STATE OF MAINE

SUPREME JUDICIAL COURT

OPINION OF THE JUSTICES
OJ-15-1

BRIEF OF ATTORNEY GENERAL SUBMITTED IN CONJUNCTION

WITH QUESTIONS PROPOUNDED TO THE JUSTICES OF THE
SUPREME JUDICIAL COURT
BY THE GOVERNOR ON JANUARY 23, 2015

JANET T. MILLS
ATTORNEY GENERAL
LINDA M. PISTNER
CHIEF DEPUTY ATTORNEY GENERAL
PHYLLIS GARDINER
ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
SIX STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
Tel. (207) 626-8800

TABLE OF CONTENTS
PAGES
TABLE OF AUTHORITIES .......................................................... ii
SUMMARY................................................................................. 2
FACTUAL BACKGROUND .......................................................... 4
CONSTITUTIONAL AND STATUTORY FRAMEWORK.................. 8
OFFICE OF THE ATTORNEY GENERAL PROTOCOL
FOR OUTSIDE COUNSEL REQUESTS ............................. 12
SOLEMN OCCASION ............................................................... 14
QUESTIONS PRESENTED ....................................................... 20
Question 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 Generals permission
to hire outside counsel to represent the agency in the
suit? .............................................................................. 20
Question 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? ...................................... 25
CONCLUSION ......................................................................... 29
CERTIFICATE OF SERVICE ...31

TABLE OF AUTHORTIES
CASES

PAGES

Attorney General v. Michigan Public Service Commn,

625 N.W.2d 16 (Mich. App. 2000) .................................... 24
Farris v. Goss, 143 Me. 227, 60 A.2d 908 (1948) ..................... 22
Feeney v. Commonwealth, 373 Mass. 379,
366 N.E.2d 1262 (1977) .................................................. 24
Florida ex rel. Shevin v. Exxon Corporation,
526 F.2d 255 (5th Cir. 1976) ............................................ 24
Littlefield v. Newell, 85 Me. 246, 27 A.2d 10 (1893) .................. 22
Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me. 1973) ............... 22
Maine Municipal Association, et al. v. Maine
Department of Health and Human Services,
No. AP-14-39 (Cum. Cty. Sup. Ct. 2014) .................. passim
Mayhew v. Burwell, 772 F.3d 80 (1st Cir. 2014) ................ passim
Mayhew v. Burwell, 14-1300 (1st Cir.) ............................... passim
Mayhew v. Sebelius, 772 F.3d 80 (1st Cir. 2014) ........................ 7
Mayhew v. Sebelius, 2012 WL 4762101 ..................................... 5
Opinion of the Justices, 2012 ME 49, 40 A.3d 930 ......... 2, 14, 19
Opinion of the Justices, 2004 ME 54, 850 A.2d 1145 ....15, 17, 19
Opinion of the Justices, 2002 ME 169, 815 A.2d 791 ......... 14, 16
Opinion of the Justices, 709 A.2d 1183 (Me. 1997) ................... 15
ii

Opinion of the Justices, 437 A.2d 611 (Me. 1981) ..................... 18

Opinion of the Justices, 396 A.2d 219 (Me. 1979) ..................... 18
Opinion of the Justices, 673 A.2d 1271 (Me. 1976) ................... 18
Opinion of the Justices, 339 A.2d 489 (Me. 1975) ............... 17, 18
Opinion of the Justices, 340 A.2d 25 (Me. 1975) ................. 19, 20
Opinion of the Justices, 281 A.2d 321 (Me. 1971) ..................... 17
Opinion of the Justices, 260 A.2d 142 (Me. 1969) ..................... 15
Opinion of the Justices, 229 A.2d 829 (Me. 1967) ..................... 17
Opinion of the Justices, 134 Me. 513, 191 A. 488 (1936) .......... 16
Opinion of the Justices, 155 Me. 125, 152 A.2d 494 (1959) ...... 19
People ex rel. Deukmejian v. Brown, 624 P.2d 1206
(Cal. 1981) ...................................................................... 24
Secretary of Administration & Finance. v. Attorney General,
326 N.E. 2d 334, (Mass. 1975) .......................10, 22, 23, 26
State ex rel. Allain v. Mississippi Pub. Service Commn,
418 So.2d 779 (Miss. 1982) ............................................. 24
State ex rel. Banks v. Elwell, 156 Me. 193,
163 A.2d 342 (1960) ........................................................ 22
Superintendent of Insurance v. Attorney General,
558 A.2d 1197 (Me. 1989) ........................................ passim
Withee v. Lane & Libby Fisheries, Co., 120 Me. 121,
113 A.2d 22 (1921) .......................................................... 22

