Attorney General Janet Mills brief

8/9/2019 Attorney General Janet Mills brief

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STATE OF MAINE

SUPREME JUDICIAL COURTOPINION OF THE JUSTICES

OJ-15-1

BRIEF OF ATTORNEY GENERAL SUBMITTED IN CONJUNCTIONWITH QUESTIONS PROPOUNDED TO THE JUSTICES OF THE

SUPREME JUDICIAL COURTBY THE GOVERNOR ON JANUARY 23, 2015

JANET T. MILLSATTORNEY GENERAL

LINDA M. PISTNERCHIEF DEPUTY ATTORNEY GENERAL

PHYLLIS GARDINERASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERALSIX STATE HOUSE STATIONAUGUSTA, MAINE 04333-0006

Tel. (207) 626-8800


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TABLE OF CONTENTS

PAGES

TABLE OF AUTHORITIES .......................................................... iiSUMMARY................................................................................. 2

FACTUAL BACKGROUND .......................................................... 4

CONSTITUTIONAL AND STATUTORY FRAMEWORK .................. 8

OFFICE OF THE ATTORNEY GENERAL PROTOCOLFOR OUTSIDE COUNSEL REQUESTS ............................. 12

SOLEMN OCCASION ............................................................... 14

QUESTIONS PRESENTED ....................................................... 20

Question 1. “If the Attorney General refuses to represent a State agency (or any other entity listedin 5 M.R.S. § 191) in a lawsuit, must the ExecutiveBranch still obtain the Attorney General’s permission

to hire outside counsel to represent the agency in thesuit?” .............................................................................. 20

Question 2. “If the Attorney General intervenes to oppose a State agency in a lawsuit, must theExecutive Branch still allow the Attorney Generalto direct that piece of litigation? ...................................... 25

CONCLUSION ......................................................................... 29

CERTIFICATE OF SERVICE …………………………………………... 31


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TABLE OF AUTHORTIES

CASES PAGES

Attorney General v. Michigan Public Service Comm’n, 625 N.W.2d 16 (Mich. App. 2000) .................................... 24

Farris v. Goss, 143 Me. 227, 60 A.2d 908 (1948) ..................... 22

Feeney v. Commonwealth, 373 Mass. 379,366 N.E.2d 1262 (1977) .................................................. 24

Florida ex rel. Shevin v. Exxon Corporation,526 F.2d 255 (5 th Cir. 1976) ............................................ 24

Littlefield v. Newell, 85 Me. 246, 27 A.2d 10 (1893) .................. 22

Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me. 1973) ............... 22

Maine Municipal Association, et al. v. MaineDepartment of Health and Human Services,No. AP-14-39 (Cum. Cty. Sup. Ct. 2014) .................. passim

Mayhew v. Burwell, 772 F.3d 80 (1 st Cir. 2014) ................ passim

Mayhew v. Burwell, 14-1300 (1 st Cir.) ............................... passim

Mayhew v. Sebelius, 772 F.3d 80 (1 st Cir. 2014) ........................ 7

Mayhew v. Sebelius, 2012 WL 4762101 ..................................... 5

Opinion of the Justices, 2012 ME 49, 40 A.3d 930 ......... 2, 14, 19

Opinion of the Justices, 2004 ME 54, 850 A.2d 1145 ....15, 17, 19

Opinion of the Justices, 2002 ME 169, 815 A.2d 791 ......... 14, 16

Opinion of the Justices, 709 A.2d 1183 (Me. 1997) ................... 15


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Opinion of the Justices, 437 A.2d 611 (Me. 1981) ..................... 18


Opinion of the Justices, 673 A.2d 1271 (Me. 1976) ................... 18

Opinion of the Justices, 339 A.2d 489 (Me. 1975) ............... 17, 18

Opinion of the Justices, 340 A.2d 25 (Me. 1975) ................. 19, 20




Opinion of the Justices, 134 Me. 513, 191 A. 488 (1936) .......... 16

Opinion of the Justices, 155 Me. 125, 152 A.2d 494 (1959) ...... 19

People ex rel. Deukmejian v. Brown, 624 P.2d 1206(Cal. 1981) ...................................................................... 24

