In defending his refusal to fulfill his statutory duty to represent Public Lands Commissioner Peter Goldmark in court, Washington State Attorney General Rob McKenna has publicly worried that an appeal in the underlying eminent domain case could create “bad law,” an ironic concern considering that by forcing a constitutional showdown with Goldmark, McKenna could end up narrowly redefining the powers of his office… including his claimed power to participate in the Florida lawsuit seeking to toss out key provisions of the landmark Patient Protection and Affordability Act.
As I’ve previously explained in detail (here and here), Washington’s constitution and statutes are unambiguous. In states where the constitution requires that the attorney general “shall perform such other duties as may be prescribed by law,” courts have generally ruled that the office does not retain the traditional common law powers attributed to the position, but rather only those that, well, “may be prescribed by law.” And RCW clearly states that “It shall be the duty of the attorney general” to represent the commissioner “when requested so to do by the commissioner.”
McKenna appears to claim a broader power to protect the public interest that trumps his statutory duty to provide legal representation to state officers, a claim on which he seems unlikely to prevail given the clear language of the constitution and the statutes. And the state Supreme Court could merely leave it at that, granting Goldmark a writ of mandamus, and compelling McKenna to either bring the appeal or hire outside counsel to do so.
But the court could go further, by settling this issue once and for all. And if the court were to follow the West Virginia example and rule that office grants the attorney general no common law powers, but only those powers and duties prescribed in statute, it could prove a major blow to McKenna’s efforts to fend off a lawsuit from Seattle City Attorney Pete Holmes that asks the court to compel McKenna to withdraw from the Florida suit.
Indeed, as part of a recently filed brief, Holmes makes the exact same argument in a section titled “The Attorney General has only the authority granted by statute.”
Respondent assumes that the fact he is “independently elected” somehow clothes him with extrastatutory authority. … The history and provisions regarding the role of the Attorney General in this state demonstrates otherwise.
Holmes goes on to quote State ex rel. Winston v. Seattle Gas & Electric Co. (the same case I’ve previously cited), in which the court was unambiguous about the matter:
The legislation of the state shows that the legislature has not considered that the attorney general is clothed with any other power than that conferred upon him by the constitution or by express legislative enactment. Where it has been deemed necessary for the attorney general to appear and represent the state, authority for that purpose has been give to him by express enactment.
While I admit that there is a stronger legal argument to make that the attorney general has the discretion to take affirmative actions than he does to refuse statutory duties (for example, McKenna probably could have brought the appeal on his own initiative without Goldmark’s request), a ruling in Goldmark v. McKenna that confirms Holmes argument against extrastatutory powers would breath new life into a case that few have paid much attention to thus far.
And in the event that Holmes prevails, and the state Supreme Court orders McKenna to withdraw from the Florida lawsuit, it could have a huge impact in other states that share similar statutory construction where parties are challenging their attorney general’s power to join the Florida suit.
That’s admittedly a lot of “ifs,” but if McKenna is as cognizant of creating case law as he implies, then perhaps he should have thought this thing through before stubbornly denying an equally stubborn Goldmark his right to due process.