PORTLAND, Maine — Gov. Paul LePage and Maine Attorney General Janet Mills both claimed victory Tuesday after the Maine Supreme Judicial Court issued an opinion on one question about the hiring of outside counsel to represent the state in legal matters but refused to consider the other.
The dispute is part of an ongoing political tug-of-war between the governor and the attorney general. This is the first time their dispute, which some political observers have labeled a feud, has been settled by the state’s high court.
“The Supreme Judicial Court affirmed my belief that the attorney general should not have authority over litigation that the executive is involved in when the attorney general decides to publicly take the opposite position,” LePage said in a statement. “When that happens, it is a clear conflict of interest, and I thank the justices for recognizing it.
Mills said in her statement: “There are no surprises here.”
“The statute and the common law are clear,” she said. “The justices upheld and reinforced the independence, integrity and professionalism of the office of the Maine attorney general, including the ability to oppose a position that is not in the public interest.”
LePage posed the two questions in January:
— If the attorney general refuses to represent a state agency, must the governor seek the attorney general’s permission to hire outside counsel?
— If the attorney general intervenes to oppose a state agency in a lawsuit, must the governor still allow the attorney general to direct that piece of litigation?
Mills urged the court to ignore both questions because neither presented a “solemn occasion.”
The justices said the first question posed by the governor did not reach the level of “a solemn occasion” as defined in previous court decisions.
“A solemn occasion exists when the question propounded concern[s] a matter of ‘live gravity’ and ‘unusual exigency,’ which means that the body asking the question requires judicial guidance in the discharge of its obligations,” the 19-page opinion stated.
The justices ruled on the second question, giving LePage the direction he had sought.
“When the attorney general has declined to represent the executive branch and has taken a contrary litigation position, the attorney general is no longer directing the litigation of the executive branch,” the justices found. “Neither Maine’s Constitution nor its statutes or common law require or authorize the attorney general to manage or direct the executive branch’s litigation once the attorney general has authorized the branch to employ private counsel and has taken an opposing position in the litigation.”
Mills said in her statement Tuesday that she has never disagreed with that position.
“Essentially, the governor and I are in violent agreement,” she said. “He wants a lawyer, and I want him to have one. He wants to pay for it, and I want him to pay for it. If anything, this is merely a discussion over how much to pay his lawyers, and that was hardly a cause for the intervention of the third branch of government.”
A hearing on LePage’s questions about whether he could hire outside counsel without Mills’ approval was held on Feb. 26 in Portland.
The Republican governor asked the state’s highest court to issue an opinion about whether he must continue to seek Mills’ approval in two cases for which she has declined to represent the state.
In both cases, Mills, a Democrat, decided LePage’s cases were without legal merit. One is a dispute between the state 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. Rebuked in federal court, LePage has asked the U.S. Supreme Court to weigh in on the Medicaid case.
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 governor, acting as the state’s chief executive, in court, the state must obtain her permission to hire an outside attorney.
In both the above cases, Mills allowed LePage to hire his own lawyer, but LePage was concerned that permission could be rescinded.
Both cases are ongoing, and LePage said earlier this year that a decision from the law court is needed soon because it could affect future filings in the Medicaid case.
In a brief filed last month, Mills said the court should ignore LePage’s questions, arguing they do not represent the “solemn occasion” required by the state constitution before the supreme court gets involved in such questions. In a response, LePage said his question is unanswered by existing law and precedent and that the court must give its opinion in order for him to continue with two lawsuits he’s litigating without Mills.
In addition to Saufley, Justices Donald Alexander, Andrew Mead, Ellen Gorman and Joseph Jabar signed the opinion.
While it’s relatively uncommon for the AG to opt against representing a state agency, LePage has indicated he’ll continue to butt heads with Mills. In his budget proposal, he’s asked the Legislature to appropriate $2 million to a special fund for outside counsel in fiscal years 2016 and 2017.
BDN writer Mario Moretto contributed to this report.