Maine SC weighs in on questions about AG’s authority

LePage submitted two questions to the Maine Judicial Supreme Court in January:

1. If the attorney general refuses to represent a state agency in a lawsuit, must the executive branch still obtain the attorney general’s permission to hire outside counsel to represent the agency in the suit?

2. If the attorney general intervenes to oppose a state agency in a lawsuit, must the executive branch still allow the attorney general to direct that piece of litigation?
    

After holding oral arguments in the case last month, the state’s high court said in its advisory opinion Tuesday that no “solemn occasion” was presented in question No. 1 and therefore it declined to answer. As to the second question, the court answered “no.”

By definition, a “solemn occasion” arises when questions are of a “serious and immediate nature,” and the situation presents an “unusual exigency.”

Mills

“Because there is nothing before us indicating that the Governor or the Department was deprived of private counsel when the Attorney General was not available, or that such a situation is likely to arise, no ‘unusual exigency’ exists,” the court wrote.
“In sum, because the Attorney General has not, to date, declined a request for private counsel in the pending matter or other matters, and because no one presents any evidence of such a denial at any time in Maine’s recent history, Question One presents only a hypothetical question.”

At issue is the legal representation refused by Mills in the matter of Mayhew v. Burwell.

Initially, the case was an administrative matter — a Medicaid State Plan Amendment, or SPA, request from the Maine Department of Health and Human Services to the U.S. Department of Health and Human Services.

In 2012, the Maine Legislature directed the state DHHS to eliminate 19- and 20-year-olds from the state’s Medicaid population, conditioned on Maine DHHS seeking and obtaining from the federal DHHS an SPA making that change.

Maine DHHS submitted the required SPA request to the federal agency. The Attorney General’s Office, then under Attorney General William Schneider, assisted the state DHHS.

The Attorney General’s Office also represented the state DHHS in a related action in the U.S. Court of Appeals for the First Circuit, to force a timely answer from the federal DHHS on the SPA request.

The First Circuit denied that request as Maine DHHS had not yet exhausted its administrative remedies.

At that point, the Legislature elected Mills, a Democrat, to replace Schneider. Since then, the Attorney General’s Office has refused to represent Maine DHHS in actions related to the SPA.

In 2013, the federal DHHS denied Maine’s SPA request. The state DHHS petitioned for reconsideration, which was denied in January 2014.

Intending to appeal the SPA denial to the First Circuit, Maine DHHS requested legal representation from the Attorney General’s Office, or outside counsel as an alternative.

Mills responded by refusing to provide representation, concluding that the matter was unlikely to succeed. However, she indicated she would consider authorization of outside counsel.

In March 2014, Mills authorized Maine DHHS’s retention of outside counsel for the limited purpose of representation in the First Circuit appeal, and with a cap on legal fees.

The money for the legal fees came from the governor’s discretionary account, not the Attorney General’s Office’s budget.

Using outside counsel, Maine DHHS filed its appeal of the SPA denial in Mayhew v. Burwell.

After the appeal was filed, Mills moved to intervene in the case to oppose the state agency’s position. She was granted intervenor party status, and filed her brief in August 2014.

The First Circuit denied the appeal in November.

LePage recently filed a petition to the U.S. Supreme Court for a writ of certiorari to weigh in on the Medicaid case.

The state DHHS informed Mills that it wished to retain its outside counsel for the purposes of filing of the petition.

Mills’ office requested copies of the counsel’s bills and the estimate for the cost to prepare the petition, from which her office would consider the request, and develop a legal fee cap to impose.

The state DHHS, in response, refused to provide privileged narrative billing records, but provided amounts budgeted and paid to outside counsel instead. The agency also argued against the propriety of a fee cap.

Mills approved the retention request in a Jan. 14 letter.

But that didn’t stop LePage from seeking the opinion of the state Supreme Court.

In his Jan. 23 letter to the court, the governor said he “seriously questions” whether he must submit to the attorney general’s direction over state litigation.

While the state’s high court declined to answer LePage’s first question, it was clear in its answer of the second.

“In our opinion, although the Executive Branch may choose to seek the advice of the Attorney General or members of her office in managing the costs of litigation, and the Attorney General may provide such advice as she deems appropriate, no such advice is a prerequisite to continued private representation,” the justices explained. “Once the Attorney General has initially authorized the Executive Branch to employ private counsel and has taken an opposing position in litigation, authorization for the continued representation of the Executive Branch by private counsel is not required.

“Simply put, it is our opinion that the Attorney General cannot formally oppose the Executive Branch’s litigation position and, at the same time, direct the Executive Branch’s litigation through fiscal or other periodic review of the Executive Branch’s private counsel.”

LePage viewed the court’s opinion as a victory for his office.

“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,” the Republican governor said in a statement. “When that happens, it is a clear conflict of interest, and I thank the Justices for recognizing it.”

Mills had her own take on the opinion, but said she also was pleased with the justices’ explanation.

“There are no surprises here. The statute and the common law are clear. 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,” the attorney general said in a statement.

Mills noted she has “never disagreed” that in the unusual case in which the attorney general intervenes in the public interest in opposition to the administration, he or she would not continue to manage or direct outside counsel.

“That is why, when the administration asked us for advice, we told them what it might cost to pursue a petition for certiorari, without setting a cap on fees or in any way telling them what to do,” she said.

“Fundamentally, however, the Justices have refused the Governor’s request to destroy the core principle reflected in our Constitution and case law that it is the Maine Attorney General who is responsible for determining the voice of the public interest in the courts of Maine.”

Mills said she and LePage are essentially in “violent agreement.”

“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,” she explained.

“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.”

The matter is the latest in what some have described as a feud between the governor and attorney general.

Last month, LePage announced his plans to introduce legislation that would prevent Mill’s “overreaching of authority.”

The governor said his bill would clarify and restrict the scope of the attorney general’s authority as it pertains to the receiving and spending of public dollars.

From Legal Newsline: Reach Jessica Karmasek by email at [email protected].