The Washington State Supreme Court issued two opinions last week that helped defined the power of the state attorney general. The first ruling, in a lawsuit by the city of Seattle seeking to force McKenna to withdraw his lawsuit against the health care reform law, said that McKenna has the right to fight against the federal law on behalf of the state, but that his client, like a typical client, can direct his actions.

The reasoning was a bit tortured. The court found that the attorney general had broad statutory authority to join the lawsuit because the state had interests at stake in the litigation. This conclusion was based on a 1961 Supreme Court decision interpreting an “erroneously codified” 1929 version of the statute at issue where, as the current Court admitted, “the erroneous wording was central” to that decision.

Although the legislature subsequently fixed the error, the court noted that even after the fix the Court relied on the 1961 decision to find the attorney general had broad authority to sue anywhere the state had an interest and that the State legislature had not further acted to amend the statute to reject the post-fix Supreme Court decision. The logic is tortured, but basically, the court is saying that a ruling interpreting statutory language that never should have existed and which was subsequently fixed should trump an interpretation of the existing fixed statutory language.

Regardless, the court also rejected the argument that the AG had some inherent constitutional role as the state’s lawyer that he could exercise at his discretion. Moreover, the court noted that Gov. Chris Gregoire likely had the power as the state’s chief executive officer to direct the attorney general not to file the suit. The Court noted that Gregoire had objected to the suit but chose not to bring an action against the attorney general. The suggestion was that if the governor rather than the city had brought the action, the result would have been different. [PubliCola talked to Gregoire's office yesterday about their decision and strategy.]

In short, the court simply was not comfortable with the city, as a creation of the state on a lesser footing than the state and its officers, trying to direct the attorney general’s actions. Had the governor been more aggressive in pursuing her dispute with McKenna, McKenna likely would have been directed to withdraw from the health care litigation. One might ask the governor why she doesn’t now direct McKenna to drop the suit.

In the second case, McKenna had refused to represent the Commissioner of Public Lands, Peter Goldmark, in an appeal of a case in which a public utility was condemning state trust land in the Methow Valley to build transmission lines. Here, the court noted that existing statutes required without equivocation that the attorney general represent state officers. The attorney general had no discretion to reject the request of his client, the Commissioner of Public Lands, to pursue an appeal.

The AG, contrary to McKenna’s arguments, is not some super lawyer that can act based on his view of what is best for the state and its citizens. Rather, McKenna, like other lawyers, must act based on the direction of his clients – state officers and the citizens of the state.
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