Maine Governor Sues His State's AG

by | May 2, 2017

By Scott Thistle

Gov. Paul LePage sued Attorney General Janet Mills on Monday, accusing her of abusing her power by refusing to represent him in federal lawsuits.

The Republican governor and Democratic attorney general have long clashed over legal issues, with Mills declining on several occasions to represent LePage in the lawsuits that he frequently joined with other Republican governors.

In a statement, LePage said Mills has cost the state "hundreds of thousands of dollars" in private attorney fees because of her refusal to provide legal representation for the state.

"It is no secret that Attorney General Mills and I have differing political views, but that is not the issue," LePage said in the statement. "The problem is she has publicly denounced court cases which the Executive Branch has requested to join and subsequently refuses to provide legal representation for the State. This clear abuse of power prevents the Chief Executive from carrying out duties that in his good faith judgment is in the best interest of the people of Maine."

It also appears that LePage is angered over Mills' recent opposition to executive orders issued by President Donald Trump barring entry to the U.S. of immigrants from a group of predominately Muslim countries. Trump's executive orders have, so far, also been rejected by the federal Ninth Circuit Court of Appeals.

Mills did not immediately respond to a request for comment from the Press Herald. According to the Associated Press, she called the lawsuit "frivolous" and questioned "what the case or the controversy is here."

Maine's highest court has previously ruled that the attorney general is not obligated to defend the state in lawsuits. In a landmark case, the court upheld former Attorney General James Tierney's 1991 decision not to defend the state on an issue that Tierney argued was contrary to the public interest.

In January 2015, LePage asked the law court whether he had to continue to seek permission from Mills to hire outside legal counsel in cases where her office declined to defend the administration's position. The request came after Mills balked at represented the administration's attempts to eliminate Medicaid benefits for thousands of young adults and to stop reimbursing municipalities for General Assistance provided to asylum seekers and non-citizen immigrants.

In a two-part ruling, the court said the governor needed to seek the attorney general's permission before hiring outside counsel, saying Maine law "is explicit and directly addresses the issue." Once that permission is granted, however, the attorney general can no longer attempt to direct or control the litigation filed by the administration, including by limiting or requiring periodic review of the amount of money the governor can spend on a case.

"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," the justices said in the March 2015 opinion.

In his 11-page complaint Monday, LePage charges Mills with ignoring state laws that require her office to provide representation to all state agencies, including the governor's office.

He asks the court to find that if Mills refuses to represent him, then she must give him permission to hire independent counsel without imposing any constraints or limits on that representation, and that the attorney general's office be required to pay the costs.

LePage also again suggests that Maine should change the way it selects its Attorney General. That selection is now done by the Legislature.

Five states allow the governor to appoint the attorney general, while 43 other states use a statewide popular vote to select the attorney general. In Tennessee the attorney general is appointed by the state's supreme court to an eight-year term.

House Minority Leader Ken Fredette, R-Newport, a staunch LePage ally, also issued a statement Monday.

"It appears as though the relationship between the attorney general and the governor has deteriorated to a point where the basic function of legal representation is not happening the way it's supposed to," Fredette said in the statement that was issued moments after LePage's announcement. "Maybe it takes a lawsuit to force the attorney general to act appropriately in the representation of the state and the governor's office in legal matters."

Other State House leaders, including the Republican state Senate President Mike Thibodeau, R-Winterport and House Speaker Sara Gideon, D-Freeport, declined immediate comment.

LePage's staff provided a copy of the complaint along with a copy of the summons issued to Mills declaring the suit. According to that summons Mills has 20 days to file a formal response to the suit.

Bryan Dench and Amy Dieterich, attorneys with the Auburn firm of Skelton Taintor & Abbot, filed the suit on LePage's behalf. Dench and his wife Susan Dench, of Falmouth, have been outspoken supporters of LePage during his time in office. Bryan Dench served as treasurer of LePage's 2014 reelection campaign.

Also in 2014, LePage nominated Susan Dench to the board of trustees of the University of Maine, but the nomination did not clear the Legislature, which was then controlled by Democrats.

The governor's office did not respond to a question about how the lawsuit will be funded.

A message to Dench late Monday was not immediately returned.

(c)2017 the Portland Press Herald (Portland, Maine)