioner	

    prepare	 and	 file	 a	 plan	 to	 implement	 the	 authorized	 but	 unfunded	 Medicaid	

    expansion	approved	by	citizen	initiative.		The	stay	we	ordered	should	remain	
                                                                                        13	

in	 effect,	 and	 we	 should	 proceed	 expeditiously	 to	 address	 the	 merits	 of	 the	

Commissioner’s	appeal	of	the	Superior	Court’s	mandate.	

                   I.		REACHING	THE	MERITS	OF	THIS	APPEAL	

       [¶22]	 	 The	 Court	 holds	 that	 maintenance	 of	 the	 stay	 is	 not	 possible	

because	the	Superior	Court’s	actions	are	interlocutory	and	many	issues	remain	

to	 be	 resolved	 before	 the	 Superior	 Court’s	 action	 on	 the	 plaintiffs’	 complaint	

can	 be	 finalized.	 	 Court’s	 Opinion	 ¶	 11.	 	 I	 concur	 that	 there	 is	 much	 to	 be	

resolved—most	fundamentally,	the	limits	of	judicial	authority	under	the	strict	

separation	of	 powers	clause,	in	article	III	of	our	Maine	Constitution,	to	order	

submission	 of	 a	 plan	 to	 implement	 a	 program,	 without	 an	 approved	

appropriation,	that	all	agree	will	cost	tens	of	millions	of	dollars	to	implement.	

       [¶23]	 	 In	 ordering	 that	 an	 implementation	 plan	 be	 submitted	 to	 the	

federal	government,	the	Superior	Court	bypassed	those	nettlesome	questions	

and	issued	a	mandate	that	can	subject	state	officials	to	a	contempt	sanction,	see	

M.R.	Civ.	P.	66,	and/or	appointment	of	a	receiver	if	no	plan	is	submitted.		Beyond	

the	 risk	 of	 contempt	 or	 displacement	 of	 executive	 authority	 by	 a	 court	

appointed	receiver,	mandated	filing	of	an	implementation	plan	may	also	have	

significant	cost	implications	for	the	State.			
14	

      [¶24]	 	 The	 plaintiffs	 in	 this	 matter	 are	 represented	 by	 skilled	 counsel.		

Pending	 our	 reaching	 the	 merits,	 we	 should	 assume	 that	 the	 plaintiffs	 have	

some	chance	of	success	on	their	claim	that	the	courts	can	mandate	filing	of	the	

Medicaid	 expansion	 plan.	 	 Once	 the	 plan	 is	 filed,	 the	 plaintiffs	 contend,	 the	

courts	can	and	will	mandate	payments	to	those	who	qualify	for	benefits,	even	

without	any	additional	appropriation.				

      [¶25]	 	 Specifically,	 the	 plaintiffs	 contend	 that	 once	 the	 implementation	

plan	is	submitted,	qualified	individuals,	some	of	whom	are	already	applying	for	

benefits,	may,	by	court	order,	begin	receiving	the	expanded	Medicaid	payments.		

The	plaintiffs	assert	that	these	additional	costs	will	be	paid	from	funds	already	

appropriated	 to	 support	 those	 presently	 receiving	 Medicaid	 benefits.	 	 See	

Appellees’	Opposition	to	Motion	to	Stay	Pending	Appeal,	at	13:		

      [T]here	 are	 existing	 appropriations	 in	 the	 Medicaid	 accounts	
      sufficient	to	fund	Maine’s	Medicaid	program	and	provide	benefits	
      for	all	eligible	populations	described	in	.	.	.	22	M.R.S.	§	3174-G(1)—
      including	the	expansion	population	newly	added	as	Paragraph	(H)	
      to	that	subsection—through	at	least	May	of	2019.	.	.	.		Accordingly,	
      even	with	no	additional	legislative	appropriation,	the	Department	
      is	statutorily	obligated	to	implement	newly-enacted	Paragraph	(H),	
      just	as	it	is	statutorily	obligated	to	implement	Paragraphs	(A),	(B),	
      (C),	(D),	(E),	(F),	and	(G).	
			
