City of Seattle asks Supreme Court to force Rob McKenna to back out of anti-reform suit

Upset over Rob McKenna's decision to involve Washington State in the partisan Republican lawsuit that seeks to invalidate the Patient Protection and Affordable Care Act, Seattle City Attorney Pete Holmes has filed a writ of mandamus with the state Supreme Court (with the backing of Mayor McGinn and the City Council) asking that the Court order McKenna to withdraw from the suit.

Holmes' contention is very simple: McKenna didn't have the authority to sign Washington State up for the suit (which originated in Florida) on his own.

The Washington Constitution provides that, "The Attorney General shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law. Wash. Const. art 3, § 21 (emphasis added). When the term "as may be prescribed by law" is used in the Constitution, it means the officer has only the powers expressly given by the state Legislature. He has no common law powers. Yelle v. Bishop, 55 Wn.2d 286, 295-96, 347 P.2d 1081 (1959); State ex rel. Winston v. Seattle Gas & Electric Co., 28 Wash. 488, 497, 68 P. 946 (1902).

Holmes goes on to examine the relevant statutes, going through several sections. He concludes that "none of the provisions of RCW 43.10.030 grant authority for the Attorney General to make the State of Washington a plaintiff in the Florida lawsuit without the Governor's concurrence."

McKenna and his state Republicans, of course, have claimed that the Attorney General is an independently elected official and does not need the governor's permission to act on the state's behalf. They suggest the phrase "as may be prescribed by law" gives the Attorney General broad latitude to act as he sees fit.

Holmes argues otherwise:

In Washington, unlike some other states, the Constitution gives the Governor "supreme executive power." Wash. Const. art. III, § 2. The Attorney General is one of the "other" executive officers. Id. art. III, § 3. By statute, the Governor, "shall supervise the conduct of all executive offices." RCW 43.060.010(1).

Figuratively speaking, Holmes' petition is great tinder for a fascinating discussion of constitutional law. At least that's how we see it.

The question we'd like to ask McKenna is how he would feel if the shoe were on the other foot. If he were governor and Chris Gregoire was still the Attorney General, how would he feel if Gregoire involved the state in a lawsuit against major federal legislation without even bothering to consult him?

Our guess is that McKenna would probably be none too happy, and might go off in search of his own legal representation, as Governor Gregoire has done.

Apologists for McKenna have pointed out that when Chris Gregoire was Attorney General, she negotiated a settlement with tobacco companies on the state's behalf. However, Gregoire involved the state in that case with the governor's support. Not only did McKenna fail to get Gregoire's concurrence when he joined the Florida action, he did not even bother with the simple courtesy of notifying her in advance. She found out from reporters. That's just inexcusable.

We'll be watching to see what happens to Holmes' petition. Will the Supreme Court rule on the merits of this question, or toss it to Superior Court on a technicality? We will hopefully find out the answer to that question soon.