On Other Blogs

PI.com: Contradictory State Supreme Court Decisions?

By Josh Feit September 1, 2011

Citing Justice Debra Stephens' dissenting opinion in one of this morning's headline Washington State Supreme Court rulings today, the PI.com asks if the court is contradicting itself.

Quickly: The court ruled this morning that Washington State AG Rob McKenna had the discretion to join the multistate lawsuit against the federal health care reform law, but simultaneously ruled in a separate case that McKenna did not have the discretion to decide against representing state lands commissioner Peter Goldmark in Goldmark's case to prevent a utility from using public lands.

Stevens' dissent in the Goldmark case states:
“We say in McKenna that the attorney general has ‘discretionary authority to act in any court, state or federal, trial or appellate, on ‘a matter of public concern,’ provided that there is a ‘cognizable common law or statutory cause of action.’’ Moreover, the McKenna decision rejects the argument that ‘where the governor and attorney general disagree, the attorney general may not proceed in the name of the State.’ This view is at odds with the majority’s analysis. Reading the two cases together, it is unclear why a writ of mandamus is appropriate to force the attorney general to follow the commissioner’s wishes in this litigation but is inappropriate in McKenna. Consistent with our decision in McKenna, I would recognize that the attorney general’s duty to represent state officers in litigation is generally not subject to a writ of mandamus. While the attorney general’s role to provide legal counsel is mandated by statute, it fundamentally involves discretion and legal judgment entrusted to an independently elected official. The statutory duty is for the attorney general to exercise discretion. This is no mere ministerial task subject to the extraordinary writ of mandamus.”

I'm not a Suprme Court Justice, but I don't agree that the rulings are contradictory. In fact, they dovetail pretty well. In both instances the Supreme Court prioritizes the AG's role to defend the state. In the health care ruling—whether you agree with the policy or not—the court is saying the AG has the discretion to go to bat for the state against the feds. And in the Goldmark ruling, the court is saying the AG needs to defend the state against a private land grab.
Show Comments