MAINE SUPREME JUDICIAL COURT                                    Reporter of Decisions
Decision: 2013 ME 9
Docket:   Cum-12-147
Argued:   December 13, 2012
Decided:  January 17, 2013

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
                JABAR, JJ.


                                 JODY L. SAVAGE

                                           v.

                         MAINE PRETRIAL SERVICES, INC.


MEAD, J.

         [¶1]     Jody Savage appeals from a judgment of the Superior Court

(Cumberland County, Wheeler, J.) dismissing Count I of her complaint alleging

that the termination of her employment by Maine Pretrial Services was a violation

of   the    Maine     Medical   Use   of   Marijuana   Act   (MMUMA      or   Act),

22 M.R.S. §§ 2421-2430-B (2012). She argues that her application for a license to

operate a medical marijuana dispensary was “authorized conduct” within the

meaning of the Act and her subsequent termination was thus a penalty prohibited

by the Act. We affirm the trial court’s judgment dismissing Count I of Savage’s

complaint.
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                                                 I. BACKGROUND

          [¶2] “In reviewing a trial court’s decision on a motion to dismiss pursuant to

M.R. Civ. P. 12(b)(6), we view the facts alleged in the complaint as if they were

admitted.” Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 2, 54 A.3d 710.

          [¶3]      Jody Savage was employed as a case manager for the Family

Treatment Drug Court at the Lewiston District Court from June 1, 2009, through

June 28, 2010. On March 1, 2010, Savage approached her supervisor to discuss

her interest in applying for a license to open a registered medical marijuana

dispensary. Savage and her supervisors had a series of additional meetings and

communications on this topic. At some point,1 Savage applied to open a registered

medical marijuana dispensary.

          [¶4] Beginning on or about April 12, 2010, Savage was disciplined for her

work attire and implementation of the compensable time policy, despite not having

changed her attire or behavior since she began working at Maine Pretrial Services.

Savage was terminated from her employment at Maine Pretrial Services on

June 28, 2010.

          [¶5] Savage alleged in Count I of her complaint that her termination was a

violation of the MMUMA. Maine Pretrial Services moved to dismiss Savage’s

complaint on the ground that she failed to state a claim upon which relief could be

    1
        The timing of her application is unclear from the facts alleged in the complaint.
                                                                                    3

granted. See M.R. Civ. P. 12(b)(6). The court granted the motion to dismiss with

respect to several counts, including Count I. The parties later stipulated to the

dismissal of the remaining counts, and the court entered its final judgment as to

these counts on March 21, 2012.

                          II. STANDARD OF REVIEW

      [¶6] “We review de novo the legal sufficiency of a complaint when it has

been challenged by a motion to dismiss.” McCormick v. Crane, 2012 ME 20, ¶ 5,

37 A.3d 295. Statutory interpretation is also subject to de novo review. Ashe v.

Enterprise Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157.

                                 III. DISCUSSION

A.    Analytical Framework

      [¶7] When we interpret a statute “our objective is to give effect to the

Legislature’s intent.” Id. ¶ 7. To determine legislative intent, “we first look to the

statute’s plain meaning,” id., and construe the language “to avoid absurd, illogical,

or inconsistent results,” Hanson v. S.D. Warren Co., 2010 ME 51, ¶ 12,

997 A.2d 730.

      [¶8] Only if there is an ambiguity “will we look to extrinsic indicia of

legislative intent such as relevant legislative history,” Lyle v. Mangar,

2011 ME 129, ¶ 11, 36 A.3d 867; the statute’s underlying policy, HL 1, LLC v.

Riverwalk, LLC, 2011 ME 29, ¶ 17, 15 A.3d 725; and rules of construction,
4

Hanson, 2010 ME 51, ¶ 12, 997 A.2d 730. Although each party argues on appeal

that the plain language of the statute supports the party’s position, “a statute is not

ambiguous simply because a court must exercise its function to interpret the

statute’s plain meaning.” See Brooks v. Carson, 2012 ME 97, ¶ 19, 48 A.3d 224.