      [¶26]	 	 Alternatively,	 the	 plaintiffs	 have	 contended	 that	 courts	 might	

mandate	expenditures	of	unused	funds	in	other	state	accounts,	such	as	the	so	
                                                                                         15	

called	“Rainy	Day	Fund”	or	other	funds,	already	appropriated,	that	have	not	yet	

been	 spent.	 	 The	 prospect	 of	 the	 courts	 reviewing	 state	 program	 accounts,	

identifying	unspent	funds,	and	ordering	those	funds	transferred	to	and	spent	

on	 the	 Medicaid	 expansion	 demonstrates	 considerable	 misunderstanding	 of	

our	constitutional	separation	of	powers.	

       [¶27]		Based	on	the	plaintiffs’	arguments	about	how	expanded	benefits	

can	 be	 paid	 once	 a	 plan	 is	 filed,	 the	 plan	 filing	 mandate	 is	 a	 final	 judgment	

requiring	 no	 further	 trial	 court	 action	 before	 individuals	 who	 qualify	 can	

become	 eligible	 for	 expanded	 benefit	 payments.	 	 Even	 if	 the	 trial	 court’s	

mandate	remains	an	interlocutory	order,	as	the	Court	holds	it	is,	an	exception	

to	the	final	judgment	rule	requires	that	we	consider	this	appeal.			

       [¶28]		Under	the	“death	 knell”	exception	to	the	final	judgment	rule,	an	

interlocutory	 appeal	 is	 permitted	 when	 “substantial	 rights	 of	 a	 party	 will	 be	

irreparably	lost	if	review	is	delayed	until	final	judgment.”		Bruesewitz	v.	Grant,	

2007	 ME	 13,	 ¶	 8,	 912	 A.2d	 1255;	 see	 also	 U.S.	 Dep’t	 of	 Agric.,	 Rural	 Housing	

Serv.	v.	Carter,	2002	ME	103,	¶	12,	799	A.2d	1232	(stating	that	the	death	knell	

exception	is	available	when	the	injury	to	the	appellant’s	claimed	right,	absent	

appeal,	would	be	imminent,	concrete,	and	irreparable).			
16	

      [¶29]		We	have	held	that	the	death	knell	exception	to	the	final	judgment	

rule	 authorizes	 appeals	 from	 a	 “mandatory”	 injunction—an	 injunction,	 as	 at	

issue	 in	 this	 case,	 that	 requires	 the	 enjoined	 party	 to	 affirmatively	 act	 and	

change,	 rather	 than	 maintain,	 the	 status	 quo.	 	 Dep’t	 of	 Environmental	 Prot.	 v.	

Emerson,	563	A.2d	762,	765-67	(Me.	1989).		Unless	we	are	willing	to	overrule	

Emerson,	we	must	address	the	merits	of	the	Commissioner’s	appeal	from	the	

Superior	Court’s	mandatory	injunction.	

                            II.		MAINTAINING	THE	STAY	

      [¶30]		Pending	our	reaching	the	merits	of	the	Commissioner’s	appeal,	the	

conditions	in	June	that	led	us	to	order	a	stay	of	the	Superior	Court’s	mandate	

have	not	changed.		If	anything,	the	conditions	today	more	strongly	favor	a	stay	

because	the	plaintiffs	have	been	quite	honest	in	stating	that	they	hope	to	fund	

the	Medicaid	benefits	they	seek	by	taking	from	funds	already	appropriated	for	

current	 Medicaid	 beneficiaries	 and	 using	 those	 funds	 to	 pay	 benefits	 to	 the	

70,000	newly	eligible	individuals.	