Secretary of Administration & Finance. v. Attorney General,326 N.E. 2d 334, (Mass. 1975) ....................... 10, 22, 23, 26

State ex rel. Allain v. Mississippi Pub. S ervice Comm’n, 418 So.2d 779 (Miss. 1982) ............................................. 24

State ex rel. Banks v. Elwell, 156 Me. 193,163 A.2d 342 (1960) ........................................................ 22

Superintendent of Insurance v. Attorney General, 558 A.2d 1197 (Me. 1989) ........................................ passim

Withee v. Lane & Libby Fisheries, Co., 120 Me. 121,113 A.2d 22 (1921) .......................................................... 22


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CONSTITUTIONAL PROVISIONS

Me. Const. Art. III .................................................................... 14

Me. Const. Art. V. pt. 1, § 8 (1820) ............................................ 8

Me. Const. Art. VI, § 3 ......................................................... 1, 14

Me. Const. Art. IX, § 11 ............................................................. 6

STATUTES

5 M.R.S. § 191 .................................................................. passim

5 M.R.S. § 191(3)(B) ................................................................ 21

P.L. 1905, ch. 162 § 1 ........................................................... 8, 9

P.L. 1973, ch. 771 §§ 1 & 2 ..................................................... 10

MISCELLANEOUS

1904 Report of the Attorney General ......................................... 9


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On January 23, 2015, Governor LePage requested the Justices

of the Supreme Judicial Court, pursuant to Article VI, section 3 of

the Maine Constitution, to give their opinion regarding twoquestions relating to representation of the Executive Branch in

litigation. The Attorney General respectfully submits the following

brief pursuant to the Court’s Procedural Order of January 26, 2015,

to assist the Justices in resolving the questions presented.

Questions Presented

The Governor posed the following questions:

Question 1. If the Attorney General refuses torepresent a State agency (or any other entity listed in 5M.R.S. § 191) in a lawsuit, must the Executive Branchst ill obtain the Attorney General’s permission to hireoutside counsel to represent the agency in the suit?

Question 2. If the Attorney General intervenes tooppose a State agency in a lawsuit, must the ExecutiveBranch still allow the Attorney General to direct thatpiece of litigation? 1

1 In a February 3, 2015 letter to the Court, the Governor’s Office has indicatedthat it may be providing additional background materials relating to therequest for an Opinion in the Governor’s brief to be filed on February 6, 2015.

To the extent the Governor offers additional facts for the Court’s consideration,the Attorney General respectfully urges the Court not to consider contentionsnot contained in the initial request.


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SUMMARY

The questions referred to the Justices center on the authority

of the Attorney General to manage litigation in which the State ofMaine, its officers or agencies are parties. The State parties referred

to in the request are the Maine Department of Health and Human

Services (“MEDHHS”) and its Commissioner, Mary Mayhew. The

Law Court’s opinion in Superintendent of Insurance v. Attorney

General, 558 A.2d 1197 (Me. 1989) is dispositive. In that case, the

Law Court held that pursuant to the broad common law powers of

the Attorney General, the Attorney General can take a position in

litigation contrary to the position of a state agency, and that in such

circumstances authorization of outside counsel to represent the

agency is appropriate. As is made clear by the January 14, 2015

letter from the Attorney G eneral’s Office, attached as Exhibit 2 to

the Governor’s request, this is exactly what occurred in the matter

of Mayhew v. Burwell , No. 14-1300 (1 st Cir.). Accordingly, Question

One does not present a controversy of “live gravity” suitable for an

advisory opinion of the Justices. See Opinion of the Justices, 2012

ME 49, ¶ 6, 40 A.3d 930.


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Question Two is based on assumptions which are not

supported by the attachments to the request and with which the

Attorney General respectfully disagrees. Specifically, the questionassumes that the Attorney General is “directing” the litigation

initiated by MEDHHS, citing to the January 14, 2015 letter. That

letter authorizing the continued use of outside counsel does not

direct the litigation in any manner. Nor does it set a “cap” on the

legal fees, as asserted in the request. In an effort to assist the

agency with its due diligence, the letter offers a cost estimate for the

preparation of a petition for certiorari, based on the Office’s

knowledge and experience and based on the outside counsel’s own

estimate. Providing a reasonable estimate of costs is a responsible

thing to do and not an effort to direct, control or dictate the course

of litigation.

