Washington state lawmakers are scheduled to weigh in on the scope of the state's attorney general, an issue that recently came before the state Supreme Court.
The Senate Judiciary Committee will meet today to discuss under what circumstances Washington state’s chief legal officer can act independently, even if it’s against the wishes of the governor or other agency heads.
Attorney General Rob McKenna angered state Democrats, including Gov. Chris Gregoire, by signing onto a multistate challenge to the national health care reform law earlier this year.
The attorney general is elected by voters and typically represents state officials or agencies. State law allows him to bring lawsuits independently on behalf of the residents of the state.
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The main question in the health care lawsuit is whether that ability to sue on behalf of the state is limited by state statute, or whether it’s broader.
McKenna, a Republican, is among nearly two dozen other attorneys general who have signed on to the effort led by Florida Attorney General Bill McCollum in the lawsuit challenging the constitutionality of the national health care overhaul that became law this year.
A month later, Seattle City Attorney Pete Holmes sued McKenna, arguing the attorney general overstepped his authority by joining the lawsuit.
Gregoire filed a brief in support of the Seattle lawsuit but on narrower legal grounds, saying that McKenna is required to consult with her before joining a federal lawsuit on behalf of the state unless state statutes indicate otherwise. If he chooses to file a lawsuit over the governor’s objections, she argues that he should sue on behalf of his office instead of the state as a whole.
The Seattle lawsuit, as well as another case over a separate issue raised by the state’s public lands commissioner, were heard by the state Supreme Court last month. There was no timeframe on when the court may rule on either case.
But Sen. Adam Kline, a Seattle Democrat and chairman of the Senate Judiciary Committee, said he wants to make sure that if there’s any ambiguity in state statutes, lawmakers shouldn’t wait for the court to make a decision.
“If we’re going to change the statutes, and that’s a big if, we need to do that, not the court,” he said Monday, noting that there’s currently no bills introduced on the issue.
McKenna will not be attending today’s meeting, but his chief deputy will submit written comments to the committee, said McKenna spokesman Dan Sytman.
“As an independently elected official, the attorney general is accountable to the people rather than any particular elected or appointed official,” Sytman said by email. “This ensures that legal matters are pursued, or not pursued, based on the law and nothing else.”
In the public lands case, commissioner Peter Goldmark sued this summer after McKenna refused to appeal a right of way case in Okanogan County. The county’s Public Utility District won a lower court case allowing it to run power lines across state trust land that Goldmark manages.
Goldmark, a Democrat, argued that state law requires the attorney general to defend him upon request. But McKenna said he can decide which cases to appeal on his own.
Judiciary Committee member Mike Carrell, R-Lakewood, said that he didn’t think changes to state statutes were necessary, and that criticism of McKenna’s actions in the cases is “all political.”
Carrell said he believes the fact that McKenna, one of the most prominent Republicans in the state, is a likely GOP candidate for governor in 2012 is what’s driving the health care lawsuit.
“This is an initial shot across the bow,” he said.
Kline said that today’s meeting “is not an opportunity for bashing the attorney general.”
“What needs to come out of this is the certainty of the role of the attorney general,” he said. “We have two opposing views on each of these two questions that are legitimate that reasonable people will disagree on.”