July 30, 2012

One of the most obvious features of the Voters’ Pamphlet, and one of the challenges to the voter, is the number of elective offices. Do we really need to vote for Secretary of State, Treasurer and Superintendent of Public Instruction? Is governance better or liberty more secure for having Insurance Commissioner and Commissioner of Public Lands elective? Possibly there is a reason to have an independent Auditor, but the rest of these offices should be appointive. We have a very recent illustration of the daffiness of our present arrangement with respect to another elective office, that of Attorney General.

The AG, Rob McKenna, joined other state officials as plaintiffs in a federal action challenging the constitutionality of the Affordable Care Act, aka Obamacare.⁷⁰ In doing so, he purported to act for the State of Washington. In their brief in the U.S. Supreme Court on the central issue, the individual mandate, the plaintiffs are identified as "26 States [including] Washington, by and through Attorney General Robert M. McKenna . . . ."

Did Mr. McKenna legitimately represent the state? The Governor didn’t think so. She filed an amicus brief ⁷¹ in the U.S. Supreme Court on the same issue, and took the opposite position, arguing that the mandate is constitutional. In her brief she demonstrated the importance of the Act and the mandate to Washington’s health care funding, and pointed out that she had "participated in the political process that led to passage of the Act . . . ." In what sense, then, could McKenna claim that he spoke for the state?

That question was raised, prior to the U.S. Supreme Court’s decision, in a suit by the City of Seattle in state court, demanding that McKenna withdraw from the federal case. In the course of its opinion ⁷² ruling on the City’s petition, the State Supreme Court acknowledged that Governor Gregoire had challenged McKenna’s claim to represent the State in the federal action.

On May 7, 2010, Governor Christine Gregoire wrote to Attorney General McKenna, indicating her objection to the federal litigation and requesting that he amend the designation of the party to "Robert M. McKenna, Attorney General of The State of Washington" . . . Attorney General McKenna replied, declining to amend the caption and instead suggesting that Governor Gregoire intervene on the opposite side of the case as “State of Washington, by and through Christine O. Gregoire, Governor of the State of Washington.”

That would have had the interesting effect of placing the State on both sides of the controversy.

Governor Gregoire filed an amicus brief in the City’s case, arguing that "where the governor and attorney general disagree, the attorney general may not proceed in the name of the State." The State Supreme Court grudgingly admitted that she had a point:

This argument is not wholly without merit, as article III, section 2 of the Washington Constitution vests in the governor "[t]he supreme executive power of this state." Moreover, we have previously interpreted this language to accommodate the governor’s superior authority where the attorney general and governor disagree on the correct course of action.

However, the Court decided that it could ignore that issue:[T]he governor is not a party to the present action; Governor Gregoire neither initiated this petition for mandamus nor has she intervened. We . . . leave for the appropriate case the issue of what result the Washington Constitution compels where the governor disagrees with the attorney general’s discretionary decision to initiate litigation and seeks to preclude the attorney general’s action. (emphasis added)

Her known disagreement gives way to rules of procedure. The Court proceeded to uphold McKenna’s claim of authority based on a somewhat shaky reading of a statute setting out the Attorney General’s powers.

Whatever the merit of the decision, it describes a dysfunctional system of government.

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70. McKenna joined as a plaintiff in Florida v. Department of Health and Human Services which, in the U.S. Supreme Court, was consolidated with, and decided under the caption of, National Federation of Independent Business et al. v. Sebelius.
71.Entitled "Amicus Brief of the Governor of Washington Christine Gregoire." The AG having gone his own way, the Governor retained private counsel to represent her.
72. City of Seattle v. McKenna , 172 Wn.2d 551, 259 P.3d 1087 (2011)