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LePage vs. Mills: Maine High Court Hears Arguments in Dispute

PORTLAND, Maine - Gov. Paul LePage says Maine's Attorney General is interfering with his ability to hire outside attorneys in legal cases in which she declines to represent him, or disagrees with his position. On Thursday, the Maine Supreme Court heard arguments from both sides about how much authority the attorney general has under state law.

When - and if - the state Supreme Court finally issues an opinion on this matter, it will be advisory only. But Holly Lusk, who represents Republican Gov. LePage, says her boss wants guidance in determining his responsibilities and authority in two specific legal matters involving the Department of Health and Human Services.

Attorney General Mills, a Democrat, has declined to represent him in both cases, something she is authorized to do under a 115-year-old statute. The governor is required to ask the AG for permission to hire outside counsel. What's problematic, says Lusk, is the series of hoops that follow.

"What the AG is having us do is come back over and over and over for continuing permission to use outside counsel," Lusk said. "So, it's not just permission at the outset. They are placing limits on the duration of the period of the retention with the lawyer and the amount of money that can be spent from the governor's own contingency fund or DHHS funds."

For example, Lusk points to a lawsuit brought by the Maine Municipal Association and the cities of Portland and Westbrook against DHHS over General Assistance rules. Mills declined to represent the state, saying the process used to establish the rules was flawed. She authorized the hiring of outside counsel but set a cap of $20,000, less than half of what the state had requested.

"We had exhausted the fee cap by the time - within a couple of months, and said we really need to have an extension of the fee cap, back to the amount that we originally asked for," Lusk said. "And the Attorney General's Office said, 'No, we're not going to give you that permission now. Come back a little bit later and ask us.' "

Lusk says the administration believes that it should not have to go back and ask for money. That's because, by approving outside counsel, the AG has already said the lawyer is appropriate for the job, charges an appropriate hourly rate and is admitted in the proper courts of jurisdiction.

Justice Andrew Mead questioned that position, given that both the statute and previous case law give the AG broad constitutional, common law and statutory authority to represent the public interest.

"So your position is, once representation is undertaken there is no accountability for expenditures - the governor has a blank check to spend with no accountability," Mead said.

"With respect to accountability, your honor, I believe that the elected official who is the governor, someone who was elected by almost 300,000 people in the state of Maine, has just as much interest in maintaining fiscal responsibility as someone who is elected by an unknown number of people in the Legislature," Lusk said. "He is accountable to the people."

Assistant Attorney General Phyllis Gardiner, representing Janet Mills, says the AG believes her broad discretion includes the authority to set financial caps in certain legal cases, specifically those in which she disagrees with the governor's position but is not acting as an intervenor.

But, in cases where Mills and her office could be in an adversarial relationship with the state in a legal case, Gardiner says it's a different story. Here she is under questioning from Chief Justice Leigh Saufley.

Chief Justice Leigh Saufley: "Is it still your position that the AG in those cases has the authority to cap, or otherwise limit, the funds that the governor can spend in litigation?"

Phyllis Gardiner: "If it were going to restrain what the private counsel could do to advance that argument, no, but that's not what has been attempted here and I don't imagine it would ever be attempted."

Gardiner points to a current Medicaid case that the state is appealing to the U.S. Supreme Court. Mills has filed as an intervenor in that case, but Gardiner says there have been no attempts by the AG to limit the ability of outside counsel to pursue it.