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Goodwin v. SAD #35
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME- 263
Docket:	Yor-98-101	
Argued:	September 10, 1998
Decided:	December 11, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.



WENDY GOODWIN v. SCHOOL ADMINISTRATIVE DISTRICT NO. 35


SAUFLEY, J.
	[¶1]  Wendy Goodwin appeals from the judgment of the Superior Court
(York County, Perkins, A.R.J.) dismissing her complaint to recover attorneys'
fees{1} and costs incurred during special education proceedings regarding her
son.  Because we conclude that no cause of action exists in Maine law for
such fees, we affirm.
I. Background
	[¶2]  Wendy Goodwin is a resident of Eliot and the mother of a student
attending Marshwood Junior High School during the 1996-97 school year. 
Her son qualified as both an "exceptional student" within the meaning of
20-A M.R.S.A. § 7001(2) (1993){2} and as a "student with a disability" within
the meaning of section 3 of the Maine Special Education Regulations,
Chapter 101.{3}  Maine Administrative District No. 35 (the "District") is the
local education agency responsible for providing a free appropriate public
education to children in Eliot.  See 20-A M.R.S.A. § 1001(8).
	[¶3]  During the 1996-97 school year, the boy's education was
governed by an Individualized Education Plan (the "Plan") aimed at
addressing his special needs.  Despite the existence of the Plan, he
continued to struggle academically throughout the school year.  To address
the continuing problems, Goodwin requested that the Department of
Education (the "Department") appoint a hearing officer and convene an
administrative due process hearing regarding his Plan and placement.  See
20-A M.R.S.A. § 7207-B.
	[¶4]  At the mandatory prehearing mediation session, the parties
failed to reach an agreement on a revised program for Goodwin's son. 
Goodwin alleges, however, that the District later proposed a specific
educational program for him and that after some negotiation, the parties
reached a final verbal agreement on a program, thereby resolving their
dispute.  She subsequently notified the Department and the hearing officer
of the settlement agreement and canceled the hearing.  Goodwin contends
that the District then breached the settlement agreement and refused to
provide her son with several of the agreed upon services.  Because too little
time remained before the beginning of the school year to enforce the
agreement through litigation, she enrolled him in a private school
specializing in instruction of students with disabilities.
	[¶5]  Goodwin next sought recovery of her attorneys' fees and costs by
presenting the District with a request for reimbursement of $4,725 in
attorneys' fees, $52 in paralegal fees, expert witness fees of $590.60, and
related expenses of $250.36 which she claimed to have incurred in
connection with her request for a due process hearing.  The District denied
Goodwin's request, and she filed suit in the Superior Court against the
District, seeking to recover those fees and expenses.  
	[¶6]  The District removed the case to the United States District
Court, arguing that Goodwin's complaint presented a federal question
because it sought attorneys' fees and costs pursuant to the federal
Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.
§§ 1400-1487 (1990 & Supp. 1998), specifically, 20 U.S.C. § 1415(i)(3)(B). 
Goodwin moved to remand the case to state court asserting that she did not
seek recovery under any federal law and that her complaint alleged only a
state law cause of action.  The United States District Court remanded the
matter to the Superior Court, and the District filed a motion to dismiss,
arguing that there exists no state law cause of action for attorneys' fees and
therefore that her complaint failed to state a claim upon which relief could
be granted.{4}  The Superior Court granted the motion to dismiss and this
appeal followed.
II. Discussion
	[¶7]  Goodwin alleges that by virtue of obtaining the settlement
agreement, she became a "prevailing party" within the meaning of section
11.13(B) of Maine Special Education Regulation, Chapter 101, and is
therefore entitled to recover her reasonable attorneys' fees and expenses
through a civil suit in the Superior Court.  Although she does not dispute
that she could have brought her action under federal law, she asserts that
Maine's special education laws and the regulations promulgated by the
Department pursuant to those laws have created an analogous state law cause
of action.
	[¶8]  Because the matter is before us on appeal from the judgment on
a motion to dismiss, we treat the allegations of the complaint as admitted. 
See McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994).  We assume for purposes
of this appeal that Goodwin did incur attorneys' fees and expenses in the
context of the administrative hearing process, that the parties reached a
prehearing settlement, and that Goodwin "prevailed" in that settlement. 
We will affirm the judgment only if it appears beyond doubt that Goodwin is
entitled to no relief.  See Bowman v. Eastman, 645 A.2d 5, 6-7 (Me. 1994). 
Because Goodwin has brought her claim under Maine law, she will be
entitled to relief only if there exists in Maine law a cause of action for
attorneys' fees in this context.
A. Federal Claim
	[¶9]  We first address the applicable federal law.  Any state receiving
federal funds for education pursuant to the IDEA must meet federal
