AUGUSTA, Maine — Gov. Paul LePage says the Maine Supreme Judicial Court must answer his questions regarding the respective roles of the state’s chief executive and chief legal authority, despite Attorney General Janet Mills’ urging that the court ignore him.
The Republican governor asked the Maine Supreme Judicial Court in January to rule whether he needs permission from Mills, a Democrat, to hire outside lawyers when she refused to represent him in court.
In a brief filed earlier this month, Mills said the court should ignore LePage’s questions, arguing that they do not represent the “solemn occasion” required by the state constitution before the supreme court gets involved in such questions. She also said LePage’s questions are purely hypothetical, seeing as how she’s never denied him the ability to hire outside counsel.
In a response filed Friday, LePage said his question remains unanswered by existing case 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.
“Because the attorney general may not leave the state without recourse to the courts, the requirement to request her permission to hire private counsel is without meaning,” wrote LePage’s lawyer, Cynthia Montgomery.
The court proceeding represents the latest salvo in the long-running battle between LePage and Mills, but its implications could outlive both of them. If LePage is successful in winning the right to pursue his policy agenda in the courts without involving the attorney general, it will represent a significant expansion of executive power.
At issue are two cases in which Mills has refused to go to court for LePage, arguing that the policies pursued by the governor and his agencies were illegal.
One is a dispute between the state and the federal government about whether the state could drop some 19- and 20-year-olds from its Medicaid roles. 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. Both cases are ongoing.
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 cases above, Mills allowed LePage to hire his own lawyer, but LePage is concerned that, under current law, that permission could be rescinded.
LePage has asked the court to weigh the “proper constitutional responsibility and relationship between the chief executive and attorney general,” and argued that Mills’ complete authority over state litigation constitutes “de facto veto power” over the governor.
LePage told the court that its opinion was needed “for the governor’s decision-making regarding his ability to work, unfettered, with private counsel in [the above mentioned] cases.”
In her own brief, also filed Friday, Mills said LePage’s efforts would “overturn established precedent, to dramatically upset the delicate balance of powers of Maine’s government and to undermine the critical independence of the constitutional office of the attorney general.”
Friday was the deadline for submission of briefs, so all that’s left is for the court to decide whether it will hear the case. Justices will hear oral arguments by LePage and Mills on Feb. 26.
Follow Mario Moretto on Twitter at @riocarmine.