AUGUSTA — A Superior Court judge dismissed a lawsuit by Gov. Paul LePage that sought to require Attorney General Janet Mills to cover the costs of hiring outside attorneys when she declines to represent the governor.
LePage had filed suit in Kennebec County Superior Court in May after Mills declined to represent his office in filing legal briefs as part of the ongoing controversy over President Trump’s immigration policies. LePage, a Republican, supports Trump’s executive orders attempting to temporarily ban or restrict immigrants from several predominantly Muslim nations from traveling to the U.S. Mills, a Democrat who is seeking her party’s gubernatorial nomination in 2018, strongly opposes the executive orders and has joined other states challenging them in federal court.
In his lawsuit, LePage argued that Mills’ office should pay for him to hire outside legal counsel when she refuses to represent him. But in an Oct. 16 order, Superior Court Justice Michaela Murphy said the issue was moot because the deadline to file so-called “amicus briefs” on the immigration cases with the U.S. Supreme Court had passed. So even if she were to agree with LePage’s contention that Mills delayed action or wrongly refused to pay for hiring outside counsel, the governor still would be unable to file briefs with the court, Murphy said.
But Murphy also addressed the broader issue by writing that the court does not have the jurisdiction to order the Attorney General’s Office to pay for the governor to hire outside counsel. In fact, Murphy wrote, such an order would violate Maine’s constitutional “separation of powers” between the executive, legislative and judicial branches.
“Appropriation and budgeting are powers given exclusively to the legislative branch by the Maine Constitution,” Murphy wrote. “If the Court were to put requirements on the legislatively appropriated budgets of the Office of the Attorney General, the Court would essentially be appropriating funds from the Office of the Attorney General and redistributing them to the Executive Branch.”
Had the Legislature intended to provide LePage’s office with funds to cover those legal costs, Murphy continued, it could have done so earlier this year.
“Going forward, it is well within the Legislature’s powers to do just that,” Murphy wrote. “However, any order from this Court requiring that ‘the costs of engaging the outside attorney must be paid out of the appropriation for the Attorney General’ under these circumstances would violate the Maine Constitution.”
LePage’s communications office did not respond to a request for comment on the ruling Wednesday night.
Mills cheered the ruling.
“We are pleased that the court upheld the separation of powers principle of the Maine Constitution and the checks and balances in our government institutions that are critical to our democracy,” Mills said in a statement. “We will continue to participate in cases that support the health, safety and well-being of people in Maine.”
LePage and Mills have clashed on a long list of issues that include immigration, Mills’ use of legal settlement funds, Medicaid and Trump’s review of Katahdin Woods and Waters National Monument. Under Maine law, the attorney general typically represents the state in legal cases. However, the attorney general can decline to represent the executive branch on issues that he or she argues do not represent the state’s interests. Mills has declined to represent LePage on several issues, but has never declined a request by the governor’s office to hire outside legal counsel.
Kevin Miller can be contacted at 791-6312 or at:
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