Governor LePage Brief to court

8/9/2019 Governor LePage Brief to court

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TABLE OF CONTENTS

TABLE OF CONTENTS .............. .........

.....

....................................

..

.

.

...... ..

.

TABLE OF AUTHORITIES ............... .... .. ........................................ ........... . .....

STATEMENT OF FACTS........ ...... . ....... ...... ........................

.............. ... ........... 1

QUESTIONS PRESENTED ................ ............ ...... ........... .. .................. .. . ....... 6

I. Do the questions presented by the Governor to the Justices

of the Maine Supreme Judicial ourt constitute a solemn

occasion necessary to invoke the constitutional obligation to

provide an advisory opinion?

II.

If

the Attorney General refuses to represent a State agency

(or any other entity listed in 5 M.R.S.

§

191) in a lawsuit,

must the Executive Branch still obtain the Attorney

General s permission to hire outside counsel to represent

the agency in the suit?

III.

If

the Attorney General intervenes to oppose a State agency

in a lawsuit, must the Executive Branch still allow the

Attorney General to direct that piece of litigation?

ARGUMENT ... .. .. . ............................... ............. ............ .............. . ........ ...... . 7

I. The Governor s questions constitute a solemn occasion

necessary to invoke the justices constitutional obligation to

provide an advisory opinion.

II.

In

instances where the Attorney General refuses to

represent an entity listed in 5 M.R.S. § 191, the Governor


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should not be required to seek permission to retain counsel.

III. In instances where the Attorney General intervenes to

oppose a State agency in a lawsuit the Governor should not

be required to allow the Attorney General to direct

th t

piece of litigation.

CONCLUSION .......................................................................................................

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T BLE OF UTHORITIES

Constitutional Provisions

Me. Const. art. III, § 1 .........................................................................................

11

Me. Const. art. III, § 2 ..........................................................................................

11

Me. Const. art. V, pt. 1st, § 1 ...................................................................................

11

Me. Const. art. VI,

§

3 .............................................................................................. 7

Me. Const. art. IX, §

11

.............................................................................................

11

Statutes

5 M.R.S.A. § 191. .... .... .... .... .... .... .... .... .... .... .... .... .... .... ... 9, 10, 11, 12, 17, 18, 19

5 M.R.S.A. § 194- 194K..................................................................11

2012 Me. Laws c. 657 § GG-1 .................................................................................. 1

Case aw

Att y Gen. v. Michigan Pub. Serv. Comm

n,

625 N.W.2d 16 Mich.

2000) ............................................................................... 21, 22

Fitzgerald v. Baxter State Park Auth., 385 A.2d 189 Me. 1978) ............. .14, 17, 20

Maine Mun. Assoc. v. Maine Dept. ofHealth Human Serv,

Cumb. Cty. Sup. Ct. Docket No. AP-1439 .......................... 4, 10, 22, 24

Mayhew

v.

Burwell,

Case No. 14-1300 1st Cir.)

..................

l

3, 4, 9, 10, 22, 24

Mayhew v. Sebelius, Case No. 12-2059 1st Cir.)

......................................

1

2

Opinion of he Justices, 2012 ME 49 .................................................................... 7, 8

111


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Opinion of he Justices, 2004 ME 54 ......................................................8

Opinion of he Justices, 709 A.2d 1183 Me. 1997) ................................................ 7

Secretary ofAdministration nd Finance v Attorney General, 326 N.E.2d

334 Ma. 1975)

.............................................................

14, 15, 7

State ex rel. Allain

v

Mississippi Pub. Serv. Comm n, 418 So.2d 779 Miss.

1982).............................................................................. 14, 9

Suburban Cook Co Regional Office ofEd

v

Cook

Co

Bd., 667 N.E.2d

1064 Ill. App. 1996)

............................................................... 8

Superintendent of ns.

v

Att y Gen., 558 A.2d 1197 Me. 1989) .. 11, 12, 13, 14, 18,

19 20 21

iv


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ST TEMENT OF F CTS

At issue is the legal representation refused by the Attorney General in the

matter

o

Mayhew

v

Burwell Case No. 14-1300

1st

Cir.). Initially, this case was

an administrative matter, a Medicaid State Plan Amendment ( SPA ) request from

the Maine Department o Health and Human Services ( Maine DHHS ) to the

United States Department o Health and Human Services ( U.

