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Seider v. Bd. of Exam. Psychologists
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 		1998 ME 78
Docket: 		Cum-97-405
Submitted 
on Briefs: 	January 16. 1998  
Decided:		April 17, 1998	

Panel:  	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
		    SAUFLEY, JJ.
Majority:	WATHEN, C.J., and ROBERTS, RUDMAN, DANA, and SAUFLEY, JJ.
Dissent:	CLIFFORD and LIPEZ,  JJ.
JUDITH A. SEIDER

v.

BOARD OF EXAMINERS 
OF PSYCHOLOGISTS

RUDMAN, J.

	[¶1]  Judith A. Seider appeals from the judgment entered in the
Administrative Court (Beaudoin, C.J.) dismissing her petition for review of a
decision of the Board of Examiners of Psychologists ("Board") on the basis
that the statutory time period for review had expired.  Seider contends that
the court erred as a matter of law because she never received the statutorily
mandated notice of her right to appeal and thus the period within which she
could bring an appeal had not begun to run.  We agree and vacate the
judgment.
	[¶2]  On July 14, 1995, following an adjudicatory hearing before the
Board of Examiners of Psychologists, Seider was found to have committed
fifteen ethical violations, was suspended from practicing psychology for six
months, and was placed on probation for three years.  The copy of the
Board's order sent to Seider and her attorney did not include written notice
of Seider's appellate rights as required by 5 M.R.S.A. § 9061 (1989). 
Although Seider's attorney notified the Board of this defect in December,
1996, the Board did not supply Seider or her attorney with a written notice
of her appellate rights.
	[¶3]  The administrative court found that Seider had actual notice of
her appellate rights as of December 23, 1996.  On April 4, 1997, Seider
filed a Petition for Review of the Board's Decision and Order in the
Administrative Court.  The court dismissed the petition, concluding that the
period during which an appeal could be taken began running on the date
Seider received notice of the Board's Decision and Order, regardless of
whether the Decision and Order contained notice of her appellate rights.{1} 
This appeal followed.
	[¶4]  Section 11002 of Maine's Administrative Procedure Act (APA)
states, in relevant part, that a "petition for review [of final agency action]
shall be filed within 30 days after receipt of notice if taken by a party to the
proceeding of which review is sought."  5 M.R.S.A. § 11002(3) (1989)
(emphasis added).  Section 9061 of the APA sets forth the statutory
requirements for an agency's notice of decision and reads in relevant part:
Every agency decision made at the conclusion of an adjudicatory
proceeding shall be in writing or stated in the record, and shall
include findings of fact sufficient to apprise the parties and any
interested member of the public of the basis for the decision.  A
copy of the decision shall be delivered or promptly mailed to
each party to the proceeding or his representative of record. 
Written notice of the party's rights to review or appeal of the
decision within the agency or review of the decision by the
courts, as the case may be, and of the action required and the
time within which such action must be taken in order to
exercise the right of review or appeal, shall be given to each
party with the decision.   (emphasis added). 	
	[¶5]  We have previously considered the implications of non-
compliance with mandatory statutory notice requirements.  In Givertz v.
Maine Medical Center, we stated that, notwithstanding the fact that a
statutory notice requirement may be couched in terms of the mandatory
"shall," certain statutory requirements respecting the details of the notice
of claim, such as its verification and service, could be regarded as directory. 
459 A.2d 548, 554 (Me. 1983),   We concluded, however, that the language
of a statutorily-required notice must be given mandatory, not directory,
effect when such language is "of the very essence of giving notice" or if the
rights of the interested parties would be prejudiced.  Id. at 554.  Because
written notice of appellate rights pursuant to section 9061 is "of the very
essence" of that section's notice requirement, and because the rights of an
affected party may be prejudiced without such written notice, we hold that
the Board's failure to provide written notice tolls the running of the
statutory appeals period.  See Town of Freeport v. Greenlaw, 602 A.2d 1156,
1161 (Me. 1992) (notice required by the APA "to be effective in triggering
the running of an appeal period . . . should refer to the provisions of the
ordinance allegedly being violated, inform the violator of the right to dispute
the order and how that right is exercised by appeal, and specify the
consequences of the failure to appeal") (emphasis added); cf. Savings & Loan
Assoc. of Bangor v. Tear, 435 A.2d 1083, 1086-87 (Me. 1981) (insurance
cancellation ineffective when notice of cancellation failed to include
