2015 ME 27

OPINION OF THE JUSTICES

OF THE SUPREME JUDICIAL COURT

GIVEN UNDER THE PROVISION S OF

ARTICLE VI, SECTI ON 3 OF THE MAINE CONSTITUTION

Docket No. OJ

- 15

- 1

_______________________

QUESTIONS PROPOUNDED BY HIS EXCELLENCY,

PAUL R. LEPAGE, GOVERNOR OF THE STATE OF MAINE

IN A COMMUNICATION

DATED JANUARY 23, 2015

ARGUED FEBRUARY 26, 2015

ANSWERED MARCH 10, 2015

_______________________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.2

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

1 W here the Attorney General has declined representation to Maine DHHS in this instance, DHHS

waives no attorney

- client privilege through disclosure of the pieces of correspondence from the

Attorney General that are provided herein. This disclosure does not constitute waiver of the privilege

belonging to Maine DHHS in any other matter.3

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 actio n ...” Opinion of the

Justices, 709 A.2d 1183, 1184 (Me. 1997). I request that you assist me in

finding the appropriate legal path.

QUESTIONS

1. 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?

Presently, the Department is faced with deadlines for submitting its petition for

certiorari in Mayhew v. Burwell. The Office of the Attorney General has4

consented to the retention of outside counsel for the limited purpose of

generating a petition. The Attorney General’s Office also has indicated that

should a petition for certiorari be granted, Maine DHHS will have to return to

obtain permission to retain outside counsel. Additionally, there is at least one

other pending litigation matter in Cumberland County Superior Court, Maine

Municipal Association et al. v. Maine Department of Health and Human

Services

, in which the Attorney General’s Office has refused to represent Maine

DHHS, and for which the Attorney General asserts Maine DHHS must continue

at regular intervals to obtain permission to retain outside counsel.

I wish to know whether the Executive Branch may proceed with retaining

outside counsel on its own terms in the absence of permission from the Attorney

General. A requirement to request permission from the Attorney General implies

that permission may be denied, which would leave the Executive Branch without

legal representation and would deprive me, and the Executive Branch officers

working at my direction, of the inherent and constitutional authority to carry out

the policy priorities I set. I ask whether the Executive Branch may be left

without representation or recourse to the courts to carry out Executive Branch

policy priorities by a decision of the Attorney General, a constitutional officer

chosen by the Legislature. May the Attorney General exercise de facto veto

power over my differing assessment of the public interest, by prohibiting me

from obtaining vindication from the courts of the public interest as I see it?

2. 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?

The Attorney General has intervened in Mayhew v. Burwell in order to oppose

Maine DHHS. Especially in light of her status as an opposing party in the

present case, it is my position that it is inappropriate for her to exercise control

over this piece of state litigation. Cf. Fitzgerald v. Baxter State Park Auth.

, 385

A.2d 189 (Me. 1978). This is not a situation where the Office of the Attorney

General can create a Chinese wall between various assistant attorneys general

who are representing distinct interests. In the present case, the Attorney General

herself has decided to participate as a party in a lawsuit, while claiming veto

authority over whether and to what extent her opposing party obtains

representation of counsel. She has sought to dictate who may represent the

Executive Branch and even to cap the legal fees for that work, even though the5

payments do not come from her Office’s budget. Her office has requested

copies of privileged billing entries of the opposing party who paid the bills. I

believe none of this is authorized when she is a party on the opposite side of a

lawsuit the Executive Branch has deemed advisable in faithful execution of the

directives of the Legislature and the policy judgments of the Executive Branch.

In light of the pressing deadline for filing a petition for a writ of certiorari, and

the importance of proceeding in an unfettered fashion with obtaining appropriate

outside legal counsel for that case as well as the Maine Municipal Association

litigation, I request the Court provide its answers to these questions as promptly

as the Court is able.

