MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT

KEN-13-514



GINA TURCOTTE


APPELLANT


v.


SECRETARY OF STATE


APPELLEE




REPLY BRIEF FOR APPELLANT






Gina Turcotte
APPELLANT
32 Court St, Apt 1
Augusta, Maine

Page 1 of 12
TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................ 2
STANDARD OF REVIEW ................................................................................. 3
REPLY BRIEF FOR APPELLANT ...................................................................... 3
1. APPELLEE FAILED TO PROVE THAT FAILURE TO FILE A MEDICAL
EVALUATION EQUALS INCOMPETENCE TO DRIVE A MOTOR
VEHICLE.

CONCLUSION ................................................................................................. 8
CERTIFICATE OF SERVICE .......................................................................... 11


Page 2 of 12
TABLE OF AUTHORITIES

CONSTITUTION
United States Constitution, All Pertinent Due Process Clauses
Maine Constitution, All Pertinent Due Process Clauses
CASES
McPherson Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME 177
STATUTES
5 MRSA 9052(3)
5 MRSA 10003
5 MRSA 10004(3)
5 MRSA 11007(4)(C)(4)-(6)
29-A MRSA 1258(5)
29-A MRSA 2458(2)(D)
29-A MRSA 2458(4)
29-A MRSA 2482(3)

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STANDARD OF REVIEW
The Court may only reverse or modify an administrative agency's
decision if it is based upon "bias or error of law", is "unsupported by
substantial evidence on the whole record", is "arbitrary and capricious", or
involves an "abuse of discretion" by the agency. 5 M.R.S.A. 11007(4)(C)(4)-(6).
According to the Law Court, the power to review decisions of the Secretary of
State is confined to an examination of "whether the Commission correctly
applied the law and whether its fact findings are supported by any competent
evidence." McPherson Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME
177, ~ 6,714 A.2d 818, 820.
REPLY BRIEF FOR APPELLANT
1. APPELLEE FAILED TO PROVE THAT FAILURE TO FILE A MEDICAL
EVALUATION EQUALS INCOMPETENCE TO DRIVE A MOTOR
VEHICLE.

The Secretary of State repeatedly indicates they "mailed a notice of
suspension and opportunity for hearing to the last known address" but they fail
to disclose that both of those notices were returned to them by the USPS
thereby nullifying any claims that actual notice of the medical evaluation
request or notice of suspension were successfully served.
Judge Murphy of Kennebec County Superior Court improperly concluded
in the October 24, 2013 Order that "actual notice was given to Turcotte by a law
enforcement officer, who during a traffic stop, personally informed Turcotte that
her driver's license had been suspended" although having no evidence that Ofc.
DosSantos informed Appellant of the legal authority and jurisdiction under
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which the proceeding would be conducted, a reference to the particular
substantive statutory and rule provisions involved, a short and plain statement
of the nature and purpose of the proceeding and of the matters asserted, a
statement of the time and place of the hearing, or the time within which a
hearing may be requested, a statement of the manner and time within which
evidence and argument may be submitted to the agency for consideration,
whether or not a hearing had been set, and when a hearing had been set, a
statement of the manner and time within which applications for intervention
under section 9054 may be filed.
The Superior Court's determination that actual notice was properly
served is a reversible error which rises to the level of a question of law which is
reviewable by a federal court of appeals.
29-A MRSA 2482(3) indisputably specifies, "The notice is deemed
received 3 days after mailing, unless returned by postal authorities."
The Secretary of State is empowered to take unilateral administrative
action without a hearing when there are concerns about public health or safety
and as long as that suspension does not continue for more than 30 days
pursuant to 5 MRSA 10004(3), "The health or physical safety of a person or the
continued well-being of a significant natural resource is in immediate jeopardy at
the time of the agency's action, and acting in accordance with subchapter IV or VI
would fail to adequately respond to a known risk, provided that the revocation,
suspension or refusal to renew shall not continue for more than 30 days."
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There is no evidence whatsoever that "The health or physical safety of a
person or the continued well-being of a significant natural resource is in
immediate jeopardy at the time of the agency's action..." in 2009 and 2010.
When the Secretary of State received and logged both USPS returned
mail items they did not try to fulfill actual notice requirements by placing a
public notice pursuant to 5 MRSA 9052(3), "Notice to the public shall be given:
A. By publication, at least twice in a newspaper of general circulation in the area
of the state affected; B. By publication in any other trade, industry, professional
or interest group publication which the agency deems effective in reaching
persons who would be entitled to intervene as of right under section 9054,
subsection 1; and C. In any other manner deemed appropriate by the agency."
The Secretary of State took no further steps to ensure their compliance
with constitutional due process requirements pursuant to 29-A MRSA 2458(4)
which very clearly indicates only three (3) exceptions to the notice requirement,
"Upon suspending or revoking a...license...pursuant to subsection 2, the
Secretary of State shall notify that person of opportunity for hearing as
provided in section 2483, except when: A. The suspension...rests solely upon a
conviction in court of an offense that by statute is expressly made grounds for
that suspension or revocation; B. The basis of the Secretary of State's action is a
condition of bail or conditional release pursuant to subsection 2, paragraph Q; or
C. The suspension or revocation is required by federal statute or regulation."
Appellant had no convictions in 2008, 2009 or 2010 that were statutory
grounds for any suspension, nor were there any bail conditions or legal
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applicability of any federal statute or regulation to substantiate any action
without proper hearing and evidentiary findings of fact as supported by
evidence in the record.
Furthermore, the Secretary of State cannot claim they acted upon a
report of adverse or negligent operation, a report by a law enforcement officer,
nor upon the advice of the Medical Advisory Board because no evidence of
those events exist.
As a matter of record, Secretary of State issued a violation free credit on
December 31, 2008 for year 2008, another on December 31, 2009 for year
2009 and a third credit on March 8, 2011 for the year 2010 which clearly
supports Appellant's rebuttal of Secretary of State's allegation of incompetence
to drive a motor vehicle which is the crux of this instant case regardless of
Appellee's successful service of any required actual notice.
Appellee states in their brief on page 2, 2, "On January 5, 2010, the
indefinite suspension went into effect because Turcotte did not submit the
requested evaluation form." which should have been, but was not, based on 29-
A MRSA 1258(5), "The license of a person under review who refuses to submit
to an examination or to provide information as requested by the Secretary of
State pursuant to this subchapter may be suspended until the individual
complies with the request."
Initially, in the January 5th letter, the Secretary of State indicates that
"failure to file a medical evaluation request" will result in indefinite suspension
for "incompetence to drive a motor vehicle" pursuant to 29-A MRSA 2458(2)(D)
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even though they could have properly applied 29-A MRSA 1258(5) or 5 MRSA
10004(3) instead.
In fact, the Secretary of State has made no mention whatsoever of 29-A
MRSA 1258(5) in support of their indefinite suspension for failure to comply
with the medical evaluation request; instead, Secretary of State has claimed
but utterly failed to provide evidence of incompetence to drive a motor vehicle
under 29-A MRSA 2458(2)(D).
If Secretary of State wanted Appellant to have actual notice of the request
for medical evaluation, they should have fully complied with 5 MRSA 9052(3)
and posted public notices in local publications expecting Appellant or someone
who knows Appellant would see the public notice and whereby Appellant could
have, and would have, promptly complied with the request for medical
evaluation without the need for an arbitrary and abusive suspension. This
public notice could have also served as Appellee's irrefutable proof of due
process because they would now be able to go into the newspaper archives to
show overwhelming proof of public notice publication satisfying all elements of
notice pursuant to 5 MRSA 9052(3) which must state,
A. A statement of the legal authority and jurisdiction under which the
proceeding is being conducted;
B. A reference to the particular substantive statutory and rule
provisions involved;
C. A short and plain statement of the nature and purpose of the
proceeding and of the matters asserted;
D. A statement of the time and place of the hearing, or the time within
which a hearing may be requested;
E. A statement of the manner and time within which evidence and
argument may be submitted to the agency for consideration, whether or
not a hearing has been set; and
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F. When a hearing has been set, a statement of the manner and time
within which applications for intervention under section 9054 may be filed.

