Gov. Paul LePage, in the latest sign of tension with Attorney General Janet Mills, is asking Maine’s highest court whether he must continue to seek permission from Mills to hire outside legal counsel in cases where her office declines to defend the administration’s position.

The request is further evidence of the strained relationship between Maine’s Democratic attorney general and Republican governor, who quipped last week that “I have not … had legal representation since May of 2014.” LePage’s inquiry also coincides with his administration’s plans to appeal a Medicaid-related case to the U.S. Supreme Court without Mills’ assistance, and comes as he prepares legislation to have voters – not lawmakers – elect Maine’s attorney general.

In a “request for opinion” filed last week with the Maine Supreme Judicial Court, LePage raised the specter of Mills exercising “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 after declining 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 to the Supreme Judicial Court justices on Jan. 23. “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.”

The court plans to hear arguments on the governor’s request Feb. 26.

In an interview, Mills called the governor’s request “unfortunate and misdirected” given her office’s extensive work with the administration, contrary to the governor’s statements. Mills noted, however, that the Attorney General’s Office is “not simply a lawyer for hire,” but an important part of the checks and balances in government.

“The fact is, this office works with the administration – representing the administration and the people of Maine – in nearly 7,000 legal matters at any given time,” Mills said. “The governor’s letter addresses only two specific and unique matters in which the Attorney General’s Office gave him legal advice and advised him that certain actions he proposed to take lacked legal merit, and he went ahead anyway.”


LePage and Mills have developed a frosty relationship since she became attorney general in 2013, two years into the governor’s first term. Mills declined to represent the LePage administration on two high-profile welfare cases. LePage, meanwhile, has suggested publicly that politics, not legal issues, motivated those refusals.

Mills’ decisions were by no means unprecedented. In a landmark case, Maine’s highest court upheld former Attorney General James Tierney’s 1991 decision not to defend the state on an issue that Tierney argued was contrary to the public interest.

Maine law states that “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.” Mills has approved LePage’s requests to hire outside counsel, but in the most recent instance she advised that the costs should not exceed $50,000. Additionally, the governor is requesting $2 million for outside counsel in his proposed two-year budget.


LePage is asking the Supreme Judicial Court to clarify whether Mills can deny a request for outside counsel and whether the attorney general should have “veto authority” in cases where her office is actively opposing the administration’s position. That situation is playing out now as LePage prepares to ask the U.S. Supreme Court to hear a Medicaid-related case.

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. In fact, Mills has since joined the case as an intervenor on the opposite side of LePage.

“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,” LePage wrote in his Jan. 23 request. “She has sought to dictate who may represent the executive branch and even to cap the legal fees for that work, even though the payments do not come from her office’s budget.”


More recently, Mills has declined to represent LePage and Maine DHHS in lawsuits over the administration’s plans to stop reimbursing municipalities for General Assistance provided to asylum seekers and other noncitizen immigrants. Before that decision, Mills’ office said in a lengthy legal analysis that DHHS lacked statutory authority and that the proposed rules represented an unfunded mandate on municipalities, while also raising constitutional concerns.

Mills declined Tuesday to describe her relationship with LePage. She said she “had not envisioned” circumstances under which she would deny a request for outside counsel, but she also did not rule it out.

“It would have to be an extraordinary case in which that might happen,” she said. “It is out of deference to the chief executive and the earnestness of his policies that I have approved outside counsel despite my telling him the cases in question lacked legal merit.”

LePage spokeswoman Adrienne Bennett declined to comment further on the administration’s request to the court.


LePage caused a stir last week when it was revealed that he was seeking a major shake-up related to two of the state’s constitutional officers.

Maine is the only state in the country where the attorney general is chosen by the Legislature. LePage wants Maine to join the vast majority of states that elect attorneys general at the ballot box.

Talking with reporters last week, LePage acknowledged that his proposal is rooted in his conflicts with Mills.

“Right now I have not, as the governor of the state of Maine, had legal representation since May of 2014,” he said. “I’ve had to use my contingency account to pay for lawyers to represent me. I just think that’s wrong.”

LePage also wants to replace the secretary of state – a seat also filled by the Legislature and currently held by Democrat Matt Dunlap – with a lieutenant governor who would run on the same ticket as the governor and be first in the line of succession should the governor die or resign. Currently, the Maine Senate president would become governor in such an instance.