S.

DHHS ). In

2012, the Maine Legislature directed Maine DHHS to eliminate 19- and 20-year

olds from Maine's Medicaid population, conditioned on Maine DHHS seeking and

obtaining from U.S. DHHS a SPA making that change. See 2012 Me. Laws

c.

657,

§ GG-1. Maine DHHS submitted the required SPA request to U.S. DHHS. The

Office o the Attorney General, under the direction o then Attorney General

William Schneider, assisted Maine DHHS in that administrative case. The Office

o

the Attorney General also represented Maine DHHS in a related action before

the U.S. Court o Appeals for the First Circuit, to force a timely answer from U.S.

DHHS on the SP A request. The Attorney General's office, on behalf o Maine

DHHS, asked the Court o Appeals, among other things, to order U.S. DHHS to

approve Maine DHHS' s then-pending SP A request, and presented at length some

o the very same constitutional arguments that the Attorney General later opposed

after intervening in Maine DHHS' s appeal o its SP A denial. See Mayhew v

Sebelius Case No. 12-2059, Petitioner's Motion for Injunctive Relief 1st Cir.,


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Sept. 5, 2012) at 1 13-18. The First Circuit denied that request as moot on the

grounds that mandamus to force immediate agency action was not warranted. ee

id Order dated Sept. 13, 2012.

At

that point in the litigation, the

126th

Legislature commenced. The House

of

Representatives and Senate jointly convened to elect, by secret ballot, the

Attorney General. The Legislature elected Janet Mills as Attorney General. The

Office

of

the Attorney General, once it came under the control

of

Attorney General

Mills, refused to represent Maine DHHS in actions related to this SPA. The

Attorney General refused to provide legal representation for the remainder of the

administrative work before U.S. DHHS, leaving Maine DHHS to represent itself.

In 2013, the U.S. DHHS denied Maine s SPA request. In response to this, Maine

DHHS petitioned for reconsideration. This petition was denied in January 2014.

Maine DHHS requested legal representation from the Office

of

the Attorney

General in order to appeal the SP A denial to the First Circuit. Maine DHHS

communicated to the Attorney General that if no representation would be

forthcoming from that office, then outside counsel would be an adequate

alternative. The Attorney General responded by refusing to provide representation

because she concluded the matter was unlikely to succeed (although the Attorney

General had previously argued to the First Circuit that Maine

DHHS s

constitutional arguments were likely to succeed on the merits), but further

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indicated that she would consider authorization of outside counsel. A copy

of

the

March 4, 2014 letter from the Attorney General was submitted with the Governor s

January 23, 2015 communication to this Court.

In March 2014, the Attorney General authorized Maine DHHS to retain

outside counsel for the limited purpose

of

pursing an appeal to the First Circuit.

The Governor had to pay for private counsel out

of

his emergency Contingency

Account (which is allocated to him by the Legislature and is separate from what

the Executive Branch pays the Attorney General s Office), and could not exceed a

specified cap.

Through outside counsel, Maine DHHS filed its appeal

of

the SP A denial in

Mayhew

v

Burwell. After the appeal was filed, and after the Office

of

the

Attorney General had already represented Maine DHHS in this case, the Attorney

General moved to intervene in the case in order to oppose Maine DHHS s position.

The Attorney General was granted intervenor party status, and filed her brief in

August 2014, in which she stated:

The Attorney General of Maine strongly disagrees with the

State DHHS, as a matter of law and public policy, and for that

reason declined to represent the State DHHS, authorized

outside counsel for the Department and successfully moved to

intervene to represent the public interest.

rief

of

Interested Party-Intervenor Attorney General

of

Maine, Mayhew

v

Burwell Case No. 14-1300 (Aug. 6 2014) at

3.

