High court rulings go for, against McKenna

OLYMPIA – State Attorney General Rob McKenna did not overstep his legal authority when he joined a lawsuit last year against federal health care reforms pushed by President Barack Obama, the Washington Supreme Court ruled Thursday.

But he did overstep that authority when he refused to handle an appeal of a property-rights case for Public Lands Commissioner Peter Goldmark, the court said in a separate decision.

The two cases, which the court heard the same day and involve some of the same issues of constitutional authority of the state’s top legal officer, generated very different rulings – so different that Justice Debra Stephens argued in a dissent in the Goldmark case that they are “inconsistent.”

McKenna said the health care decision was important for protecting the authority of an independently elected attorney general. He said the lands case was a narrow ruling on a rare disagreement between elected state officials, and based on a specific statute.

Goldmark, however, called the ruling in the lands case historic, saying it struck down what would have been a dangerous precedent of the attorney general dictating policy to another state official.

Both cases involved a request by a government entity for the state’s highest court to order McKenna to do something, known in legal terms as a writ of mandamus.

The city of Seattle wanted McKenna ordered out of the multistate challenge to health care reform, arguing the change in law was a benefit so his participation was not in the best interests of the state. The attorney general said he believes a section of the new law that requires everyone to purchase health insurance or face a fine is unconstitutional.

The court said McKenna’s decision to join the suit “falls within that broad authority” set up in state law, and he has no obligation to withdraw from the lawsuit. Previous courts have ruled that a governor can withhold funds from an attorney general over a case in which the two disagree on the correct course of action. But Gov. Chris Gregoire was not part of this particular case, the court said, so that wasn’t the issue.

And it won’t be in the future, even though Gregoire disagrees with McKenna’s decision to join the federal lawsuit and joined the other side of that case. “At this time I do not intend to hand the courts a constitutional dispute about our authorities,” she said in a prepared statement.

The dispute between Goldmark and McKenna revolves around efforts to condemn land for a power line by Okanogan County Public Utilities District 1. Some of the land is state property managed by the Department of Natural Resources, which Goldmark heads.

DNR had argued unsuccessfully that the Okanogan County PUD has no authority to condemn state land. Goldmark wanted to appeal that ruling, but McKenna refused to allow one of his deputies to handle the appeal or to pay for the appointment of a special assistant attorney general from outside the agency. Goldmark hired a private attorney who sought a writ of mandamus from the high court; McKenna filed a contingent appeal on the lands case, saying he’d withdraw it if he won the fight over the writ.

“We have never been squarely presented with an instance of the attorney general refusing to represent a state officer on an appeal,” the court said in its majority opinion. “The plain language of the statutes, however, leaves little to question.”

The attorney general has a duty to represent the lands commissioner, and that extends beyond taking the case to summary judgment. The court ordered McKenna to provide Goldmark with representation throughout the appeal.

In her dissent, Stephens argued making McKenna take up the appeal could “trivialize” the writ of mandamus and expand the court’s duty into resolving disagreements between other state elected officials.