Opinion of the Justices of the Supreme Judicial Court, 112 A.3d 926

In 2012 Maine DHHS sought a Medicaid State Plan Amendment (SPA) to remove 19–20 year‑olds; the SPA was denied by U.S. DHHS and affirmed on appeal to the First Circuit (Mayhew v. Burwell).
The Attorney General (Mills) initially declined to continue representing Maine DHHS, concluding the appeal lacked merit; the Department sought and obtained the AG’s written authorization to retain outside counsel, with fee caps, paid from the Governor’s discretionary funds.
The Attorney General then intervened in the First Circuit appeal as an opposing party to Maine DHHS.
After the First Circuit decision, Maine DHHS sought authorization to retain outside counsel to petition the U.S. Supreme Court; the AG’s office requested billing/time estimates and indicated possible caps before further authorization.
Governor LePage requested an advisory opinion asking (1) whether the Executive must obtain AG permission to hire outside counsel when the AG declines to represent an agency, and (2) whether the AG may direct litigation where the AG has intervened opposing the agency.

Issue	Plaintiff's Argument (Governor)	Defendant's Argument (Attorney General)	Held
1. Whether an agency may retain private counsel without the AG’s prior written approval after the AG declines to represent it	Governor: Executive may need to retain counsel to vindicate policy and cannot be left without recourse; prior approval could be veto power over Executive litigation	AG: Statute (5 M.R.S. §191(3)(B)) requires prior written approval; AG’s oversight serves fiscal, coordination, and advisory purposes	Court: Declined to answer — no solemn occasion; question hypothetical because no record of approval being withheld exists (advisory opinion refused)
2. Whether the AG may continue to direct or manage litigation (e.g., impose fee caps, audit bills) after authorizing private counsel and intervening as opponent	Governor: AG cannot both oppose agency in litigation and direct the agency’s litigation; continued AG direction would improperly control Executive litigation	AG: Review of costs/estimates is part of statutory oversight and not intended to restrain private counsel’s advocacy; process viewed as advisory/administrative	Court: Held No — once AG authorizes private counsel and intervenes opposing the agency, the AG may not direct/manage that agency’s litigation (fee caps or periodic oversight cannot be used to control the opposing party’s litigation)

Superintendent of Ins. v. Attorney General, 558 A.2d 1197 (Me. 1989) (recognizes AG’s independent authority and that AG may oppose state agencies)
Opinion of the Justices, 709 A.2d 1183 (Me. 1997) (defines "solemn occasion" and criteria for advisory opinions)
Opinion of the Justices, 40 A.3d 930 (Me. 2012) (further discussion of when Justices will issue advisory opinions; live gravity/unusual exigency standard)
Mayhew v. Burwell, 772 F.3d 80 (1st Cir. 2014) (underlying federal appellate decision affirming denial of Maine’s SPA)
Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me. 1973) (recognizes AG’s role and authority in representing public interest)