Wash. AG candidate troubled by legislation

Jessica M. Karmasek Jan. 25, 2012, 3:48pm


OLYMPIA, Wash. (Legal Newsline) - A candidate for Washington attorney general says a bill that would strip the Attorney General's Office of some of its powers is "partisan retaliation" for current Attorney General Rob McKenna joining the federal health care lawsuit.

GOP candidate Reagan Dunn last week came out against efforts by Democratic lawmakers in the state to strip the office of its independent authority.

"This is obviously retaliation from partisans who are upset about Attorney General McKenna joining the federal health care lawsuit," Dunn said in a statement Friday.

"Those legislators should be very careful not to go too far. The people of the state of Washington count on having an independent attorney general to protect their rights. This is bad public policy and bad for the people of Washington State."

The former federal prosecutor sent a letter on Jan. 17 to state Sen. Adam Kline, D-Seattle, the prime sponsor of the bill, voicing his concern over the measure.

Senate Bill 6286 would preclude the attorney general from one-sidedly taking legal action against the wishes of top state officials, including the governor.

Under the bill, which revises the statutory powers of the attorney general, the office must "consult with and advise the governor, members of the Legislature and other state officers, when requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers."

"The attorney general shall also represent the state and all officials, departments, boards, commissions and agencies of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings or proceedings when a statute grants the attorney general authority over the subject matter or a state officer with authority over the subject matter requests representation," the legislation states.

"The attorney general may decline to provide such representation only if the matter is not well-grounded in fact, or not warranted by existing law or a good faith argument for a change in law, or is interposed for an improper purpose such as to harass another party or to cause unnecessary delay or increased litigation costs."

The bill was introduced for first reading Jan. 16 and has been referred to the Senate Judiciary Committee.

"Senate Bill 6286 would virtually eliminate the independent authority of the Attorney General's Office," Dunn wrote to Kline. "This new legislation would preclude the attorney general, on his own initiative, from challenging potentially unconstitutional actions by the federal government or other state officials.

"Such a change would leave Washington vulnerable to future unconstitutional policy decisions of partisan elected officials without regard to the legal ramifications."

Dunn's letter points out that former attorney general and current governor, Christine Gregoire, agreed with his position in a 2003 amicus brief.

Gregoire stated in the brief, "In the vast majority of states and territories... the rule is that the attorney general litigates on behalf of the people and of the State itself, not simply on behalf of the governor or some other executive or subdivision of state government that can override the litigation decisions of the attorney general.

"Without such prerogative, the attorney general would be unable to institute and maintain a uniform and coherent legal policy that takes full account of the public interest," she wrote.

State Sens. Karen Keiser of Kent, Jeanne Kohl-Welles of Seattle and Karen Fraser of Olympia also sponsored the bill. They are all Democrats.

A spokeswoman for McKenna said last week the bill would turn the Attorney General's Office into a "mere mouthpiece" for state officials' interests.

"It's the job of the attorney general to balance the interests of individual state officials with the legal interests of the state and of the people as a whole," Janelle Guthrie said.

"Sometimes that requires our office to take positions that are unpopular with other elected officials or individual state agencies."

In September, the Washington State Supreme Court had upheld McKenna's authority to remain part of a multi-state lawsuit challenging President Barack Obama's federal health care law.

The Court denied the City of Seattle's request to require McKenna to withdraw from the lawsuit.

The city argued McKenna overstepped his authority when he joined more than a dozen state attorneys general in filing the suit in late March 2010, after the law passed.

The State argued the courts have consistently recognized that the attorney general's constitutional and statutory role requires him or her to exercise independent legal judgment that takes into account the legal interests of the state of Washington as a whole when determining how to best protect its legal rights.

The state's high court agreed with the Attorney General's Office.

Gregoire, who is in favor of Obama's health care reform, has expressed her displeasure over McKenna's involvement in the multi-state lawsuit.

In a statement following McKenna's filing, Gregoire said, "I completely disagree with the attorney general's decision and he does not represent me."

A total of 14 states, later joined by 12 others, filed a challenge to the law in 2010. The 26 states contend that its individual mandate requiring that all Americans purchase health insurance or face a $695 penalty every year is unconstitutional.

The states filed a petition in September to have their challenge heard immediately by the U.S. Supreme Court.

The nation's high court, which agreed in November to hear the case, will hear oral arguments on the four issues involved in the challenge to the law over three days in March.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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