Rather, a statute is ambiguous if it “can reasonably be interpreted in more than one

way and comport with the actual language of the statute.” Gaeth v. Deacon,

2009 ME 9, ¶ 15, 964 A.2d 621 (quotation marks omitted). We do not conclude

that the language of MMUMA at issue is ambiguous, and therefore we proceed to

analyze the statute’s plain language.

B.    Plain Meaning Analysis

      [¶9] The section of the MMUMA at issue provides certain protections to

those “whose conduct is authorized under” the chapter:

      1. Rights of persons or entities acting pursuant to this chapter. A
      person whose conduct is authorized under this chapter may not be
      denied any right or privilege or be subjected to arrest, prosecution,
      penalty or disciplinary action, including but not limited to a civil
      penalty or disciplinary action by a business or occupational or
      professional licensing board or bureau, for lawfully engaging in
      conduct involving the medical use of marijuana authorized under this
      chapter.

22 M.R.S. § 2423-E(1).

      [¶10] At the outset we note that the last phrase of subsection 2423-E(1)

limits its protections to those acts that constitute “lawfully engaging in conduct
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involving the medical use of marijuana authorized under this chapter.” 22 M.R.S.

§ 2423-E(1). Applying for a dispensary license does not, in any fashion, involve

the medical use of marijuana. It is a preliminary step in a process that may or may

not result in an applicant being granted a license and then, and only then, being

authorized to operate a nonprofit dispensary, thereby engaging in conduct

involving the medical use of marijuana. The statute’s plain meaning appears

contrary to the interpretation Savage urges upon us. We nonetheless examine the

structure and purpose of section 2423-E in the larger context of the entire chapter

“so that a harmonious result, presumably the intent of the Legislature, may be

achieved.” See Ashe, 2003 ME 147, ¶ 7, 838 A.2d 1157.

      1. Structure of 22 M.R.S. §§ 2423-A through 2423-E

      [¶11] The     statutory   section   at     issue   is   section   2423-E   titled

“Requirements,” which prohibits, among other actions, penalizing “[a] person

whose conduct is authorized under this chapter” and discrimination by a school,

employer or landlord in certain circumstances. 22 M.R.S. § 2423-E(1)-(2). It also

sets forth the requirements for qualifying patients and primary caregivers to receive

protection under the section. Id. § 2423-E(5).

      [¶12] The other four sections, by their headings and substance, describe

conduct that is expressly authorized by the MMUMA. Section 2423-A, entitled

“Authorized conduct for the medical use of marijuana,” authorizes a qualifying
6

patient to possess and cultivate a certain amount of prepared marijuana or mature

plants. Id. § 2423-A(1). It also authorizes a primary caregiver or hospice provider

who has been designated by the qualifying patient to possess, cultivate, and

provide marijuana to the patient. Id. § 2423-A(2)-(4). Section 2423-B, entitled

“Authorized conduct by a physician,” authorizes physicians to provide a written

certification that the patient requires marijuana for medical purposes.

Id. § 2423-B.   Section 2423-C, entitled “Authorized conduct,” authorizes any

person to provide marijuana paraphernalia for the qualifying patient’s medical use

and to be present when the patient uses the marijuana. Id. § 2423-C. Section

2423-D, entitled “Authorized conduct by a visiting qualifying patient,” authorizes

qualifying patients from another state in which the medical use of marijuana is

permitted to engage in that conduct in Maine if they have certain documentation.

Id. § 2423-D.

      [¶13] Savage has not pleaded any facts in her complaint that she falls into

one of these four categories of persons and has conceded on appeal that sections

2423-A through 2423-D do not govern registered dispensaries or applicants who

seek to operate registered dispensaries.

      2. The MMUMA

      [¶14] Section 2423-E(1) provides protections to those engaging in “conduct

[that] is authorized under this chapter.” Notwithstanding the mandate of 1 M.R.S.
                                                                                    7

§ 71(10) (2012) that titles of sections, such as 2423-A through 2423-E, are not

legal provisions, we are persuaded by the fact that the substance of those sections

expressly identify conduct that is authorized within the chapter—using,

prescribing, dispensing, and administering marijuana.

      [¶15] Moreover, we note that outside of sections 2423-A through 2423-E

the chapter identifies only registered dispensaries as additional conduct that is

authorized, even though the word “authorized” is not used in section 2428

prescribing the requirements for registered dispensaries. See 22 M.R.S. § 2428; id.