iii

CONSTITUTIONAL PROVISIONS
Me. Const. Art. III .................................................................... 14
Me. Const. Art. V. pt. 1, 8 (1820) ............................................ 8
Me. Const. Art. VI, 3 ......................................................... 1, 14
Me. Const. Art. IX, 11 ............................................................. 6
STATUTES
5 M.R.S. 191.................................................................. passim
5 M.R.S. 191(3)(B) ................................................................ 21
P.L. 1905, ch. 162 1 ........................................................... 8, 9
P.L. 1973, ch. 771 1 & 2 ..................................................... 10
MISCELLANEOUS
1904 Report of the Attorney General ......................................... 9

iv

On January 23, 2015, Governor LePage requested the Justices

of the Supreme Judicial Court, pursuant to Article VI, section 3 of
the Maine Constitution, to give their opinion regarding two
questions relating to representation of the Executive Branch in
litigation. The Attorney General respectfully submits the following
brief pursuant to the Courts Procedural Order of January 26, 2015,
to assist the Justices in resolving the questions presented.
Questions Presented
The Governor posed the following questions:
Question 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 Generals permission to hire
outside counsel to represent the agency in the suit?
Question 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? 1

In a February 3, 2015 letter to the Court, the Governors Office has indicated
that it may be providing additional background materials relating to the
request for an Opinion in the Governors brief to be filed on February 6, 2015.
To the extent the Governor offers additional facts for the Courts consideration,
the Attorney General respectfully urges the Court not to consider contentions
not contained in the initial request.
1

SUMMARY
The questions referred to the Justices center on the authority
of the Attorney General to manage litigation in which the State of
Maine, its officers or agencies are parties. The State parties referred
to in the request are the Maine Department of Health and Human
Services (MEDHHS) and its Commissioner, Mary Mayhew. The
Law Courts opinion in Superintendent of Insurance v. Attorney
General, 558 A.2d 1197 (Me. 1989) is dispositive. In that case, the
Law Court held that pursuant to the broad common law powers of
the Attorney General, the Attorney General can take a position in
litigation contrary to the position of a state agency, and that in such
circumstances authorization of outside counsel to represent the
agency is appropriate. As is made clear by the January 14, 2015
letter from the Attorney Generals Office, attached as Exhibit 2 to
the Governors request, this is exactly what occurred in the matter
of Mayhew v. Burwell, No. 14-1300 (1st Cir.). Accordingly, Question
One does not present a controversy of live gravity suitable for an
advisory opinion of the Justices. See Opinion of the Justices, 2012
ME 49, 6, 40 A.3d 930.

Question Two is based on assumptions which are not

supported by the attachments to the request and with which the
Attorney General respectfully disagrees. Specifically, the question
assumes that the Attorney General is directing the litigation
initiated by MEDHHS, citing to the January 14, 2015 letter. That
letter authorizing the continued use of outside counsel does not
direct the litigation in any manner. Nor does it set a cap on the
legal fees, as asserted in the request. In an effort to assist the
agency with its due diligence, the letter offers a cost estimate for the
preparation of a petition for certiorari, based on the Offices
knowledge and experience and based on the outside counsels own
estimate. Providing a reasonable estimate of costs is a responsible
thing to do and not an effort to direct, control or dictate the course
of litigation.
Accordingly, 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 Generals 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
3

directs litigation in which the Attorney General has intervened on

the opposing side, a situation which does not exist; and 3) the
threshold solemn occasion for issuing an advisory opinion on
either question has not been met.
FACTUAL BACKGROUND
Typically, when an Opinion of the Justices is sought, the
underlying facts are not in dispute and are complete as presented
in the request. Unfortunately, that is not the case here. In these
circumstances the Justices should not render an Opinion. In order
to provide a more complete background, however, the Attorney
General provides the following information.2
The request for an Opinion relates to two high profile cases
Mayhew v. Burwell and Maine Municipal Association, et al. v. Maine
Department of Health and Human Services, No. AP-14-39 (Cum. Cty.
Sup. Ct. 2014). In both cases, the Attorney General authorized
outside counsel as requested by the Commissioner. In Mayhew v.
Burwell, the Attorney General intervened and took a position
opposite to that of the Commissioner; in the Maine Municipal
The information in the chronology has been taken from the exhibits attached
to the Governors request (referred to as Ex. __) and public documents which
are either readily available or are included in this brief as attachments (referred
to as Att.__).
2

