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A Rule of Law Thing.

A Rule of Law Thing.

Posted by Ed Folsom, January 14, 2023.

The Maine Legislature’s Government Oversight Committee is trying to access child protective records from the Department of Health and Human Services (DHHS). The Committee wants to conduct its own investigation of the DHHS’s handling of child protective cases. For the year 2021, Maine reported a record 30 deaths of children who were abused, neglected or who died after their households were involved with the child protective system.

The DHHS won’t turn the records over to the Government Oversight Committee. They claim there is no provision in Maine law that allows them to turn over privileged records directly to the Legislature, or to one of its committees. Instead, the DHHS has turned the requested records over to Office of Program Evaluation and Government Accountability (OPEGA). There is specific statutory authority for the DHHS to turn privileged child protection records over to the OPEGA, and the OPEGA is authorized to review the records and report its findings to the Legislature. But this time, the Government Oversight Committee wants to do its own records review.

The Legislature created the OPEGA, so how does it make sense that the Legislature can’t have direct access to the records that one of its own creations can access? It’s a rule of law thing.

We have three branches of government: the legislative, the executive and the judicial. The legislative branch makes the laws, the executive branch executes the laws made by the legislature, and the judicial branch interprets the laws in the context of cases. Here, the Legislature enacted laws making DHHS child protective records confidential, with very narrow exceptions. One of those exceptions allows the OPEGA to review such records to conduct investigations.

The DHHS is an executive branch agency, executing laws made by the Legislature. It does not see any authority in law allowing it to pass confidential child protective records to the Legislature or one of its committees. It sees itself as bound by the legal prohibition on disseminating such records to anyone other than those specifically authorized to receive them, and it therefore refuses to provide them to the Government Oversight Committee.

The Committee sought an order from the judicial branch compelling the DHHS to turn the requested records over to the Committee. But the Superior Court Justice who heard the matter couldn’t find any authority in law for the Committee to receive the records either. So, the Justice denied the Committee’s request.

Now what? The Legislature can pass any law it wants to, as long as it acts in accordance with its own governing procedures. As long as the laws it enacts don’t run afoul of the constitution, those laws are fully effective. But the rule of law dictates that neither the legislative, the executive, nor the judicial branch is allowed to simply act in ways it deems wise, just, or otherwise desirable if doing so contravenes existing law. In other words, if laws that the Maine Legislature has made have neglected to make it legal for the DHHS to provide confidential child protective records to the Legislature, then the rule of law dictates that the DHHS must not provide child protective records to the Legislature.

What might the Legislature do to both remedy the problem and act in accordance with the rule of law? They might pass a new law that creates another exception to the general rule of confidentiality, allowing the DHHS to provide child protective records directly to the Legislature for an investigation. They unquestionably have the power to do that.

Instead of doing that, the Government Oversight Committee decided to appeal the Superior Court’s ruling to the Maine Law Court, hoping the Law Court will rule that Maine law allows the Committee to directly access the records. But will they? Probably not, unless the Law Court buys into a theory that the Legislature has an inherent power to command another branch of government to turn over confidential records to it in contravention of statute. Why wouldn’t the Legislature just skip the appeal and enact emergency legislation that provides clear statutory authority for it to receive otherwise confidential child protective records from the DHHS? According to a story in today’s Portland Press Herald, “Republicans argued that no one could guarantee that such a law would pass.”

Really? If the law wouldn’t pass, that’s because its proponents can’t come up with the votes within the Legislature to give the Legislature express authority to receive child protective records from the DHHS. If that’s the case, it’s entirely possible that the existing law intentionally left out any exception for the Legislature to directly access such confidential records, maybe because the majority of legislators would not have believed such an exception was appropriate. How likely is that?

But whether the absence of an exception for the Legislature in the confidentiality laws was intentional or inadvertent, the rule of law appears to dictate that the Legislature must be denied access to DHHS child protective records. And whether the absence of a legislative exception to confidentiality was intentional or inadvertent, the answer to what should be and what shall be lies within the Legislature.

The Legislature is a co-equal branch of government with the others. Why run to the courts, begging for a favorable solution, when it has the power to settle the matter clearly and finally on its own?

Let’s not form bad habits. Skip the courts. Get on with it.