December 16, 2018
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LePage sues Maine attorney general over access to Trump immigration ban challenge

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Maine Gov. Paul LePage speaks at a town hall meeting in Yarmouth, March 8, 2017.

A legal feud between Republican Maine Gov. Paul LePage and the state’s Democratic attorney general returned to court recently when the governor filed a new complaint alleging his political foe is improperly holding back public records he wants to see.

In a complaint filed in Androscoggin County Superior Court, LePage alleges Attorney General Janet Mills willfully refused to provide access to public records that should have been turned over.

[ A timeline of the LePage/Mills conflict]

The move escalates a legal fight the pair have engaged in much of the year after Mills refused to provide legal help for LePage’s effort to defend immigration bans imposed by President Donald Trump.

Mills is among the leading contenders for her party’s gubernatorial nomination next year as politicians from across the spectrum vie for the chance to succeed LePage, who has to step down after two terms because of term limits.

A judge last month dismissed the LePage lawsuit, asking the court to order Mills to provide him with legal counsel as governor. Mills had already taken sides against Trump’s immigration plans in legal fights in Washington and Hawaii.

[Judge throws out LePage lawsuit against Mills]

A Kennebec County judge, Michaela Murphy, dismissed the governor’s claim in an Oct. 16 order that said the issue was moot because it was too late for LePage to file a brief on the issue with the U.S. Supreme Court.

She also said the state court had no right to order the attorney general to pay for a governor’s outside counsel because “appropriation and budgeting are powers given exclusively to the legislative branch by the Maine Constitution” and aren’t part of the judiciary’s purview.

The new complaint filed Oct. 27 emerges from the earlier case but is distinct from it.

[LePage, Mills spar over rights to spend $10 million in settlement funds]

It relates to a decision by the attorney general’s office to react or withhold “material protected by the attorney-client and/or work product privilege” as well as some home email addresses on the documents sought.

In an Oct. 2 letter, Phyllis Gardiner, an assistant attorney general, said the documents sought that are related to Washington v. Trump and Hawaii v. Trump would not be turned over.

She said they were prepared in anticipation of litigation along with other attorneys general and are exempt from public disclosure.

Amy Dieterich of Auburn, LePage’s lawyer, wrote back on Oct. 5 insisting “there is no lawyer-client privilege” for communications between a public official and his agency’s attorneys except in unusual circumstances.

She said that only if there’s a pending matter and disclosure would “seriously impair” the public official’s ability to pursue the matter would there be grounds to deny release of the documents sought.

Dieterich, who declined comment Tuesday, pointed out that some of the documents sought relate to cases that are no longer pending so disclosure could hardly have an impact on them.

In the cases against Trump, she said, “there is no conceivable argument that disclosure of any communications related to these matters could impair the state’s ability to litigate that case” given that it has already been fully laid out to the Supreme Court.

Some documents are redacted improperly, she said, and it appears a number of documents have been withheld completely, “including those identifying how it came to be that the attorney general came to participate in these matters.”

Two days before LePage filed his new complaint, Gardiner denied that any of the documents sought should be released under the state Freedom of Access law. She also said that none of the documents were held back solely on the grounds of attorney-client privilege.

The attorney general’s office did provide many documents to LePage and his attorney. Gardiner mentions in her Oct. 2 letter that 257 additional pages were being sent electronically in response.

LePage asked the court to order Mills to release the rest of the documents and to find that a FOAA violation was willful “and award a civil forfeiture of $500” as a penalty. It also asks the court to determine the refusal was done in bad faith and to award LePage “reasonable attorney fees and litigation expenses.”

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