Accordingly, the Justices should decline to issue an advisory

opinion on the questions presented because: 1) the Law Court has

already answered Question One in the affirmative – the Executive

Branch must obtain the Attorney General’s permission to hire

outside counsel to represent a state agency; 2) Question Two asks

the Justices to opine on a hypothetical where the Attorney General


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“directs” litigation in which the Attorney General has intervened on

the opposing side, a situation which does not exist; and 3) the

threshold “solemn occasion” for issuing an advisory opinion oneither question has not been met.

FACTUAL BACKGROUND

Typically, when an Opinion of the Justices is sought, the

underlying facts are not in dispute and are complete as presented

in the request. Unfortunately, that is not the case here. In these

circumstances the Justices should not render an Opinion. In order

to provide a more complete background, however, the Attorney

General provides the following information. 2

The request for an Opinion relates to two high profile cases —

Mayhew v. Burwell and Maine Municipal Association, et al. v. Maine

Department of Health and Human Services, No. AP-14-39 (Cum. Cty.

Sup. Ct. 2014) . In both cases, the Attorney General authorized

outside counsel as requested by the Commissioner. In Mayhew v.

Burwell , the Attorney General intervened and took a position

opposite to that of the Commissioner; in the Maine Municipal

2 The information in the chronology has been taken from the exhibits attachedto the Governor’s request (referred to as “Ex. __”) and public documents whichare either readily available or are included in this brief as attachments (referredto as “Att.__”).


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the denial of Maine’s SPA as it pertained to the coverage of 19 and

20 years olds, the remaining changes having become moot. Id.

On February 26, 2014, the Commissioner of MEDHHSrequested that Attorney General Janet T. Mills appeal the USDHHS

decision denying the SPA. Att. 1. See Attorney General Mills’

March 4, 2014, letter, Ex. 1. In the March 4 letter, the Attorney

General explained why she believed that an appeal of the one

remaining issue in the USDHHS decision was unlikely to succeed

and declined to take the appeal. Id. The Attorney General said she

would consider approving a request for outside counsel with any

reasonable proposals from any non-conflicted law firms or attorneys

admitted to practice in the First Circuit Court of Appeals. Id. On

March 17, 2014, the Attorney General authorized MEDHHS to

retain outside counsel to pursue the appeal to the First Circuit,

including any rehearing en banc. Att. 2A - 2C.

Outside counsel filed the Petition for Review on behalf of

MEDHHS Commissioner Mayhew in the First Circuit on March 18,

2014. Mayhew v. Burwell, Docket Report. On April 18, 2014, the

Attorney General moved to intervene in the appeal in the public


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challenged actions against the advice of the Office of the Attorney

General. Att. 3.

On July 17, 2014, MEDHHS requested that the AttorneyGeneral approve outside counsel in the Maine Municipal Association

matter. Att. 4. On July 18, 2014, the Attorney General approved

the request. Att. 5. In her approval letter, the Attorney General

noted that she had explained that she declined to represent

MEDHHS in the matter because the actions described in the

complaint were taken without legal advice or directly contrary to the

legal advice of the Office of the Attorney General. Id. The Attorney

General has not intervened or participated in this lawsuit.

CONSTITUTIONAL AND STATUTORY FRAMEWORK

Article IX, Section 11 of the Maine Constitution establishes the

Attorney General as an independent constitutional officer elected by

the Legislature. 3 In 1905, the Legislature enacted 5 M.R.S. § 191,

codifying the duties of the Attorney General. 4 P.L. 1905, ch. 162 §

3 When Maine became a State in 1820, the Maine Constitution provided thatthe Governor appoint with the consent of the Executive Council the AttorneyGeneral. Me. Const. art. V. pt. 1, § 8 (1820). In 1855, the Constitution wasamended to provide for the election of the Attorney General by the joint ballotof the Senate and House of Representatives. That provision remains in effecttoday.4 As originally enacted, § 191 provided, in relevant part:


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1. This statute was enacted in response to a recommendation by

Attorney General George M. Seiders that control of legal matters be

consolidated in the Office of the Attorney General. In 1904,Attorney General Seiders observed:

My experience in the office of the attorney general for four years has fully convinced me that this office should takecare of all legal matters arising in the various statedepartments.