There are no facts in the record to support Appellee's claim that Ofc. Eric
DosSantos provided all elements of actual notice under 9052(3) above. Thus,
Secretary of State violated constitutional due process which Appellant has
undeniably proven by the facts and evidence in this case.
Again, the Superior Court's determination that actual notice was
properly served is a reversible error which rises to the level of a question of law
which is reviewable by a federal court of appeals.
Presuming theoretically that Appellant received the 2010 suspension
letter and immediately requested an administrative hearing within the rules,
there is no evidence to support allegations of incompetence regardless if
Appellant received or complied with any request for any medical evaluation.
Despite Appellant's failure to receive or comply with a medical evaluation
request, Secretary of State never had authority or substantial evidence under
29-A MRSA 2458(2)(D) to suspend Appellant's license for any reason.
Secretary of State's application of 29-A MRSA 2458(2)(D) was arbitrary,
capricious and based upon bias or error of law, was a clear abuse of discretion,
and was unsupported by substantial evidence on the whole record.
CONCLUSION
The question before this court is not just whether actual notice was
properly served although that is definitively one of the elements heavily
impacting the merits of this case; the question at the heart of this appeal is if
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substantial evidence exists to support a finding of incompetence to drive a
motor vehicle under 29-A MRSA 2458(2)(D) as alleged by Secretary of State in
the 2010 notice of suspension.
The end result of any administrative hearing, past or present, will be a
full nullification of the administrative medical suspension based on the lack of
evidence to support any allegation of incompetence.
For the foregoing reasons together with those reasons the law court finds
pertinent and persuasive, Appellant respectfully moves the court to find that
actual notice requirements were not met, immediately reverse the January 5,
2010 decision by Secretary of State to suspend the license under 29-A MRSA
2458(2)(D) for 'incompetence to drive a motor vehicle', void all companion
cases which resulted directly or indirectly from this medical suspension
(docketed under AUGDC-CR-2011-512, AUGDC-CR-2011-513, AUGSC-CR-
2012-286, including unidentified Violations Bureau summonses).
If the law court remands this action back to Secretary of State for proper
hearing, the final outcome will be a full nullification of the medical suspension
as well as all companion cases resulting directly or indirectly from the 2010
medical suspension so Appellant moves the law court to take the appropriate
action now nullifying the medical suspension and all corresponding violations,
and issuing an order for a complete refund and forgiveness of all fines and
reinstatement fees resulting from this and the companion cases cited herein.
If the law court decides actual notice was provided as required by law,
and that "failure to file a medical evaluation" rises to the level of being
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"incompetent to drive a motor vehicle", Appellant needs findings of fact
supporting the Appellee's claim that Ofc. DosSantos provided all elements of
actual notice as well as specifying the factual elements which caused Appellant
to become "incompetent to drive a motor vehicle".
Dated in Augusta Maine this 5th day of February 2014.
In Peace,

GINA TURCOTTE
32 COURT ST, APT 1
AUGUSTA, MAINE

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CERTIFICATE OF SERVICE
I hereby certify that on February 5, 2014, I filed and served the foregoing
reply brief by causing a copy to be served on all counsel of record by United
States Postal Service First Class Mail.

DATED: February 5, 2014 __________________________________________
GINA TURCOTTE