In a blow to Attorney General Rob McKenna’s broad claim of discretionary authority, the Washington State Supreme Court today granted review to City of Seattle v. Robert M. McKenna, Seattle City Attorney Pete Holmes petition to compel McKenna to withdraw from the federal lawsuit challenging the constitutionality of key health care reform provisions.
In granting review, Supreme Court Commissioner Steven Goff not only rejects McKenna’s multiple proposed grounds for dismissing the petition (that there’s no original jurisdiction, that there’s no justiciable controversy, that Holmes lacks standing and that there’s no claim upon which relief can be granted), he also affirms a major premise behind Holmes argument that the Attorney General lacks authority to participate as plaintiff in a lawsuit independent of state officer client:
The Washington Constitution provides that the attorney general “shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” CONST. art. 3, § 21. When language of this sort is used in a constitution to describe the powers or authority of a state official, the official does not have the common law powers that might be associated with such an office, but only the powers expressly given by the legislature. … Thus, this court has stated that “[t]he powers of the Attorney General are created and limited not by the common law but by the law enacted by the people, either in their constitutional declarations or through legislative declarations in pursuance of constitutional provisions.”
Sound familiar? Of course, that’s exactly what I’ve been arguing (for example, here and here) in my comprehensive analysis of the legal issues surrounding Goldmark v. McKenna, Commissioner of Public Lands Peter Goldmark’s petition to compel McKenna to provide statutorily mandated legal representation.
McKenna has repeatedly cited a broader duty to defend both the public interest and the interests of the state as a whole, as the basis for claiming discretionary authority to refuse an otherwise lawful request for legal representation from a state officer client, but such discretion would appear to contradict the plain language of the statutes. Thus if the Court affirms the relatively narrow interpretation of the Attorney General’s powers, as stated above by Commissioner Goff, it is hard to see how McKenna can prevail against Goldmark.
A hearing on Seattle v. McKenna is not scheduled until Nov. 18, with briefs due beginning in August, but with Goldmark v. McKenna likely to be expedited to accommodate the tighter schedule of the appeal that sparked it, some of the main issues in the former case may be settled by the latter, far in advance of oral arguments. And while it would be a mistake to draw too many parallels between the cases, there is no question that the two overlap, in that they both challenge McKenna’s shaky claim to broad extra-statutory powers.
Eat it Luigi..
Goldy for Attorney General!
Seems like the papers have to cover it now. Right?!
Bobby Mac not only does not understand his job and the state constitution, he shows himself to have no understanding of electoral politics.
Whatever his political or legal aspirations are, to suffer repeated defeats in the pursuit of dubious claims has never shown itself to be a path for advancement or success in political or legal professions.
Goldy: “And while it would be a mistake to draw too many parallels between the cases, there is no question that the two overlap, in that they both challenge McKenna’s shaky claim to broad extra-statutory powers.”
You understate. McKenna’s position in both cases is untenable. The overlap is large. Who the hell does he think he is? Attorneys represent others, not themselves. McKenna doesn’t seem to get that.
@4) He’s first and foremost a politician.
Would be interesting to go back and see what Gregoire did in various cases as AG and the position she took. The difference is she is a partisan hack and always has been. So representing Democrats was never a contencious issue.
Anyway, these Court cases are important in defining roles and will have long-term impacts…whoever is in power.
Snap!
And Mr. Cyndi, if Governor Gregoire is a ‘partisan hack’, we need more partisan hackery of that caliber.
Cynical @6,
Well, the tobacco lawsuit is a good parallel, except that while Gregoire took the lead, she brought the suit with the full support of the governor, who our constitution gives supreme executive power.
That said, it doesn’t really matter what McKenna or prior AGs may have gotten away with. Holmes and Goldmark are challenging his authority now, and if it is not settled law, it soon will be.
Goldy–
True enough
It’s important to get this settled.
BTW Goldy–
Where is all that Tobacco money?
How come we have a massive Budget Deficit??
I thought Gregoire solved all that for us with the lawsuit???
I’m just askin’
@6 “Would be interesting to go back and see what Gregoire did in various cases as AG and the position she took. The difference is she …”
… won the largest legal settlement in the history of the cosmos, bringing in $4.25 Billion for Washington taxpayers. Bobby Boy, not so much.
@6 “Anyway, these Court cases are important in defining roles and will have long-term impacts…whoever is in power.”
If our courts had to spend time re-deciding everything in our laws that’s as clear and settled as the laws defining McKenna’s duties and responsibilities, we’d have to triple your taxes to hire more judges.
So … McKenna filed a lawsuit when he had no client, and refused to represent a state agency client. Sounds to me like our state attorney general thinks he’s the in-house counsel for the Republican Party.
@11 The settlement stake for Washington was $4.5 billion over 25 years… $180 million per year. The bulk of it was used to pay for the state’s basic health plan for kids. It doesn’t come even close to putting a dent in the amount of tax cuts that have been made in the same period.