A few days ago, former U.S. Sen. Slade Gorton's column appeared on this page, apparently in reference to my recent inquiry, as chair of the Senate Judiciary Committee, regarding the acts of state Attorney General Rob McKenna.
McKenna had, first, joined our state as a plaintiff in a legal action challenging the constitutionality of the recent congressional health care reform without any consultation with his client — the state.
Second, in an unrelated matter, when his client state agency was sued by a county and lost in Superior Court, the agency sought to appeal. He refused.
Accordingly, I scheduled a hearing of the Judiciary Committee, which has oversight authority on legal matters, to ask two questions, both of which I made known to McKenna ahead of time:
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1. Under what circumstances may the attorney general initiate legal action on behalf of the state of Washington, without a specific request from a department of the executive branch or the governor?
2. Under what circumstances, when the state is a defendant, may the attorney general refuse to take further action by appeal, when it is requested by a department or the governor, and is not frivolous?
Both questions raise issues, not merely about McKenna’s conduct of the office, but much more importantly about the duties of our state’s lawyer in general. These questions are the same, whether the current holder of the office is a Democrat or Republican, because they have to do with the proper relationship of lawyer and client. McKenna did not appear before the committee to answer these questions.
In his column, Sen. Gorton noted that the office is created in the state constitution, with the inference that the office is granted broad powers. Here’s the one sentence of the constitution that sets out the powers: “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.”
That’s it. All duties of the office, beyond being legal adviser, are set in law. We, the Legislature, create those laws. We the people are the client. No law authorizes our lawyer to sue in our name without our approval. No law authorizes our lawyer to refuse to take our state’s appeal, when the state is being sued.
Sen. Gorton noted that since 1941, our law has prohibited state agencies from hiring their own lawyers to represent them in court. I agree strongly with him that this allows the state to speak with one voice. But it’s precisely this monopoly on legal representation that makes it McKenna’s responsibility, first, to never substitute his own voice for that of his client, and second to represent his client zealously within the bounds of the law.
Sen. Gorton contends, “the office of the attorney general provides a legal check and balance in the executive branch.” Here, we disagree. The system of checks and balances for which our federal and state constitutions are justly famous involves checks and balances of powers between the branches of government, not within them. The executive branch has one chief, not two.
No, the holder of a statewide office should not be treated as an automaton, a button to be pushed by the governor or department heads when they want action. A lawyer may rightly expect a high degree of attention and cooperation from the client, since he or she is working for the client’s interest. But ultimately it is the client who occupies the preeminent role in this relationship.
I’m a lawyer, and I take seriously every lawyer’s obligation to represent the client, and to subordinate his or her own agenda to the client’s. We the people are the client. It’s our name at the top of those legal papers.
I have a great deal of respect for McKenna, and whether he were a member of my own political party or not, I believe that his duties are set forth in the law, and that he owes it to us to act within them. Respect for the law is respect for us — his client.
Sen. Adam Kline, D-Seattle, is chairman of the Senate Judiciary Committee.