The First Circuit denied Maine

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DHHS s appeal on November 17, 2014. Maine DHHS, at the direction o the

Governor, intends to petition the U.S. Supreme Court for a writ o

certiorari

which it must do no later than February 17, 2015. Maine DHHS communicated to

the Attorney General that it wished to retain outside counsel for the purpose o

filing the petition. Despite the Attorney General s participation as a party in

outright opposition to Maine DHHS in Mayhew v Burwell the Office

o

the

Attorney General requested that Maine DHHS provide copies

o

outside counsel s

bills and the estimate for the cost to do the petition. The Attorney General s Office

indicated it would consider the request for outside counsel, and develop a legal fee

cap to impose on Maine DHHS for the work to be performed. Maine DHHS

refused to provide privileged narrative billing records, but provided amounts

budgeted and paid to outside counsel instead. Maine DHHS also argued against

the legality o a fee cap since it considered the Attorney General s Office to be

ethically constrained from imposing it, and because the money was not coming

from the Attorney General s budget. In a January 14, 2015 letter, the Attorney

General s Office approved Maine DHHS s request for outside counsel (a copy o

that letter was submitted with the Governor s January 23, 2015 letter).

As the Governor s January 23, 2015 communication indicated, there is a

second pending lawsuit,

Maine Municipal Association

et

al. v. Maine Department

ofHealth nd Human Services et al. for which the Attorney General s Office has

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declined representation. On July 10, 2014, the Maine Municipal Association, City

o

Portland, and City o Westbrook filed suit against Maine DHHS and

Commissioner Mayhew. Shortly thereafter, the Governor s Office requested

representation from the Attorney General s Office in order to defend Maine DHHS

and Commissioner Mayhew in that litigation. The Attorney General denied all

representation from her office to the state parties in that lawsuit. On July 17, 2014,

Maine DHHS communicated to the Attorney General s Office that it was interested

in retaining outside counsel. This request was approved by the Attorney General on

July 18, 2014, and was limited through a fee cap and by an expiration date o

October 31, 2014, subject to further review.

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ISSUES PRESENTED

I. Do the questions presented by the Governor to the Justices

of

the Maine

Supreme Judicial

ourt

constitute a solemn occasion necessary to invoke

the constitutional obligation to provide an advisory opinion?

II. If the Attorney General refuses to represent a State agency (or any

other

entity listed in 5 M.R.S. § 191) in a lawsuit, must the Executive Branch still

obtain the Attorney General s permission to hire outside counsel to

represent the agency in the suit?

III.

If

the Attorney General intervenes to oppose a State agency in a lawsuit,

must the Executive Branch still allow the Attorney General to direct

that

piece of litigation?


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ARGUMENT

I

The Governor s questions constitute a solemn occasion necessary to

invoke the justices constitutional obligation to provide an advisory

opinion.

The Maine Constitution requires Supreme Judicial Court justices to answer

important questions

of

law posed by the Governor

if

a solemn occasion exists. Me.

Const. art. VI,

§

3. When the questions asked

of

the justices are

of

a serious and

immediate nature, and the situation presents an unusual exigency, a solemn

occasion arises. [S]uch an exigency exists when the body making the inquiry,

having some action in view, has serious doubts as to its power and authority to take

action under the Constitution or under existing statutes.

Opinion

o

he Justices

709 A.2d 1183, 1185 (Me. 1997). The matter at issue must be

of

instant, not past

nor future, concern.

Opinion o he Justices

2012 ME 49, ~ 6 (quotation marks

omitted). Questions that are tentative, hypothetical and abstract will not be

answered by the justices. I d ~ 5

Recent advisory opinions elucidate the circumstances necessary for finding a

solemn occasion. In 2012, the House

of

Representatives sent questions to the

Maine Judicial Court justices, asking about constitutional restrictions placed on a

member of the executive branch, the Treasurer

of

State, and on the impact that a

hypothetical violation of those restrictions would have on his official acts. Opinion

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o he Justices 2012 ME 49,

-r -r

7-8. The justices declined to answer the questions

sent by the House because no live gravity or unusual exigency existed.

Id

i f

9.

The justices found the factual background insufficient to provide context for the

hypothetical questions, as the House had no action in view. Id -r -r 7-9.

In contrast, the majority o the Supreme Judicial Court justices found a

solemn occasion existed when the Legislature requested their respective answers

on the constitutionality o an initiated bill regarding property taxes.

Opinion

o

he

Justices 2004 ME 54,

-r -r

1-3. The questions were sent to the justices on March 29,

2004, requesting guidance in the discharge o their constitutional obligation to

make a decision on the bill before the end o the second regular session o the

2

st

Legislature. Because the Legislature was concerned about the legality o the

options it could pursue on the important bill, and the timeline in which it had to

act, the majority o the justices found that the circumstances met the requirements

o seriousness, immediacy, and unusual exigency.

