Woah there, Mr.
  • Woah there, Mr.
That's how Laura Wishik, an attorney for the City of Seattle, described the point of her arguments today before the Washington State Supreme Court, in which she tried to convince nine justices, many of them openly skeptical, that Republican Attorney General Rob McKenna overstepped his authority when he joined a federal lawsuit seeking to invalidate parts of President Obama's health care law.

Calling the health care lawsuit "an unlawful exercise of the attorney general's authority," Wishik argued that McKenna is spearheading a case in which "he has no client."

The City of Seattle, who Wishik represents, didn't want the health care lawsuit to be filed. Neither did Governor Christine Gregoire. And a host of other elected state leaders have voiced their opposition to its aims. "We are here to say this isn’t right," Wishik told the court.

City Attorney Pete Holmes was there at the Temple of Justice this morning to listen to the arguments, and said he would have presented Seattle's case himself except that McKenna chose not to show up today. Holmes told me that he and McKenna had been in discussions about arguing against each other before the high court, but that late last week McKenna said he'd be out of town for the hearing. Since McKenna was sending a surrogate (Maureen Hart) to represent him, Holmes decided to do the same. Janelle Guthrie, spokesperson for McKenna, declined to say where he was but explained his absence this way:

Ultimately, the arguments today are not about Attorney General McKenna, but rather about the authority of the attorney general's office to defend the rights of the state and its people as a whole now and into the future. That is why he is not personally arguing these cases. That is why he is not present in the courtroom today. It's not about him.

Holmes: I have a client here. He doesnt.
  • Holmes: "I have a client here. He doesn't."
But it was, as I've said before, all about McKenna—both his interpretation of state law and his assumed plans to run for governor in 2012.

"Yes, there’s politics involved here," Wishik admitted to the justices. "Who could miss it." (She left open to interpretation whether she saw political motivations in McKenna's decision to challenge the health care law, in Holme's decision to challenge McKenna's challenge, or in both actions.) But, Wishik added, at the heart of the case before the court is this question about McKenna's decision to push forward with the health care lawsuit: "What authority does he have?"

"Ample authority," responded Hart, the attorney representing McKenna.

While this morning's arguments from both Hart and Wishik ranged over large swaths of legal precedent and statutory language related to what exactly McKenna's authority—ample or not—really is, it became clear along the way that at least one part of Hart's "ample authority" theory was highly circular.

Asked to describe who McKenna's client is in this case, Hart responded: "The client here is the State of Washington." But: If McKenna can't name a specific elected official in Washington, other than himself, who wanted this lawsuit, and if a majority of Washingtonians voted for Obama (which they did), then how does McKenna know the State of Washington wants him to challenge Obama's health care reform law? The answer, essentially, was that if the attorney general does something, that something is by definition in the interest of the State of Washington. In other words: McKenna is both client and attorney in this case, and that's just fine under state law.

That's not how Holmes sees it. "I have a client," Holmes told me, referring to Seattle's mayor and city council. "He doesn't."

There were many questions from the justices, however, about whether the City of Seattle even has standing to challenge McKenna on this matter, suggesting they may toss Seattle's case on that issue alone. Holmes read their mood somewhat differently. "The justices are clearly interested in both cases," he told me.

Goldmark: Could I have a lawyer, please?
  • Goldmark: Could I have a lawyer, please?
Both cases?

Holmes was referring to a second McKenna-related item that was before the court this morning, an attempt by Washington's Democratic Public Lands Commission, Peter Goldmark, to force McKenna to appeal a case that McKenna doesn't want to appeal. (That case involves an attempt by an Okanogan County public utility district to string power lines across state public trust lands. The most recent ruling went against Goldmark, who wants the ruling appealed despite McKenna's disinterest in doing so.)

Attorney David Bricklin, arguing on Goldmark's behalf, noted that state commissioners like Goldmark are prohibited from using lawyers other than McKenna and his staff, and so McKenna's decision not to appeal leaves Goldmark without adequate counsel and recourse. Several of the justices seemed sympathetic to this idea, and after the hearing Goldmark himself told reporters that he understood Chief Justice Barbara Madsen to have noted, during the oral arguments, that "the attorney general in this case was purporting to be the judge."

McKenna's counsel in this matter, Alan Copsey, disagreed of course. He argued that McKenna was simply exercising another part of his well-established power to use his own discretion. He can file suit against Obama's health care law in federal court if he so chooses, and he can elect not to appeal Goldmark's lawsuit in state court if he so chooses. It's all up to him.

That's too much power, argued Goldmark's attorney. "I think what the attorney general is seeking here is a very dangerous precedent," he told the court.

If past rulings are any guide, it could be about six months before we hear what the justices themselves think.