Association litigation, the Attorney General did not intervene or

participate. A brief chronology of each of the cases follows.
Mayhew v. Burwell. In August of 2012, Governor LePage
requested that the federal Department of Health and Human
Services (USDHHS) approve an amendment to Maines State Plan
(SPA) to make broad changes in the States Medicaid Program,
including a request to drop Medicaid coverage for 19 and 20 year
old children whose families met low-income requirements, and
asked for a response within 30 days. On September 5, 2012,
Attorney General William J. Schneider, on behalf of the MEDHHS
Commissioner, filed a Petition for Review and a Motion for
Injunctive Relief in the First Circuit Court of Appeals challenging
the failure of USDHHS to act upon the SPA. Id. The First Circuit
summarily denied MEDHHSs Petition and Motion on September
13, 2012. Mayhew v. Sebelius, 2012 WL 4762101.
On January 7, 2013, USDHHS in large part disapproved the
SPA. Mayhew v. Burwell, No. 14-1300 (1st Cir.), Brief of
Commissioner Mayhew, p. 9. MEDHHS requested reconsideration
through an administrative appeal process. Id. at 10. On January
15, 2014, USDHHS issued its final administrative decision affirming
5

the denial of Maines SPA as it pertained to the coverage of 19 and

20 years olds, the remaining changes having become moot. Id.
On February 26, 2014, the Commissioner of MEDHHS
requested that Attorney General Janet T. Mills appeal the USDHHS
decision denying the SPA. Att. 1. See Attorney General Mills
March 4, 2014, letter, Ex. 1. In the March 4 letter, the Attorney
General explained why she believed that an appeal of the one
remaining issue in the USDHHS decision was unlikely to succeed
and declined to take the appeal. Id. The Attorney General said she
would consider approving a request for outside counsel with any
reasonable proposals from any non-conflicted law firms or attorneys
admitted to practice in the First Circuit Court of Appeals. Id. On
March 17, 2014, the Attorney General authorized MEDHHS to
retain outside counsel to pursue the appeal to the First Circuit,
including any rehearing en banc. Att. 2A - 2C.
Outside counsel filed the Petition for Review on behalf of
MEDHHS Commissioner Mayhew in the First Circuit on March 18,
2014. Mayhew v. Burwell, Docket Report. On April 18, 2014, the
Attorney General moved to intervene in the appeal in the public

interest. Id. Neither MEDHHS nor anyone else objected to the

Motion to Intervene. Id.
On November 17, 2014, the First Circuit issued its unanimous
decision denying MEDHHS appeal, holding that the federal
disapproval of the SPA was constitutional. Mayhew v. Burwell, 772
F.2d 80 (1st Cir. 2014). No request for rehearing en banc was filed
on behalf of MEDHHS. Mayhew v. Burwell, Docket Report.
On January 14, 2015, the Attorney Generals Office approved
MEDHHS January 6, 2015 request for outside counsel to file a
Petition for Certiorari. See Ex. 2.
Maine Municipal Association, et al. v. MEDHHS. On July 10,
2014, the Maine Municipal Association, the City of Portland, and
the City of Westbrook filed suit in Maine Superior Court in
Cumberland County against MEDHHS and Commissioner Mary
Mayhew. Maine Municipal Association et. al. v. MEDHHS, No. AP14-39 (Cum. Cty. Sup. Ct. 2014). The case challenges the failure of
MEDHHS to follow the rulemaking procedure under the Maine
Administrative Procedure Act and the authority of MEDHHS to
change longstanding eligibility criteria for General Assistance
benefits without a statutory change. Id. MEDHHS took the
7

challenged actions against the advice of the Office of the Attorney

General. Att. 3.
On July 17, 2014, MEDHHS requested that the Attorney
General approve outside counsel in the Maine Municipal Association
matter. Att. 4. On July 18, 2014, the Attorney General approved
the request. Att. 5. In her approval letter, the Attorney General
noted that she had explained that she declined to represent
MEDHHS in the matter because the actions described in the
complaint were taken without legal advice or directly contrary to the
legal advice of the Office of the Attorney General. Id. The Attorney
General has not intervened or participated in this lawsuit.
CONSTITUTIONAL AND STATUTORY FRAMEWORK
Article IX, Section 11 of the Maine Constitution establishes the
Attorney General as an independent constitutional officer elected by
the Legislature.3 In 1905, the Legislature enacted 5 M.R.S. 191,
codifying the duties of the Attorney General.4 P.L. 1905, ch. 162