      [¶31]		Requests	for	stays	or	injunctions	before	the	Law	Court	are	subject	

to	the	same	standards	for	obtaining	injunctive	relief	that	are	applied	in	the	trial	

courts.		See	Bangor	Historic	Track,	Inc.	v.	Dep’t	of	Agric.,	Food	&	Rural	Resources,	

2003	ME	140,	¶¶	9-12,	837	A.2d	129.		To	obtain	a	stay,	the	moving	party	“must	
                                                                                          17	

demonstrate	 that	 (1)	 it	 will	 suffer	 irreparable	 injury	 if	 the	 injunction	 is	 not	

granted;	 (2)	 such	 injury	 outweighs	 any	 harm	 which	 granting	 the	 injunctive	

relief	would	inflict	on	the	other	party;	(3)	it	has	a	likelihood	of	success	on	the	

merits	 (at	 most,	 a	 probability;	 at	 least,	 a	 substantial	 possibility);	 and	 (4)	 the	

public	interest	will	not	be	adversely	affected	by	granting	the	injunction.”		Id.	¶	9	

(citing	Emerson,	563	A.2d	at	768);	accord	Respect	Me.	PAC	v.	McKee,	622	F.3d	13,	

15	(1st	Cir.	2010)	(noting	that	the	“most	critical”	factors	in	considering	a	stay	

pending	appeal	are	“(1)	whether	the	applicant	has	made	a	strong	showing	that	

he	is	likely	to	succeed	on	the	merits;	[and]	(2)	whether	the	applicant	will	be	

irreparably	injured	absent	relief.	.	.	.		Plaintiffs	must	show	a	strong	likelihood	of	

success,	and	they	must	demonstrate	that	irreparable	injury	will	be	likely	absent	

an	injunction.”	(citing	Winter	v.	Natural	Res.	Def.	Council,	Inc.,	555	U.S.	7,	21-22	

(2008))).	

A.	    Irreparable	Injury	

       [¶32]		Addressing	irreparable	injury	first:	The	plaintiffs	propose	to	fund	

the	 Medicaid	 expansion	 by	 taking	 funds	 already	 appropriated	 to	 support	

payments	to	those	who	qualified	to	receive	Medicaid	benefits	before	approval	

of	the	citizen	initiative.		The	plaintiffs	recognize	that	their	plan	will	exhaust	the	

fiscal	year	2019	appropriation	sometime	next	spring,	well	before	the	end	of	the	
18	

fiscal	year.		By	then,	the	plaintiffs	argue,	the	Legislature	and	the	Governor	may	

authorize	new	resources	to	assure	that	benefits	can	be	paid	to	all	through	the	

end	 of	 the	 fiscal	 year.	 	 In	 the	 meantime,	 current	 Medicaid	 beneficiaries	 and	

health	 care	 providers	 will	 be	 irreparably	 injured	 by	 longer	 wait	 times	 for	

treatment,	delays	in	claims	processing	and	payments,	and	reduced	availability	

of	out-patient	and	in-patient	care	occasioned	by	a	large	influx	of	new	patients	

competing	to	use	already	too	limited	staff,	facilities,	and	financial	resources.	

      [¶33]		The	public	and	the	taxpayers	will	also	be	harmed	if	shortfalls	in	

Medicaid	funding	require	tax	increases	or	cuts	in	other	programs	or	services	to	

make	 up	 for	 the	 shortfall	 in	 Medicaid	 funding.	 	 Thus,	 there	 is	 a	 sufficient	

demonstration	 of	 irreparable	 injury	 to	 support	 maintaining	 the	 stay	 of	 the	

Superior	Court’s	mandate.	

B.	   Likelihood	of	Success	on	the	Merits	

      [¶34]		Turning	to	the	question	of	probable	or	strong	likelihood	of	success	

on	 the	 merits:	 No	 matter	 how	 much	 the	 Commissioner	 may	 want	 to	 prepare	

and	submit	a	Medicaid	expansion	plan	to	the	federal	government,	federal	law	

bars	 him	 from	 doing	 so	 without	 an	 identified	 source	 of	 funds	 to	 support	 the	

expanded	program	throughout	the	fiscal	year,	not	just	for	the	first	nine	or	ten	

months	of	the	fiscal	year.		
                                                                                        19	

       [¶35]	 	 The	 lengthy	 and	 detailed	 federal	 law	 that	 governs	 filing	 a	 state	

Medicaid	 plan	 is	 42	 U.S.C.S.	 §	 1396a	 (LEXIS	 through	 Pub.	 L.	 No.	 115-230).		

