AUGUSTA — 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 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 the state 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 and refugee 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.
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.
Efforts to reach Mills for comment are ongoing.
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