Sincerely,

/s/

Governor Paul R. LePageOPINION OF THE JUSTICES

To His Excellency, Paul R. LePage, Governor of the State of Maine:

[¶1] Pursuant to article VI, section 3 of the Maine Constitution

, we have the

honor of responding to Paul R. LePage, the Governor of the State of Maine

, who

seeks an advisory opinion from the Justices of the Supreme Judicial Court

addressing questions related to the provision of legal representation for the

Executive Bra nch when the Maine Attorney General has declined to represent the

Executive Branch in specific litigation and has taken a position in opposition to the

Executive Branch in that litigation

. 1

[¶2 ] We invited input from the Governor, the Attorney Gene ral, and any

interested person. We received briefs from the Governor, the Attorney General

,

and several members of the public. An o ral a rgument was held on February 26,

2015, at which both the Governor and the Attorney General were heard through

counsel.

[¶ 3 ] After thoroughly c onsidering the arguments and law on point, we

provide our opinion regarding the questions presented by the Governor as follows :

Regarding Question One , w e conclude that no solemn occasion has been

presented

, and we respectfully decline to answer Question One

.

1 The questions posed seek our opinions as individual Justices of the Supreme Judicial Court. See

Me. Const. art. VI, § 3; Opinion of the Justices , 2012 ME 49, ¶ 4, 40 A.3d 930. Because all participating

Justices agree in the opinion expressed here, only one opinion is issued.2

Regarding Quest i on Two

, we conclude that a solemn occasion has been

presented, and, in our opinion, the a nswer to Question Two is “ No. ”

I. CONSTITUTIONAL

, STATUTORY , AND COMMON LAW

BACKGROUND FOR THE QUESTIONS

[¶ 4 ] To consider either of the questions propounded, it is first necessary to

examine the relationship between the Legislative and E xecutive B ranches of

government as they relate to the constitutional offic e of the Maine Attorney

General

. See Me. Const. art. IX, § 11

.

[¶ 5 ] The Governor is vested with “ [ t ] he supreme executive power of th is

State ” by the Maine Constitution. Me. Cons t. art

. V, p t

. 1

, § 1 . In his role as the

s upreme executive , the Governor is required to “ take care that the laws be

fa ithfully executed. ” Me. Const. art . V, p t

. 1, § 12

. That responsibility will require

the Governor, through his office or the offices of Executive Branch agencies

— here

specifically , the Department of Health and Human Services

— to advocate and

litigate before federal and state administrative agencies

, the courts of Maine

, and

other federal and state courts

. As further explained below, representation in

litigation will usually be provided through the “ Attorney General or a deputy,

assistant or staff att orney

. ” 5 M.R.S. § 191 (3) (2014)

.

[¶ 6 ] The office of Attorney General, an office created by the Maine

Constitution, is ordinarily filled “ biennially by joint ballot of the Senators and3

Representatives in convention. ” Me. Const. art. IX, § 11. Although the Governor

has the authority to nominate and appoint various State officers , subject to

confirmation

, see Me. Const. art. V, pt. 1, § 8 , the Governor does not appoint the

Attorney General unless a “ [v]acancy in said office occur[s] when the Legislature

is not in session, ” Me. Const. art. IX, § 11

. 2

[¶ 7 ] “ The Attorney General is the executive head of the Department of the

Attorney General. ” 5 M.R.S. § 191 (1) (2014). The Attorney General ’ s authorizing

legis lation is found in t itle 5 of the Maine Revised Statutes , entitled

“ ADMINISTRATIVE PROCEDURES AND SERVICES

. ” T he Attorney General

acts independently and is not explicitly a part of either the Legislative Branch,

which is governed by a rticle IV of the Maine Constitution and t itle 3 of the Maine

Revised Statutes, or the Executive Branch, which is governed by a rticle V of the

Maine Constitution and t itle 2 of the Maine Revised Statutes. In this respect, the

Attorney General is distinct from the other con stitutional officers

— the Secretary of

State and the Treasurer of State . A lthough the Secretary of State and the Treasurer

of State are also elected by the Legislature, see Me. Const. art. V, pt. 2, § 1; Me.