When Maine became a State in 1820, the Maine Constitution provided that
the Governor appoint with the consent of the Executive Council the Attorney
General. Me. Const. art. V. pt. 1, 8 (1820). In 1855, the Constitution was
amended to provide for the election of the Attorney General by the joint ballot
of the Senate and House of Representatives. That provision remains in effect
today.
4 As originally enacted, 191 provided, in relevant part:
3

1. This statute was enacted in response to a recommendation by

Attorney General George M. Seiders that control of legal matters be
consolidated in the Office of the Attorney General. In 1904,
Attorney General Seiders observed:
My experience in the office of the attorney general for four
years has fully convinced me that this office should take
care of all legal matters arising in the various state
departments.
This is a matter which will bear careful consideration,
because I believe the interests of the State require that
the office of attorney general should attend to the legal
matters of the State exclusively.
1904 Report of the Attorney General 22.5

The attorney general shall appear for the state, the secretary
of state, the treasurer of state, the bank commissioner, the
insurance commissioner, the head of any other state department
and the state boards and commissions in all suits and other civil
proceedings in which the state is a party or interested, or in which
the official acts and doings of said officers are called in question, in
all the courts of the state; and in such suits and proceedings
before any other tribunal when requested by the governor or by the
legislature or either branch thereof.
All such suits and
proceedings shall be prosecuted or defended by him or under his
direction. All legal services required by such officers, boards and
commissions in matters relating to their official duties shall be
rendered by the attorney general or under his direction. Said
officers, boards and commissions shall not act at the expense of
the state as counsel in any suit or proceedings in which the state
is interested.
A similar statute codifying the powers and duties of the Attorney General had
been enacted in Massachusetts in 1896, on the recommendation of its Attorney
General. A comprehensive discussion of the history of the Massachusetts
Attorney Generals Office and the legislative history of the statutes relating to
5

In 1974, under a Republican Attorney General and a

Democratic Governor, the Legislature amended 191 by requiring
that state officers or agencies obtain prior written approval of the
Attorney General before employing private counsel, and that:
In all instances where the Legislature has
authorized an office, or an agency of the State to employ
private counsel, the Attorney Generals written approval
is required as a condition precedent to such employment.
P.L. 1973, ch. 711, 1 & 2. Section 191 has not been amended in
any manner relevant to the instant dispute since 1974.6
the powers and duties of the Attorney General may be found in Sec. of Admin.
& Fin. v. Attorney General, 326 N.E. 2d 334 (Mass. 1975).
6

The present day version of 5 M.R.S. 191 provides, in relevant part:

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 Legislature. All such actions and proceedings must be
prosecuted or defended by the Attorney General or under the
Attorney General's direction.
A. Writs, summonses or other processes served upon those officers
must be transmitted by them to the Attorney General.
B. All legal services required by those officers, boards and
commissions in matters relating to their official 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
10

Since the establishment of the current constitutional scheme

in Maine in 1855, the Law Court has repeatedly affirmed the broad
powers of the Attorney General, including the duty to represent the
public interest. The seminal case is Superintendent of Insurance v.
Attorney General, 558 A.2d 1197 (Me. 1989). In that case, the
Superintendent of Insurance issued an administrative decision
setting insurance rates. The Attorney General, through certain
attorneys in the Office, had participated as an intervenor on behalf
of the public interest in the administrative proceeding and appealed
the Superintendents decision to Superior Court.
The Law Court held that the Attorney General could properly
appeal an administrative decision of the Superintendent of
Insurance notwithstanding the representation of the
Superintendent by members of the Attorney Generals Office in the
administrative proceedings, once private counsel had been
authorized for the Superintendent. The Law Court rejected the
Superintendents argument that 191 mandated that the Attorney
Generals Office represent him and that because members of the
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.
11

Attorney Generals Office had counseled him in rendering his

decision, conflict of interest rules precluded the Attorney General
from challenging his decision.
The Court held:
Both the history of the enactment of section 191 and its
plain language support our conclusion that the
Legislature directed the Attorney General to control state
litigation and consolidated control in his office without
mandating representation in all cases.
A contrary
conclusion would ignore the provisions of the statute
authorizing the employment of private counsel with
written approval of the Attorney General.
Id. at 1200. The Law Court firmly rejected the notion that 191
limited the broad constitutional, common law and statutory
authority to represent State interests, and the Court fully
acknowledged the autonomy and discretion of the Attorney General
in Maine in representing the public interest.
OFFICE OF THE ATTORNEY GENERAL PROTOCOL FOR
OUTSIDE COUNSEL REQUESTS
In furtherance of its duties, the Office of the Attorney General
has a longstanding protocol for addressing outside counsel
requests. In a memorandum dated July 27, 1973, Attorney General
Jon A. Lund outlined the protocol:

12

1) all legal services to state agencies or officers shall be

rendered by the Attorney General or under his direction;
2) in those instances where state agencies have been
authorized by the Legislature to retain outside counsel,
prior written approval of the Attorney General is required;
3) bills for attorneys fees presented to State agencies
must be approved by the Office of the Attorney General
prior to payment;
4) contracts describing the type of legal services, the
name of counsel, the rate of compensation and the
duration of the agreement must be presented to the
Attorney General for approval; and
5) no bills for legal services are to be paid unless
approved by the Attorney General.
Att. 6. In 2002, Attorney General G. Steven Rowe reaffirmed that
all outside counsel requests must be approved by the Attorney
General and that there must be a written request for approval from
the agency setting forth: a description of the work to be undertaken,
the law firm and attorney to perform the services, hourly rates, an
overall cap on the amount as set forth in the proposed contract,
and a copy of the contract if available. Att. 7. In addition, the
current Attorney General has required proof of malpractice
insurance and language prohibiting conflicts of interest by outside
counsel.

13

These protocols were followed in the two cases cited in the

Governors request.
SOLEMN OCCASION
The Maine Constitution obliges the Justices of the Supreme
Judicial Court to give their opinion upon important questions of
law, and upon solemn occasions, when required by the Governor,
Senate or House of Representatives. Me. Const. art. VI, 3.7 The
first issue that must be addressed, therefore, is whether the
questions submitted by the Governor present a solemn occasion
involving important questions of law. Opinion of the Justices, 2002
ME 169, 3, 815 A.2d 791. The determination that a question
presents a solemn occasion is of significant import and is
appropriate only when the facts in support of the solemn occasion
are clear and compelling. Id. 8.
The Justices have identified guideposts to assist [their]
determination on whether a solemn occasion has been presented
on an important question[ ] of law. Id. 6. First is the issue of

Article VI, 3 thus creates a narrow exception to the fundamental principle of

separation of powers, articulated in Article III of the Maine Constitution, which
would preclude the Justices from answering questions presented by the
executive or legislative branch regarding their respective authority. Opinion of
the Justices, 2002 ME 169, 5, 815 A.2d 791, 794.
7

14

live gravity, referring to the immediacy and seriousness of the

question. Id.; see also Opinion of the Justices, 2004 ME 54, 3,
850 A.2d 1145 (questions must be of a serious and immediate
nature). For a solemn occasion to exist, the question propounded
must concern 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. Opinion of the
Justices, 2012 ME 49, 6, 40 A.3d 930 (quoting Opinion of the
Justices, 709 A.2d 1183, 1185 (Me. 1997)). A request for an
opinion satisfies this test only if the Governor has serious doubts
as to [his] own constitutional or statutory power and authority to
take a necessary action. Id. He must be faced with the necessity
of performing an official act that is of instant, not past nor future,
concern. 709 A.2d at 1185 (quoting Opinion of the Justices, 260
A.2d 142, 146 (Me. 1969)).
No live gravity is present in the circumstances set forth in
the Governors letter of January 23, 2015. The Attorney General
has approved outside counsel in both litigation matters cited by the
Governor. These approvals constitute a past action that has
already been accomplished, not an instant action of live gravity or
15

an unusual exigency. This Governor is not obligated to take any

immediate action that raises serious doubts as to his statutory or
constitutional powers or authority. The first guidepost, therefore,
suggests the absence of a solemn occasion. Complaints by the
Governor regarding past interactions with the Attorney General are
not properly the subject of an advisory opinion. See Opinion of the
Justices, 134 Me. at 513, 191 A. at 488 (1936) (only proper matters
for advisory opinions are those of instant, not past nor future,
concern).
A second guidepost is that the Justices will not answer
questions that are tentative, hypothetical and abstract. Opinion of
the Justices, 2002 ME 169, 6. Requests to hire outside counsel
are evaluated by the Attorney General on a case-by-case basis, in
conformance with established protocols (see Att. 6 & 7), and in the
two MEDHHS lawsuits cited by the Governor, the requests for
outside counsel have been granted. The possibility raised by the
Governor that approval of outside counsel might be denied at some
point in the future because, as stated in the Governors request,
the statutory requirement to obtain the Attorney Generals
permission implies that permission may be denied (emphasis
16

added) is too abstract and uncertain to constitute a solemn

occasion. See Opinion of the Justices, 339 A.2d 489, 492 (Me. 1975)
(Governors question regarding Executive Councils authority to set
qualifications for Public Utilities Commission nominee was too
hypothetical and abstract in the absence of a specific nominee,
notwithstanding Governors contention that the Councils position
was inhibiting or preventing his taking action to fill an existing
vacancy).
It is important to distinguish between a question of live
gravity and one that is of potential live gravity. Opinion of the
Justices, 2004 ME 54, 33 (Answer of Justices Clifford, Rudman
and Alexander). Maines Constitution requires the Justices to
respond to the former and forbids [them] from responding to the
latter. Id.8
Third, no solemn occasion exists when the Justices are asked
to give their opinions on the law which is already in effect, Opinion
of the Justices, 339 A.2d 483 (Me. 1975). Title 5, section 191