Id

-r -r 3-5.

Likewise, the circumstances which give rise to the Governor's questions are

serious, immediate, and present an unusual exigency. At any given time, the

Attorney General's Office represents the State in hundreds

o

matters, including

litigation. On occasion, albeit rarely, the Attorney General has refused to provide

representation from her office to the State. There are two current pieces o

litigation in which the Attorney General is refusing to provide representation to the

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State, and in each, the Governor, within a timeframe of a few weeks, will need to

request additional permission from the Attorney General for work to be performed.

Because

of

this timeline, the circumstances are sufficiently immediate to support a

finding

of

a solemn occasion.

The pieces of litigation at issue are

of

major importance to the Governor.

The Attorney General s actions with respect to each case (in Mayhew intervening

as a party-in-interest against the State; and in Maine Municipal having provided

legal advice to the party suing the State) strongly suggest that she also considers

the matters to be of great significance. The Governor s questions, which concern

the relationship between the Attorney General and the hiefExecutive, are simple

in nature but implicate the officers respective roles and authority under Maine

law. Thus, the requirement of seriousness is met.

The Governor s questions arise

s

a result of the unusual circumstances

wherein the Attorney General has denied the State representation. In the face of

these unusual circumstances, the Governor has a particular plan in mind, but

questions whether he may carry out that plan lawfully and so requests the justices

guidance. In the present case, the Governor requests an advisory opinion from the

justices regarding whether his proposed action is lawful under the Constitution and

5 M.R.S.A. § 191. As indicated in his request, the Governor wishes to know

whether he may proceed, without seeking the Attorney General s permission, to

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retain outside counsel on his own terms in two current instances where the

Attorney General has refused to provide representation to the State. The Governor

also needs to know whether he must allow the Attorney General to direct the

litigation for the State in a situation where she has intervened to oppose the State.

An advisory opinion from the justices is necessary and essential for the

Governor s decision-making regarding his ability to work, unfettered, with private

counsel in the ayhew and aine unicipal cases. His questions, therefore, are

not hypothetical or tentative, and they derive from an unusual exigency.

Because the background circumstances present an unusual exigency, and the

Governor s questions are serious and immediate, a solemn occasion exists,

therefore meeting the Constitutional threshold for an advisory opinion from the

justices.

II. In instances where the Attorney General refuses to represent an entity

listed n 5 M.R.S. § 191 the Governor should not be required to seek

permission to retain counsel.

The issue here is whether the Supreme Executive authority o the State o

Maine, vested solely in the Governor, comprises the authority to have

representation in recourse to the courts when the Attorney General refuses to

provide such representation or appears as a party opponent in litigation involving a

State agency. Any attempt to read 5 M.R.S.A. § 191 to impair the Governor s

authority in that respect is not supported by the statutory language or purpose, and

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must be avoided by this Court, given the grave constitutional problems it would

raise

of

legislative encroachment

on

the prerogatives

of

the Executive Branch.

Under the Maine Constitution, the powers

of

the government shall

be

divided into 3 distinct departments, the legislative, executive and judicial. Me.

Const. art. III, § 1 No person or persons, belonging

to

one of these departments,

shall exercise any

of

the powers properly belonging to either of the others ... Me.

Const. art. III, § 2. The supreme executive power of this State is vested in the

Governor. Me. Const. art. V, § 1

The relevant responsibilities of the Attorney General are left undescribed

by

Article IX, section

11 of

the Constitution, but appear in statute. [W]hen

requested by the Governor or

by

the Legislature or either House of the

Legislature, the Attorney General or another attorney in her department shall

appear for the State, the head

of

any state department, the head

of

any state

institution and agencies of the State in all civil actions and proceedings in which

the State is a party or interested

...

5 M.R.S.A. § 191(3). All such actions and

proceedings must

be

prosecuted or defended by the Attorney General or under the

1

For example, the powers of he Attorney General as the traditional enforcer of charitable trusts are described in 5

M.R.S.A. §§ 194 - 194-K, and the Legislature specifically noted that those enumerated powers were ot to be

viewed as limiting the common law powers

of

he Attorney General in that arena. 5 M.R.S.A.

