But the two-part ruling, called a victory by both sides, says once approved by the attorney general, she cannot control the litigation.

The Maine Supreme Judicial Court ruled Tuesday that state law is clear that Gov. Paul LePage needs approval from Attorney General Janet Mills before he can hire an outside lawyer to represent him in state litigation.

But in a second ruling in the governor’s favor, the court said in a unanimous opinion that in cases where the attorney general has authorized the governor or state agency to hire private counsel and then opposes the governor in the litigation, the attorney general cannot control the litigation.

The court issued those rulings in response to two requests for an opinion posed by LePage in January, as the Republican governor engaged in an ongoing dispute with Mills regarding the scope of the Democratic attorney general’s authority.

The court technically declined to answer the governor’s question in its first ruling on whether he can hire private lawyers without the attorney general’s permission, which had the effect of upholding the current law.

Their dispute dates to 2013, when Mills was elected by the Democratic-controlled Legislature as attorney general. After taking office, Mills declined to represent LePage’s administration in two high-profile cases in which he sought to cut welfare benefits. Instead, she authorized outside counsel to represent his Department of Health and Human Services commissioner and, in one of the cases, filed her own court papers opposing LePage.

The timing of LePage’s request became more pressing when he filed another request on Feb. 12, asking the U.S. Supreme Court to overrule a lower court in his battle with the federal government to eliminate Medicaid coverage for about 6,000 low-income young adults in Maine.

Both LePage and Mills called the court’s decision a ruling in their favor.

“The Supreme Judicial Court affirmed my belief that the Attorney General should not have authority over litigation that the Executive is involved in when the Attorney General decides to publicly take the opposite position,” LePage said in a written statement. “When that happens, it is a clear conflict of interest, and I thank the Justices for recognizing it.”

Mills said she saw “no surprises” in the court’s opinion.

“The Justices have refused the Governor’s request to destroy the core principle reflected in our Constitution and case law that it is the Maine Attorney General who is responsible for determining the voice of the public interest in the courts of Maine,” Mills said in a written statement. “Essentially, the Governor and I are in violent agreement: He wants a lawyer, and I want him to have one. He wants to pay for it, and I want him to pay for it. If anything, this is merely a discussion over how much to pay his lawyers, and that was hardly a cause for the intervention of the third branch of government.”

In making the first ruling Tuesday, the panel of justices declined to intervene in a key part of the dispute, finding “no solemn occasion” exists to answer whether the governor needs permission at all from Mills to hire outside counsel to carry out his public policies.

The justices said Maine law “is explicit and directly addresses the issue” that state officers or agencies cannot hire private counsel without written approval from the attorney general’s office.

“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 interest of the people of Maine,” the opinion states. “In sum, because 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 history, Question One presents only a hypothetical question.”

In the court’s ruling on the second of LePage’s two questions, the justices found a “solemn occasion” existed to give the governor an advisory opinion as his legal cases go forward.

“When the Attorney General has declined to represent the Executive Branch and has taken a contrary position, the Attorney General is no longer directing the litigation of the Executive Branch,” the opinion states.

A panel of five justices heard arguments from the two sides on Feb. 26, and issued their unanimous 25-page ruling in less than two weeks.

An attorney for the governor’s office argued before the court last month that Mills overstepped her legal authority by setting a cost estimate of how much the governor could spend, requiring the governor’s staff to check in with the attorney general every time they neared a spending threshold.

“What the Attorney General’s Office is having us do is come back over and over and over for continuing permission to use outside counsel. So it’s not just permission at the outset. They are placing limits on the duration of the period of the retention agreement with the lawyer and the amount of money that can be spent,” argued LePage’s senior health policy adviser, attorney Holly Lusk.

The court agreed with Lusk that if Mills controls how much money LePage can spend on private counsel in cases where she actively opposes him, she would be improperly imposing a form of control over the litigation.

“It is our opinion that the Attorney General cannot formally 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 private counsel,” the justices said in the opinion.

Scott Dolan can be contacted at 791-6304 or at:

sdolan@pressherald.com

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