Judging from the headlines and ledes, you'd think the biggest news coming out of Olympia yesterday was the State Supreme Court's ruling in Seattle v. McKenna, a decision that affirms state attorney general Rob McKenna's authority to join the anti-health-care-reform lawsuit. Legally, it's not. The bigger news in terms of how it defines the scope and discretion of his office was the AG's thumping loss in Goldmark v. McKenna, a topic on which I'm in the midst of writing a more detailed post. But since Seattle v. McKenna is garnering the bulk of the headlines, I thought I should take a few moments to address that case first.

In fact, the majority opinion (pdf) was both narrow and unsurprising, adding little to an already settled part of the law. And while McKenna won a pragmatic victory, he actually lost on his broader claim of discretionary authority under the constitution and/or common law.

Seattle City Attorney Pete Holmes had asked the court for a writ of mandamus to compel McKenna to withdraw from the anti-HCR lawsuit, a rather extraordinary remedy that the court may grant only under very limited circumstances. Specifically, "mandamus is only available to compel an official to do a nondiscretionary (i.e., 'ministerial') act." Since there was nothing "nondiscretionary" about McKenna's actions, it is not clear that mandamus would be available even if the court found that McKenna lacked the authority to join the anti-HCR lawsuit. Regardless, the court found that the AG does have this discretionary authority.

But in doing so, the court also reaffirmed that the AG has no common law authority, but rather, only those powers specifically enumerated by the constitution and statutes. Furthermore, the court ruled that the AG's direct constitutional authority is extremely limited, specifically, those prescribed under Article III, Section 21:

The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.

That's it. The AG's only directly enumerated power under the constitution is to "be the legal adviser of the state officers." In a conference call with reporters yesterday, McKenna insisted that his authority "is rooted in constitution," but that's not what the majority opinion says:

The Washington Constitution, therefore, does not directly give the attorney general the authority to sue on behalf of the State of Washington, at least when not done on behalf of another state officer.

To find the AG's discretionary authority to initiate litigation on behalf of the state, the court looked to RCW 43.10.030, the relevant part being "The attorney general shall . . . [a]ppear for and represent the state before the supreme court or the court of appeals in all cases in which the state is interested." The emphasis is mine, and I place it there to highlight a curiosity. For while the court stresses that "interpretation of this statute is not a matter of first impression," and that "precedent establishes that this statute confers broader authority than the plain text indicates," the court also admits that this precedent is based on an earlier error by the code reviser that replaced the specific reference to "the supreme court" (later amended to add "the court of appeals") with a general reference to "the courts."

In fact, a plain reading of RCW 43.10.030 does not grant the AG a broad discretionary authority to represent the state in federal courts, but rather, only in the state supreme court and court of appeals. And in Seattle v. McKenna, the court acknowledges this. Yet...

Though this construction appears to be predicated upon an erroneous codification of the statute, the legislature has acquiesced in our interpretation for over 30 years. ... Our interpretations of statutes form the background against which the legislature acts. We are reticent to remove from that background an interpretation that our coordinate branches of government have relied upon for such a lengthy period.

So in the end, McKenna's supreme court affirmed discretionary authority to initiate litigation on behalf of the state (when not done on behalf of another state officer) stems from precedent based on a since-corrected "erroneous codification of the statute." A legal victory for the AG, sure, but not much of a moral one.

As for the impact of this ruling, there's not much practically. The court recognizes "the governor’s superior authority where the attorney general and governor disagree on the correct course of action," suggesting that Gov. Gregoire could file suit to compel McKenna to withdraw... though she has since stated that she will not. And since the court finds the AG's authority solely in statute, the legislature or the people could amend the statute to revoke this authority and compel his withdrawal, McKenna's conference call claim of constitutional authority notwithstanding. Precedent has been upheld. That's all.

But the biggest reason why this ruling has little practical impact is that the anti-HCR lawsuit will proceed with or without McKenna's participation, so in the end this ruling changes nothing.