This is a matter which will bear careful consideration,because I believe the interests of the State require thatthe office of attorney general should attend to the legalmatters of the State exclusively.

1904 Report of the Attorney General 22. 5

The attorney general shall appear for the state, the secretaryof state, the treasurer of state, the bank commissioner, theinsurance commissioner, the head of any other state departmentand the state boards and commissions in all suits and other civilproceedings in which the state is a party or interested, or in whichthe official acts and doings of said officers are called in question, inall the courts of the state; and in such suits and proceedingsbefore any other tribunal when requested by the governor or by thelegislature or either branch thereof. All such suits andproceedings shall be prosecuted or defended by him or under hisdirection. All legal services required by such officers, boards andcommissions in matters relating to their official duties shall berendered by the attorney general or under his direction. Saidofficers, boards and commissions shall not act at the expense ofthe state as counsel in any suit or proceedings in which the stateis interested.

5 A similar statute codifying the powers and duties of the Attorney General hadbeen enacted in Massachusetts in 1896, on the recommendation of its AttorneyGeneral. A comprehensive discussion of the history of the MassachusettsAttorney General’s Office and the legislative history of the statutes relating to


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Since the establishment of the current constitutional scheme

in Maine in 1855, the Law Court has repeatedly affirmed the broad

powers of the Attorney General, including the duty to represent thepublic interest. The seminal case is Superintendent of Insurance v.

Attorney General, 558 A.2d 1197 (Me. 1989). In that case, the

Superintendent of Insurance issued an administrative decision

setting insurance rates. The Attorney General, through certain

attorneys in the Office, had participated as an intervenor on behalf

of the public interest in the administrative proceeding and appealed

the Superintenden t’s decision to Superior Court.

The Law Court held that the Attorney General could properly

appeal an administrative decision of the Superintendent of

Insurance notwithstanding the representation of the

Superintendent by members of the Attorney General’s Office in the

administrative proceedings, once private counsel had been

authorized for the Superintendent. The Law Court rejected the

Superintendent’s argument that § 191 mandated that the Attorney

General’s Office represent him and that because members of the

instances where the Legislature has authorized an office or anagency of the State to employ private counsel, the AttorneyGeneral's written approval is required as a condition precedent tothe employment.


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Attorney General’s Office had counseled him in rendering his

decision, conflict of interest rules precluded the Attorney General

from challenging his decision. The Court held:

Both the history of the enactment of section 191 and itsplain language support our conclusion that theLegislature directed the Attorney General to control statelitigation and consolidated control in his office withoutmandating representation in all cases. A contraryconclusion would ignore the provisions of the statuteauthorizing the employment of private counsel with“written approval of the Attorney General.”

Id. at 1200. The Law Court firmly rejected the notion that § 191

limited the broad constitutional, common law and statutory

authority to represent State interests, and the Court fully

acknowledged the autonomy and discretion of the Attorney General

in Maine in representing the public interest.

OFFICE OF THE ATTORNEY GENERAL PROTOCOL FOROUTSIDE COUNSEL REQUESTS

In furtherance of its duties, the Office of the Attorney General

has a longstanding protocol for addressing outside counsel

requests. In a memorandum dated July 27, 1973, Attorney General

Jon A. Lund outlined the protocol:


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1) all legal services to state agencies or officers shall berendered by the Attorney General or under his direction;

2) in those instances where state agencies have been

authorized by the Legislature to retain outside counsel,prior written approval of the Attorney General is required;

3) bills for attorneys’ fees presented t o State agenciesmust be approved by the Office of the Attorney Generalprior to payment;

4) contracts describing the type of legal services, thename of counsel, the rate of compensation and theduration of the agreement must be presented to theAttorney General for approval; and

5) no bills for legal services are to be paid unlessapproved by the Attorney General.

Att. 6. In 2002, Attorney General G. Steven Rowe reaffirmed that

all outside counsel requests must be approved by the Attorney

General and that there must be a written request for approval from

the agency setting forth: a description of the work to be undertaken,

the law firm and attorney to perform the services, hourly rates, an

overall cap on the amount as set forth in the proposed contract,

and a copy of the contract if available. Att. 7. In addition, the

current Attorney General has required proof of malpractice

insurance and language prohibiting conflicts of interest by outside

counsel.


