Attorney General Janet Mills is asking the Maine Supreme Judicial Court to take no action on Gov. Paul LePage’s query last month on whether he must seek Mills’ permission to hire outside legal counsel in cases where her office declines to defend the administration’s position.

Mills argued in papers filed Friday that the state’s highest court should find that LePage’s “request for opinion” sent on Jan. 23 does not meet the legal hurdle for the court to even consider it. She also argued that one question the governor posed has already been answered by the court in a 1991 ruling and that the other is overly hypothetical.

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Attorney General Janet Mills and Gov. Paul LePage are at odds over whether he must seek her permission to hire outside legal counsel in cases that she declines to take. File Photos

Lawyers for the governor, however, argued in their own brief filed Friday that LePage is asking serious questions that require an immediate answer. They argue that the court should find that a “solemn occasion” – the required legal hurdle for the justices to hear the questions – exists, and that LePage should be allowed freedom to hire outside lawyers as he chooses.

LePage’s letter to the court asking for intervention in his dispute with Mills marks the first significant effort in the Republican governor’s administration to strip power from the Democratic attorney general, who is elected by the Legislature as the state’s top legal officer.

In LePage’s letter to the court, he asks whether Mills is leveraging “de facto veto power over my differing assessment of the public interest” by refusing to consent to his administration hiring an outside legal firm. Maine law requires the attorney general to pre-approve any plans to bring in private lawyers, which Mills has done twice since 2012 in two cases in which she declined to represent the administration.

“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,” LePage wrote in the letter to the court last month. “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.”

LePage asks the court, which hears cases as a panel of up to seven of the state’s top judges, these two questions:

• “If the Attorney General refuses to represent a State agency … 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?”

The court plans to hear arguments on the governor’s request on Feb. 26. Friday was the deadline for the two sides and any other interested party to file briefs for the court to consider before oral arguments. The sides have until Feb. 13 to file additional responses.

The dispute between LePage and Mills stems from 2013 when Mills was elected by the Legislature to replace Republican Attorney General William Schneider. After taking office, Mills declined to represent LePage’s administration in two high-profile welfare cases. She instead authorized outside counsel to represent LePage’s Department of Health and Human Services commissioner.

Then in 2014, LePage hired private attorneys after Mills refused in May to take a case appealing the federal government’s denial of his request to eliminate Medicaid benefits for about 6,000 young adults. Mills has since joined the case as an intervenor on the opposite side of LePage.

LePage asked the Maine Supreme Judicial Court, sometimes referred to as the Law Court, for answers to his questions as he prepares to ask the U.S. Supreme Court to hear the Medicaid-related case.

“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 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 solemn occasion,” LePage’s lawyers said in their Friday filing.

Timothy Feeley, a spokesman for Mills, declined to comment on the new filing by the governor’s lawyers since the Attorney General’s Office will be responding in writing in another court filing.

“The Justices should decline to issue an advisory opinion on the questions presented because: 1) the Law Court has already answered Question One in the affirmative — the Executive Branch must obtain the Attorney General’s permission to hire outside counsel to represent a state agency; 2) Question Two asks the Justices to opine on a hypothetical where the Attorney General ‘directs’ litigation in which the Attorney General has intervened on the opposing side, a situation that does not exist; and 3 ) the threshold ‘solemn occasion’ for issuing an advisory opinion on either question has not been met,” Mills and members of staff wrote in her brief filed Friday.

Adrienne Bennett, LePage’s press secretary, did not respond to a voice mail message and an email seeking comment Friday.

Outside groups and individuals with interests in the case were also invited by the Supreme Judicial Court to submit briefs. By Friday’s deadline, three other briefs had been filed.

A private Lewiston attorney, Peter Brann, who formerly worked for the Attorney General’s Office, argued in his brief that Mills had acted within her rights and that the court should take no action on LePage’s questions.

A group of four individuals argued together in another brief that Mills had violated the constitution by her actions and should have followed LePage’s lead. Those individuals are Phillip Merletti of Lee, Lise McLain of Gilead, Dorothy Lafortune of Biddeford and Jack McCarthy of Woodland.

In the third outside brief, Audrey Spence of Portland, discusses what she calls a “parallel” situation of the disadvantage faced by people who cannot afford a lawyer and are forced to represent themselves.

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