AUGUSTA, Maine — Attorney General Janet Mills says the Maine Supreme Judicial Court should ignore questions from Gov. Paul LePage about whether he must continue seeking her approval before hiring outside lawyers to represent the state.
Maine’s Constitution requires the court to answer questions from the governor or lawmakers on “solemn occasions.” In a brief filed with the court on Friday, Mills said that LePage’s questions don’t rise to the level necessary to warrant an opinion from the state’s highest court.
“Complaints by the governor regarding past interactions with the attorney general are not properly the subject of an advisory opinion,” Mills said in the brief.
Mills was responding to questions posed by the Republican governor in January, which represent an attempt by LePage to expand his power, allowing him to pursue contentious policy initiatives through the courts without the involvement of the state’s attorney general.
At issue are two cases in which Mills, a Democrat, has refused to represent the state or LePage in court, arguing that the policies pursued by him and his agencies were illegal.
One is a dispute between the state and the federal government about whether the state could drop some 19- and 20-year-olds from its Medicaid roles. The other is a lawsuit filed against the state by Portland, Westbrook and the Maine Municipal Association over LePage’s unilateral change in state policy as it relates to aid for undocumented immigrants.
If the attorney general refuses to represent the state in court, the state must obtain her permission to hire an outside attorney. In both the cases above, Mills allowed LePage to hire his own lawyer. Both cases are ongoing.
In his letter to the court, LePage described the requirement that Mills approve of his hiring outside attorneys as “de facto veto power.” He asked the court to answer two questions:
— If the attorney general refuses to represent a state agency, must the executive branch obtain the attorney general ’s permission to hire outside counsel?
— If the attorney general intervenes to oppose the state in a lawsuit, must the executive branch still allow the attorney general to direct that litigation? (This question stems from Mills having filed as an opposing party to the state in the Medicaid lawsuit. LePage believes that because Mills is actively fighting him in court, he shouldn’t have to let her decide whether he can hire an outside attorney.)
Mills argued in her brief that state law and previous Maine Supreme Judicial Court opinions make clear that the attorney general is responsible for approving outside counsel to represent any state agency.
“Requiring an executive branch agency to demonstrate that outside counsel is qualified to handle a particular matter at a reasonable cost is a prudent exercise of the attorney general’s responsibilities,” she said in the brief.
In his own brief, also filed Friday, LePage’s attorneys argued that the “solemn occasion” criteria is met.
“The governor’s questions, which concern the relationship between the attorney general and the chief executive, are simple in nature but implicate the officers’ respective roles and authority under Maine law. Thus, the requirement of seriousness is met,” the brief states. “An advisory opinion from the justices is necessary and essential for the governor’s decision-making regarding his ability to work, unfettered, with private counsel in [the above mentioned] cases.”
The court will hear oral arguments in the case on Feb. 26 in Portland.
Follow Mario Moretto on twitter at @riocarmine.