2 If the vacancy does occur when the Legislature is not in session, the office “ may be filled by

appointment by the Governor, subject to confirmation as required by this Constitution for Justices of the

Supreme Judicial Court. ” Me. Const. art. IX, § 11. That confirmation procedure requires that “ an

appropriate legislative committee comprised of members of both houses in reasonable proportion to their

mem bership as provided by law shall recommend confirmation or denial by majority vote of committee

members present and voting. ” Me. Const. art. V, pt. 1, § 8. “ The committee recommendation shall be

reviewed by the Senate and upon review shall become final a ction of confirmation or denial unless the

Senate by vote of 2/3 of those members present and voting overrides the committee recommendation. ”

Id.4

Const. a rt. V, pt. 3, § 1, and their roles , like the Attorney General ’s , are governed

by t itle 5 of the Maine Revised Statutes, see 5 M.R.S. §§ 81 to 90

- T, 121

- 155

(2014), their offices are created and defined by a rticle V of the Maine Constitution

,

the same article that establishes the “ Executive Power ” in the Governor

. In

contrast, the office of the Attorney General is created in a rticle IX of the Maine

Constitution, which is captioned, “General Provisions.” See Me. Const. art. IX,

§ 11.

[¶ 8 ] The Attorn ey General therefore occupies an office that does not fall

within any particular branch of government, al though an Attorney General will

always hold that office by virtue of some action by l egislators and may hold that

office because of a gubernatorial appointment made due to a vacancy arising when

t he Legislature is not in session. See id.

[¶ 9 ] The Maine Constitution does not define or describe the Attorney

General’s duties and authority. Instead, those duties and that authority are defined

by statutes and common law

. See 5 M.R.S. §§ 191

- 205 (201 4) ; Superintendent of

Ins. v. Attorney Gen eral , 558 A.2d 1197, 1199

- 1200 (Me. 1989)

. Here, t he

Governor’s questions seek the interpretation of statutory

— not constitutional

—

language.5

[¶1 0 ] The statute at issue establishes a duty in the Attorney General t o

provide legal representation for the State, including for heads of s tate departments

or agencies that operate within the Executive Branch , in most circumstances :

Representation by Attorney General, deputies, assistants and staff

attorneys. The Attorney General or a deputy, assistant or staff

attorney 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, or

in which the official acts and doings of the officers are called into

question, in all the courts of the State and in those actions and

proceedings before any other tribunal when requested by the

Governor or by the Legislature or either House of the Legisl ature. All

such actions and proceedings must be prosecuted or defended by the

Attorney Genera l or under the Attorney General ’ s direction.

. . . .

B. All legal services required by those officers, boards and

commissions in matters relating to their offi cial duties must be

rendered by the Attorney General or under the Attorney

General ’ s direction. The officers or agencies of the State may

not act at the expense of the State as counsel, nor employ

private counsel except upon prior written approval of the

Attorney General. In all instances where the Legislature has

authorized an office or an agency of the State to employ private

counsel, the Attorney General ’ s written approval is required as

a condition precedent to the employment.

5 M.R.S. § 191 ( 3) ( emph ase s added)

. The Governor’s questions seek our

interpretation of the highlighted passages in section 191(3) to address a situation in

which the Attorney General declined to provide representation in litigation for an6

Executive Branch agency, approved the employment of private counsel for the

Executive Branch, and then intervened in the litigation as an opponent

.

[¶1 1 ] Before we can determine whether the Governor’s questions present

“ solemn occasion s” upon which we may opine as individual Jus tices in an advisory

capacity, Me. Const. art. VI, § 3 ; see Opinion of the Justices , 2012 ME 49, ¶ 4, 40

A.3d 930

, we review briefly the facts that generated the question s

.

II. FACTS PRESENTED BY THE GOVERNOR

[¶1 2 ] The questions presented arise from th e Attorney General ’ s refusal

,

after a request by the Executive Branch, to represent the Maine Department of

Health and Human Services (the Department) in an ongoing administrative

proceeding seeking approval from the United States Department of Health and

Human Services (U.S. DHHS) of a proposed Medicaid State Plan Amendment

.

T hat refusal occurred when the Attorney General , acting within her authority, see

Superintendent of Ins. , 558 A.2d at 120 0

, determined that she would not continue

to represent the Department in that proceeding because of her o ffice ’ s “ assessment

that the appeal is moot and lacks substantial legal merit. ”

[¶1 3 ] Upon the A ttorney G eneral ’ s refusal to represent the Department, the

Department requested the Attorney General ’ s authorization to employ private

counsel pursuant to section 191(3)(B)

. T he Attorney General authorized the

Department to employ private counsel to represent the Department in an appeal7

from the decision of the U.S. DHHS to the United States Court of App eals for the

First Circuit. The law firm retained to represent the Department agreed to a “ fixed

fee ” or cap on the cost of representation , and the Attorney General ’ s authorization

was expressly limited to those terms. The legal fees for the Department ’ s private

counsel were paid from the Governor ’ s discretionary account.