§

194-1(2). That the

Legislature made particular mention

of

its intent to avoid abrogating common law powers

of

he Attorney General

with respect to charitable trusts suggests that the same intent was lacking for other sections

of

he statutory scheme,

including 5 M.R.S.A. § 191. Thus, while 5 M.R.S.A. § 191 could be viewed as a limitation on the common law

powers

of

he Attorney General, this Court decided otherwise in

Superintendento nsurance v Attorney General

558 A.2d 1197, 1200 (Me. 1989).


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Attorney General 's direction.

Despite the Legislature's use o the word shall in 5 M.R.S.A. § 191(3),

this Court previously held that the Legislature did not intend to mandate

representation by the Attorney General in all cases involving the State.

Superintendent

o

nsurance

v

Attorney General

558 A.2d 1197, 1200 (Me.

1989). Instead, this Court found the Legislature intended to leave the Attorney

General with some discretion whether to represent State government officers or

entities in litigation. Id.

In

Superintendent

o

nsurance

v

Attorney General

this Court addressed a

question o whether the Attorney General, whose office had advised the Bureau o

Insurance during a rate review hearing, could, in pursuit

o

the public interest,

subsequently seek judicial review o the rate order and refuse to represent the

Superintendent in that proceeding. Id at 1197. In that case, when the Attorney

General had moved to seek judicial review

o

the Superintendent's decisions

through a Rule SOC action, the Superintendent obtained private counsel. Through

private counsel, he moved to strike the Attorney General's appearance in the 80C

matter, partly on the basis

o

a perceived ethical conflict (which will be discussed

later in this brief), and also requested that the Superior Court order the Attorney

General's Office to represent him. Id at 1199-1200.

The court held that the Superior Court erred in mandating the Attorney

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General's representation to the Superintendent because the Attorney General was

not obligated to represent all state agencies regardless

of

his view

of

the public

interest.

Id

at 1200. The question this Court did not need

to

answer was

whether approval could be withheld for the employment of private counsel

because of a disagreement over the public interest.

Id

Based on the language

of

this Court's decision in Superintendent of

Insurance, the answer to that question must be no. In that opinion, the court noted

in its discussion of he applicability of the ethical rules to the governmental lawyer

that it was required to balance ethical concerns with concerns for effective

representation

of

both the public interest and public agencies.

Id

at 1202

(emphasis added). In her role, the Attorney General is directed to control and

manage the litigation of the State by providing counsel to state agencies and by

approving the retention of private counsel.

Id

When this Court addressed

whether the Attorney General was disqualified from representing the public

interest given that her office previously represented the state agency, it noted that

disqualification was unnecessary because [o ]ther less drastic means o nsuring

effective representation

for

state officers

nd

agencies exist. Id at 1204

(emphasis added). These statements by the Superintendent o nsurance court

indicate that even when the Attorney General charts a course on behalfof he

public interest to the exclusion ofher representation of the State, the State also

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must be represented effectively. Indeed, the court praised the pragmatic approach

taken by the Mississippi Supreme Court, which indicated that in the event the

Attorney General's views differ from the State, he must allow the assigned

counsel or specially appointed counsel to represent the agency unfettered and

uninfluenced by the attorney general's personal opinion.

d

(citing Mississippi ex

rel. Allain, et

al

v Mississippi Pub. Serv. Comm n, 418 So.2d 779, 784 (Miss.

1982). In the Mississippi decision this Court found persuasive, the court

characterized its holding as the majority view among states, and found that

following this rule would afford maximum protection to the public interest as well

as afford complete legal representation to the various state agencies. Mississippi

ex rel. Allain, 418 So.2d 779 at 784. Thus, although the Superintendent of

Insurance court did not need to answer the question o whether the Attorney

General could withhold private counsel to represent an agency i her views

differed, the language

o the opinion indicates clear support for constant and

effective representation o the State. When representation has been denied by the

Attorney General's Office, effective representation

o

the agency can only be

provided by private counsel.

