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Lepage v. Mills

Superior Court of Maine, Kennebec

October 16, 2017



          Michaela Murphy Justice, Superior Court

         Before the Court are Defendant's Motion to Stay Discovery and Motion to Dismiss. Plaintiff Governor Paul LePage is represented by Attorneys Bryan Dench and Amy Dieterich. Defendant Attorney General Mills is represented by Assistant Attorneys General Thomas Knowlton and Jonathan Bolton.

         I. Background

         President Donald Trump has issued two Executive Orders concerning immigration to the United States in early 2017: E013769 and EO13780. E013769 was issued on January 27, 2017 and is the subject of a pending lawsuit titled Washington v. Trump. (Pl.'s Compl. ¶ 11.) Attorney General Mills publicly opposed Executive Order E013769 and joined an amicus brief filed in opposition to the Executive Order in Washington v. Trump. (Pl.'s Compl. ¶ 12.) Governor LePage claims to have sought the Attorney General's approval to file an amicus brief in in support of E013769 and that the Attorney General prevented such a filing "by delay and obstruction". (Pl.'s Compl. ¶ 13).

         President Trump issued his second Executive Order, EO13780, on March 6, 2017. (Pl.'s Compl. ¶ 15). Shortly thereafter, an action was filed in Hawaii seeking to enjoin the EO13780. On March 14, 2017, the Governor sent the Attorney General a letter asking that the Attorney General provide representation to the Governor in order to file an amicus brief in support of EO13780, or that her office provide the funds for the Governor to seek outside counsel to represent him. (Pl.'s Compl. ¶¶ 15, 16).

         On March 15, 2017, Deputy Attorney General Gardiner responded by letter, providing two options for the Governor if he chose to become involved in litigation concerning EO13780: first, join an amicus brief prepared by another party; second, retain outside counsel assuming that the fees for the outside counsel would be paid by the Governor's office and that the outside counsel be properly admitted to practice law and carry malpractice insurance. (Pl.'s Compl. ¶ 18.)

         On March 17, 2017, the Governor responded by letter, objecting to the March 15th letter from the Office of the Attorney General for failing to address the Governor's request that she represent the Governor and for conditioning her approval of the hiring of outside counsel. (Pl.'s Compl. ¶ 19). The Governor further wrote that because in the past the Attorney General had paid outside counsel from the Attorney General's budget, the Governor expected that the Attorney General would cover the cost of any lawyer he should hire to represent him in this matter. Id.

         Deputy Attorney General Gardiner responded on March 20, 2017 confirming that the Attorney General did decline to provide representation in this matter. She also stated her belief that the requirement that any outside counsel must be properly licensed to practice law did not amount to dictating terms of the engagement of outside counsel. Finally, she wrote that she was not aware of any prior instance in which the Attorney General paid for outside counsel to be retained by the Executive Branch. (Pl.'s Compl. ¶ 20.)

         On June 1, 2017, President Trump filed a Petition for Writ of Certiorari with the United States Supreme Court seeking review of the Fourth Circuit decision in Trump v. IRAP, et al. upholding a preliminary injunction barring enforcement of EO13780. (Pl.'s Compl. ¶ 21). On June 2, 2017, the Governor sent a letter to the Attorney General again seeking the Attorney General's representation in filing an amicus brief, or alternatively seeking approval to hire outside counsel to be paid for by the Attorney General's office. Deputy Attorney General Gardiner responded by letter on June 5, 2017, authorizing the Governor to hire outside counsel to be paid by the Governor.

This case was brought on May 1, 2017 by the Governor seeking an order:
1. Declaring that if the Attorney General refuses to represent the Governor of the State when requested to do so in matters properly within the scope of Governor's executive power under the Constitution of Maine, the Attorney General must authorize the Governor to retain independent counsel without purporting to impose constraints or limitations on the scope of the Governor's representation by such Counsel;
2. Declaring that when the Governor so retains outside counsel, because this relieves the Attorney General of the performance of his or her duty to represent the Governor, the costs of engaging the outside attorney must be paid out of the appropriation for the Attorney General; and
3. Making such further declaration or granting such further relief as the Court may determine.

         The Governor sought amendment of his complaint on June 8, 2017. Leave of Court was granted. The Attorney General now moves the ...

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