[¶1 4 ] Thereafter, the Attorney General sought and obtained intervenor

status to oppose the position of the Department. T he Attorney General has the

authority to take a position that is contrary to that of the Executive. See

Superintendent of Ins. , 558 A.2d at 1204 (holding that the Attorney General may

oppose a s tate agency ’ s position in litigation).

[¶1 5 ] The First Circuit affirmed the U.S. DHHS decision

. Mayhew v.

Burwell

, 772 F .3d 80 , 97 (1st Cir. 2014). The Department then requested

authorization from the Attorney General

— now opposing counsel

— to continue to

employ private counsel for the purpose of filing a petition for a writ of certiorari in

the Supreme Court of the United States. The office of the Attorney General

requested copies of counsel ’ s bills and a cost estimate. A Deputy Attorney

General approved the continued employment of private counsel based on the

materials submitted, which we re redacted to limit the disclosure of privileged

information. The Deputy Attorney General approved the employment of counsel

at the rates and estimated fees described by the firm and “ estimate[d] the cost of8

this phase of the litigation to be approximate ly $35,000, but in no event more than

$50,000. ” The Deputy ’ s letter provided that an additional cost estimate would be

required if a writ of certiorari were granted.

[¶1 6 ] In anticipation of continued litigation, the Governor now asks whether

he must su bmit to the Attorney General future requests to permit the Department to

employ private counsel when the Attorney General has declined to represent it and

whether the Attorney G eneral may direct the Department ’ s litigation by limiting

the duration of representation or capping the fees that may be paid to private

counsel from the Governor ’ s discretionary account

.

I I I

. SOLEMN OCCASION

[¶1 7 ] “ The Justices of the Supreme Judicial Court shall be obliged to give

their opinion upon important questions of l aw, and upon solemn occasions, when

required by the Governor, Senate or House of Representatives. ” Me. Const. art. VI,

§ 3. When the Governor or either h ouse of the Legislature requests an adv isory

opinion of us

, we must first determine whether a solemn occasion arises that

confers on us the constitutional aut hority to answer the questions propounded

.

Opinion of the Justices , 2012 ME 49, ¶ ¶ 4

- 5 , 40 A.3d 930

.

[¶1 8 ] “ A solemn occasion arises when questions are of a serious and

immediate nature, and the s ituation presents an unusual exigency. ” Id. ¶ 5

(quotation marks omitted). “ [W] e will not find such an occasion to exist except in9

those circumstances when the facts in support of the alleged solemn occasion are

clear and compelling. ” Id. (quotation mark s omitted). “ [W]e will not answer

questions that are tentative, hypothetical and abstract. ” Id. (alteration in original)

(quotation marks omitted). A solemn occasion exists when the question

propounded “ concern [s] a matter of ‘ live gravity ’ and ‘ unusual exigency, ’ which

means that the body asking the question requires judicial guidance in the discharge

of its obligations. ” Id. ¶ 6 (quoting Opinion of the Justices , 709 A.2d 1183, 1185

(Me. 1997) ).

A. Question One

[¶1 9 ] The first question propounded by the Governor asks whether, once the

Attorney Gener al has declined to represent a s tate agency, it is necessary for the

agency to seek permission to employ private counsel :

If the Attorney General refuses to represent a State agency (or any

other entity lis ted 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?