§ 2426(1)(E) (the Act does not permit a person to “[u]se or possess marijuana if

that person is not a qualifying patient, primary caregiver, registered dispensary or

other person authorized to use or possess marijuana under this chapter”); id.

§ 2425(11) (requiring “patient[s], registered primary caregiver[s] or a principal

officer, board member or employee of a registered dispensary who has been issued

a valid registry identification card” to also possess Maine-issued photo

identification “in order to establish proof of authorized participation in the medical

use of marijuana under this chapter”); id. § 2422(3) (providing that “individual[s]

authorized to cultivate the marijuana,” which includes registered dispensaries, see

id. § 2428(1-A), are the only ones that are permitted to access “[e]nclosed, locked

facilit[ies]” where the marijuana is stored). Nowhere in the chapter does the
8

phrase “authorized conduct” describe applications for a license to operate

registered dispensaries.

      3. Analysis

      [¶16] The structure and organization of the Act confirm that the word

“authorized” is used as a term of art within the Act to refer to conduct expressly

authorized by the Act—using, prescribing, dispensing, and administering

marijuana—and not in reference to implied conduct, as Savage contends.

      [¶17] The specific and express authorizations for certain people to use,

administer, prescribe, and dispense marijuana are necessary because a person

would be engaging in conduct that would otherwise be illegal, but for the

MMUMA. See, e.g., 22 M.R.S. § 2383(1)(A) (2012) (possession of marijuana is a

civil violation); 17-A M.R.S. § 1117(1)(A) (2012) (cultivating marijuana is a

Class E crime); 17-A M.R.S. § 1111-A(4-A) (2012) (furnishing drug paraphernalia

is a Class E crime). The express authorizations to use, prescribe, administer, or

dispense marijuana pursuant to chapter 558-C thus create immunity from

prosecution or other sanctions by state government.

      [¶18]    The conduct of applying for a license to operate a registered

dispensary, although contemplated and required by the Act in order to operate a

registered dispensary, is not otherwise illegal and therefore does not require special

protection. Those who operate registered dispensaries, unlike mere applicants,
                                                                                  9

have the privileges of possessing, cultivating, and dispensing marijuana. The fact

that “authorized conduct” is used in the Act only in reference to conduct that was

previously illegal underscores the limit on the protections available under the Act.

See City of Saco v. Pulsifer, 2000 ME 74, ¶ 5, 749 A.2d 153 (“If the meaning of

this language is plain, we must interpret the statute to mean exactly what it says.”

(quotation marks omitted)).

      [¶19] Additionally, title 22 M.R.S. § 2423-E(1) does not create a private

right of action against private employers. Rather, it protects against prosecution

and penalties by governmental regulatory entities. The text of section 2423-E(1)

provides: “A person whose conduct is authorized under this chapter may not . . . be

subjected to arrest, prosecution, penalty or disciplinary action, including but not

limited to a civil penalty or disciplinary action by a business or occupational or

professional licensing board or bureau.” Despite Savage’s urging, we do not read

the word “business,” an imprecise non-legal term, as disjoined from the

conjunctive phrase “business or occupational or professional licensing board or

bureau.” See id. The statute already provides for a private right of action for

qualifying patients and primary caregivers who have been discriminated against by

their employers and it would have been duplicative for the Legislature to provide

for a private right of action against employers again in section 2423-E(1). See

id. § 2423-E(2).
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        [¶20]     We therefore find no error in the court’s dismissal of Savage’s

complaint for failure to state a claim upon which relief can be granted.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Lee H. Bals, Esq., and Andrew C. Helman, Esq., Marcus, Clegg & Mistretta,
        P.A., Portland, for appellant Jody L. Savage

        Robert W. Kline, Esq., Kline Law Offices, Portland, for appellee Maine
        Pretrial Services, Inc.


At oral argument:

        Andrew C. Helman, Esq., for appellant Jody L. Savage

        Robert W. Kline, Esq., for appellee Maine Pretrial Services, Inc.



Cumberland County Superior Court docket number CV-2011-326
FOR CLERK REFERENCE ONLY