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These protocols were followed in the two cases cited in the

Governor’s request.

SOLEMN OCCASION The Maine Constitution obliges the Justices of the Supreme

Judicial Court “to give their opinion upon important questions of

law, and upon solemn occasions, when required by the Governor,

Senate or House o f Representatives.” Me. Const. art. VI, § 3. 7 The

“first issue that must be addressed,” therefore, is whether the

questions submitted by the Governor present “a solemn occasion

involving important questions of law.” Opinion of the Justices , 2002

ME 169, ¶ 3, 815 A.2d 791. The determination that a question

presents a solemn occasion “is of significant import” and is

appropriate only “when the facts in support of the solemn occasion

are clear and compelling.” Id. ¶ 8.

The Justices have identified “guideposts” to “assist [their]

determination on wh ether a ‘solemn occasion’ has been presented

on an ‘important question[ ] of law.’” Id. ¶ 6. First is the issue of

7 Article VI, § 3 thus creates a narrow exception to the fundamental principle of

separation of powers, articulated in Article III of the Maine Constitution, whichwould preclude the Justices from answering questions presented by theexecutive or legislative branch regarding their respective authority. Opinion ofthe Justices , 2002 ME 169, ¶ 5, 815 A.2d 791, 794.

https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1000265&docname=MECNART6S3&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2004341836&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=836AAB4B&rs=WLW12.01https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1000265&docname=MECNART6S3&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2004341836&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=836AAB4B&rs=WLW12.01https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1000265&docname=MECNART6S3&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2004341836&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=836AAB4B&rs=WLW12.01


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“live gravity,” referring to the immediacy and seriousness of the

question. Id.; see also Opinion of the Justices , 2004 ME 54, ¶ 3,

850 A. 2d 1145 (questions must be of a “serious and immediate”nature). “For a solemn occasion to exist, the question propounded

must concern a matter of ‘live gravity’ and ‘unusual exigency,’

which means that the body asking the question requires judicial

guida nce in the discharge of its obligations.” Opinion of the

Justices , 2012 ME 49, ¶ 6, 40 A.3d 930 (quoting Opinion of the

Justices , 709 A.2d 1183, 1185 (Me. 1997)). A request for an

opinion satisfies this test only if the Governor “has serious doubts

as to [his] own constitutional or statutory power and authority to

take a necessary action.” Id. He must be “faced with the necessity

of performing an official act that is ‘of instant, not past nor future,

concern.’” 709 A.2d at 1185 (quoting Opinion of the Justices, 260

A.2d 142, 146 (Me. 1969)).

No “live gravity” is present in the circumstances set forth in

the Governor’s letter of January 23, 2015. The Attorney General

has approved outside counsel in both litigation matters cited by the

Governor. These approvals constitute a past action that has

already been accomplished, not an instant action of “live gravity” or


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an “unusual exigency.” This Governor is not obligated to take any

immediate action that raises serious doubts as to his statutory or

constitutional powers or authority. The first guidepost, therefore,suggests the absence of a solemn occasion. Complaints by the

Governor regarding past interactions with the Attorney General are

not properly the subject of an advisory opinion. See Opinion of the

Justices , 134 Me. at 513, 191 A. at 488 (1936) (only proper matters

for advisory opinions “are those of instant, not past nor future,

concern”).

A second guidepost is that the Justices “will not answer

questions that are ‘tentative, hypothetical and abstract.’” Opinion of

the Justices , 2002 ME 169, ¶ 6. Requests to hire outside counsel

are evaluated by the Attorney General on a case-by-case basis, in

conformance with established protocols ( see Att. 6 & 7), and in the

two MEDHHS lawsuits cited by the Governor, the requests for

outside counsel have been granted. The possibility raised by the

Governor that approval of outside counsel might be denied at some

point in the future – because, as stated in the Governor’s request,

the statutory requirement to obtain the Attorney General’s

permission “implies that permission may be denied” (emphasis


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added) – is too abstract and uncertain to constitute a solemn

occasion. See Opinion of the Justices , 339 A.2d 489, 492 (Me. 1975)

(Governor’s question regarding Executive Council’s authority to setqualifications for Public Utilities Commission nominee was too

hypothetical and abstract in the absence of a specific nominee,

notwithstanding Governor’s contention that the Council’s position

was inhibiting or preventing his taking action to fill an existing

vacancy).