statutorily required notice of the right to a hearing before superintendent of
insurance).
	[¶6]  We decline to interpret section 9061 so as to strike "written"
from that section's "written notice" requirement as if it were a mere
technicality.  See Faucher v. City of Auburn, 465 A.2d 1120, 1123 (Me.
1983) (questioning the accuracy and potential for distortion of oral notice);
Maciborski v. Chase Service Corp. of Arizona, 779 P.2d 1296, 1300 (Ariz. Ct.
App. 1989) ("It is particularly true that where a statute details how to give
notice, the statute must be strictly followed."); Chaffer v. Kennedy, 433 A.2d
1018, 1020-21 (Conn. Supp. 1981) ("Where a specified mode of giving
notice is prescribed by statue, that method is exclusive") (internal citation
omitted); 58 Am. Jur. 2d Notice § 30 (1989) ("If a statute requires a written
notice, an actual oral notice is insufficient . . . .").  To do so would burden the
courts with the imprecise inquiry of whether a party receiving defective
notice nonetheless was appraised, orally or otherwise, of the substance of
that party's appellate rights -- a result no less burdensome to the
administrative process than the extension of the appeal period for those not
receiving notice.
	[¶7]  For a party facing the seeming finality of an administrative
adjudication, written notice of appellate rights serves to inform and to
educate.  See Town of Freeport, 602 A.2d at 1160 (requisite notice of
appellate rights serves to inform party of the right to appeal, to whom an
appeal must be taken, and the consequences of the party's failure to appeal). 
Our insistence upon the provision of written notice of appellate rights prior
to the running of the appellate period respects the legislative intent to
ensure that parties receive adequate notice and information to exercise
their right to appellate review.  Balancing the importance of full notice
against the burden of providing it leads to only one proper result in those
instances in which notice has been so substantively inadequate.  
	The entry is:
	Judgment vacated.  Remanded for consideration of
    Judith A. Seider's Petition for Review.
CLIFFORD, J., dissenting, with whom LIPEZ, J., joins.
	[¶8]  The Maine Administrative Procedure Act provides that judicial
review of an administrative agency action must be taken within 30 days after
receipt of notice of the decision of the agency.  5 M.R.S.A. § 11002(3)
(1989).  The Court's decision, in this case, however, allows Dr. Seider, who
was continually represented during the Board's hearing and thereafter with
competent attorneys, to file an appeal twenty months after she received
notice of the Board's decision, and four months after her attorney actually
communicated with the Board concerning notice of her appeal rights.
	[¶9]  The purpose of a requirement such as that in 5 M.R.S.A. § 9061
(1989) that an administrative decision must provide written notice of rights
of appeal is to insure that parties are fully apprised of their appeal rights. 
See Owens v. Second Baptist Church of LaGrange, 516 N.E.2d 712, 715 (Ill.
App. 1987).  The law also insures that appeals are filed and dealt with
promptly by the Administrative Court.  
	[¶10]  In December of 1996, Dr. Seider's attorney contacted the Board
to inform it that Dr. Seider had not received written notice of her appeal
rights.  The attorney was acting with full knowledge of her right to an
appeal, and in my view, that contact was the equivalent of a written notice. 
From that time on, no further purpose of the notice requirement was being
served and Dr. Seider must be charged with full knowledge of her appeal
rights.
	[¶11]  This Court, however, elevates the importance of the written
notice to a level that results in Dr. Seider having an unlimited time in which
to file her appeal.  In these circumstances, Dr. Seider should not be allowed
to invoke a provision in the law intended as a shield to protect people
unaware of their rights of appeal, and use it as a sword to extend her appeal
period over one and a half years.  I would affirm the judgment of the
Administrative Court.

Attorney for plaintiff: Christopher C. Taintor, Esq. Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600 Attorneys for defendant: Andrew Ketterer, Attorney General Judith M. Peters, Asst. Atty Gen. 6 State House Station Augusta, ME 04333-0006

FOOTNOTES******************************** {1} The court noted in its decision that Seider failed to "show[] any prejudice resulting to her from the Board's omission [of written notice of her appellate rights] . . . [or] that her untimely appeal had anything to do with lack of notice." The court also reasoned that because Seider's counsel was aware of Seider's appellate rights as of December, 1996, she was not prejudiced by the Board's failure to provide her with written notice of her appellate rights. The court concluded by adding that Seider had received actual notice of her appellate rights by December 23, 1996, and thus her April, 1997, appeal was untimely.