See also Opinion of the Justices, 281 A.2d 321, 324 (Me. 1971) (request for
advisory opinion declined where action was no longer required by Legislature);
and Opinion of the Justices, 229 A.2d 829 (Me. 1967) (opinion on vote required
to override gubernatorial veto declined where Legislature was not presently
faced with a veto message applicable to a pending measure).
8

17

requires state agencies to obtain the Attorney Generals approval

prior to hiring outside counsel and specifies that actions and
proceedings involving state agencies must be prosecuted or
defended by the Attorney General or under the Attorney Generals
direction. The Chief Executive is asking the Justices to opine on
the application of these existing statutory requirements to
situations where the Attorney General refuses to represent a State
agency (or any other entity listed in 5 M.R.S. 191) in a lawsuit.
A declaration of existing law [does] not rise to the level of a
solemn occasion. Opinion of the Justices, 437 A.2d at 611. See
also Opinion of the Justices, 396 A.2d 219, 225 (Me. 1979); Opinion
of the Justices 339 A.2d 483, 488-489 (Me. 1975) (Justices not
authorized to issue advisory opinion to resolve doubt as to the
interpretation of an existing statute); Opinion of the Justices, 437
A.2d 597, 611 (Me. 1981) (question of the effect of a statute and its
future application is not within the constitutional power of the
Justices to answer in an advisory opinion). See also Opinion of the
Justices, 355 A.2d 341, 390 (Me. 1976) (declining to address
question regarding constitutional validity of an already effective
statute).
18

A fourth guidepost is that the Justices may issue an advisory

opinion pursuant to Article VI, section 3 only on an important
question of law, where the facts and circumstances are clear and
compelling i.e., they are not in doubt. See Opinion of the Justices,
2012 ME 49, 9, 40 A.3d 930, 933 ([a]bsent clear facts on which
to opine, the questions present too broad a range of potential
factual and legal possibilities and thus do not present a solemn
occasion); 2004 ME 54, 36, 41 (Answer of Justices Clifford,
Rudman and Alexander) (advisory opinion not appropriate where
Justices cannot be confident of the circumstances to such a degree
as to leave no room for reasonable doubt). The important
question presented also must be sufficiently precise for the Justices
to determine the exact nature of the inquiry. 2004 ME 54, 40,
850 A.2d at 1155 (quoting Opinion of the Justices, 155 Me. 125,
141, 152 A.2d 494, 501 (1959)). An advisory opinion is not an
appropriate vehicle for consideration of unclear or disputed facts;
yet the Governors request asserts facts in the discussion of both
questions that are disputed.
Fifth, and finally, an important question of law must be one
that remains unresolved. See, e.g., Opinion of the Justices, 340
19

A.2d 25, 28 (Me. 1975) (finding question important where respective

roles of Governor and Executive Council in appointment process
had never been clearly defined by the Supreme Judicial Court, by
its Justices in advisory opinions, or by other decisional law). Here,
by contrast, the Governors questions regarding interpretation and
application of Title 5, section 191 were resolved by the Court 25
years ago in Superintendent.
For all of the above reasons, the Justices should decline to
address the substance of the questions.
QUESTIONS PRESENTED
Should the Court nevertheless address the merits of the
questions posed, the Attorney General submits the following
comments.
Question 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 Generals permission
to hire outside counsel to represent the agency in the
suit?
The answer to this question is simply yes. That result is
directly required by statute and is supported by the long-standing
holding of this Court in Superintendent, a unanimous decision that

20

is on all fours with the issue here. Moreover, that decision is based
upon decades old precedents that confirm the broad common law
powers of the Attorney General to control litigation involving the
State to best serve the public interest. Further, it represents the
law in the majority of states.
The language in 5 M.R.S. 191(3)(B) unambiguously requires
the prior written approval of the Attorney General before any private
counsel can be employed on behalf of the State, its agencies or
officials:
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.
The decision in Superintendent confirms that this requirement
applies even where the Attorney General takes a position contrary
to that of a client agency.
A substantial body of Maine case law leads directly to the
decision in Superintendent, supra. The Attorney General is at once
a constitutional officer and the possessor of broad common law

