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LePage v. Mills: Maine High Court Weighs in on Dispute

PORTLAND, Maine - The Maine Supreme Court has declined to answer one of two questions posed by Gov. Paul LePage about the scope of the state attorney general's authority.

And, on the second question, the court has clarified that when the attorney general declines to represent the governor in litigation and takes a contrary position to the executive branch on that litigation, the attorney general is no longer in charge of managing it.

Read the court's entire decision.

Writing for the court, Chief Justice Leigh Saufley wrote, "We offer this advisory opinion to enable the Governor and all state actors involved to continue to conduct themselves in the interests of the people of Maine, consistent with the Maine Constitution, statutes and common law."

The two questions arose after Attorney General Janet Mills declined to represent the Maine Department of Health and Human Services in an ongoing administrative proceeding in a proposed Medicaid State Plan Amendment overseen by the U.S. Department of Health and Human Services.

Mills determined that she could not continue to represent the state agency because of her office's "assessment that the appeal is moot and lacks substantial legal merit."

Gov. LePage then requested advice from the Maine Supreme Judicial Court about how much authority the attorney general has over state litigation. Specifically, the governor wanted to know:  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 a lawsuit?

In response to that question, the court found that because the attorney general has not, to date, declined a request for private counsel, and because such a request has never been denied in recent history, the question is hypothetical. "We must therefore," the chief justice wrote, "decline to answer question One..."

The second question posed by the governor is: 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? To that, the court said, "No."

"In our opinion, although the Executive Branch may choose to seek the advice of the Attorney General or members of her office in managing the costs of litigation...no such advice is a prerequisite to continued private representation," Saufley wrote. "Simply put it is our opinion that the Attorney General cannot formally oppose the Executive Branch's litigation position, and, at the same time direct the Executive Branch's litigation through fiscal or other periodic review..."

Maine Attorney General Janet Mills says the court's advisory opinion "changes nothing" about the way her office will handle the governor's requests to hire outside counsel moving forward.

"My response to the opinion is: What's all the fuss about?" Mills says. "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.">

The court said the Attorney General cannot control the purse strings in legal matters in which she actively intervenes. Mills says she has never sought financial caps in those extremely limited cases and never will.

The governor released a written statement thanking the justices for affirming his belief that the attorney general's role in such matters is limited.