eligibility standards.  See 20 U.S.C. §§ 1412, 1414.  Maine has chosen to
receive those funds.  Pursuant to the IDEA, every disabled child has a right
to an Individualized Education Plan, developed and reviewed at least yearly
according to the child's individual needs.  See 20 U.S.C. § 1414(d)(2)(A),
(d)(4) (1990 & Supp. 1998).{5}  The Plan establishes the individual services,
goals, and educational placement available to a disabled child for that given
year.  See 20 U.S.C. § 1414(d)(1)(A).  A family that is dissatisfied with the
Plan may challenge that decision through an administrative hearing.  See 20
U.S.C. § 1415(f)(1).  
	[¶10]  Among the requirements placed on each participating state is
the necessity for the state to establish certain procedural safeguards.  Those
safeguards include the right to an administrative hearing if the parents
disagree with their child's IEP and the right to appeal from the order of the
hearing officer.  If a family prevails at the administrative hearing, the IDEA
provides for the recovery of attorneys' fees by that family.  Jurisdiction for
actions to recover attorneys' fees is in the "district courts of the United
States."  20 U.S.C. § 1415(i)(3)(A).{6}  "In any action or proceeding under this
section, the court, in its discretion may award reasonable attorneys' fees as
part of the costs to the parents of a child with a disability who is the
prevailing party."  20 U.S.C. § 1415(i)(3)(B).  While the IDEA requires that a
family be allowed to challenge the administrative hearing results regarding
the child's Plan in either state or federal court, see 20 U.S.C.
§ 1415(i)(2)(A), there exists no federal requirement that a state receiving
federal educational funds provide a state court cause of action for attorneys'
fees.
B. State Law
	[¶11]  To satisfy its obligations under the IDEA and receive federal
education funding, Maine enacted its own special education statutes at 20-A
M.R.S.A. § 7000-7503 (1993 & Supp. 1998).  According to the statutory
scheme, the Department formulates policy and enforces the regulatory
requirements of school administrative units.  See 20-A M.R.S.A. § 401-A
(1993).  The Department's Commissioner is expressly authorized to adopt
rules and procedures to protect the due process rights of exceptional
students.  See 20-A M.R.S.A. §§ 7204(5)(A), 7207-B(1).  Nowhere in the
special education laws, however, is a cause of action for attorneys' fees
explicitly addressed or created.  We must determine therefore whether a
cause of action for attorneys' fees can be implied from the language of the
statute.
	[¶12] We have historically applied an approach developed in federal
law to determine when a cause of action may be judicially implied from a
statute that does not expressly create one.{7}  See Larrabee v. Penobscot
Frozen Foods, Inc., 486 A.2d 97, 101 (Me. 1984).  To determine whether a
cause of action may be implied, we examine: (1) whether the plaintiff is a
member of the class for whose benefit the statute was enacted; (2) whether
there is any indication of legislative intent, explicit or implicit, either to
create such a remedy or deny one; (3) whether it is consistent with the
underlying legislative scheme to imply such a remedy; and (4) whether the
cause of action is one traditionally relegated to one jurisdiction rather than
another.  See Larrabee, 486 A.2d at 101 (citing Cort, 422 U.S. at 78).  
	[¶13]  Here, however, because we are reviewing the statutes to
determine whether the Legislature intended to create a private cause of
action for attorneys' fees, we must be mindful of the unusual status of claims
for attorneys' fees.  It is well settled that Maine courts have no authority to
award such fees in the absence of express statutory authorization or
agreement by the parties.  See Poussard v. Commercial Credit Plan, 479 A.2d
881, 883 (Me. 1984).  Because of the unique nature of attorneys' fees, "a
statutory right to recover attorney's fees will be found only in the clearest
kind of legislative language."  Vance v. Speakman, 409 A.2d 1307, 1311 (Me.
1979) (emphasis added).{8}  Accordingly, a cause of action for attorneys' fees
cannot be implied from legislative intent and must be articulated in
unmistakable terms.
	[¶14]  Even if we were to apply the Larrabee analysis, we would
conclude that the Legislature has not created a statutory right to recover
attorneys' fees in this context.  Nothing in Maine's special education laws
evidences an intent to create a separate cause of action in state courts. 
Claims for attorneys' fees in these matters have traditionally been made in
the federal courts.  The federal laws on point provide specific guidance for
the federal district courts in adjudicating disputes over fees.  See, e.g., 20
U.S.C. § 1415(i)(3)(A)-(G).  The IDEA does not require states to take action
to allow such claims in their courts.  The federal courts have both the
legislative guidance and the resources necessary to address parental claims
for attorneys' fees.  In the absence of legislative consideration of these
issues, we would not imply a legislative intent to create a similar cause of
action in the Maine courts.
	[¶15]  Recognizing the lack of any clearly expressed intent to create a
state law cause of action for attorneys' fees, Goodwin refers us to the recent
enactment of legislation limiting the circumstances under which a parent
may recover attorneys' fees incurred during a due process hearing.  See
20-A M.R.S.A. § 7207-B(3-A).
  