21

powers. Withee v. Lane & Libby Fisheries Co., 120 Me. 121, 123,
113 A.2d 22 (1921)(Attorney General may exercise all such power
as public interest may require and may institute, conduct and
maintain all such suits and proceedings); accord, Lund ex rel.
Wilbur v. Pratt, 308 A.2d 554, 558 (Me. 1973).
In that vein, the Law Court has affirmed numerous exercises
of this common law power, including writs of mandamus obtained
by the Attorney General against public officials (Farris v. Goss, 143
Me. 227, 60 A.2d 908 (1948); Littlefield v. Newell, 85 Me. 246, 27 A.
10 (1893)) and the right of the Attorney General to institute and
maintain challenges to usurpation of public office (State ex rel.
Banks v. Elwell, 156 Me. 193, 163 A.2d 342 (1960).
In Massachusetts, which shares much of Maines history and
legal precedent, the Attorney General is also an independent
constitutional officer with common law authority. That states
highest court, in Secretary of Administration and Finance v. Attorney
General, 367 Mass. 154, 326 N.E. 2d 334 (1975), concluded that
the Attorney General could refuse a Commissioners request (made
at the Governors behest) to appeal an adverse decision or to
appoint a special Assistant Attorney General to do so. The Court
22

stated that the responsibilities of the Attorney General included

giving careful consideration to the impact of that request on the
state, the public, the agency and its official. Construing the
Massachusetts equivalent of 5 M.R.S. 191, the Court explained
the Attorney Generals role in this way:
In consolidating all the legal business of the
Commonwealth in one office, the Legislature empowered,
and perhaps required, the Attorney General to set a
unified
and
consistent
legal
policy
for
the
Commonwealth. It would defeat this apparent purpose to
allow an agency head, representing narrow interests and
with a limited scope, to dictate a course of conduct to the
Attorney General, and in effect to destroy any chance of
uniformity and consistency. We cannot say that the
language of [the statute], compels such a result. Instead,
we hold that the Attorney General may refuse to
prosecute an appeal where in his judgment, an appeal
would not further the interests of the Commonwealth and
the public he represents.
We believe our holding in this case will allow the
Attorney General to maintain the . . . (Commonwealth) in
a consistent position in its dealings with private parties.
It will allow the Attorney General to function in an
efficient and comprehensive manner with regard to the
Commonwealth's legal business.
326 N.E. 2d at 339 (citations omitted).
This description of the overarching authority of the Attorney
General over the states legal business is equally applicable to
Maine, which has virtually the same statute and whose Attorney

23

General is a constitutional officer with broad common law powers,

independent of the Governor.
Superintendent recognizes that the overriding duty of the
Attorney General to represent the public interest supports her
authority to challenge the decisions of agencies her staff has
represented. As the Court observed, this is the majority rule.9 See
State ex rel. Allain v. Mississippi Pub. Service Commn., 418 So.2d
779, 782 (Miss. 1982), (discussing numerous cases), and Attorney
General v. Michigan Public Service Commn, 625 N.W.2d 16 (Mich.
App. 2000) (also discussing numerous cases).
There is no exception to the statutorily required approval for
outside counsel in either matter identified in the Governors request
and no legal basis for a judicially created one. As the case law

See, e.g., Feeney v. Commonwealth, 373 Mass. 379, 366 N.E.2d 1262, 1266-7
(1977) (Attorney General can appeal against wishes of agency in exercise of
authority as chief law enforcement officer to assume primary control over
litigation to decide matters of legal policy which would normally be reserved to
the client in an ordinary attorney-client relationship.); Florida ex rel. Shevin v.
Exxon Corporation, 526 F.2d 266, 268-269 (5th Cir. 1976)(confirming authority
of the Attorney General under Florida law to bring antitrust claims against
major oil companies seeking to recover damages on behalf of constituent
agencies that had not explicitly authorized the filing, as that he typically may
exercise all such authority as the public interest requires. And the attorney
general has wide discretion in making the determination as to the public
interest. The minority view illustrated by People ex rel. Deukmejian v. Brown,
624 P.2d 1206 (Cal. 1981), was considered and rejected by the Law Court in
Superintendent, 558 A.2d at 1203-1204.
9

