On May 1, 2017, Maine Governor Paul LePage sued Maine Attorney General Janet Mills in the culmination of a long-running dispute over the Governor’s ability to retain outside counsel when his views differ from those of AG Mills. In particular, Governor LePage sent AG Mills a letter in March 2017 instructing the AG to represent the Governor and the State of Maine in ongoing litigation in Hawaii concerning the constitutionality of President Trump’s executive orders on immigration. The same letter criticized AG Mills for filing an amicus brief opposing the orders in parallel litigation in Washington state, and asked in the alternative to be allowed to retain private counsel.
The AG’s office – the Governor pointedly complains that “a subordinate” and not the AG herself responded to the letter – then authorized the Governor to obtain outside counsel at the Governor’s Office’s own expense. The Governor responded that the expense should be borne instead by the AG’s Office, because outside counsel was necessary only because the AG refused to take up the Governor’s position in court. The exchange of letters continued, and the Governor’s lawsuit now contends that AG Mills has unconstitutionally usurped executive power by attempting to impose limits on the Governor’s ability to hire outside counsel.
The Governor’s suit follows last year’s ruling by the Supreme Judicial Court of Maine, in which Governor LePage had asked the SJC to clarify whether, in a situation in which the Attorney General refused to represent the state as requested by the Governor, the Governor still had to obtain permission from the AG to hire outside counsel. Although the SJC declined to answer the question for procedural reasons – Maine’s statute only allows advisory rulings on “solemn occasions,” which the SJC held did not exist because the AG had not actually refused a request to hire outside counsel – the SJC also stated that the statute requiring the Governor to seek the AG’s permission was “explicit” in its meaning. Pertinent to Governor LePage’s lawsuit, the SJC also noted that “[t]he Attorney General […] occupies an office that does not fall within any particular branch of government,” and that the Attorney General “has an independent responsibility and authority, created by Maine’s constitution and statutes, to act in the interest of the people of Maine.”
As we have blogged elsewhere, clashes between governors and AGs are common, particularly during the Trump administration. For the time being, we may expect to continue to see amicus filings in high-profile cases with Governor LePage’s name on one side, and AG Mills’ name on the other.