The Superintendent of nsurance court, in holding that the Attorney General

was not required to represent the Superintendent, found support from the

Massachusetts Supreme Judicial Court in the matter o Secretary ofAdministration

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and Finance v Attorney General 326 N.E.2d 334 (Ma. 1975). In that case, the

Attorney General decided to forego prosecuting an appeal on behalf o a

government officer, and also refused to appoint a special assistant attorney general

to represent the officer. The Massachusetts Supreme Judicial Court held that the

Attorney General had the discretion to decide whether to represent the officer, and

whether to appoint a special assistant attorney general to do so. d. at 339-40. The

court acknowledged that its decision in this case may indicate that the Attorney

General can preclude recourse to the courts by refusing to prosecute an action or

appeal. Id.

at 339. (In Massachusetts, unlike Maine, there appears to be no law

specifically providing for the hiring o private counsel by the State.) See Mass.

Gen. Law. ch. 12. However, the court appeared to indicate the discretion was

limited where there was a policy disagreement between the Attorney General and

the Governor, and that on those occasions, the Attorney General should appoint an

assistant attorney general to represent the Governor's interests. Sec. o Admin.

Fin. 326 N.E.2d at 339 n.8. In the event

o

a disagreement about the legal merits

o a matter, the court indicated the Attorney General should not provide

representation from her office.

Id

The court suggested that, in instances where

the Governor believed the Attorney General made an inappropriate decision

regarding representation, a lawsuit could be filed and the courts would have the

final say. Sec.

o

Admin. Fin. 326 N.E.2d at 339.

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The drastic abandonment

of

a client, as well as the resultant rush to the

courts in times

of

serious disagreement between the Attorney General and the

State, was described unfavorably in an elegant dissent in the Massachusetts

decision:

In a singular case, however, in which the official feels justified in

persisting in his disagreement with the Attorney General-a case, that

is to say, in which he believes that an important position is being

surrendered for want

of

a willing advocate-it should be open to the

official to go to his hierarchical superior, the Governor, and express

that disagreement. At that point the chief executive,

ifh

supports the

official, ought to be able after due discussion to give directions to the

chief law officer. Such directions should not be often or lightly given,

but the power should be and, I think, s there. Otherwise matters of

high importance to the State--or at least considered by the chief

executive to be so-might be finally decided not by the responsible

operator but by the lawyer.

t may be added that in [sic] Attorney General need not act against the

clear call

of

his conscience. When directed in the exceptional situation

to argue a cause truly repugnant to him, he steps aside and gives way

to special counsel.

I would accord so much primacy to the Governor. The opinion of the

court intends to give a measure of primacy to the Attorney General,

but leaves unclear just what it is. [W]here there is a policy

disagreement between the Attorney General and the Governor or his

designee, says the opinion, the appropriate procedure would be for

the Attorney General to appoint a special assistant to represent the

Governor's interests. Well and good. But then the opinion adds, It is

only where the Attorney General believes that there is no merit to the

appeal,

or where the interests

of

a consistent legal policy for the

Commonwealth are at stake, that the Attorney General should refuse

representation at all. But such characterizations

policy

disagreement, consistent legal policy - are open to varying

interpretations, and here, if I understand the court, the Attorney

General is to decide. Even so, the Attorney General cannot act

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arbitrarily and capriciously or scandalously, and [w]e do not

preclude recourse to the courts where such is the case. Thus there is a

suggestion that the judiciary has the last word.

I acknowledge there may be wisdom sometimes in leaving the

boundaries of power unclear, for if uncertainty generates confusion, if

[sic] may also promote a healthy competition in the public interest.

But I see no value in unclarity for the class of which the present case

is an example. I would declare on the present facts that, if the

Governor directs, the Attorney General

is

required by the statute to

prosecute the Secretary's appeal to see to the appointment of other

counsel to do so.

Sec. o Admin. Fin.

326 N.E.2d at 167-168 (Kaplan, J., dissenting). In essence,

what Justice Kaplan promoted was an orderly plan in which, ifth Governor and

the Attorney General seriously disagreed over a course of action in litigation,

regardless of how the disagreement could be characterized, special counsel would

be provided to represent the State. This solution becomes even more pragmatic

here because, in addition to special counsel in the form

of

an assistant attorney

general, there exists the availability

of

private counsel.

See e.g.

5 M.R.S.

A.

§

191 3 ); Fitzgerald v. Baxter State Park Authority

385 A.2d 189,

195

(Me. 1978)

(Attorney General could not, as counsel for and ex officio member of charitable

trust, fulfill duty to serve as enforcer of charitable trust, and so by force of

necessity other individuals had standing to enforce the trust). Consequently,

ifth

Attorney General cannot provide an assistant attorney general to assist the

Governor, by force of necessity the Governor should choose private counsel to

represent the State.

