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Questions Propounded by His Excellency, Lepage

Supreme Court of Maine

January 23, 2015

QUESTIONS PROPOUNDED BY HIS EXCELLENCY, PAUL R. LEPAGE, GOVERNOR OF THE STATE OF MAINE IN A COMMUNICATION

ARGUED FEBRUARY 26, 2015, ANSWERED MARCH 10, 2015

GIVEN UNDER THE PROVISIONS OF ARTICLE VI, SECTION 3 OF THE MAINE CONSTITUTION

On the briefs:

Cynthia Montgomery, Esq., Holly Lusk, Esq., Hancock Fenton, Esq., and Chase Martin, Esq., Office of the Governor, Augusta, for Governor Paul R. LePage

Janet T. Mills, Attorney General, Linda M. Pistner, Chief Dep. Atty. Gen., and Phyllis Gardiner, Asst. Atty. Gen., Office of the Attorney General, Augusta, for Attorney General Janet T. Mills

Peter J. Brann, Esq., Brann & Isaacson, Lewiston

Lise McLain of Gilead, Dorothy Lafortune of Biddeford, and Phillip Merletti of Lee

Audrey Spence of Portland

At oral argument:

Holly Lusk, Esq., for Governor Paul R. LePage

Phyllis Gardiner, Asst. Atty. Gen., for Attorney General Janet T. Mills

LEIGH I. SAUFLEY, Chief Justice-

QUESTION PROPOUNDED BY THE GOVERNOR IN A COMMUNICATION DATED JANUARY 23, 2015

To the Honorable Justices of the Supreme Judicial Court:

Please accept my request for an Opinion of the Justices of the Maine Supreme Judicial Court pursuant to Article VI, Section 3 of the Maine Constitution. I seek your advice upon important questions of law regarding the proper constitutional responsibility and relationship between the Chief Executive and the Attorney General pursuant to Article V, Part First, Section I, Article V, Part First, Section 12, and Article IX, Section 11 of the Maine Constitution, and 5 M.R.S. § 191.

Consistent with my duties, I have sought legal representation of state agencies by the Office of the Attorney General pursuant to 5 M.R.S. § 191. My questions arise in the face of the recent refusal by the Attorney General to represent a state agency in a lawsuit, an action which has led me to seriously doubt the actions I must take with respect to the Attorney General's assertion of authority over state litigation.

FACTUAL BACKGROUND

At issue is the legal representation refused by the Attorney General in the matter of Mayhew v. Burwell. 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 an 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 Attorney General William Schneider, assisted Maine DHHS in that administrative case. The Office of the Attorney General also represented Maine DHHS with a related action in the U.S. Court of Appeals for the First Circuit, to force a timely answer from U.S. DHHS on the SPA request. The First Circuit denied that request as Maine DHHS had not yet exhausted its administrative remedies.

At that point, the Legislature elected Janet Mills to replace William Schneider as Attorney General. From that point forward, the Office of the Attorney General has 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. Maine DHHS petitioned for reconsideration, which was denied in January 2014. Intending to appeal the SPA denial to the First Circuit, Maine DHHS requested legal representation from the Office of the Attorney General, or outside counsel as an alternative. The Attorney General responded by refusing to provide representation because she concluded the matter was unlikely to succeed, but indicating she would consider authorization of outside counsel. A copy of the March 4, 2014 communication from the Attorney General is attached as Exhibit 1 for the Court's reference.[1]

In March 2014, the Attorney General authorized Maine DHHS's retention of outside counsel for the limited purpose of representation in the First Circuit appeal, and with a cap on legal fees. The money for the legal fees came from the Governor's discretionary account, not the budget of the Office of the Attorney General.

Using outside counsel, Maine DHHS filed its appeal of the SPA denial in Mayhew v. Burwell. After the appeal was filed, the Attorney General moved to intervene in the case 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 lnterested Party-Intervenor Attorney General of Maine, Mayhew v. Burwell, Case No. 14-1300 (Aug. 6, 2014) at 3. The First Circuit denied the appeal in November 2014. The Executive Branch intends to petition the U.S. Supreme Court for a writ of certiorari, which it must do by mid-February. Maine DHHS communicated to the Attorney General that it wished to retain outside counsel for the purposes 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 the Executive Branch provide copies of outside counsel's bills and the estimate for the cost to do the petition, from which the Attorney General's Office would consider the request for outside counsel, and develop a legal fee cap to impose on the Executive Branch 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 propriety of a fee cap. In a January 14, 2015 letter, the Attorney General's Office approved the retention request (a copy of that letter is attached as Exhibit 2 for the Court's reference).

At this juncture, especially in light of the Attorney General's opposition to Maine DHHS in the SPA appeal, I seriously question whether I must submit to the Attorney General's direction over state litigation.

With great deference, I respectfully submit to you that these questions represent the "solemn occasion" and "important questions of law" necessary to invoke your constitutional authority to issue advisory opinions under Article VI, Section 3 of the Maine Constitution. According to a 1997 Opinion of the Justices, "a solemn occasion refers to an unusual exigency, such 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 ...


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