LEWISTON — A local attorney and law professor is making a case against Republican Gov. Paul LePage’s use of private attorneys when Maine’s attorney general refuses to represent the state.

LePage has asked a state’s highest court to determine if he should be allowed to hire attorneys in those situations.

Under the state’s constitution and current law, the governor can hire attorneys from outside the Office of the Maine Attorney General but only after he seeks permission from the attorney general. LePage wants to be able to hire outside legal help without the attorney general’s approval.

Peter Brann, who worked as an assistant attorney general and then as solicitor general from 1981 to 1999, has filed a “friend of the court” brief advising the court to respectfully decline LePage’s request.

Brann is with the Lewiston-based firm, Brann & Issacson, and is a visiting law professor at Columbia University.

He said he filed his brief because the justices of Maine’s Supreme Judicial Court invited interested parties, whether they were involved in the case or not, to weigh in on the matter.

“And I felt like I had an interest in this matter. My view is (the justices) shouldn’t answer the question,” Brann said. 

At issue are two cases in which current Attorney General Janet Mills, a Democrat, has refused to represent the state or LePage in court, arguing that the policies pursued by him and his agencies were illegal.

The first case involves a dispute between Maine and the federal government over whether the state could drop some 19- and 20-year-olds from its Medicaid roles.

The second involves a lawsuit filed against the state by Portland, Westbrook and the Maine Municipal Association over LePage’s executive order changing the rules for General Assistance.

Mills has also argued that the high court should ignore LePage’s request.

While the state constitution requires the court to answer questions from a governor or lawmakers on “solemn occasions,” both Mills and Brann argue LePage’s legal disagreements with Mills are only two and that neither rises to the status of a solemn occasion and therefore does not warrant an opinion of the high court.

In his brief, Brann quotes state law noting a “solemn occasion arises ‘when questions are of a serious and immediate nature, and the situation presents an unusual exigency.’”

Brann also notes in his brief that previous justices have already ruled on the issue and he quotes from those rulings.

“(We) will not answer questions that are tentative, hypothetical and abstract,” was the opinion issued by the justices in 2012. While in 2002 the justices also found its opinion was properly limited to matters, ” … of instant, not past nor future, concern; things of live gravity.”

While Brann’s brief seems to take Mills’ side, his main point is the state’s highest law court has no jurisdiction to offer an opinion in this case.

Brann also said the governor’s own brief on the matter points out, “they almost never disagree, there are only these two instances.”

Attempts to reach LePage’s office for comment Monday were not immediately successful.

But in his own brief before the court, LePage has argued that giving the attorney general the right to say, “yes or no” on outside attorneys results in granting her a “de facto power” that should be reserved for the executive branch.

LePage has asked the court to answer two questions:

* If the attorney general refuses to represent a state agency, must the executive branch obtain the attorney general’s permission to hire outside counsel?

* If the attorney general intervenes to oppose the state in a lawsuit, must the executive branch still allow the attorney general to direct that litigation? 

In his 22-page brief filed Feb. 4, Brann requests, “the Justices decline to answer the governor’s questions, or, in the alternative, answer both of them in the affirmative.”    

The Maine Supreme Judicial Court is scheduled to hear oral arguments on the case Thursday, Feb. 26.

sthistle@sunjournal.com

Peter Brann Amicus Brief

Governor LePage Brief to court

Attorney General Janet Mills brief

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