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September 1, 2011 in Region
Justices say McKenna can challenge health care law
OLYMPIA — State Attorney General Rob McKenna did not overstep his legal authority when he joined a lawsuit last year against the federal health care reforms pushed by President Barack Obama, the state Supreme Court ruled today.
But he did overstep that authority when he refused to handle an appeal of a property rights case for Public Lands Commissioner Peter Goldmark, the court said in a separate decision.
The two cases, which were heard the same day by the court and involve some of the same issues of constitutional authority of the state’s top legal officer, generated very different rulings from the court. So different that Justice Debra Stephens argued they are “inconsistent” in a dissent she filed in the Goldmark case.
Both cases involved a request by a government entity for the state’s highest court to issue an order telling McKenna what to do, known in legal terms as a writ of mandamus.
The City of Seattle had asked the court to order McKenna to get out of the lawsuit over health care reform, arguing the change in law was a benefit so his participation in an attempt to overturn it was not in the best interests of the state.
But the state constitution disperses power among different statewide elected officials, and the people have, over the years, vested the attorney general broad authority, the court said. “Attorney General McKenna’s decision to sue to enjoin the enforcement of the (health care act) falls within that broad authority” and he has no obligation to withdraw from the lawsuit.
Previous cases have held that a governor could withhold funds from an attorney general over a case in which the two disagree on the correct course of action, the court noted. But Gov. Chris Gregoire is not part of this particular case.
If she were to challenge McKenna’s participation in the health care reform lawsuit, the court suggested the result might be different: “We … leave for the appropriate case the issue of what result the Washington Constitution compels where the governor disagrees with the attorney general’s discretionary decision to initiate litigation,” the court said.
The case involving the dispute between Goldmark and McKenna revolves around efforts to condemn land for a power line by Okanogan County Public Utilities District 1. Some of the land is state property managed by the Department of Natural Resources, which Goldmark heads.
DNR had argued the Okanogan County PUD has no authority to condemn state land but lost that claim in a summary judgment. Goldmark wanted to appeal that ruling, McKenna refused to allow one of his deputies to handle the appeal or to pay for a special assistant attorney general from outside the agency to be appointed. Goldmark hired a private attorney who sought a writ of mandamus from the high court; McKenna filed a contingent appeal on the lands case, saying he’d withdraw it if he won the fight over the writ.
“We have never been squarely presented with an instance of the attorney general refusing to represent a state officer on an appeal,” the court said in its majority opinion. “The plain language of the statutes, however, leaves little to question.”
The attorney general has a mandatory duty to represent the lands commissioner, and that duty wasn’t satisfied, as McKenna argued, simply by taking the case to summary judgment. The appeal is also part of that duty, the court said. It ordered McKenna to provide Goldmark with representation throughout the appeal.
In her dissent, Stephens argued against ordering McKenna to take up the appeal, saying that it could “trivialize” the writ of mandamus and expand the court’s duty into resolving disagreements between other state elected officials.
“While the attorney general’s role to provide legal counsel is mandated by statute, it fundamentally involves discretion and legal judgment entrusted to an independently elected official,” she said.
Supermajority for taxes unconstitutional, judge rules 
maria on September 01 at 11:46 a.m.
What is Romney’s stance on this issue?
SpokaneLiberal on September 01 at 1:05 p.m.
Good.
McKenna is an independent Official - he should be able to challenge laws as he sees fit - it is commensurate with his position.
But the law should stand. It is no more of an imposition than Medicare D.
valleyman on September 01 at 4:05 p.m.
@SpokaneLiberal:
I’m glad you see the separation of powers issue as it should be seen. I appreciate you stating that for others to see.
As for whether or not this should stand, I guess that’s what we get to watch and see. I will however state the imposition comes from the mandate to carry insurance or be fined. I’m not certain, but I don’t believe there is such a clause in Medicare.
D Statler on September 01 at 5:22 p.m.
I am wondering what kind of job McKenna would do as a governor? He did authorize his office to represent the ratepayers and the UTC in the last AVISTA inquest.This was a major conflict of interest that didn’t serve us in the least. I kind of get the impression McKenna just goes after whoever he wants. Independent review / position is great when it is in the best interest of the public he represents. Looks like he may be grandstanding alittle. He probably would do no worse than Gregoire has done if elected tho.This next election is going to be a good,mudslinging adventure. I also find it interesting the positions that the supreme court takes on stuff.Legal and moral justice are truly not the same in Washington State.
SpokaneLiberal on September 09 at 4:17 p.m.
So they think clearing a guy who a Supreme Court Panel said was a liar will re-establish faith in the ISP? Oh yes and it is based on “new” evidence that only the investigator but not the Highest Court in Idaho has access to. What is this evidence? Its a secret. A plain reading of his two testimonies are in direct contradiction. No new evidence can lead to any conclusion other than one of the two times he lied to secure a conviction.
No wonder we have lost faith in law enforcement.