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.’”
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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.
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.”
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.
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.
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 firstname.lastname@example.org, blog.thenewstribune.com/politics