Section	 1396a(a)(2)	 directs,	 “A	 State	 plan	 for	 medical	 assistance	 must	 .	 .	 .	

provide	 for	 financial	 participation	 by	 the	 State	 equal	 to	 not	 less	 than	 40	

per	centum	of	the	non-Federal	share	of	the	expenditures	under	the	plan	with	

respect	to	which	payments	under	[42	U.S.C.S.	§	1396b]	are	authorized	by	this	

title	.	.	.	and	.	.	.	provide	for	financial	participation	by	the	State	equal	to	all	of	such	

non-Federal	 share	 or	 provide	 for	 distribution	 of	 funds	 from	 Federal	 or	 State	

sources,	for	carrying	out	the	State	plan,	on	an	equalization	or	other	basis	which	

will	assure	that	the	lack	of	adequate	funds	from	local	sources	will	not	result	in	

lowering	 the	 amount,	 duration,	 scope,	 or	 quality	 of	 care	and	 services	 available	

under	the	plan.”		(Emphasis	added.)			

       [¶36]	 	 Later	 provisions	 in	 section	 1396a	 establish	 that	 the	 relevant	

non-Federal	 share	 of	 required	 state	 participation	 in	 the	 Medicaid	 expansion	

program	 will	 be	 ten	 percent	 of	 program	 costs.	 	 There	 being	 no	 funds	

appropriated	 for	 Medicaid	 expansion,	 the	 Commissioner	 has	 no	 capacity	 to	

submit	a	plan	identifying	the	required	state	financial	participation,	estimated	

to	be	more	than	$40,000,000	for	fiscal	year	2019,	according	to	the	record	before	

this	Court.	
20	

       [¶37]		The	plaintiffs	argue	that	there	are	sufficient	resources	to	meet	the	

plan’s	financial	requirements	by	utilizing	the	existing	Medicaid	appropriation	

to	support	the	expanded	eligibility,	and	that	this	resource	is	sufficient	to	carry	

the	 program	 into	 next	 spring.	 	 That	 argument	 ignores	 that	 second	 part	 of	

section	1396a(a)(2),	which	requires	that	the	financial	plan	not	only	serve	the	

present	but	“assure	that	the	lack	of	adequate	funds	from	local	sources	will	not	

result	in	lowering	the	amount,	duration,	scope,	or	quality	of	care	and	services	

available	 under	 the	 plan.”	 	 42	 U.S.C.S.	 §	1396a.	 	 If	 the	 plaintiffs’	 funding	 plan	

were	 adopted	 or	 included	 in	 a	 plan	 ordered	 submitted	 by	 the	 court,	 the	

approved	 Medicaid	 plan	 to	 serve	 current	 Medicaid	 beneficiaries	 could	 be	

placed	at	risk	because,	by	design,	the	plaintiffs’	financial	plan,	by	next	spring,	

will	 “result	 in	 lowering	 the	 amount,	 duration,	 scope,	 or	 quality	 of	 care	 and	

services	available	under	the	plan.”		Id.	

       [¶38]		The	plaintiffs	also	argue	that	if	no	appropriation	of	$40,000,000	is	

forthcoming,	the	state	courts,	or	perhaps	the	federal	courts,	could	order	that	

state	 funds	 be	 gathered	 from	 other	 sources	 and	 spent	 to	 serve	 the	 needs	 of	

those	made	eligible	for	services	by	the	Medicaid	expansion	law.		In	effect,	the	

plaintiffs	 invite	 the	 courts	 to	 become	 a	 last	 resort	 appropriations	 process,	

directing	funding	for	programs	and	services	authorized	by	law	but	not	funded,	
                                                                                    21	

or	 not	 sufficiently	 funded,	 through	 the	 legislative	 and	 gubernatorial	

appropriations	approval	process.	