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Other states courts have developed workable options for the selection or

appointment

of

private counsel in situations even where there is a disagreement on

the law between the Attorney General and the State entity he is responsible for

representing. For example, an Illinois court noted that state s practice of allowing

the courts to appoint private counsel for the governmental entity if the Attorney

General denied representation:

That procedure would insure that the official could not arbitrarily seek

representation from a private attorney, nor seek private representation

to advance a frivolous legal position. f he official is able to establish

a colorable claim which the State s Attorney is unwilling to support

the court should be able to exercise its discretion and appoint

private counsel.

Suburban Cook Co Regional Office o Ed. v Cook Co Bd. 667

N.E.2d

1064, 1074 (Ill. App. 1996).

Regardless of the specific mechanism, the language

of

Superintendent o

Insurance supports the concern for effective representation for the State. f t were

found that the Attorney General could deny the State s recourse to the courts

by

withholding not

just

special counsel from her office but also private counsel, the

results would be farcical- the Attorney General could allow the State to default in

lawsuits if she felt it was in the public interest to side with the plaintiffs, for

example. The language

of

5 M.R.S.A. §

9

presumes there will be representation

of

state entities- this Court may have found that the representation does not

necessarily need to come from the Attorney General s Office, but this Court should

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also find that representation needs to come from somewhere. Otherwise, the

innocuous language

of

5 M.R.S.A.

§

9 is a legislative encroachment into the

supreme executive powers

of

the Governor.

Although the Attorney General has some level of discretion whether to

provide representation from her own office, the Attorney General may not exercise

her discretion in such a way as to deny a State entity of all representation. Given

that representation may not be withheld from a State entity, it follows that when

representation from the Attorney General's office is refused, the requirement to

seek permission from the Attorney General for private counsel is nullified.

III. In instances where the Attorney General intervenes to oppose a

State agency in a lawsuit the Governor should not be required to

allow the Attorney General to direct that piece o litigation.

The Rules of Professional Conduct apply to lawyers who work in the

Attorney General's Office, but there are some distinctions in the application

of

ethical rules to lawyers in government or private employment. For example,

although a private law firm could not simultaneously represent two clients whose

interests conflict, the Office of the Attorney can represent two or more agencies

with conflicting interest

or

views.

Superintendent

o

nsurance

558 A.2d at

1202. Indeed, the Attorney General is viewed as having many

clients- the

State,

its agencies, the public interest, and others designated by statute. Id (citing

State

ex rel. Allain

418 So.2d at 782).

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25/29

Under Maine law, the ethical rules do not prohibit an Attorney General from

pursuing the public interest in a legal matter even though, at the administrative

stage

of

the same proceedings, the Attorney General's Office had represented the

agency. [W]hen the Attorney General disagrees with a state agency, he is not

disqualified from participating in a suit affecting the public interest merely because

members ofhis s taff had previously provided representation to the agency. Id. at

1204.

However, under Maine law, an Attorney General who is pursuing the public

interest as a party in a lawsuit against a State entity is ethically prohibited from

concurrently representing the State entity.

See Fitzgerald

385 A.2d at 195 ( The

Attorney General could not properly take in litigation a position adverse to a state

agency on which he sits and for which he acts as counsel. ). In Superintendent o

Insurance the court was asked:

f

an agency is represented in court by independent private counsel, is

it ethically permissible for the Attorney General to seek judicial

review of an administrative decision of that agency, even though the

agency was counselled by members

of

his staff during the

administrative proceeding?

558 A.2d at 1204. This Court held, Because the Superintendent is now

represented by private counsel, there is no ethical impediment to the legal action

brought by the Attorney General. Maine's law appears to be comparable to other

jurisdictions. [N]early all the decisions from other jurisdictions provide that

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26/29

the Attorney General may [only represent opposing state agencies] 'where he or

she is not an actual party' in the dispute. tty

Gen.

v

Michigan Pub. SenJ.

Comm n,

625 N.W.2d 16, 30 (Mich. 2000) (referring to, in part,

Superintendent

o

Insurance).