The portion of the statute that generates this dispute is explicit and directly

addr esses the issue posed by the Governor ’ s question. The statute provides

, “ The

officers or agencies of the State may not act at the expense of the State as counsel,

nor employ private counsel except upon prior written approval of the Attorney

General

. ” 5 M .R.S. § 191(3) (B) (emphasis added)

.10

[¶ 20 ] We discern several purposes for this p rovision. The first purpose is

fiscal. Because the Legislature has allocated s tate funds for the creation and

maintenance of the Department of the Attorney General, the u se by any s tate

agency of additional resources to employ private counsel would be unnecessary if

the Attorney General and the attorneys within that o ffice are available to provide

representation. Thus, t he Legislature has required the officers and agencies o f the

State to consult with the Attorney General b efore employing private counsel. The

second purpose relates to the Attorney General ’ s statutory responsibility to direct

the litigation of s tate government. See 5 M.R.S. § 191(3). T o fulfill that

respons ibility, the Attorney General must be consulted when the branches

, or their

officers or agencies

, seek legal counsel for litigation. Id. Finally, the Attorney

General has a statutory responsibility to provide legal advice to the branches of

government

. See 5 M.R.S. § 195 (2014)

. Requiring consultation before the hi ring

of private counsel provides members of government with the opportunity to

receive legal advice and counsel from the Attorney General before proceeding in

litigation

.

[¶ 2 1] Each of those purposes has been met in the matter before us. The

Department sought representation from the Attorney General, and the Attorney

General provided legal advice. Once it became clear that the Department and the

Attorney General did not share the same view of the law, the Attorney General11

determined that her o ffice would not represent the Department in the litigation, and

the Department sought and re ceived authorization to employ private counsel.

[¶ 22 ] Each of the governmental offices at issue here has an independent

responsibility and authority, created by Maine ’ s constitution and statutes, to act in

the in terests of the people of Maine. The Governor has both the authority and th e

responsibility to pursue those action s that he determine s to be necessary t o execute

the laws of the State of Maine faithfully

. See Me. Const. art

. V, pt. 1, § 12. The

Governor ’ s authority includes the authority to litigate in the courts and

administrative agencies when n ecessary , including through Executive Branch

agencies

. See id. ; 5 M.R.S. § 191(3). The Attorney General similarly has the

authority and responsibility to act in the best interests of the people of Maine. See

Superintendent of Ins.

, 558 A.2d at 1199

- 1200 ; Lund ex rel. Wilbur v. Pratt, 308

A.2d 554, 558 (Me. 1 973)

.12

[¶ 23 ] Thus, given the current structure of Maine’s government, there is

a lways the potential for differing positions in litigation

. 3 We are , however,

unaware of any occasion u pon which the Executive Branch

— either the Governor

or any s tate agency

— has been denied approval to employ private counsel when the

Attorney General declined to provide representation

. S pecifically , the information

provided by the parties indicates that there has been no occasion on which this

A ttorney General has denied a re quest to obtain private counsel submitted by this

Governor or the Executive Branch under his authority . Moreover, the Attorney

General ’s office has continued to provide representation for the Governor and the

Executive B ranch agencies in other proceedings throughout the duration of the

dispute regarding the proposed Medicaid State Plan Amendment

.

[¶ 24 ] Nor does the record report any such refusal by previous Attorneys

General. When we were presented with a related question in Superintendent of

3 Maine is the only state i n which the Attorney General is elected by a majority vote of the L egislators

in both h ouses. See William P. Marshall, Break up the Presidency? Governors, State Attorneys General,

and Lessons from the Divided Executive , 115 Yale L.J. 2446, 2448 n.3 (2006)

. In most states the

Attorney General is elected by the people, see, e.g.

, Cal. Const. art. V, § 11 ; Ill. Const. art. V, §§ 1

, 2 ;

Mass. Const. art. LXIV, § 1 ; Tex. Const. art. IV, §§ 1

, 2

, and in one state

, the Attorney General is

“appointed by the Judges of the Supreme Court,” see Tenn. Const. art. VI, § 5

. See generally Marshall,

115 Yale L.J. at 2448 & n.3 (summarizing the manner in which the Attorney General is chosen in the

states).

However, a lthough the process for the election of the Attorney General in Maine is unique among the

states, see Me. Const. art. IX, § 1 1, the potential that the Executive Branch and the Attorney General may

take differing positions on policy and litigation is not unusual , either in Maine, see, e.g.

, Superintendent

of Ins. v. Attorney Gen.

, 558 A.2d 1197 (Me. 1989) ; Opinion of the Justices , 343 A.2d 196, 198

- 99 (Me.

1975), or in other states, see, e.g.