      [¶39]		Court	involvement	in	ordering	funding	for	statutorily	authorized	

programs,	when	appropriations	to	support	such	programs	fail	or	are	viewed	as	

inadequate	to	meet	perceived	needs,	would	violate	Maine’s	strict	separation	of	

powers	 requirements	 as	 stated	 in	 article	 III	 of	 the	 Maine	 Constitution	

(Distribution	of	Powers).		Article	III	states:		

      	      Section	 1.	 	 Powers	 distributed.	 	 The	 powers	 of	 this	
      government	 shall	 be	 divided	 into	 3	 distinct	 departments,	 the	
      legislative,	executive	and	judicial.		

      	     Section	 2.	 	 To	 be	 kept	 separate.	 	 No	 person	 or	 persons,	
      belonging	 to	 one	 of	 these	 departments,	 shall	 exercise	 any	 of	 the	
      powers	 properly	 belonging	 to	 either	 of	 the	 others,	 except	 in	 the	
      cases	herein	expressly	directed	or	permitted.		

      [¶40]		In	Sawyer	v.	Gilmore,	109	Me.	169,	178,	83	A.	673	(1912),	when	

called	upon	to	review	a	legislatively	approved	school	funding	formula	asserted	

to	be	an	unconstitutional	violation	of	equal	protection,	we	declined,	observing,	

“We	are	not	to	substitute	our	judgment	for	that	of	a	coordinate	branch	of	the	

government	working	within	its	constitutional	limits.”		Id.		Later	in	the	opinion,	

and	relevant	to	the	case	at	hand,	we	reminded	litigants	that		

      it	 is	 not	 always	 borne	 in	 mind	 that	 the	 Constitution	 operates	
      differently	with	respect	to	these	different	branches.		The	authority	
      of	 the	 executive	 and	 judicial	 departments	 is	 a	 grant.	 	 These	
22	

       departments	 can	 exercise	 only	 the	 powers	 enumerated	 in	 and	
       conferred	 upon	 them	 by	 the	 Constitution	 and	 such	 as	 are	
       necessarily	 implied	 therefrom.	 	 The	 powers	 of	 the	 Legislature	 in	
       matters	 of	 legislation,	 broadly	 speaking	 are	 absolute,	 except	 as	
       restricted	and	limited	by	the	Constitution.		As	to	the	executive,	and	
       judiciary,	the	Constitution	measures	the	extent	of	their	authority,	
       as	to	the	Legislature	it	measures	the	limitations	upon	its	authority.	
		
Id.	at	180.		

	      [¶41]		The	limitations	on	the	power	of	the	courts	to	order	State	spending	

for	 statutorily	 authorized	 programs,	 for	 which	 appropriations	 have	 not	 been	

approved,	or	for	which	approved	appropriations	are	deemed	inadequate,	are	

emphasized	by	Me.	Const.,	art.	V,	pt.	3,	§	4:		

       	     Section	4.		No	money	drawn	except	upon	appropriation	
       or	allocation.		No	money	shall	be	drawn	from	the	treasury,	except	
       in	consequence	of	appropriations	or	allocations	authorized	by	law.		
       	
	      [¶42]	 	 In	 Weston	 v.	 Dane,	 51	 Me.	 461	 (1862),	 and	 Weston	 v.	 Dane,	

53	Me.	372	 (1865),	 the	 Court	 considered	 a	 legislative	 resolve	 that	 had	

authorized	George	Weston	to	be	paid	a	commission	of	twenty	percent	for	his	

successful	efforts	to	obtain	federal	reimbursement	for	state	expenditures	for	a	

regiment	organized	and	sent	by	the	State	in	the	Mexican	War.		The	commission	

was	to	be	paid	from	the	recovered	funds,	which	totaled	$	10,308.28.		Weston,	

51	Me.	at	463.		Weston	brought	an	action	for	a	writ	of	mandamus	to	recover	

$1,000	that	remained	unpaid.		Id.			
                                                                                                                 23	

        [¶43]	 	 Addressing	 an	 older	 version	 of	 Me.	 Const.,	 art.	 V,	 pt.	 3,	 §	 4,6	 the	

Court	held	that	it	could	not	order	reimbursement	of	authorized	funds	without	

appropriation	and,	under	the	older	version	of	section	4,	a	governor’s	warrant.		

