Attorney general's independence protects the legal rights of the state

December 27, 2010 

As Yogi Berra once said, "This is like déj vu all over again."

That’s why it is with some amusement — though the issues are quite serious — that I have followed recent news and commentary addressing the authority of the attorney general. I view these recent events from the perspective of having served the people of Washington as their attorney general from 1969 to 1981, so allow me to share some history concerning the role of the attorney general in our system of government.

It’s important to remember that the office of attorney general in Washington was created in the state constitution. This is not true of the majority of state officers, which were created by the Legislature. Under our constitution, the attorney general is elected by the people of Washington, not appointed by another state official.

The framers of our constitution adopted these provisions, and the people of Washington ratified them in 1889, as part of Washington’s fundamental law. They are no accident.

Our framers understood that a constitutionally established and independently elected attorney general would protect the legal rights of the state and the public, while an attorney general whose office depended upon the good will of other government officers might not. Our framers made certain that our state’s chief legal officer would have sufficient independence to represent the legal rights of Washington and its people, and not sacrifice those rights if they were at odds with the public policy preferences of other officials.

For nearly 70 years, since 1941, our statutes have affirmed that state officers and agencies are represented by the attorney general, and may not independently hire their own attorneys. This guarantees that a single state officer, educated in the law and answerable to the people of Washington, will consider the legal interests of the state of Washington as a whole, and take legal action based upon those interests as they affect all of state government.

In fact, the attorney general is the only state officer situated to know and qualified to evaluate the legal interests of the state across all of government. Throughout our history, this role of the attorney general has allowed the state to develop well-considered and consistent legal positions concerning the rights of Washington’s citizens and the state of Washington in the courts.

Recent events remind me of this history because during my service as attorney general, a bill was introduced to curtail this authority. The bill would have allowed state officers not necessarily trained in the law and not directly answerable to the people to hire their own attorneys. These outside attorneys could advance their patron’s particular policy preferences in the courts and in dealing with our citizens.

One of my predecessors, Smith Troy, a Democrat who served as attorney general from 1941 to 1953, wrote to the legislative committee considering that bill, urging its defeat. He explained that prior to 1941, a practice had developed where state officers and agencies hired their own counsel. He explained that this had led to a situation where the attorney general “had virtually no control over state litigation, conflicting interpretation of state statutes were being given to various state agencies, and, in general, the situation was, simply stated, a mess.”

In urging defeat of the bill, former Attorney General Troy explained that “any other course of action ... would run counter to an element of the basic system of checks and balances that is fundamental to our form of government.”

The bill died, and rightly so.

We are fortunate in our state government that the office of attorney general provides a legal check and balance in the executive branch. The attorney general’s independent obligation to protect the legal rights of the state and its citizens may cause him or her, on rare occasion, to take legal positions contrary to the desires of individual state officers, but these isolated disagreements should not cause us to doubt the importance of the attorney general’s obligation. It is a hallmark and strength of our form of government. It protects us all.

Slade Gorton of Seattle is a former state legislator, Attorney General and United States Senator. He can be reached at slade.gorton@klgates.com.

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