“It is important to distinguish between a question of live

gravity and one that is of potential live gravity.” Opinion of the

Justices, 2004 ME 54, ¶ 33 (Answer of Justices Clifford, Rudman

and Alexander). Maine’s Constitution requires the Justices to

“respond to the former and forbids [them] from responding to the

latter.” Id .8

Third, “no solemn occasion exists when the Justices are asked

to give their opinions on the law which is already in effect,” Opinion

of the Justices , 339 A.2d 483 (Me. 1975). Title 5, section 191

8 See also Opinion of the Justices , 281 A.2d 321, 324 (Me. 1971) (request foradvisory opinion declined where action was no longer required by Legislature);and Opinion of the Justices , 229 A.2d 829 (Me. 1967) (opinion on vote requiredto override gubernatorial veto declined where Legislature was not presentlyfaced with a veto message applicable to a pending measure).


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A fourth guidepost is that the Justices may issue an advisory

opinion pursuant to Article VI, section 3 only on an important

question of law, where the facts and circumstances are “clear andcompelli ng” – i.e ., they are not in doubt. See Opinion of the Justices ,

2012 ME 49, ¶ 9, 40 A.3d 930, 933 (“[a]bsent clear facts on which

to opine, the questions present too broad a range of potential

factual and legal possibilities” and thus do not present a sol emn

occasion); 2004 ME 54, ¶¶ 36, 41 (Answer of Justices Clifford,

Rudman and Alexander) (advisory opinion not appropriate where

Justices cannot be confident of the circumstances “to such a degree

as to ‘leave no room for reasonable doubt’”). The importan t

question presented also must be sufficiently precise for the Justices

to determine “the exact nature of the inquiry.” 2004 ME 54, ¶ 40,

850 A.2d at 1155 (quoting Opinion of the Justices , 155 Me. 125,

141, 152 A.2d 494, 501 (1959)). An advisory opinion is not an

appropriate vehicle for consideration of unclear or disputed facts;

yet the Governor’s request asserts facts in the discussion of both

questions that are disputed.

Fifth, and finally, an important question of law must be one

that remains unresolved. See, e.g., Opinion of the Justices , 340


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A.2d 25, 28 (Me. 1975) (finding question important where respective

roles of Governor and Executive Council in appointment process

had “never been clearly defined” by the Supreme Judicial Court, byits Justices in advisory opinions, or by other decisional law). Here,

by contrast, the Governor’s questions regarding interpretation and

application of Title 5, section 191 were resolved by the Court 25

years ago in Superintendent.

For all of the above reasons, the Justices should decline to

address the substance of the questions.

QUESTIONS PRESENTED

Should the Court nevertheless address the merits of the

questions posed, the Attorney General submits the following

comments.

Question 1. “If the Attorney General r efuses torepresent a State agency (or any other entity listed in5 M.R.S. § 191) in a lawsuit, must the ExecutiveBranch still obtain the Attorney General’s permissionto hire outside counsel to represent the agency in thesuit?”

The answer to this question is simply yes. That result is

directly required by statute and is supported by the long-standing

holding of this Court in Superintendent , a unanimous decision that


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powers. Withee v. Lane & Libby Fisheries Co., 120 Me. 121, 123,

113 A.2d 22 (1921)(Attorney General may exercise all such power

as public interest may require and may institute, conduct andmaintain all such suits and proceedings); accord, Lund ex rel.

Wilbur v. Pratt, 308 A.2d 554, 558 (Me. 1973).

In that vein, the Law Court has affirmed numerous exercises

of this common law power, including writs of mandamus obtained

by the Attorney General against public officials ( Farris v. Goss, 143

Me. 227, 60 A.2d 908 (1948); Littlefield v. Newell , 85 Me. 246, 27 A.

10 (1893)) and the right of the Attorney General to institute and

maintain challenges to usurpation of public office ( State ex rel.