3-A.  Notice to local school units.   . . .  The parent, surrogate
parent or guardian is barred from recovering attorney's fees in
any subsequent action or proceeding if it is determined that the
parent, surrogate parent or guardian unreasonably protracted
the controversy by failing to raise that controversy first with the
local school administrative unit before initiating the subsequent
action or proceeding.

See id.  (Emphasis added).{9}   
	[¶16]  We addressed the argument that a claim for attorneys' fees may
not arise out of a negative implication in Vance v. Speakman, 409 A.2d 1307,
1311 (Me. 1979).{10}   In declining to imply a cause of action, we concluded
that where the language of the applicable provision only denied attorneys'
fees, no claim to fees had been created.  See id. at 1311-12.  Because the
"clearest kind of legislative language" is necessary to create a right to
recover attorneys' fees, no right can be created by negative implication.  Id. 
	[¶17]  Similarly, Goodwin's argument that 20-A M.R.S.A.
§ 7207-B(3-A) creates a cause of action for such fees fails.  Indeed, the
circumstances here are similar to those that we confronted in Vance.  Here,
as there, the companion federal law explicitly contains the right to recover
fees, and yet the Legislature has not created a similar right in Maine law. 
Having long adhered to the rule that any claim for attorneys' fees must arise
from explicit affirmative statutory language, we decline to infer such a right
from the general language of a statute of negative inference.
III. Maine's Special Education Rules
	[¶18]  We turn next to Goodwin's argument that the State's Special
Education Rules create a cause of action in Maine courts for her attorneys'
fees.  The creation of a private cause of action through rulemaking will be
found only where there exists clear statutory authority for the adoption of
such a rule, and where the rule sets forth its intent to establish a cause of
action with equal clarity.  See Hottentot v. Mid-Maine Medical Center, 549
A.2d 365, 368 (Me. 1988) (". . . We will recognize a private cause of action to
enforce a statute only where the legislative intent to create such a remedy is
clear.  The same standard should apply to regulations. . ."); see also Sadler v.
Citibank, 947 F.2d 642, 643-44 (2d Cir. 1991) (where federal regulation
lacks an express private right of action, federal courts focus on the statute's
legislative intent).  Again, because this claim involves the right to recover
attorneys' fees, only where the enabling legislation is explicit and the
ensuing rule is equally explicit would we consider the authority to have been
sufficient to confer jurisdiction upon the courts.
	[¶19]  In addition to the absence of explicit statutory authorization for
the promulgation of a rule establishing a cause of action for attorneys' fees, 
the rule itself lacks any explicit language authorizing a cause of action in
State courts.   The rule addresses attorneys' fees as follows:

Private expenses of hearing--Reasonable attorneys' fees incurred
by a parent related to a special education hearing shall be the
responsibility of the administrative unit when the parent prevails
in the special education hearing and when ordered by a court of
appropriate jurisdiction, or when an out-of-court settlement has
been agreed to by both parties.

Me. Dep't of Ed. Chapter 101 § 11.13(B) (emphasis added).  While the rule
acknowledges the parents' right to recover attorneys' fees when ordered by
a "court of appropriate jurisdiction," nothing in its language creates a cause
of action in Maine courts for the award of those fees.  To the contrary, the
phrase "court of appropriate jurisdiction" is a distinct reference to
jurisdictional authority delineated elsewhere.  It does not express an intent
to create jurisdiction in any specific court and is most logically a reference
to the federal court's jurisdiction to entertain attorneys' fees claims.  The
rule does not contain the kind of clear language necessary to empower
either the Maine District Court or Superior Court to entertain such a
claim.{11}
	[¶20]  A federal cause of action exists for attorneys' fees.  No other
relief is required by federal law or authorized under Maine law.  The
Superior Court did not err when it determined that Goodwin failed to state a
cause of action. 
	The entry is
Judgment affirmed.