, Riley v. Cornerstone Cmty. Outreach, Inc. , 57 So. 3d 704 (Ala. 2010);

Sec’y of Admin. & Fin. v. Attorney Gen. , 326 N.E.2d 334 (Mass. 1975); Attorney Gen. v. Mich. Pub. Serv.

Comm’n , 625 N.W. 2d 16 (Mich. Ct. App. 2000); Pub. Util. Comm’n v. Cofer , 754 S.W.2d 121 (Tex.

1988).13

Insurance v. Attorney General , we declined to reach the issue that the Governor

presents today: “ We need not decide whether approval could be withheld for the

employment of private counsel because of a disagreement over the public interest. ”

558 A.2d at 1200. That opinion was published in 1989. Id. at 1197. We are

unaware of any occasion in the intervening years when app roval has been withheld.

[¶ 25] Because there is nothing before us indicating that the Governor or the

Department was deprived of private counsel when the Attorney General was not

available

, or that such a situation is likely to arise, no “ unusual exigency ” exists

.

Opinion of the Justices , 2 012 ME 49, ¶ 6 , 40 A.3d 930 (quotation marks omitted)

.

[¶ 26 ] In sum, b ecause the Attorney General has not, to date, declined a

request for private counsel in the pending matter or other matters, and because no

one presents any evidence of such a denial at any time in Maine ’ s recent history,

Question One presents only a hypothetica l question

. S ee id. W e must, therefore,

respectfully decline to answer Question One because it does not present a solemn

occasion upon which we will offer any opinion

.

B. Question Two

[¶ 27 ] The second question propounded by the Governor addresses wheth er

the Attorney General may continue to d irect the Executive B ranch ’ s litigation

when the employment of private counsel has been approved and the Attorney

General has taken a position contrary to that of the Executive B ranch in litigation :14

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?

[¶ 28 ] Here, the Attorney General authorized the employment of private

counsel to represent the Depar tment in the First Circuit appeal with a reference to a

cap on legal fees to be paid from the Governor ’ s discretionary account. 4 After the

First Circuit affirmed the decision of the U.S. DHHS to deny the request by the

Department for a Medicaid State Plan Amendment, the Governor and the

Department decided to petition the Supreme Court of the United States for a writ

of certiorari.

[¶ 29 ] B efore the Attorney General ’s office would approve the employment

of private counsel for purposes of the petition for a writ of certiorari

, it requested

copies of private counsel ’ s bills and an estimate of the cost of petitioning in

anticipation of capping, or at a minimum recommending a cap on, the l egal fees t o

be paid to private counsel . After reviewing estimates

, a D eputy Attorney General

approved the request for authorization to continue employing private counsel

. It is

in this context that the Governor asks whether the Attorney General may, when

appearing in a matter in opposition to the Department

, engage her offi ce in

4 Because Question Two specifically addresses those occasions when the Attorney General has taken

a position in litigation that is contrary to that of the Executive Branc h, we do not discuss, and do not

reach, the separate questions that may be presented in the second case referenced in the Governor’s briefs,

in which the Attorney General has declined to represent the Executive Branch but has not participated as

an opponen t in the litigation.15

provid ing fiscal oversight or other direction of the Department ’ s private counsel

.

See 5 M.R.S. § 191(3).

[¶30 ] This question does not present an abstract or hypothetical question.

The Attorney General has, in fact, approve d the employment of private counsel;

the Attorney General has, in fact, intervened in oppositio n to the Governor ’ s

position; and t he Attorney General has, in fact, required anticipated time and

payment information from the Governor ’ s private counsel as a prerequisite to

appro ving the request for the continued employment of private counsel

.

[¶ 3 1] Although t he Attorney General suggested at oral argument that this

process was merely an “ advisory ” process and not a fu rther approval of the

employment of private counsel, the commu nications from the Attorney General

and the Deputy Attorney General were not understood to be advisory by the

Executive Branch. Because the communications indicated that further approval

was conti ngent upon review of private counsel’s billing and time est imates before

each next stage of the litigation , the Executive Branch understood the Attorney

General to be directing the Executive Branch’s litigation strategy through its

oversight of the duration and cost of private representation

. See i d. In view of

these differing understandings of what the law requires and authorizes in these

circumstances, Question Two presents a question of live gravity that re presents a16

solemn occasion. See Opinion of the Justices , 2012 ME 49, ¶ 6, 40 A.3d 930. We

th erefore provide our advisory opinion on this question.

