This November, Rob McKenna won’t have to stand before voters to keep his job, but he will go before the state’s highest court to answer questions cutting to the heart of the job’s power.
Washington’s attorney general plays a dual role: the state’s lawyer, whose duty it is to represent its agencies, and an elected official who can pursue an independent agenda.
Those roles have come into conflict in two cases to be argued Nov. 18 before the state Supreme Court. Justices could decide how far McKenna may go in acting on his own and in defiance of other state officials.
The court has weighed in on the attorney general’s authority before. McKenna describes a 1978 decision as backing up his view of the job: “Paraphrasing, they said, ‘He’s not like a robot. He doesn’t sit around waiting for someone to ask him to do what he knows needs to be done. He goes out and does it, because that’s the authority, responsibility, that he has.’”
The court will answer different questions this time, however. Justices will consider: Can McKenna make the call to throw in the towel in a lawsuit over land use when the state official involved wants to keep fighting? And can McKenna sue the federal government, in Washington’s name and without the governor’s blessing, over health care reform?
McKenna, a Republican, joined 19 other attorneys general in March in challenging Congress’ authority to require that people buy health insurance. The City of Seattle has asked the court to step in to stop him.
“There has never been as broad an assertion of power” contrary to other elected officials’ wishes, Seattle City Attorney Pete Holmes said. “I think it’s unprecedented.”
The cases unfold against a backdrop of McKenna’s political ambitions, and state Democrats’ hope of dashing them.
McKenna is widely expected to run for governor in 2012. A poll this month by Democratic polling firm Public Policy Polling found voters view McKenna favorably, but are split over his health care lawsuit. The state Democratic Party has seized on the two legal cases, particularly the health care lawsuit, saying he’s overstepping his authority in both cases.
AT ODDS WITH GOVERNOR
Holmes argues in a legal brief filed last week that the Legislature has spelled out what the attorney general can do, and it doesn’t include broad authority to unilaterally sue.
But state law also has a catch-all provision that could help McKenna’s case. It says the “attorney general shall also represent the state and all officials … in all legal or quasi legal matters.”
Holmes said that’s meant only to make sure agencies use the attorney general instead of private lawyers. But the Supreme Court has interpreted it as giving the attorney general authority, including, in the 1978 case McKenna cites, power to file a friend-of-the-court brief in federal court.
Holmes told the court that case was different; for one thing, he said, then-Attorney General Slade Gorton had the backing of the university system for his position in favor of affirmative action in higher education. In this case, the health care suit has brought McKenna into conflict with other officials, notably Gov. Chris Gregoire.
Gregoire complains she wasn’t consulted and says that far from harming Washington, the federal law will improve Washingtonians’ access to health care. McKenna said parts of it will harm the state, including new requirements for Medicaid, the federal-state insurance program for the poor.
Gregoire, a former attorney general, hasn’t been calling for limiting the office’s power. She told McKenna only that if he sues, it should be on behalf of his office, not the whole state.
PUBLIC INTEREST
The question is whether McKenna can represent the state based on his reading of the public interest, or only on behalf of a state agency.
It’s a matter of dispute in legal circles whether the client of a prosecutor or attorney general is an agency, the government or, more broadly, the public, said Hugh Spitzer, a municipal lawyer.
“It is crystal unclear what an elected law officer’s exact role is,” Spitzer said.
When government agencies disagree, the state’s lawyer often ends up in the middle. Gregoire parted ways with McKenna again this year when his office announced in a legal filing that the state Board of Pharmacy intended to change rules for pharmacists.
Gregoire opposes a rule change allowing pharmacists to deny patients drugs such as Plan B emergency contraception. She said lawyers shouldn’t have predicted the outcome of a rule-making process that will include public input. McKenna said the board can state its intentions even as it keeps an open mind.
Another run-in with a fellow elected official this year led to the other case before the Supreme Court.
When a judge ruled against the state, saying an Okanogan County public utility district can condemn state land in the Methow Valley to build a power line, Public Lands Commissioner Peter Goldmark wanted to appeal.
McKenna wouldn’t, so Goldmark went to court.
Until the Supreme Court rules, McKenna is filing the appeal provisionally in the land dispute. State law requires the attorney general to represent agencies such as Goldmark’s.
“I feel pretty strongly that he needs to abide by my wishes at the least,” Goldmark said, “and if he doesn’t think I’m correct, he should engage me directly and have a reasoned discussion with me before refusing my request.”
But McKenna said the law obligates him only to take the case, not to keep pursuing it on appeal as long as his client wants.
His office weighed the case’s merit before declining to appeal, McKenna said. What’s more, he said, pursuing the case could end up harming other state agencies that might need to seize land for public use.
Goldmark disputes that, saying the legal issues are specific to state trust lands, but McKenna said an appeals court decision could have repercussions elsewhere. He has a “larger duty” than to just one agency, he said.
“The attorney general is required to look out for the interest of the state as a whole,” McKenna said.
The Supreme Court could decide whether McKenna gets to determine what’s in the state’s best interest.
“In the present case,” Holmes wrote in his legal brief on the health care lawsuit, “the public deserves to know whether or not the attorney general can involve the state in litigation whenever he deems it necessary.”
Jordan Schrader: 360-786-1826 jordan.schrader@thenewstribune.com blog.thenewstribune.com/politics
JOIN THE DISCUSSION | Register here
We welcome comments. Please keep them civil, short and to the point. ALL CAPS, spam, obscene, profane, abusive and off topic comments will be deleted. Repeat offenders will be blocked. Thanks for taking part — and abiding by these simple rules. A thorough explanation of rules of conduct can be found in our Terms of Service. If you have any questions, including why your comment may not be showing immediately after you submit it, be sure to visit the commenting FAQ.