That’s the thrust of a pair of state Supreme Court rulings issued Thursday on the subject of Rob McKenna’s authority, one sparked by the momentous national debate over President Barack Obama’s health-care overhaul, the other by a decidedly smaller dispute over a power line in the Methow Valley.
Justices agreed unanimously that McKenna was within his legal rights to throw Washington’s weight behind a multistate lawsuit against the federal health insurance law.
“The people of the state of Washington have, by statute, vested the attorney general with broad authority,” Justice Susan Owens wrote.
The court left for another day a question about the relationship between McKenna’s current job and the job he is running for, governor.
Owens suggested the decision might be different if Democratic Gov. Chris Gregoire had ordered Republican McKenna to pull out of the lawsuit, but the court didn’t rule on that point. Gregoire has spoken out against the lawsuit, but it was the City of Seattle, not her, trying to force McKenna’s withdrawal in court.
In the other case, justices ruled 7-2 that McKenna must represent state Lands Commissioner Peter Goldmark, another elected Democrat, in his appeal of a case involving the condemnation of state land. Among other duties, McKenna is the lawyer for state agencies.
“If the attorney general could refuse to represent the commissioner,” Justice Charles Johnson wrote, “then the commissioner could be left without any legal representation whatsoever. Such refusal would place agency policy-making decisions with the attorney general, rather than the elected official, board, or administrator who has been delegated that duty.”
Justices essentially said Thursday that the attorney general doesn’t need a client to get involved in a case, but when he does have clients, he can’t drop their cases.
“If you take these two cases together overall,” said Hugh Spitzer, affiliate professor at the University of Washington law school, “they strengthen the hand of an elected executive officer, including the governor, as a client” of the attorney general.
Still, McKenna told reporters he was pleased the court allowed him to continue participating in a challenge of the federal requirement for people to buy health insurance. He sees the mandate as unconstitutional.
In August, a panel of the Atlanta-based federal appeals court agreed, siding with the 26 states, including Washington, that have sued. Another appeals court in Cincinnati reached the opposite conclusion, and the dispute is likely headed for the Supreme Court.
It remains to be seen if eliminating the mandate would kill the whole health care act. Gregoire argues the 2010 law benefits Washington by improving residents’ access to health care.
McKenna said the court is “upholding my authority to do my job, which is to defend the Constitution.”
The ruling leaves the door open for the Legislature or ballot initiatives to challenge McKenna’s power. The court said McKenna’s authority hinges on state law, not the state constitution.
“What the voters and the Legislature can giveth, they can taketh away,” Spitzer said. “I don’t think anybody’s looking to monkey around with the attorney general’s powers, but the Legislature or the voters can do it.”
The court said it had never before been confronted with an attorney general’s refusal to defend a state official.
Clients don’t usually disagree when his office tells them they can’t win and ought to throw in the towel, McKenna said: “I can’t think of a single instance where this has happened.”
But that’s what happened when Goldmark tried to appeal a ruling against the state that allowed the Public Utility District No. 1 of Okanogan County to condemn state land to build a power line.
McKenna said the effects of Goldmark’s victory are limited because it hinges in part on laws unique to the lands commissioner’s power – although the ruling also cites broader state laws. Those laws say the attorney general “shall” represent all state officials in court, but McKenna argued that shouldn’t mean he has to pursue cases through every avenue of appeal.
“We were surprised at the beginning that the attorney general abandoned his client, given the clarity of those statutes,” said Goldmark’s attorney in the Supreme Court case, David Bricklin.
Goldmark, in announcing his decision to appeal to the Supreme Court last year, said he had “retained the pro bono legal services of attorney David Bricklin, at no cost to the state or trusts.” But Goldmark’s spokesman, Bryan Flint, said Thursday that could change.
“(Bricklin) took on the case knowing there’s a possibility he may not get paid, and we are yet to determine if, when and how he will get compensated,” Flint said.
Bricklin said Thursday he never intended to work for free. “I’ve been sending them bills and haven’t been getting paid,” he said.
Now McKenna’s office plans to appoint a lawyer from outside the agency to represent Goldmark.
Justices Debra Stephens and Richard Sanders dissented from the ruling favoring Goldmark, saying the opinion clashes with the one they issued in the health care case.