Attorney for the Plaintiff: Charles P. Piacentini, Esq. (orally) Murry, Plumb & Murray 75 Pearl St. P.O. Box 9785 Portland, Maine 04104 Attorney for the Defendant: Eric R. Herlan, Esq. (orally) Drummond, Woodsum & MacMahon 245 Commercial St. P.O. Box 9781 Portland, Maine 04104-5081
FOOTNOTES******************************** {1} . Federal education statutes use the term "attorneys' fees" and for consistency we adopt that term herein. {2} . An "exceptional student" is an individual who: "[h]as reached 5 years of age on or before October 15th;" "[h]as not reached 20 years of age at the start of the school year;" and requires special education because of an impairment in one or more of the following: vision; hearing; speech and language; cerebral or perceptual functions; physical mobility functions; behavior; or mental development. 20-A M.R.S.A. § 7001(2). {3} . A "student with a disability" is defined by rule as a person who: [h]as reached the age of 5 years on or before October 15; . . . [h]as neither graduated from a secondary school program nor reached 20 years of age at the start of the school year; and . . . [h]as a disability which adversely affects the student's educational performance and requires the provision of special education services in order that the student may benefit from an elementary or secondary educational program. Me. Dep't Ed. Reg. ch. 101 § 3.1. {4} . The District also argues that Goodwin failed to exhaust her administrative remedies. Because no administrative remedies exist, we do not reach that argument. {5} . The IDEA was re-authorized in full by Congress, effective June 4, 1997. Congress again re-authorized the statute with certain amendments, effective July 1, 1998. Because the this proceeding focuses on the existence vel non of a state law cause of action, neither party has addressed the differences in the federal act. For consistency, we refer to the 1998 version throughout this opinion. Because the federal act has never required that states create a state law cause of action for attorneys' fees, the differences in the enactments are not determinative of the outcome here. {6} . The federal attorneys' fees provisions have been interpreted as authorizing the award of attorneys' fees to parents who "prevail" at an administrative hearing or through settlement agreements. See Shelly C. v. Venus Independent School District, 878 F.2d 862, 864 (5th Cir. 1989). {7} . This approach evolved from a test, first articulated by the United States Supreme Court in Cort v. Ash, 422 U.S. 66, 78 (1975), that emphasizes legislative intent. Whether the Cort v. Ash approach to determining when a cause of action may be implied from a statute remains compelling authority in federal jurisprudence is unclear. See Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76 (1979); Park Nat'l Bank of Chicago v. Michael Oil Co., 702 F. Supp. 703, 704 (N.D. Ill. 1989). We, however, continue to apply the approach articulated in Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 101 (Me. 1984), focusing primarily on legislative intent. {8} . Similarly, in Thiboutot v. State, 405 A.2d 230, (Me. 1979), aff'd 488 U.S. 1 (1980), we concluded that "Maine state courts have no authority to include attorney's fees as part of costs in the absence of statutory authorization or agreement of the parties." Id. at 238 (emphasis added). In Thiboutot, in contrast to the proceeding before us, the litigant sought attorneys' fees pursuant to the applicable provision of the federal law, and we concluded that the litigant was entitled under 42 U.S.C. § 1988 to seek attorneys' fees in state court. Id. at 239. Goodwin, however, has expressly disavowed any claim to attorneys' fees under the federal statute on point, choosing instead to assert an independent cause of action for fees under Maine law. {9} . These limitations are similar to the limitations now set out in the federal laws. See 20 U.S.C. § 1415(i)(3)(F)(i)-(iv) (1990 & Pamph. 1998). {10} . At that time, the only support for an award of attorneys' fees arising from the Maine Human Rights Act arose from the following language: If the plaintiff fails to allege and establish, to the satisfaction of the court, that he or she or someone acting on his or her behalf filed a complaint with the commission at least 30 days prior to the filing of his or her civil action, then except in extraordinary cases, to prevent irreparable injury or where good cause is shown, the action shall be heard in its ordinary course on the docket, and the plaintiff should not be granted attorneys' fees nor exemplary damages. 5 M.R.S.A. § 4622 (1979) (emphasis added). {11} . Had the Legislature or the Commissioner intended to create a cause of action in Maine courts, the language of the statute or rule would certainly have more clearly identified the "court of appropriate jurisdiction," District or Superior, or would have created an administrative hearing process for resolving disputes over attorneys' fees which could then be appealed in due course to the Superior Court.