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Maine's Complicated Struggle Over Obamacare and the AG's Role

The Supreme Judicial Court ruled that if the attorney general is in active opposition to the state, as Janet Mills is over health care policy, she loses her right to oversee the use of outside counsel. But it's a limited victory for Gov. Paul LePage

By Mario Moretto

When the state's highest court on Tuesday released its determination in the latest spat between Gov. Paul LePage and Attorney General Janet Mills, both sides tried to spin the decision as a big victory.

There's an obvious element of political grandstanding in those responses. The governor and attorney general are both political positions, and no politician likes to lose. The truth is that LePage, a Republican, had sought an expansion of his power to pursue litigation without the attorney general's blessing, and he didn't get it.

He did, however, score a small victory in the rarest of circumstances in which the attorney general not only refuses to represent the state, but takes an active, legal opposition to the state in court. Mills, a Democrat, did that in Mayhew v. Burwell, an ongoing dispute between the state health department and the federal government over LePage's move to cut thousands of young adults in Maine from Medicaid.

The court ruled that if the AG is in active opposition to the state, she loses her right to oversee the use of outside counsel. The basic principle here is a simple one: One side in a legal dispute should not have any control over the other side's litigation.

Here's what you need to know about the case, and the court's decision. The Supreme Judicial Court (mostly) endorsed the status quo by refusing to answer the big question -- just like Mills wanted. By refusing to answer the governor's question about whether he must ask the AG's permission to hire outside attorneys when she refuses to represent him, the court affirmed Mills' authority to direct state litigation, even in cases where outside counsel is retained.

It dismissed LePage's question as "hypothetical" because neither side produced any evidence that the attorney general had ever refused a request to retain outside counsel.

It also noted that existing state law is "explicit and directly addresses" the governor's question by stating that "the officers or agencies of the state may not act at the expense of the state as counsel, nor employ private counsel except upon prior written approval of the attorney general."

The cases in which the governor's victory applies are very few, and very far between. The attorney general is involved in thousands of cases in any given year, and the kinds of cases LePage was concerned about in Question 2 have happened just twice in the last 26 years.

In Question 2, LePage asked whether the AG could continue to direct a state agency's litigation even if she was actively opposed to the state in court. The court said she could not.

The Office of the Attorney General handles thousands of cases a year. As noted above, the sole current case in which the AG has not only refused to represent LePage but has also taken an active legal stance against him is Mayhew v. Burwell.

The last time such a dispute happened was in 1989, according to Timothy Feeley, the AG's spokesman.

Despite its limited scope, the court's ruling will have an immediate effect in an ongoing dispute between LePage and the federal government.

LePage has been rebuked at every step of the way in the Mayhew v. Burwell case, and is currently petitioning the U.S. Supreme Court for an appeal.

LePage told the Law Court the pursuit of his policy in the courts was frustrated by the fact that even after receiving initial approval from Mills to hire outside counsel in the case, he was required to continue seeking approval at each step in the legal fight. ( In oral arguments, Mills' side contended that her directives on how much money LePage could spend were only guidance, not hard caps).

Because the court ruled the attorney general could no longer be involved in the state's litigation if she opposed the state in court, LePage can continue to work with outside counsel in the Medicaid lawsuit completely independently of Mills.

"Is it a small win? Maybe, but obviously the governor cares very much about this case right now," said Dmitry Bam, an associate professor at Maine School of Law. "It hasn't happened much, and now that [the attorney general] will lose all litigation control, I'm inclined to think it will be even less common."

The fight between LePage and Mills is far from over. Since Mills was named attorney general (for the second time) in 2012, she and LePage have butted heads on everything from public access laws to the state's rulemaking process to funding for the office of the attorney general -- just to name a few.

Each has accused the other of letting partisanship and petty politics poison the relationship between their respective offices.

Maine is currently the only state in which the Legislature elects the attorney general. LePage has said he'll propose an amendment to Maine's constitution to subject the post to popular election. Such a change would decrease the likelihood that the governor and attorney general would come from different political parties, all but guaranteeing they'd see eye to eye on thorny legal issues. LePage has cited Mills' refusal to represent the state as one reason he'll seek the change.

All that is to say that while the fight in the state's high court may be over, you can bet there will be more punches thrown.

(c)2015 the Bangor Daily News

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