LePage sues Maine’s attorney general, alleging abuse of power
May 1, 2017 – Gov. Paul LePage sued Maine 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 long have 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 written 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 Trump barring entry to the U.S. of immigrants from a group of predominantly Muslim countries. Trump’s executive orders have, so far, also been rejected by the 9th U.S. Circuit Court of Appeals.
Mills countered that her office has represented the state in thousands of matters each year. She also noted that the attorney general is an independent constitutional officer whose duty is to represent the public interest.
“The attorney general has never denied the governor the ability to retain outside counsel in any particular matter,” Mills said in a written statement Monday. “We have simply said that whoever the governor chooses should be licensed to practice law and should carry malpractice insurance, two common-sense prerequisites which any prudent business person would employ as well.
“Instead of signing onto another party’s brief at no cost to the taxpayers, however, or hiring a lawyer to draft his own brief, the governor has wasted state resources by hiring a lawyer to file a frivolous lawsuit, complaining that he cannot do exactly what we have told him he can do.”
Later Monday, Mills’ office released 16 pages of written correspondence between her office and the governor about his request to hire private attorneys to represent the state in briefs supporting the president. According to the documents released by Mills, LePage’s request came after the 9th U.S. Circuit Court had issued a stay.
“Notwithstanding the misstatements, mischaracterizations and misinformed opinions of your letter of today’s date (Feb. 16, 2017),” she wrote in one letter, “I am advised that the federal Department of Justice has requested the court to hold its consideration of the case before the 9th Circuit Court of Appeals in Washington v. Trump, pending issuance of a new executive order. Your request for outside counsel appears to be moot.”
LePage replied to that letter five days later, stating he was aware the case had been stayed.
“Because a stay does not terminate litigation, and further does not extinguish my desire for private counsel, my request is not moot,” LePage wrote.
He went on to reissue his initial request.
“I repeat my request that you authorize me to hire private counsel for the purpose of drafting an amicus curiae brief to be filed in the case of Washington v. Trump. I further request that your office pay the fees related to my hiring private counsel,” he said.
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 Maine Supreme Judicial 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 representing 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, the court said.
“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 chooses its attorney general. That selection is now done by the Legislature.
Five states allow the governor to appoint the attorney general, and 43 states use a statewide popular vote. 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 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 Republican state Senate President Mike Thibodeau, R-Winterport and House Speaker Sara Gideon, D-Freeport, declined to comment Monday.
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 re-election campaign.
Also in 2014, LePage nominated Susan Dench to the board of trustees of the University of Maine System, but the nomination did not clear the Democrat-controlled Legislature.
The governor’s office did not respond to a question about who will pay for the lawsuit, and Dench said in an email that he was not at liberty to comment on the issue.
In a talk show interview Tuesday morning with WVOM radio in Bangor, LePage said he would pay for the suit with money from his contingency fund.
By Scott Thistle, Portland Press Herald
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