LePage’s struggle with Maine judicial nominations goes viral

Last Monday, Governor Paul LePage reinstated his previously withdrawn judicial nominations hours before confirmation voting in the Senate. Seemingly bizarre, this move appears to have been the latest strike in his ongoing battle with Maine Attorney General Janet Mills. In fact, letters exchanged in 2016 between the governor’s administration and the judiciary might explain the fiery conflict between these two bodies—and last week’s nomination switch up.

LePage initially nominated Superior Court Justices Robert E. Murray Jr. of Bangor, MaryGay Kennedy of Brunswick and Ann M. Murray of Bangor, and District Court Judges Bruce A. Jordan of Veazie and Susan E. Oran of Auburn for reappointment.

But on Oct. 20, without explanation, he withdrew these nominations in letters to Maine Speaker of the House Sara Gideon (D-Freeport) and Senate President Mike Thibodeu.

Gideon called the move ‘deeply troubling’ as no reason was given for the withdrawal. She explained, “an independent judiciary is fundamental for the rule of law and the integrity of our system. All Mainers have the right to access the court system in a timely manner and this type of delay could affect the delivery of justice.”

Three days later, LePage reinstated the nominations, again providing no explanation. All five nominees were unanimously confirmed for reappointment Monday morning.

“All is well that ends well,” said Judicial Committee Co-Chair Senator Lisa Keim (R-Dixfield).

But LePage’s withdrawal and reversal have stirred controversy. In the absence of an official explanation from the administration, Democrats and others criticized the move as a flex from a governor with a history of using nominations to state positions as political chips.

In 2015, LePage canceled 21 nominations of individuals to several state boards and advisory councils. His letters gave no explanation, but administration spokeswoman Adrienne Bennet told the press the move was a response to “the debacle created by Democratic lawmakers” who had delayed the appointment of LePage nominee Bruce Williamson to the Public Utilities Commission.

Within the week, Democrats on the legislature’s Energy, Utilities and Technology Committee had recommended Williamson. Bennet then told press that the governor was “disappointed that the Democrats chose to play political games with Dr. Williamson,” but added that the 21 nominations would be reinstated.

At the time, Senator Dawn Hill (D-Cape Neddick) suggested that LePage’s nomination game was a political move.

But this latest use of nominations is not a partisan back and forth. Rather, it appears to be the latest punch in the governor’s ongoing legal battle with Mills.

And this time, it wasn’t a blocked nominee that incensed LePage, but rather a judge’s dismissal of his suit against Mills herself. But to understand that suit, and Monday’s nomination stunt, a bit of history is required.

Mills and LePage have battled over the past three years as the LePage administration has been frustrated by what Bennet deemed Democrat Mills’ “strident and public” political stances against LePage policies, and by Mills’ refusal to represent the executive in cases she finds unconstitutional or un-winnable.

Mills, however, maintains her position as an independent constitutional officer of the state. She finds that for both procedural and ethical reasons, she should not pursue cases which she finds unconstitutional or un-winnable.

The battle stretches back to 2014, when Mills refused to represent LePage in lawsuits over two policies which she had previously deemed unconstitutional. The first suit involved a dispute between state and federal government over the governor’s plan to drop some 19 and 20 year olds from Maine Medicaid program MaineCare. The second suit was filed against the state of Maine by Portland and the Maine Municipal Association, who opposed the governor’s attempt to decrease General Assistance provided to immigrants.

In both cases, LePage requested and received permission from Mills to hire private counsel. The U.S. Supreme Court ultimately rejected LePage’s MaineCare proposal, which generated $108,000 in legal fees to be paid with federal funds. LePage won the second case, which generated $100,000 in fees but whose result potentially saved $1 million in state funds.

LePage maintained that the attorney general ought to support the governor’s legal interests. In 2015, he proposed a bill to fix the Attorney General as a governor appointee, subject to Senate confirmation. The bill failed 115-32.

Later that year, on a WVOM radio show, the governor argued that the attorney general overstepped her bounds, saying, ‘The way we operate in Maine, [Mills] has veto power over the governor. The governor is the senior executive for the state and she makes political decisions, not legal decisions.”

But Mills appeared on the same radio show later that same day to counter, arguing, “we are not required to take positions that have no legal merit. The attorney general as a constitutional officer is endowed with common law powers to take positions and exercise all the power and authority and discretion as the public interest requires.”

Mills noted that, had LePage respected her assessment that the MaineCare case was unwinnable, he would have saved taxpayers $108,000. But Bennet countered that the General Assistance case, which Mills also deemed un-winnable but LePage won with private counsel, saved taxpayers upwards of $1 million.

Still seeking to gain control of the state legal apparatus, the governor’s office then requested a Supreme Judicial Court decision regarding whether the executive must obtain approval from the attorney general before hiring outside counsel. The court, however, finding that no attorney general had ever refused such a request, stated that the occasion did not warrant an opinion.

Then came the letters which seem to explain the nomination game.

In 2016, Mills warned the administration against circumventing the Maine Judiciary. She noted that neglecting to gain approval from the attorney general before hiring private counsel exposes the state to liability claims.

“A person who happens to have a law degree may give policy and strategy advice, but in no case should that attorney profess to give legal advice,” Mills wrote in a letter to LePage administration Chief Legal Counsel Cynthia Montgomery. Mills continued, “the administration is free to call upon this office and draw upon our experience for the history and interpretation of any statute or fact scenario, as we have given such advice to administrations of every stripe over many years. That is the job and the obligation of this office.”

Montgomery responded, saying, “I have said to you directly and specifically on more than one occasion that this administration does not trust you — and by extension, your office — to advise or represent it with non-partisan, professional legal judgment. This distrust is due in large part to your long history of taking strident and public stands against the policy decisions of the administration.”

In 2017, Mills and LePage clashed again when Mills joined other attorneys general nationwide, including former U.S. Attorney General Sally Yates, in filing an amicus brief against immigration executive orders by President Donald Trump. LePage, a Trump supporter, requested a countervailing brief which he claimed Mills obstructed.

The tension between executive and attorney general came to a boil May 1,when LePage filed a lawsuit against Mills alleging that Mills abused her authority by refusing to represent LePage in his desired legal pursuits.

A judge dismissed this suit two days prior to LePage’s withdrawal of the five judicial nominees. Having failed to control the judiciary via legislation, and then failing to circumvent it via a court ruling, did the governor destabilize judicial reappointments to show the fight is not over?

Mills is a favorite among Democrats for governor in 2018, when LePage is term-limited out of office.

The attorney general has previously called LePage’s tactics—such as delaying signing financing bills for the judiciary—‘petulant.’ But this latest move shows that the governor may use whatever tactics are effective to achieve legal representation for his administration’s policies.

Onlookers may note that this story runs parallel to President Trump’s outrage at Sally Yates’ denunciation of his immigration policy. It seems that the conflict between attorney general and executive is yet another way in which ‘as goes Maine, so goes the nation.’