IV . ADVISORY OPINION ON QUESTION TWO

[¶ 32 ] We are called upon here to interpret th e statute through which the

Legislature has required that the Attorney General “ shall appear for the State ” in

litig ation and that those “ proceedings must be prosecuted or defended by the

Attorney General or under the Attorney General ’ s direction. ” 5 M.R.S. § 191(3)

.

[¶ 33 ] We recognize the independence of the Attorney General ’ s office

, s ee

Superintendent of Ins. , 558 A.2d at 1199

- 1200, 1202 , as well as the authority of

that office to oppose th e Executive Branch in litigation, se e id. at 1204. This is

neither new nor unique to the State of Maine

. See supra n.3

.

[¶ 34 ] It is our shared opinion, h owever, that, once the Attorney General

approves the employment of private counsel for a s tate entity and opposes that

entity in litigation, the Atto rney General is no longer appearing for the s tate entity

and therefore is no longer authorized to direct or m anage that entity’s litigation or

s trategy. See 5 M.R.S. § 191(3). We have found n othing in the Maine

Constitution

, Maine statutes , or Maine common law that requires or authorizes the

Attorney G eneral in such circumstances to review, audit , or oversee the specific

duration of representation, the legal fees charged , or other aspects of the

relationship between the s tate entity and private counsel

.17

[¶ 35 ] Indeed, the Attorney General may agree that it would be inappropriate

for her o ffice to manage or control the litigation of the Executive Branch once her

o ffice has taken a n opposing position in the litigation

. 5 T he Attorney General and

the Governor may , therefore, agree that the Attorney General is not authorized to

provide “direct ion” for the Executive Branch ’ s litigati on , but disagree about

whether the durational and financial review and limitations described in the

communications from the Attorney General and the Deputy Attorney General

constitute “ direction ” of the litigation

. Id. Because of this area of disagreement,

we announc e our understanding of the meaning of the statute

.

[¶ 36 ] In our opinion, a lthough the Executive Branch may choose to seek the

advice of the Attorney General or members of her office in managing the cost s of

litigation, and the Attorney General may provide such advice as she deems

appropriate, no such advice is a prerequisite to continued private representation

.

O nce the Attorney General has initially authorized the Executive Branch to employ

private counsel and has taken an opposing position in litigation, authorization for

the continued representa tion of the Executive Branch by private counsel is not

required

. S imply put, it is our opinion that the Attorney General cannot formally

5 In response to the question of whether the Attorney General “has the authority to cap or otherwise

limit the funds that the Governor can spend in litigation” when the Attorney General has declined to

represent the agency and is part icipating in the proceeding as an opponent, the Assistant Attorney General

who presented oral argument stated, “If it were going to restrain what the private counsel could do to

advance that argument, no, but that’s not what’s been attempted here . . . .”18

oppose the Executive Branch’s litigation position and, at the same time, direct the

Executive Branch’s litigation through fiscal or other periodic review of the

Executive Branch’s priva te counsel. See i d.

[¶ 37 ] Thus

, in our opinion

, the answer to Question Two is “ No. ” When the

Attorney General has declined to represent the Executive Branch and has taken a

contrary litigation position, the Attorney General is no longer directing the

l itiga tion of the Executive Branch. See i d. N either Maine ’ s C onstitution nor its

statutes or common law require or authorize the Attorney General to manage or

direct the Executive Branch ’ s litigation once the Attorney General has authorized

the Branch to employ private counsel and has taken a n opposing position in the

litigation

.

[¶ 38 ] We offer this advisory opini o n to enable the Governor and all State

actors involved to continue to conduct themselves in the interests of the people of

Maine, consistent w ith the Maine Constitution

, statutes , and common law

.

Signed: March 10, 2015 For the Justices,

/s/

LEIGH I. SAUFLEY

Chief Justice

DONALD G. ALEXANDER

ANDREW M. MEAD

ELLEN A. GORMAN

JOSEPH M. JABAR

Associate Justices19

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