STATE OF MAINE

SUPREME JUDICIAL COURT

DOCKET NO. OJ-15-1

RECEIVED

FEB 0 6 2015
.
Clerks Office
Maine Supreme Judicial Court

In the Matter of
Request for Opinion of the Justices

BRIEF OF GOVERNOR PAUL R. LEPAGE

Cynthia Montgomery, Esq.

Holly Lusk, Esq.
Hancock Fenton, Esq.
Chase Martin, Esq.
Counsel for Governor Paul R. LePage
Office of the Governor
1 State House Station
Augusta, Maine 04330
(207) 287-3531

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES .................................................................................... iii
STATEMENT OF FACTS .............. .......................................................................... 1
QUESTIONS PRESENTED ..................................................................................... 6

I.

Do the questions presented by the Governor to the Justices

of the Maine Supreme Judicial Court 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

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 that
piece of litigation.

CONCLUSION ....................................................................................................... 23

11

TABLE OF AUTHORITIES
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
Caselaw

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 the Justices, 2012 ME 49 .................................................................... 7, 8

111

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

Opinion of the Justices, 709 A.2d 1183 (Me. 1997) ................................................ 7
Secretary ofAdministration and Finance v. Attorney General, 326 N.E.2d
334 (Ma. 1975) ............................................................. 14, 15, 17
State ex rel. Allain v. Mississippi Pub. Serv. Comm 'n, 418 So.2d 779 (Miss.
1982) .............................................................................. 14, 19
Suburban Cook Co. Regional Office ofEd. v. Cook Co. Bd., 667 N.E.2d
1064 (Ill. App. 1996) ............................................................... 18
Superintendent ofIns. v. Att'y Gen., 558 A.2d 1197 (Me. 1989) ... 11, 12, 13, 14, 18,
19,20,21

iv

STATEMENT OF FACTS

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

matter of 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 of Health and Human Services ("Maine DHHS") to the
United States Department of 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 of the Attorney General, under the direction of then Attorney General
William Schneider, assisted Maine DHHS in that administrative case. The Office
of the Attorney General also represented Maine DHHS in a related action before
the U.S. Court of 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 of Maine
DHHS, asked the Court of Appeals, among other things, to order U.S. DHHS to
approve Maine DHHS' s then-pending SPA request, and presented at length some
of the very same constitutional arguments that the Attorney General later opposed
after intervening in Maine DHHS' s appeal of its SP A denial. See Mayhew v.

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

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. See

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 SPA 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
2

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 SPA 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.
Brief 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
3

DHHS's appeal on November 17, 2014. Maine DHHS, at the direction of the
Governor, intends to petition the U.S. Supreme Court for a writ of 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 of
filing the petition. Despite the Attorney General's participation as a party in
outright opposition to Maine DHHS in Mayhew v. Burwell, the Office of the
Attorney General requested that Maine DHHS provide copies of 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 of 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 of
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 and Human Services, et al., for which the Attorney General's Office has
4

declined representation. On July 10, 2014, the Maine Municipal Association, City
of Portland, and City of 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 of
October 31, 2014, subject to further review.

ISSUES PRESENTED
I.

II.

III.

Do the questions presented by the Governor to the Justices of the Maine

Supreme Judicial Court constitute a solemn occasion necessary to invoke
the constitutional obligation to provide an advisory opinion?
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?
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

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 of the Justices,
709 A.2d 1183, 1185 (Me. 1997). The matter at issue must be "of instant, not past
nor future, concern." Opinion ofthe Justices, 2012 ME 49, ~ 6 (quotation marks
omitted). Questions that are "tentative, hypothetical and abstract" will not be
answered by the justices.

Id.~

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

ofthe 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 of the Supreme Judicial Court justices found a

solemn occasion existed when the Legislature requested their respective answers
on the constitutionality of an initiated bill regarding property taxes. Opinion of the
Justices, 2004 ME 54, ,-r,-r 1-3. The questions were sent to the justices on March 29,

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

make a decision on the bill before the end of the second regular session of the 121 st
Legislature. Because the Legislature was concerned about the legality of the
options it could pursue on the important bill, and the timeline in which it had to
act, the majority of the justices found that the circumstances met the requirements
of 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 of 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 of
litigation in which the Attorney General is refusing to provide representation to the
8

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 Chief Executive, 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 as 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
9

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 Mayhew and Maine Municipal 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 in 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 of the State of

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
10

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. 1 "[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

For example, the powers of the 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 not to be
viewed as limiting the common law powers of the 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 the Attorney General
with respect to charitable trusts suggests that the same intent was lacking for other sections of the 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 the Attorney General, this Court decided otherwise in Superintendent ofInsurance v. Attorney General,
558 A.2d 1197, 1200 (Me. 1989).
1

11

Attorney General's direction."

Despite the Legislature's use of 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 ofInsurance 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 ofInsurance v. Attorney General, this Court addressed a
question of whether the Attorney General, whose office had advised the Bureau of
Insurance during a rate review hearing, could, in pursuit of the public interest,
subsequently seek judicial review of 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 of 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 of 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
12

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 the 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 of insuring
effective representation for state officers and agencies exist." Id. at 1204
(emphasis added). These statements by the Superintendent ofInsurance court
indicate that even when the Attorney General charts a course on behalf of the
public interest to the exclusion of her representation of the State, the State also
13

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." Id (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 of whether the Attorney
General could withhold private counsel to represent an agency if her views
differed, the language of the opinion indicates clear support for constant and
effective representation of the State. When representation has been denied by the
Attorney General's Office, effective representation of the agency can only be
provided by private counsel.
The Superintendent ofInsurance 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 of Secretary ofAdministration
14

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 of 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. Id. 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 of 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. ofAdmin. &
Fin., 326 N.E.2d at 339 n.8. In the event of a disagreement about the legal merits

of 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. ofAdmin. & Fin., 326 N.E.2d at 339.
15

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, ifhe 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, is 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.
It 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
16

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

what Justice Kaplan promoted was an orderly plan in which, ifthe 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, 3 85 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, ifthe
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.
17

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. If the 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 ofEd. v. Cook Co. Bd., 667 N.E.2d
1064, 1074 (Ill. App. 1996).
Regardless of the specific mechanism, the language of Superintendent of

Insurance supports the concern for effective representation for the State. If it 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. 191 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
18

also find that representation needs to come from somewhere. Otherwise, the
innocuous language of 5 M.R.S.A. 191 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 of 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 ofInsurance, 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).
19

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 of his staff 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 of

Insurance, the court was asked:

If 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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the Attorney General may [only represent opposing state agencies] 'where he or
she is not an actual party' in the dispute." Atty Gen. v. Michigan Pub. SenJ.
Comm 'n, 625 N.W.2d 16, 30 (Mich. 2000) (referring to, in part, Superintendent of
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 ofInsurance, 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 of the ethics rules. As an adversary to the
agency, the Attorney General's interest in the litigation would substantially taint
the ability of 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
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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 ofthe conflict of
interest rules is to condemn the creation and existence ofthe dual
relationship instead ofmerely 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 by 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.

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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 the agency. No client, governmental or otherwise,
should have its litigation controlled by its party-opponent. Delegation of the
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.

CONCLUSION

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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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 of private counsel in the Mayhew v. Burwell and
Maine Municipal Association 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 of 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

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