“The	 petition,	stripped	of	the	specious	 disguise	thrown	around	 it	by	the	 able	

argument	of	counsel	in	its	support,	asks	us	to	command	the	treasurer	to	pay	

money	in	violation	of	the	clear	and	distinct	provisions	of	the	constitution,	by	

virtue	of	which	he	and	we	exercise	the	several	trusts	reposed	alike	in	him	and	

in	us.		The	writ	is	denied.”		Weston,	51	Me.	at	465.		The	1865	opinion	addressed	

the	same	claim,	but	without	specific	reference	to	Me.	Const.,	art.	V,	pt.	3,	§	 4.		

Weston,	53	Me.	At	372-373.	

        [¶44]	 	 Relevant,	 more	 modern	 opinions	 include	 KHK	 Associates	 v.	

Department	of	Human	Services,	632	A.2d	138	at	140-141	(Me.	1993),	which,	as	

part	of	its	reasoning,	applied	Me.	Const.,	art.	V,	pt.	3,	§	4,	in	allowing	the	State	to	

abandon	 a	lease	for	 a	building	that	had	 been	built	for	the	State	in	Aroostook	

County	 because	 of	 financial	 cutbacks	 and	 lack	 of	 an	 appropriation.	 	 See	 also	

SC	Testing	 Technology,	 Inc.	 v.	 Department	 of	 Environmental	 Protection,	


   6		The	older	version	of	Me.	Const.,	art.	V,	pt.	3,	§	4	stated	"that	no	money	shall	be	drawn	from	the	

treasury,	but	by	warrant	from	the	Governor	and	Council,	and	in	consequence	of	appropriations	made	
by	law;	and	a	regular	statement	and	account	of	the	receipts	and	expenditures	of	all	public	money	
shall	be	published	at	the	commencement	of	the	annual	session	of	the	Legislature."		Weston	v.	Dane,	
51	 Me.	 461,	 463-64	 (1862).	 	 In	 the	 citation,	 the	 Weston	 opinion	 references	 “part	 4,”	 but	 this	 is	 a	
citation	error.	
24	

688	A.2d	421	at	424-425	(Me.	1996),	another	case	where	the	Court	approved	

the	 State	 abandoning	 a	 contract	 after	 the	 contractor	 had	 made	 significant	

commitments	pursuant	to	a	legislative	authorization	that	was	not	funded	by	an	

appropriation.	

        [¶45]		While	not	reaching	the	merits,	the	Court	suggests	that	the	citizen	

initiative	portion	of	Me.	Const.,	art.	IV,	pt.	3,	§	19,	may	authorize	the	courts	to	

mandate	 funding	 for	 citizen-initiated	 legislation	 that	 requires	 funding	 if	 the	

Legislature	 fails	 to	 appropriate	 funds	 to	 implement	 the	 initiative.	 	 Court’s	

