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McKenna’s role in health care suit challenged

OLYMPIA – Washington state has entered both sides of a federal lawsuit challenging health care reform, and Thursday the state Supreme Court tried to figure out who had the authority to jump into the fray.

The city of Seattle is suing Attorney General Rob McKenna, saying he overstepped his constitutional authority by joining a federal case in Florida against some aspects of health care reform, and wasn’t representing the interests of the taxpayers.

But justices questioned Seattle attorney Laura Wishik as to whether the city even has the right to challenge McKenna’s actions. Yes, replied Wishik, because the city is a taxpayer and is representing its citizens.

“We’re asking this court to say, ‘Whoa, Mister Attorney General, you did not have standing …You need to take a step back,’ ” she said.

But what about citizens who don’t support the new health care law, asked Justice Gerry Alexander. It seems ironic that both the city of Seattle and McKenna claim to be working on behalf of the citizens, he said: “How do we sort out where different people have different interests?”

And what if health care reform winds up costing Washington taxpayers more; would that affect the city’s ability to sue, asked Justice Jim Johnson. No, said Wishik, because previous courts haven’t ruled there has to be a dollar-for-dollar showing of benefit or loss.

Wishik argued that McKenna has no authority under the state Constitution or statutes to join the lawsuit without the support of other state agencies or officers. State Solicitor Maureen Hart, representing McKenna, said he has that authority whenever he believes federal law violates the state’s rights. The state is McKenna’s client, she said.

“What is the state?” Chief Justice Barbara Madsen asked. “Is it this amorphous entity, or can the state only act through its officials and agencies?”

The state is acting through McKenna, Hart contended. But that’s not the usual way the courts view the state, Madsen said; it suggests a “broad notion of a conglomerate of people who may or may not agree with each other.”

And if the state is his client, Justice Mary Fairhurst asked, with whom does he consult to follow rules of professional conduct that demand an attorney abide by a client’s decisions?

There’s not a single client, and McKenna is taking his authority from state law, not other state officials, Hart said.

Gov. Chris Gregoire and some Democratic legislative leaders have objected to McKenna joining the suit on behalf of the state, although Gregoire filed a brief with the state Supreme Court that said he had the right to join personally as the state’s attorney general, just not as a representative of the state as a whole.

Gregoire and the city of Seattle are “at odds” over whether he can get into the federal case, Hart noted. And the federal court has allowed Gregoire and several other Democratic governors to file a “friend of the court” brief opposing McKenna and other Republican governors and attorneys general.

So is Washington involved in the federal lawsuit on both sides, Justice Debra Stephens asked. It is, Hart said.

“Yes there’s politics involved here,” Wishik said. “But the real heart of this case is, what authority does the attorney general have?”

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