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Court: AG Can't Limit Expenses for LePage Administration's Outside Lawyers

PORTLAND, Maine - Maine's highest court has issued an advisory opinion that clarifies the Maine attorney general's role in certain legal cases. Specifically, the court said that the AG cannot limit expenses for outside counsel when her office declines to represent the executive branch and actively opposes the governor or a state agency.

The opinion was requested by Republican Gov. Paul LePage after Maine Attorney General Janet Mills, a Democrat, declined to represent the Department of Health and Human Services in an ongoing lawsuit.

Gov. LePage asked the Maine Supreme Judicial Court to consider two questions: First, if the attorney general refuses to represent a state agency in a lawsuit, must the executive branch still obtain the attorney general's permission to hire outside counsel to represent the agency in the suit? The justices declined to answer that question.

Second, if the attorney general intervenes to oppose a state agency in a lawsuit, must the executive branch still allow the attorney general to direct that piece of litigation? In other words, can the attorney general control how much is spent on a case she herself actively opposes? To that, the justices said, "No."

Both LePage and Mills say they're pleased with the decision.

"My response to the opinion is: What's all the fuss about? This opinion changes nothing," Mills says.

Mills says it's not unusual for a governor of one party and an attorney general in another to disagree about public policy. It is, however, more uncommon for the attorney general to oppose the executive branch in legal matters, and rarer still for the attorney general to actively intervene.

Mills says the court's advisory opinion acknowledges her authority to direct litigation on behalf of the state of Maine in the vast majority of cases. "We are basically in agreement that the governor, when appropriate, should have outside counsel, and that the governor, when appropriate, should pay for outside counsel."

In its opinion, the court found that the governor's first question - whether he needs permission to hire outside counsel - did not present a "solemn occasion." According to the Maine Constitution, "a solemn occasion arises when questions are of a serious and immediate nature, and the situation presents an unusual exigency."

On behalf of the court, Chief Justice Leigh Saufley wrote that "because the attorney general has not, to date, declined a request for private counsel (from the governor)...and because no one presents any evidence of such a denial at any time in Maine's recent history, question one presents only a hypothetical question" and not a solemn occasion.

But the court did weigh in on the second question, finding that the attorney general should not continue to manage the executive branch's litigation when private counsel has been approved and the attorney general is actively opposing the governor or a state agency.

Mills says there was never an issue here. "We do not disagree that, at that point, I would not dare to tell outside counsel how to manage a case. I would not be directing the litigation on their part at that point. Nor have we tried to."

Mills is actively intervening in a legal case that pits the federal government against the Maine Department of Health and Human Services, which wants to drop Medicaid coverage for 19- and 20-year-olds.

Mills determined that she could not represent the state agency because of her office's assessment that the case lacks substantial legal merit. The LePage administration is appealing to the U.S. Supreme Court. Mills says her office has provided advice about how much an appeal could cost, but has not attempted to set any kind of cap on spending.

In a written statement, Gov. LePage said he is pleased that the court found that the attorney general does not have authority over expenses in such cases.