Clearly, an ethical conflict exists when the Attorney General intervenes

against a State agency in litigation and also tries to represent that agency in the

same matter. Typically, where the Attorney General merely disagrees with an

agency position, she may assign an assistant attorney general to represent the

agency unfettered and uninfluenced by the attorney general's personal opinion,

Superintendent of nsurance,

558 A.2d at 1204 (internal quotations omitted). The

matter is quite different, however, when the Attorney General intervenes as a party

to oppose a State agency in litigation. In that situation, the question becomes

whether the Attorney General's Office may ethically assert the statutory control it

typically has over state litigation. Unlike the situation where the Attorney General

merely disagrees with the agency's position, her entrance into the litigation as a

party requires a different application

o

the ethics rules. As an adversary to the

agency, the Attorney General 's interest in the litigation would substantially taint

the ability

o

any attorney in her office to represent the agency unfettered and

uninfluenced by her position. Because no lawyer in the Attorney General's Office

can ethically represent the State entity in that circumstance, it follows that no

2


27/29

lawyer could ethically manage the litigation. After all, despite the special nature of

the Attorney General s position:

[C]onflict

of

interest rules are a frank recognition that, human nature

being what it is, a dual relationship involving adverse or conflicting

interests, constitutes enormous temptation to take advantage

of

one

or

both parties to such relationship and that

the purpose o he conflict o

interest rules is to condemn the creation and existence o he dual

relationship instead

of

merely scrutinizing the results that flow

therefrom.

Att y Gen.

v.

Michigan Pub. Serv. Comm n, 625 N.W.2d at 25 (internal quotations

omitted).

In the

Mayhew

litigation, the Attorney General has declined to provide

representation to Maine DHHS, and has intervened as a party-in-interest to oppose

Maine DHHS, yet the Attorney General s Office is asserting control over the

litigation

y

providing limited approval for private counsel. Moreover, the

exercise

of

control over the litigation has resulted in fee caps (as with the current

Maine Municipal Association litigation) and a request to see privileged billing

records. In order to have private counsel conduct additional tasks related to the

petition for certiorari in

Mayhew

Maine DHHS has to submit those requests to the

Attorney General s Office. Such requests, to the extent they reveal litigation

strategy, are inappropriate for Maine DHHS to have to present to a party opponent

in the appeal.


28/29

The issue is very

simple where

the entirety of the Attorney General s

Office is ethically prohibited from representing the state agency because the

Attorney General has taken proactive steps to advance the public interest in

opposition to a State entity, as when she joins litigation as a party adverse to the

State, no one in that office can claim to control the litigation in such a way as

to

serve the best interests

of

he agency. No client, governmental or otherwise,

should have its litigation controlled by its party-opponent. Delegation of he

control by the Attorney General to another lawyer in her office is insufficient to

cure the ethical concerns raised.

If

the representation cannot be ethically

delegated, neither can control over the litigation.

ON LUSION

The circumstances underlying the Governor s request for an opinion

of

the

justices present an unusual exigency, and the Governor s questions are serious and

immediate. Consequently, the justices of the Maine Supreme Judicial Court should

find a solemn occasion exists, thereby enabling them under the Maine Constitution to

answer, in an advisory capacity, the questions presented.

Although the Attorney General has some level

of

discretion whether to

provide representation to a State entity from her own office, the Attorney General

may not exercise her discretion in such a way as to deny representation by private

counsel. Given that representation may not be withheld from a State entity, it

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29/29

follows that when representation from the Attorney General s office is refused, the

requirement to seek permission for private counsel is nullified. Hence, the

Governor should not be required, under the present circumstances, to have to make

continued requests for approval o private counsel in the

Mayhew

v

Burwell

and

Maine Municipal ssociation

v

Maine DHHS cases.

Where the Attorney General has an ethical conflict that prevents any lawyer

in her office from representing Maine DHHS in the

Mayhew

v

Burwell

litigation

because

o

her status as intervenor party, the same conflict ethically prohibits her

office from exercising the typical statutory control over the litigation. Where the

Attorney General has created an unresolvable conflict with an agency, the agency

should be permitted to control the litigation.

Dated: February

6

2015

Cynthia Montgomery, Bar No. 4456

Holly Lusk, Bar No. 9868

Hancock Fenton, Bar No. 5294

Chase Martin, Bar No. 5358

Governor LePage Brief to court

Documents

Transcript of Governor LePage Brief to court