The other day, I used my lunch time to listen to the oral argument in Rep. Mark Eves’ case against Gov. Paul LePage. Both sides were represented by very able attorneys: Eves by David Webbert, LePage by Patrick Strawbridge. U.S. District Court Judge George Singal listened carefully and asked pointed questions of both sides.

Eves is a family therapist and the Democratic speaker of the Maine House of Representatives, who got a job as president of Good Will-Hinckley. Good Will-Hinckley is a non-profit organization that provides services to at-risk youth, including education through a charter school. It gets some of its funding from the state.

Eves claimed LePage pressured Hinckley to rescind its job offer by secretly threatening to withhold state funding, and that LePage did so because of his personal animosity toward Eves, Democrats, and Democrats’ positions on issues ranging from education to taxation. Eves claimed that after being caught and confronted, the governor made up a story about Eves being unqualified for the job. Eves complained this violated his constitutional rights to due process, free speech, and free association, and violated state law by interfering with his contract rights.

LePage is a supporter of charter schools. He justified his actions on the grounds that Eves wasn’t qualified to run a school, that it was inappropriate to make an opponent of charter schools the head of one, inappropriate of Eves to use his position as speaker to get himself the job, and that jobs obtained by political connections can be lost by political connections. LePage moved to dismiss Eves’ complaint on the grounds that, among others, he was immune from being sued for Eves’ claims.

Strawbridge argued that immunity is a function of the nature of the actions, not their motive. The governor’s threat to withhold funds was part of the budget-making process. Budget-making is a core legislative function of government. It is the process of using money to promote one political agenda over another. In the course of that process, participants offer to give things to get things, and they threaten to withhold things to get things. It may not be pretty, but it’s all part of the horse-trading of law-making in general, and budget-making in particular.

Participants in that process are absolutely immune from lawsuits for actions they take in the course of making legislation, because making laws and making budgets are political matters. Making laws and budgets are the electorate’s expression of its values. They should not be subject to review by the judiciary except for violation of the most clear and fundamental principles.

That’s where qualified immunity comes in. Participants in the legislative process are immune from suit for pretty much all claims, such as state law claims for interference with contract rights. The exception is for claims that law-makers violated the most clearly established and fundamental rights, and Eves’ right to the Hinckley job wasn’t that clear or fundamental.

There’s a legal adage that if you don’t have the law on your side, you pound the facts. If you don’t have the facts on your side, you pound the law. And, if you don’t have either, you pound the table. The facts Strawbridge had to work with weren’t the most appealing. So he pounded the law.

It was a pretty good argument, and a better argument than LePage made to the Maine Supreme Judicial Court last year when it ruled he botched his attempt to veto 65 pieces of state legislation.

Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.

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