November 18, 2018
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Maine high court to weigh questions about AG Mills’ refusal to represent LePage

John Clarke Russ | BDN
John Clarke Russ | BDN
Maine Attorney General Janet Mills

AUGUSTA, Maine — The ongoing dispute between Gov. Paul LePage and Attorney General Janet Mills will reach the state’s highest court in February, thanks to the governor’s “request for opinion” about Mills’ refusal to represent him in court on two separate occasions.

The Republican governor wants the state’s Supreme Judicial Court justices to weigh the “proper constitutional responsibility and relationship between the chief executive and attorney general,” according to a Jan. 23 letter he sent to Chief Justice Leigh Saufley.

Mills, a Democrat, has at least twice refused to represent LePage’s administration in court.

The first instance involved a case between the Maine Department of Health and Human Services and the federal government about whether the state could drop some 19- and 20-year-olds from its Medicaid rolls. Mills in 2012 argued that a “maintenance of effort” provision of the federal Affordable Care Act prevented the state from cutting the young adults from the welfare rolls, so she refused to represent DHHS in the case.

Last year, Mills again refused to represent LePage’s administration in a lawsuit filed against it by the cities of Portland and Westbrook and the Maine Municipal Association. The cities and MMA argue that LePage did not follow the legally required procedure for amending General Assistance eligibility rules to exclude some immigrants, including asylum seekers. LePage instituted the rule change unilaterally — despite Mills’ guidance that the rule change violated the U.S. and Maine constitutions — and has said he will withhold state funding from municipalities that don’t follow his edict.

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 Saufley, LePage asked the law court to decide whether the attorney general should have what he described as “de facto veto power,” or if the executive branch should have the right to retain outside counsel without approval from the attorney general.

“A requirement to request permission from the attorney general implies that permission may be denied, which would leave the executive branch without legal representation and would deprive me, and the executive branch officers working in my direction, of the inherent and constitutional authority to carry out the policy priorities I set,” LePage wrote.

LePage also asked for the court’s opinion on whether the attorney general should still be allowed to direct a piece of litigation on behalf of the state, even if she has filed a brief opposing the state’s position. The question arises because Mills won intervenor status in the DHHS lawsuit in order to oppose DHHS Commissioner Mary Mayhew in court, yet still retains authority over the state’s ability to obtain outside counsel — and thus its ability to continue appealing the case.

In an interview Wednesday afternoon, Mills said that her office had never denied LePage legal counsel — he had simply chosen not to heed that counsel.

“I wrote a legal memo explaining why, in the case of the ACA matter, the case lacked legal merit,” Mills said. “In the General Assistance matter, my office had already rendered an opinion explaining why the rule couldn’t go forward — because it was an unfunded mandate, because it lacked statutory authority and because of equal protection concerns.”

“We give the administration our best legal advice,” she said. “The fact they chose to ignore us and forge ahead in some matter does not mean I have to represent them after having told them they were on shaky legal ground.”

LePage and Mills are regular foes, with each accusing the other of letting partisanship and petty politics poison the relationship between their respective offices. At one point last year, after Mills issued a statement urging the governor to comply with public access laws, LePage responded that a reporter could “tell her to sue me.”

In recent weeks, LePage has let slip that he wants to amend the state’s constitution to remove the authority of the Legislature to elect the attorney general, instead putting the position to a popular election. LePage said that would make the AG more accountable to the people, and make it less likely for an attorney general and governor to be from different parties.

Mills has stressed that there are thousands of cases per year in which her office and LePage’s administration work in tandem, compared with just a few where they butt heads. But she has not been afraid to offer her own harsh words to the governor. Last year, when LePage refused to sign financial orders to authorize the filling of vacant positions under Mills’ purview, she accused the governor of “mean-spirited” political manipulation.

The Supreme Judicial Court has requested briefs from LePage, Mills and any other interested party be submitted by Friday, Feb. 6. Oral arguments on whether the court should offer an opinion, and on the questions of law he asked, will be heard by the court on Thursday, Feb. 26.

Follow Mario Moretto on Twitter at @riocarmine.


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