24

demonstrates, an administrations disagreement with the Attorney

Generals legal conclusions may be the context for approval of
outside counsel for the agency but it is not a reason for ignoring the
statute. Should the Justices reach the merits of Question One, the
Justices should uphold the requirement that the Attorney General
approve requests for outside counsel.
Question 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?
If the Attorney General intervenes to oppose a State agency in
a lawsuit, the Executive Branch must still seek authorization from
the Attorney General to retain outside counsel. Title 5, section 191
creates no exceptions. Requiring an Executive Branch agency to
demonstrate that outside counsel is qualified to handle a particular
matter at a reasonable cost is a prudent exercise of the Attorney
Generals responsibilities under section 191 and does not interfere
with the litigation. As noted above, any further discussion of
whether particular future acts of the Attorney General might
constitute improper direction would amount to giving an advisory

25

opinion with regard to tentative, hypothetical and vague

questions.10 See discussion at pp. 16-17.
Title 5, section 191 provides that all 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 must be
prosecuted or defended by the Attorney General or under the
Attorney Generals direction. (Emphasis added). As noted in
Superintendent of Insurance, the history and plain language of this
enactment show that the Legislature directed the Attorney General
to control state litigation and consolidated control in his office
without mandating representation in all cases. 558 A.2d at 1200.
As an officer of government [the Attorney General] is directed to
control and manage the litigation of the State by providing counsel
to state agencies and by approving the retention of private counsel.
Id. at 1202.
When the Attorney General disagrees with a state agency on a
legal matter of public interest, the Court suggested in
Superintendent that the appropriate solution is to approve outside
The court in Sec. of Admin. & Fin., 326 N.E. 2d at 340, noted that its decision
did not preclude recourse to the courts should the Attorney General act
arbitrarily and capriciously or scandalously in making decisions about
representation. No such allegations are presented here.
10

26

counsel. This is precisely the approach adopted by the Attorney

General in the two cases cited in the Governors letter.
The Attorney General has not sought to direct or control any
substantive aspect of the litigation in either Mayhew v. Burwell (the
only case in which she has intervened in opposition to a state
agencys position) or Maine Municipal Association v. MEDHHS (in
which the Attorney General is not a party). The litigation in both
cases has been directed in all respects by the private law firm
selected by MEDHHS.
The Attorney Generals approval process has focused solely on
the reasonableness of the cost and the qualifications of proposed
counsel, following a standard protocol that has been utilized by
Attorneys General over many decades. This approach addresses
the very concerns that were raised by Attorney General Seider in
1904, when he recommended consolidating legal services for all
state agencies under the control of his office, and by Attorney
General Lund in 1973, when he sought to reinforce the section 191
requirement for agencies to obtain his approval before hiring private
counsel. See Att. 6.

27

The approval letter attached as Exhibit 2 to the Governors

request includes an estimate of what the preparation of a petition
for certiorari should cost but does not specify a limit.11 The letter
defers discussion of the merits phase of the Supreme Court appeal
and anticipates receipt of a cost estimate for that phase, prior to
granting authorization, in the event the petition for certiorari is
granted. Ex. 2 at 1. Requiring cost estimates from legal counsel is
a prudent measure, especially when taxpayer resources are being
expended; it does not restrict the agencys ability to present
whatever arguments and legal strategies the agency and its private
counsel deem appropriate.
The Governor appears to be seeking an advisory opinion that
the Attorney General is not permitted to exercise any discretion to
insure that outside counsel selected by the agency is admitted to
practice in the appropriate court, that counsel is qualified to handle
the particular matter or that counsel is charging a reasonable rate,
in a matter in which her office has intervened on behalf of the
public. This view is inconsistent with the directives of Title 5,
If MEDHHS and/or the Governor read the statement in the January 14 letter
estimating the cost of a petition as setting a cap on fees, that reading is
incorrect and could have been clarified. See Ex. 2 at 2 (inviting inquiries if
MEDHHS had any questions concerning the authorization).
11

28

section 191 and the Attorney Generals broad common law powers,
as discussed above. The Attorney General has a statutory
obligation to manage litigation for the state. Focusing on the
qualifications of counsel and the proposed hourly rate discharges
that obligation in this context without interfering with, or
constraining, a state agencys ability to be zealously represented in
such litigation.
CONCLUSION
For these reasons, the Court need not opine on the Questions
because they do not present a solemn occasion. Should the Court
address the merits of the questions presented, the Attorney General
respectfully requests that: 1) Question One be answered in the
affirmative, and 2) Question Two be answered to affirm that
authorization for outside counsel must be obtained when the
Attorney General has intervened on the opposite side and that the
Attorney General may condition approval on the proper
qualifications of counsel and reasonable cost.

29