Opinion	¶	10.		Section	19	provides,	in	pertinent	part,	“that	any	such	measure	

which	 entails	 expenditure	 in	 an	 amount	 in	 excess	 of	 available	 and	

unappropriated	state	funds	shall	remain	inoperative	until	45	days	after	the	next	

convening	of	the	Legislature	in	regular	session,	unless	the	measure	provides	for	

raising	new	revenues	adequate	for	its	operation.”	7			



   7		The	“45	days	after	the	next	convening	of	the	Legislature	in	regular	session”	language	was	added	

to	section	19	in	1951	by	Me.	Const.	amend.	LXVI.		Opinion	of	the	Justices,	460	A.2d	1341,	1350	(Me.	
1982).	 	At	 the	 time	 “there	 was	 then	 only	 one	 ‘regular	 session’	 of	 the	 Legislature,	 which	 convened	
biennially	on	the	first	Wednesday	of	January.”		Id.		“[T]he	amendment	avoided	the	possibility	that	the	
45-day	 period	 would	 be	 activated	 by	 a	 special	 session	 of	 the	 Legislature.	 	 Thus,	 the	 amendment	
provided	 ample	 opportunity	 for	 the	 Legislature	 to	 enact	 funding	 measures	 or	 take	 any	 other	
constitutionally	authorized	steps	by	insuring	that	the	45-day	period	would	commence	only	at	the	
next	regular	session	after	the	regular	session	to	which	the	measure	had	been	presented.”		Id.			

   The	Legislature	was	operating	with	a	First	Regular	Session	and	a	Second	Regular	Session	at	the	
time	of	the	1982	Opinion	of	the	Justices.		See	id.;	see	also	Me.	Const.,	art.	IV,	pt.	3,	§	1.		The	Opinion	of	
the	Justices	did	not	address	whether	the	schedule	that	applied	at	the	time	of	the	1951	amendment	
would	 govern	 the	 running	 of	 the	 45	 days,	 or	 whether	 that	 changed	 with	 the	 later	 amendment	 of	
Me.	Const.,	art.	IV,	pt.	3,	§	1,	to	establish	two	“regular”	sessions.		If	the	original	schedule	applied,	for	
                                                                                                   25	

       [¶46]	 	 Section	 19	 does	 not	 specify	 any	 remedy	 if	 no	 appropriation	 is	

adopted.		Considering	that,	as	specified	in	Sawyer,	109	Me.	at	180,	the	court’s	

authority	 to	 act	 must	 be	 found	 in	 our	 Constitution,	 section	 19	 provides	 no	

invitation	 or	 authority	 for	 the	 courts	 to	 mandate	 funding	 to	 implement	 an	

unfunded	citizen	initiative.			

       [¶47]		In	addition,	section	19	does	not	exempt	citizen-initiated	legislation	

from	 the	 requirement	 of	 Me.	 Const.,	 art.	 V,	 pt.	 3,	 §	 4,	 that	 no	 state	 funds	 “be	

drawn	 from	 the	 treasury,	 except	 in	 consequence	 of	 appropriations	 or	

allocations	authorized	by	law.”		The	two	Constitutional	provisions	must	be	read	

consistently,	 so	that	 each	remains	in	effect.		See	Penobscot	Nation	v.	Stilphen,	

461	 A.2d	 478,	 481	 (Me.	 1983)	 (“We	 will	 not	 read	 a	 statute	 to	 conflict	 with	

another	 statute	 where	 an	 alternative,	 reasonable	 interpretation	 yields	

harmony.”).		

       [¶48]	 	 Neither	 the	 Maine	 Constitution,	 nor	 these	 precedents,	 suggests	

that	the	courts	cannot	order	the	State	to	pay	benefits	to	individuals	who	are	

found	to	qualify	for	certain	benefit	payments	when	there	is	an	appropriation	to	

support	payment	of	benefits.		In	Manirakiza	v.	Department	of	Health	&	Human	



this	case,	the	45	days	would	not	begin	to	run	until	the	convening	of	the	new	Legislature	following	the	
2018	elections.				
26	

Services,	2018	ME	10,	¶¶	7-15,	177	A.3d	1264,	the	Legislature	had	appropriated	

funds	to	support	payment	of	benefits	to	certain	food	stamp	applicants,	but	had	

imposed	 a	 fiscal	 cap	 on	 those	 benefit	 payments	 in	 the	 initial	 years	 of	 the	

program.	 	 Manirakiza	 would	 have	 been	 excluded	 from	 eligibility	 for	 benefits	

had	he	applied	for	benefits	in	the	years	in	which	the	appropriations	cap	applied.		

