Cohen v. Millett

ARCHIBALD, Justice.

Following our decision in Cohen v. Maine School Admin. Dist. No. 71, Me., 393 A.2d 547 (1978) (Nichols, J., dissenting), Herman Cohen, as a “citizen, taxpayer, registered voter and elector of Maine School Administrative District No. 71,” initiated a new civil action captioned a “Verified Complaint for Declaratory and Injunc-tive Relief” in which, in addition to the *1081parties defendant in the prior action, “H. Sawin Millett, Jr., in his capacity as Commissioner of Education of the State of Maine,” was named as a defendant. Casco Bank & Trust Company and Maine School Administrative District No. 71 filed motions for summary judgment. Mr. Millett filed a motion to dismiss. Treating these motions collectively as motions for summary judgment (Rule 56(b), M.R.Civ.P.), a justice of the Superior Court issued this mandate: “Plaintiff’s complaint is dismissed with prejudice.”

Herman Cohen seasonably appealed.

We deny the appeal.

Our analysis of the complaint now before us makes it plain that the addition of H. Sawin Millett, Jr., as a defendant was for the purpose of allowing the plaintiff to challenge the factual accuracy of Mr. Mil-lett’s letter of September 2, 1977, which certified to the fact that the State Board of Education had approved the District’s planned construction of a new school facility. See Cohen, supra at 548-49. In the complaint Mr. Cohen alleges that it was error “as a matter of law and without substantial basis in fact” for Mr. Millett to have determined in the letter of September 2, 1977, that the conditions on which the State Board of Education had approved the project had been satisfied.

In Cohen we specifically sustained the continuing viability of the 1974 approval of the State Board of Education as evidenced by Mr. Millett’s 1977 letter. From the pleadings we were cognizant of the fact that the State Board of Education had initially approved this project on October 21, 1974, and that an amendment to this approval was voted on August 12, 1976. The 1974 certificate of approval was signed by the then secretary to the State Board and the 1976 amendment was signed by H. Saw-in Millett, Jr., as the then current secretary to the Board. Since Mr. Millett’s 1977 letter stood unrefuted and it was undenied that the Board’s approval had never “been withdrawn, amended or revised,” we concluded in Cohen, supra at 549:

Only the determination of the Commissioner of Education, who is statutorily charged with reviewing operative compliance of the project as approved, was relevant to absolute approval for ultimate payment. 20 M.R.S.A. § 3457.

(emphasis supplied) (footnote omitted).

In view of this holding it is now established that if the school project is completed in accordance with the approved plans, Mr. Cohen as a taxpayer in Maine School Administrative District No. 71 no longer has standing to seek preventive relief. This is true because the State on order of the Commissioner of Education is required to apportion to the District those funds to which it is entitled. In short, the impact of our holding in Cohen was to obligate the State to reimburse the District according to the statutory formula specified in 20 M.R.S.A. § 3457.

14 M.R.S.A. § 1851 provides:

In any civil case any party aggrieved by any judgment, ruling or order may appeal therefrom to the law court within 30 days or such further time as may be granted by the court pursuant to a rule of court,

(emphasis supplied). Construing Section 1851, we have held that an appellant from a judgment must demonstrate “aggrievance” arising out of that judgment which “must operate prejudicially and directly upon a party’s property, pecuniary or personal rights.” Jamison v. Shepard, Me., 270 A.2d 861, 862-63 (1970). The mere desire to vindicate a person’s individual opinion on a given issue in which such a person could have no direct interest is insufficient to confer standing to appeal. Desmond v. Persina, Me., 381 A.2d 633, 638 (1978). Likewise, a “tenuous and speculative possibility of some monetary harm” is inadequate to confer such standing. Varney v. Look, Me., 377 A.2d 81, 83 (1977). For recent discussions on the issue of standing to appeal, see Brown v. Manchester, Me., 384 A.2d 449, 451-52 (1978); Matter of Pitt-ston Co. Oil Refinery, Me., 375 A.2d 530, 532-33 (1977); Nichols v. City of Rockland, Me., 324 A.2d 295, 297 (1974). See also Standing to Challenge Governmental Ac*1082tion, 30 Me.L.Rev. 31 (1978), and cases cited therein.

Herman Cohen’s, standing to challenge the process by which Maine School Administrative District No. 71 proposed to finance its school building project terminated with our decision in Cohen, supra. Mr. Cohen is no longer in a position where his “property, pecuniary or personal rights” are in jeopardy. Thus, consistent with both precedent and 14 M.R.S.A. § 1851, we can only conclude that the justice below was correct when he ordered the complaint “dismissed with prejudice.” 1

The entry is:

Appeal denied.

Judgment affirmed.

McKUSICK, C. J., and WERNICK, J., did not sit,

. Since our decision is premised on Herman Cohen’s lack of standing to appeal, we need not discuss the relative merits which the parties have briefed and argued concerning the doctrines of res judicata, collateral estoppel or the rule against splitting a cause of action. Neither is it necessary to consider the impact on Mr. Cohen’s appeal of the failure to follow the provisions of 20 M.R.S.A. § 51(3)(C) which provides: C. It shall review on the written request of any interested party decisions made by the department acting through the commissioner or his duly authorized representative pursuant to the following sections: 222, 916, 1281, 1901, 2356-B, 3457 and 3458. The written request shall be filed within 30 days from the date of the department’s decision.