Lepage v. Mills
| Decision Date | 16 October 2017 |
| Docket Number | Civil Action CV-17-95 |
| Parties | GOVERNOR PAUL R. LEPAGE, Plaintiff v. ATTORNEY GENERAL JANET T. MILLS, Defendant |
| Court | Maine Superior Court |
ORDER ON DEFENDANT'S MOTION TO STAY DISCOVERY AND MOTION TO DISMISS
Before the Court are Defendant's Motion to Stay Discovery and Motion to Dismiss. Plaintiff Governor Paul LePage is represented by Attorneys Bryan Dench and Amy Dieterich. Defendant Attorney General Mills is represented by Assistant Attorneys General Thomas Knowlton and Jonathan Bolton.
President Donald Trump has issued two Executive Orders concerning immigration to the United States in early 2017: E013769 and EO13780. E013769 was issued on January 27, 2017 and is the subject of a pending lawsuit titled Washington v Trump. (Pl.'s Compl. ¶ 11.) Attorney General Mills publicly opposed Executive Order E013769 and joined an amicus brief filed in opposition to the Executive Order in Washington v. Trump. (Pl.'s Compl. ¶ 12.) Governor LePage claims to have sought the Attorney General's approval to file an amicus brief in in support of E013769 and that the Attorney General prevented such a filing "by delay and obstruction". (Pl.'s Compl. ¶ 13).
President Trump issued his second Executive Order, EO13780, on March 6, 2017. (Pl.'s Compl. ¶ 15). Shortly thereafter, an action was filed in Hawaii seeking to enjoin the EO13780. On March 14, 2017, the Governor sent the Attorney General a letter asking that the Attorney General provide representation to the Governor in order to file an amicus brief in support of EO13780, or that her office provide the funds for the Governor to seek outside counsel to represent him. (Pl.'s Compl. ¶¶ 15, 16).
On March 15, 2017, Deputy Attorney General Gardiner responded by letter, providing two options for the Governor if he chose to become involved in litigation concerning EO13780: first, join an amicus brief prepared by another party; second, retain outside counsel assuming that the fees for the outside counsel would be paid by the Governor's office and that the outside counsel be properly admitted to practice law and carry malpractice insurance. (Pl.'s Compl. ¶ 18.)
On March 17, 2017, the Governor responded by letter, objecting to the March 15th letter from the Office of the Attorney General for failing to address the Governor's request that she represent the Governor and for conditioning her approval of the hiring of outside counsel. (Pl.'s Compl. ¶ 19). The Governor further wrote that because in the past the Attorney General had paid outside counsel from the Attorney General's budget, the Governor expected that the Attorney General would cover the cost of any lawyer he should hire to represent him in this matter. Id.
Deputy Attorney General Gardiner responded on March 20, 2017 confirming that the Attorney General did decline to provide representation in this matter. She also stated her belief that the requirement that any outside counsel must be properly licensed to practice law did not amount to dictating terms of the engagement of outside counsel. Finally, she wrote that she was not aware of any prior instance in which the Attorney General paid for outside counsel to be retained by the Executive Branch. (Pl.'s Compl. ¶ 20.)
On June 1, 2017, President Trump filed a Petition for Writ of Certiorari with the United States Supreme Court seeking review of the Fourth Circuit decision in Trump v. IRAP, et al. upholding a preliminary injunction barring enforcement of EO13780. (Pl.'s Compl. ¶ 21). On June 2, 2017, the Governor sent a letter to the Attorney General again seeking the Attorney General's representation in filing an amicus brief, or alternatively seeking approval to hire outside counsel to be paid for by the Attorney General's office. Deputy Attorney General Gardiner responded by letter on June 5, 2017, authorizing the Governor to hire outside counsel to be paid by the Governor.
The Governor sought amendment of his complaint on June 8, 2017. Leave of Court was granted. The Attorney General now moves the Court to stay discovery and dismiss the action.[1]
The Attorney General has moved the Court to stay discovery pending its determination of her Motion to Dismiss. Because the Governor has failed to articulate how discovery would assist the Court in the purely legal questions presented by the Attorney General's Motion to Dismiss, including questions of jurisdiction, mootness, and separation of powers, the Court grants the Attorney General's Motion.
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(1) challenges the court's subject matter jurisdiction. M.R. Civ. P. 12(b)(1). "When a court's jurisdiction is challenged, the plaintiff bears the initial burden of establishing that jurisdiction is proper." Commerce Bank & Trust Co. v. Dworman, 2004 ME 142, ¶ 8, 861 A.2d 662. The court makes no inferences in favor of the plaintiff, as it does when reviewing a motion to dismiss for failure to state a claim. Tomer v. Me. Human Rights Comm'n, 2008 ME 190, ¶ 9, 962 A.2d 335. The court may rely on material outside the pleadings without converting the motion to a motion for summary judgment. Gutierrez v. Gutierrez, 2007 ME 59, ¶ 10, 921 A.2d 153.
On review of a motion to dismiss for failure to state a claim, the Court accepts the facts alleged in the complaint as true. Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. The Court "examine[s] the complaint in the light most favorable to plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Doe v. Graham, 2009 ME 88, ¶ 2, 977 A.2d 391 (quoting Saunders, 2006 ME 94, ¶ 8, 902 A.2d 830). "For a court to properly dismiss a claim for failure to state a cause of action, it must appear 'beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that might be proven in support of the claim.'" Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 15, 970 A.2d 310 (quoting Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995)).
a. Timeliness
It is the purview of the Superior Court to adjudicate cases and controversies. Lewiston Daily, 1999 ME 143, ¶ 12. The Governor has laid out the facts of a current dispute. However, the remedy requested is significantly more general, and it presumes future disputes. The Governor asks the Court to rule that whenever the Governor of the State of Maine requests that the Attorney General of the State of Maine represent him in any matter that is "within the scope of Governor's executive power under the Constitution of Maine" the Attorney General is required to either represent the Governor or authorize the Governor to hire outside counsel to be paid out of legislative appropriations made for the Office of the Attorney General. It is well settled that this Court does not have the authority to generally interpret the law and set forth the rights and duties of the parties without reference to a specific case or controversy. In re Richards, 223 A.2d 827, 829 (Me. 1966).
The Court looks to the Governor's pleadings in order to determine whether there is any relief that the Court may grant for the dispute set forth in Governor's Complaint. The Governor adamantly contends that the claim is solely for declaratory relief of the rights and duties of the parties. The Attorney General argues that declaratory judgment is a remedy rather than a cause of action. On that basis, the Attorney General argues that the Governor has not set out an underlying claim upon which declaratory relief may be granted. In Hodgdon v. Campbell, the Law Court explained that declaratory judgment, pursuant to the Declaratory Judgment Act, "does not create a new cause of action; its purpose is to provide a more adequate and flexible remedy in cases where jurisdiction already exists." Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980) (citations omitted); see also Thompson v. Glidden, 445 A.2d 676, 679, (Me. 1982). The Court interprets this to mean that it does not have the authority to grant the Governor's request for declaration of the rights and interests of the parties in a general or hypothetical sense.[2]
The only language in the Governor's Complaint that suggests an alternate remedy is language claiming that the Attorney General has abused her discretion. The Governor appears to be claiming that the Attorney General has abused her discretion in the manner by which she refused to represent The Governor in the federal litigation concerning the Executive Orders on immigration or to pay for outside counsel. If that is the case, the most appropriate avenue for relief may be an appeal of her determinations. Ostensibly, the proper procedure for an appeal of the Attorney General's...
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