On Feb. 26, attorneys for the governor and attorney general squared off in the Maine Supreme Judicial Court over the issue of the attorney general’s ability to control the governor’s legal representation in two politically charged cases.
One case is about the governor’s ability to remove able-bodied young people from Medicaid/Mainecare. In that case, a Republican attorney general represented the governor until Republicans lost control of the Legislature and the AG was replaced by a Democrat.
At that point, the new attorney general authorized outside counsel for the governor and intervened on the other side of the case. After the governor lost the initial round, he had to ask the attorney general for permission to appeal.
The other case is about the governor’s ability to deny reimbursement to municipalities for the cost of General Assistance provided to undocumented aliens.
The attorney general’s position is that the Maine Constitution and law make her the state’s attorney. She has authority over litigation, and should conduct most, if not all of it. In those rare instances when she decides not to represent the state, the governor still has to seek her permission to hire outside counsel.
Not surprisingly, the governor bristled at the idea. He argues that the AG shouldn’t be supervising his position in litigation because she strongly disagrees with his public policy preferences. Their dispute arises out of the structure of our government.
The Maine constitution divides our government into three, separate and distinct departments (legislative, executive and judicial). It goes so far as to provide that no person belonging to one department should exercise any of the powers belonging to one of the other departments.
It establishes some of the basic officers of government, including our governor, who exercises our state’s supreme executive power. It directs the governor to take care that our laws are faithfully executed.
It establishes the position of attorney general, but doesn’t define it. At the time of ratification, attorneys general were understood to be the government’s attorney. They advised the executive and legislative branches, represented them in legal matters, and acted in the public’s interest.
Maine statutory law defines the attorney general’s powers and duties. They include advising the other branches, prosecuting crimes, and representing the state in legal actions. Maine law gives the attorney general the discretion to approve private counsel when the AG elects not to represent the state. That feature was added in 1974, when the Legislature and AG were Republican and the governor was a Democrat.
As originally conceived, our attorney general was appointed by the governor. That changed in 1855, when the Constitution was amended to provide that the attorney general be elected by the Legislature. Maine is the only state to choose its attorney general this way; 43 states popularly elect their AGs. In five states, the governor appoints the attorney general; in Tennessee, the state supreme court appoints the attorney general.
Our arrangement sets the stage for divided government that is further divided within the executive branch. The more government is divided, the more difficult it is for the people to express their will through law and policy. That’s the conflict that is now being played out to some extent in the Law Court. It puts courts in the difficult position of trying to resolve disputes that are really political.
The state Constitution also recognizes a few basic principles. Perhaps the most basic is that the people are the ultimate source of power. Another is that everyone is entitled to “due course of law.” At a minimum, it means that a person has the right to be heard. It includes the right to be represented by counsel, because having an attorney is integral to being heard in court.
Representation is not effective if your lawyer is conflicted. If you are the people’s elected representative, denying adequate you representation thwarts the will of the people. That’s why the governor should have his own lawyer in politically charged cases like these.