Id.	¶¶	3,	15.		Manirakiza	applied	for	benefits	at	a	time	when	we	held	that	the	

appropriations	cap	had	expired.		Id.	¶	15.		Accordingly,	we	held	that	Manirakiza	

was	 entitled	 to	 be	 paid	 benefits	 because	 he	 qualified	 for	 benefits	 and	

appropriations	had	been	made	to	pay	for	the	benefits.		Id.	¶¶	1,	15.	

      [¶49]		The	appeal	was	decided	based	on	statutory	interpretation	of	the	

cap,	not	constitutional	issues.		Id.	¶¶	4,	7-15.		Inferentially,	the	opinion	suggests,	

as	a	matter	of	statutory	interpretation,	that	although	Manirakiza	was	eligible	

for	benefits	under	the	particular	food	stamp	program	to	which	he	applied,	the	

Court	could	not	and	would	not	have	ordered	benefits	to	be	paid	to	him	if	the	

cap	had	applied	or	if,	as	is	before	us	today,	there	was	no	appropriation	at	all	for	

the	particular	program.	

                                 III.		CONCLUSION	

      [¶50]	 	 Because	 the	 Commissioner	 has	 established	 that	 our	 refusal	 to	

continue	the	stay	will	cause	irreparable	harm	to	the	existing	Medicaid	program,	
                                                                                     27	

its	beneficiaries,	and	the	public,	and	because	the	Commissioner	has	established	

a	 strong	 likelihood	 of	 success	 on	 the	 merits	 of	 his	 appeal,	 the	 stay	 should	

continue	 in	 effect	 pending	 our	 resolution	 of	 the	 appeal	 of	 the	 trial	 court’s	

mandate	to	prepare	and	file	a	Medicaid	expansion	plan,	despite	the	lack	of	an	

appropriation	to	fund	the	expansion.		

	     [¶51]	 	 Prior	 to	 the	 November	 2017	 initiative	 vote	 to	 approve	 the	

Medicaid	 expansion,	 the	 Secretary	 of	 State’s	 Maine	 Citizens	 Guide	 to	 the	

Referendum	 Election	 for	 that	 November	 7,	 2017,	 election,	 addressing	 the	

Medicaid	 Expansion	 Initiative,	 stated	 that	 if	 the	 Medicaid	 expansion	 was	

“approved	by	the	voters,	additional	implementing	legislation	will	be	required	

to	 provide	 the	 additional	 appropriations	 and	 allocations."	 	 That	 observation,	

explaining	 the	 implications	 of	 the	 initiative,	 was	 a	 correct	 statement	 of	 the	

prerequisites	to	implement	the	citizen	initiative	then,	and	it	remains	a	correct	

statement	today.	

      [¶52]		Before	implementation	of	the	 program	can	begin,	 and	before	 an	

implementation	plan	can	be	submitted	to	the	federal	government,	there	must	

be	an	appropriation	to	support	the	program	properly	enacted	into	law	by	the	

Legislature.		Without	an	appropriation	for	the	Medicaid	expansion	program,	the	

separation	of	powers	mandated	by	article	III	of	the	Maine	Constitution	bars	the	
28	

courts	from	ordering	appropriation	and	expenditure	of	state	funds	for	that	new	

program.			

	     	      	     	      	     	
	
Patrick	 Strawbridge,	 Esq.	 (orally),	 Consovoy	 McCarthy	 Park	 PLLC,	 Boston,	
Massachusetts,	for	appellant	Commissioner,	Department	of	Health	and	Human	
Services	
	
James	T.	Kilbreth,	Esq.	(orally),	and	David	M.	Kallin,	Esq.,	Drummond	Woodsum	
&	MacMahon,	Portland;	Jack	Comart,	Esq.,	and	Robyn	Merrill,	Esq.,	Maine	Equal	
Justice	Partners,	Augusta;	and	Charles	F.	Dingman,	Esq.,	PretiFlaherty,	Augusta,	
for	appellees	Maine	Equal	Justice	Partners	et	al.	
	
	
Business	and	Consumer	Docket	docket	number	AP-2018-02	
FOR	CLERK	REFERENCE	ONLY	