Banks v. Elwell , 156 Me. 193, 163 A.2d 342 (1960).

In Massachusetts, which shares much of Maine’s history and

legal precedent, the Attorney General is also an independent

constitutional officer with common law authority. That state’s

highest court, in Secretary of Administration and Finance v. Attorney

General, 367 Mass. 154, 326 N.E. 2d 334 (1975), concluded that

the Attorney General could refuse a Commissioner’s request (made

at the G overnor’s behest) to appeal an adverse decision or to

appoint a special Assistant Attorney General to do so. The Court


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stated that the responsibilities of the Attorney General included

giving careful consideration to the impact of that request on the

state, the public, the agency and its official. Construing theMassachusetts equivalent of 5 M.R.S. § 191, the Court explained

the Attorney General’s role in this way:

In consolidating all the legal business of theCommonwealth in one office, the Legislature empowered,and perhaps required, the Attorney General to set aunified and consistent legal policy for theCommonwealth. It would defeat this apparent purpose toallow an agency head, representing narrow interests andwith a limited scope, to dictate a course of conduct to theAttorney General, and in effect to destroy any chance ofuniformity and consistency. We cannot say that thelanguage of [the statute], compels such a result. Instead,we hold that the Attorney General may refuse toprosecute an appeal where in his judgment, an appealwould not further the interests of the Commonwealth and

the public he represents.We believe our holding in this case will allow the

Attorney General ‘to maintain the . . . (Commonwealth) ina consistent position in its de alings with private parties.’It will allow the Attorney General to function in anefficient and comprehensive manner with regard to theCommonwealth's legal business….

326 N.E. 2d at 339 (citations omitted).

This description of the overarching authority of the Attorney

General over the state’s “legal business” is equally applicable to

Maine, which has virtually the same statute and whose Attorney


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General is a constitutional officer with broad common law powers,

independent of the Governor.

Superintendent recognizes that the overriding duty of theAttorney General to represent the public interest supports her

authority to challenge the decisions of agencies her staff has

represented. As the Court observed, this is the majority rule. 9 See

State ex rel. Allain v. Mississippi Pub. Service Comm’n. , 418 So.2d

779, 782 (Miss. 1982), (discussing numerous cases), and Attorney

General v. Michigan Public Service Comm’n , 625 N.W.2d 16 (Mich.

App. 2000) (also discussing numerous cases).

There is no exception to the statutorily required approval for

outside counsel in either matter identified in the Governor’s request

and no legal basis for a judicially created one. As the case law

9 See, e.g., Feeney v. Commonwealth , 373 Mass. 379, 366 N.E.2d 1262, 1266-7(1977) (Attorney General can appeal against wishes of agency in exercise ofauthority as chief law enforcement officer to assume primary control overlitigation “to decide matters of legal policy which would normally be reserved tothe client in an ordinary attorney- client relationship.”); Florida ex rel. Shevin v.Exxon Corporation , 526 F.2d 266, 268-269 (5 th Cir. 1976)(confirming authorityof the Attorney General under Florida law to bring antitrust claims againstmajor oil companies seeking to recover damages on behalf of constituentagencies that had not explicitly authorized the filing, as that “he typically mayexercise all such authority as the public interest requires. And the attorneygeneral has wide discretion in making the determination as to the publicinterest.” The minority view illustrated by People ex rel. Deukmejian v. Brown,624 P.2d 1206 (Cal. 1981), was considered and rejected by the Law Court inSuperintendent, 558 A.2d at 1203-1204.


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demonstrates, an administration’s disagreement with the Attorney

General’s legal conclusions may be the context for approval of

outside counsel for the agency but it is not a reason for ignoring thestatute. Should the Justices reach the merits of Question One, the

Justices should uphold the requirement that the Attorney General

approve requests for outside counsel.

Question 2. “If the Attorney General intervenesto oppose a State agency in a lawsuit, must theExecutive Branch still allow the Attorney General todirect that piece of litigation?”

