Making It Hard for McKenna

On November 18, Laura Wishik, an attorney for the City of Seattle, stood before the nine justices of the Washington State Supreme Court and stated her request. “We’re asking this court to say, ‘Whoa, Mr. Attorney General,'” Wishik said.

Whoa? Corny language, sure, but also accurate on several levels.

Wishik’s formal reason for being at the high court that day was to try to yank the legal reins on Republican attorney general Rob McKenna, arguing that he had overstepped his authority when, in March, he joined a federal lawsuit seeking to invalidate parts of President Barack Obama’s health-care law. Wishik called McKenna’s suit, which is still grinding away in federal court, “an unlawful exercise of the attorney general’s authority,” and she argued that, because McKenna lacks the support of Governor Chris Gregoire or any other top state officials for his action, he’s basically running ahead with a case in which “he has no client.”

The justices were clearly interested in weighing in on the limits of the attorney general’s power (though it was far from clear they’d buy Wishik’s reasoning), but there were also obvious political reasons for the hearing. To start with, it would not have occurred had McKenna not joined the suit against Obama’s health-care law in the first place. In making that decision, the attorney general must have noticed that targeting Obama’s initiative might win him points among the Republican base, which he would like to have with him when, as is widely expected, he formally launches his 2012 campaign for governor. (McKenna himself did not appear at the supreme court hearing, sending a surrogate to argue on his behalf: state solicitor general Maureen Hart. His spokesperson Janelle Guthrie said that’s because “it’s not about him,” though the whole thing was plainly all about him—his decision to file the suit, his interpretation of his powers, his assumed plans to run for governor, and the desire among Democrats to cast him as an overreaching arch-
conservative before he even officially declares his candidacy.)

“Yes, there’s politics involved here,” Wishik admitted to the justices. “Who could miss it?” But, Wishik added, at the heart of the case before the court is this question about McKenna’s decision to join the health-care lawsuit: “What authority does he have?”

“Ample authority,” responded Hart, the attorney representing McKenna.

Their arguments ranged over large swaths of legal precedent and statutory language related to what exactly McKenna’s authority really is, but 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 wants 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? Hart’s 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 Seattle city attorney Pete Holmes, on whose behalf Wishik was arguing at the state supreme court, sees it. “I have a client,” Holmes told me, referring to Seattle’s mayor and city council. “He doesn’t.”

There was a second McKenna-related item before the court that morning, one that further highlighted the effort to slow
McKenna’s momentum. That case, heard right after the arguments over the health-care lawsuit, involves an attempt by Wash-
ington’s Democratic public lands commissioner Peter Goldmark to force McKenna to appeal a lawsuit that McKenna doesn’t want to appeal. (In Okanogan County, there’s a public utility district hoping to string power lines across state public trust lands despite Goldmark’s objections. The most recent ruling in a related lawsuit went against Goldmark, and Goldmark wants that 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”—essentially, another accusation that McKenna has overreached and abused his powers.

It will likely be about six months before we hear what a majority of the justices think. Already known, however: McKenna feels he has the power to do everything he wants, and state Democrats are going to do everything they can to stop him.