"It wasn't a good day for Rob McKenna," Seattle city attorney Pete Holmes exclaimed following a split decision on two cases decided by the Washington State Supreme Court last week. And that was the assessment of the petitioner who lost.
The winning petitioner, Commissioner of Public Lands Peter Goldmark, all but kvelled over the "historic decision," applauding the court for "striking down what would be a dangerous precedent."
The first case was Seattle v. McKenna, a challenge to the attorney general's authority to unilaterally initiate an anti-health-care-reform lawsuit. The second was Goldmark v. McKenna, an attempt to force the attorney general to represent the commissioner of public lands.
While McKenna won the former and lost the latter, both decisions served to narrow the scope and discretion of his office far short of the broad common-law and constitutional authority McKenna had claimed. The end result of the court's decisions is arguably a much more constrained and diminished office than McKenna inherited when he was elected in 2004. And in both cases, it's a result of McKenna overreaching.
Unsurprisingly, the bulk of the headlines focused on the higher-profile health-care-
reform lawsuit (which McKenna won due to precedent based on a 40-year-old codification error). But while the court affirmed the attorney general's authority to initiate a lawsuit without a request from another state officer, it finds the attorney general has no common-law or constitutional power to initiate such lawsuits. In other words, the legislature or the people could revoke the power he has, simply by amending the law. Furthermore, the majority suggests, the governor's "superior authority" would trump the attorney general's when the two disagree on the correct course of action.
Governor Chris Gregoire has stated that she will not sue to make McKenna withdraw from the lawsuit, as it would still continue without him. Though if she did, she'd likely win.
But the case with the more far-reaching implications was actually Goldmark v. McKenna, in which McKenna claimed broad discretionary powers to deny state officers and agencies legal representation, thus denying them the ability to enforce their policies via the courts.
But the court would have none of it.
The discretion McKenna claimed he had would essentially allow him to set policy for other state officers, the court recognized, a danger that "should be obvious in a partisan political system such as ours."
"We have never been squarely presented with an instance of the attorney general refusing to represent a state officer on an appeal," the seven-justice majority remarked.
Citing statutes that the attorney general "shall... represent the state" and its agencies "in the courts," and shall "institute, or defend, any action or proceeding... when requested so to do by the commissioner," the justices concluded that "no ambiguity can be found in either of these statutes." The justices went on to emphasize that the court has repeatedly found that our attorney general "lacks common-law powers" (citing Seattle v. McKenna), and that nothing in his constitutional role as the state's chief legal officer "permits the attorney general to refuse to represent state officers when statutorily required to do so."
McKenna was seeking to dramatically broaden the power of his office by assuming a policy-setting role, both in claiming the affirmative authority to initiate litigation and the sole discretion to grant or deny officers access to the courts. But even in winning the former case, the court placed clear boundaries on his office, defining the source of his authority as purely statutory, while in losing the latter he lost any pretense of discretion beyond that of the usual attorney-client relationship.
All in all, a bad day indeed for our state's top lawyer.