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Justices say McKenna can challenge health care law

Thu., Sept. 1, 2011, 10:53 a.m.

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.

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