If the Attorney General intervenes to oppose a State agency in

a lawsuit, the Executive Branch must still seek authorization from

the Attorney General to retain outside counsel. Title 5, section 191

creates no exceptions. Requiring an Executive Branch agency to

demonstrate that outside counsel is qualified to handle a particular

matter at a reasonable cost is a prudent exercise of the Attorney

General’s responsibilities under section 191 and does not interfere

with the litigation. As noted above, any further discussion of

whether particular future acts of the Attorney General might

constitute improper “direction” would amount to giving an advisory


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opinion with regard to tentative, hypothetical and vague

questions. 10 See discussion at pp. 16-17.

Title 5, section 191 provides that all actions and proceedings“in which the State is a party or interested, or in which the official

acts and doings of the officers are called into question” “must be

prosecuted or defended by the Attorney General or under the

Attorney General’s direction .” (Empha sis added). As noted in

Superintendent of Insurance , the history and plain language of this

enactment show “that the Legislature directed the Attorney General

to control state litigation and consolidated control in his office

without mandating representat ion in all cases.” 558 A.2d at 1200.

“As an officer of government [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. at 1202.

When the Attorney General disagrees with a state agency on a

legal matter of public interest, the Court suggested in

Superintendent that the appropriate solution is to approve outside

10 The court in Sec. of Admin. & Fin., 326 N.E. 2d at 340, noted that its decisiondid not preclude recourse to the courts should the Attorney General actarbitrarily and capriciously or scandalously in making decisions aboutrepresentation. No such allegations are presented here.


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counsel. This is precisely the approach adopted by the Attorney

Gen eral in the two cases cited in the Governor’s letter.

The Attorney General has not sought to direct or control anysubstantive aspect of the litigation in either Mayhew v. Burwell (the

only case in which she has intervened in opposition to a state

agency ’s position) or Maine Municipal Association v. MEDHHS (in

which the Attorney General is not a party). The litigation in both

cases has been directed in all respects by the private law firm

selected by MEDHHS.

The Attorney General’s approval process has focused solely on

the reasonableness of the cost and the qualifications of proposed

counsel, following a standard protocol that has been utilized by

Attorneys General over many decades. This approach addresses

the very concerns that were raised by Attorney General Seider in

1904, when he recommended consolidating legal services for all

state agencies under the control of his office, and by Attorney

General Lund in 1973, when he sought to reinforce the section 191

requirement for agencies to obtain his approval before hiring private

counsel. See Att. 6.


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The approval letter attached as Exhibit 2 to the Governor’s

request includes an estimate of what the preparation of a petition

for certiorari should cost but does not specify a limit.11

The letterdefers discussion of the merits phase of the Supreme Court appeal

and anticipates receipt of a cost estimate for that phase, prior to

granting authorization, in the event the petition for certiorari is

granted. Ex. 2 at 1. Requiring cost estimates from legal counsel is

a prudent measure, especially when taxpayer resources are being

expended; it does not restrict the agency’s ability to present

whatever arguments and legal strategies the agency and its private

counsel deem appropriate.

The Governor appears to be seeking an advisory opinion that

the Attorney General is not permitted to exercise any discretion to

insure that outside counsel selected by the agency is admitted to

practice in the appropriate court, that counsel is qualified to handle

the particular matter or that counsel is charging a reasonable rate,

in a matter in which her office has intervened on behalf of the

public. This view is inconsistent with the directives of Title 5,

11 If MEDHHS and/or the Governor read the statement in the January 14 letterestimating the cost of a petition as setting a cap on fees, that reading isincorrect and could have been clarified. See Ex. 2 at 2 (inviting inquiries ifMEDHHS had any questions concerning the authorization).


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section 191 and the Attorney General’s broad common law powers,

as discussed above. The Attorney General has a statutory

obligation to manage litigation for the state. Focusing on thequalifications of counsel and the proposed hourly rate discharges

that obligation in this context without interfering with, or

constraining, a sta te agency’s ability to be zealously represented in

such litigation.

CONCLUSION

For these reasons, the Court need not opine on the Questions

because they do not present a solemn occasion. Should the Court

address the merits of the questions presented, the Attorney General

respectfully requests that: 1) Question One be answered in the

affirmative, and 2) Question Two be answered to affirm that

authorization for outside counsel must be obtained when the

Attorney General has intervened on the opposite side and that the

Attorney General may condition approval on the proper

qualifications of counsel and reasonable cost.


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Documents

Attorney General Janet Mills brief