Courtesy of the Office of Attorney General
State of Washington
One can find ambiguity in seemingly clear statutory language. And one can find plenty of it in the structure of our state government. Both were obvious last Thursday morning, when the state Supreme Court heard two cases that asked fundamental questions about the role of the attorney general and the nature of Washington's divided executive branch.
Does the attorney general have to bring a case on behalf of the state? Does he have discretion to not appeal a case on behalf of the commissioner of public lands?
For those who've been distracted by the election or the Seahawks or the never-ending cascade of lost jobs and homes, a recap: Attorney General Rob McKenna joined one of the lawsuits by state attorneys general against Obamacare, and he also refused to appeal an Okanogan District Court decision on behalf of the state Department of Natural Resources.
The DNR has asked the courts for a writ of mandamus, ordering McKenna to take its case. The DNR has argued that McKenna must represent it if the lands commissioner wants to appeal. The Seattle city attorney has asked for a writ of mandamus ordering McKenna to drop out of the Obamacare suit. It has argued that McKenna has no right to challenge Obamacare on behalf of the state unless the governor asks him to do so. The governor has filed an amicus brief in the case, arguing that — absent the governor's consent — McKenna can sue on his own as attorney general but not as the representative of the state.
Who's in charge here? The answer may be no one. The DNR case seems more straightforward. It is, at any rate, less burdened with with obvious political considerations and what seems to be blatant grandstanding. The Okanogan PUD wanted a right-of-way across state land managed by the DNR for a transmission line in the Methow Valley. The PUD filed a motion in Superior Court to take the right-of-way through condemnation. The DNR — represented by the attorney general — filed a motion for summary judgment, arguing that the PUD had no legal power to condemn state land.
The DNR lost on summary judgment and then lost on the underlying issue. Last spring, the Superior Court granted the PUD a declaration of necessity, so the condemnation could proceed.
The DNR wanted to appeal, and assumed that the attorney general would represent it again. On June 8, two days before the final date to file an appeal, the McKenna said he would not. “I plead with you to reconsider,” Commissioner of Public Lands Peter Goldmark responded. If McKenna really didn't want to take the case, Goldmark asked him to appoint a special assistant attorney general who could do it for him.
The attorney general did neither. On the last possible day, Conservation Northwest filed an appeal of its own, keeping the window open for another two weeks. The DNR, represented pro bono by environmental lawyer David Bricklin, filed a petition for mandamus. McKenna subsequently filed a contingent appeal. If he loses on the issue of mandamus, he'll stay in the fight; if he wins, he won't.
Arguing before the Supreme Court last week, Bricklin suggested that the real question was, “can the Attorney General leave a department unrepresented?” Because the attorney general did, “the Commissioner was left without an attorney in this case.” He suggested the issue was pretty straightforward. “In our briefing,” Bricklin said, “we referred to this as 'a power grab.'”
The semantic discussions were worthy of Bill Clinton. RCW 43.12.075 says “it shall be the duty of the attorney general, to institute, or defend, any action or proceeding . . . when requested so to do by the commissioner.” Alluding to that language, Justice Gerry Alexander suggested that “'it shall be the duty'. . . takes away a bit of the Attorney General's discretion, does it not?”
Bricklin certainly argued that it did. He suggested that the statute meant what is said, so that “there's no discretion.”
But just as Clinton famously discussed “what the meaning of the word 'is' is,” there is more than one way to interpret “shall.” Justice Debra Stephens cited the 1912 Rosbach decision in which the court said it couldn't order the attorney general to act. Although the statute said “The attorney general . . .. shall represent,” the court said he had discretion to do so or not. “The commencement of actions at law,” it said, “are matters resting wholly within the discretion of . . . the attorney general, a discretion which cannot be controlled by mandamus.”
Bricklin noted that the situation was different, and that because the commissioner of public lands is forbidden to hire outside counsel, if the attorney general won't represent him, he has no access to the courts. Deputy solicitor general Alan Cropsey pointed to the similarity of the language and suggested that “the Attorney General has a constitutional gatekeeping function.” Could the A.G. appeal a case even if the head of a department didn't want him to? Probably yes. Could he refuse to take a case at the trial level? Sure. Could he refuse to defend the DNR if somebody else sued? No, Cropsey said, that would be an abuse of his discretion.
Stephens said she was a mom, and that when her kids were young, they'd run to her to settle their disputes, but now that they're older, they have to work things out on their own. Maybe the A.G. and the commissioner, who both have discretion, will just have to work things out, too. Maybe “there is no mom.”
And maybe it's not clear who speaks for the state. No sooner had Obama signed the healthcare bill than Republican state attorneys general started suing in a variety of courts. McKenna joined the Florida suit, which now includes 20 attorneys general. The big constitutional argument focuses on the “individual mandate” that requires everyone not covered by a government or employer-based insurance program to either buy insurance or pay a tax penalty.
Does the Commerce Clause give the federal government power to make a citizen buy a product from a private company? Courts have said that the Commerce Clause gives Congress power to regulate an implausibly wide range of activities, but can it regulate inactivity?
That depends on whom you ask. The issue will undoubtedly reach the U.S. Supreme Court, but for now, federal district court judges are split. A Michigan judge has dismissed the portions of an anti-Obamacare suit that deal with that constitutional question. The Florida judge has refused to do likewise. After the election, Senate Republican leader Mitch McConnell filed an amicus brief in the Florida court supporting the attorneys general. Governor Chris Gregoire (represented by a special assistant attorney general appointed by McKenna) is filing an amicus brief on the other side.
After McKenna filed suit on behalf of the state, Gregoire said, “He doesn't represent me," and the Seattle City Council passed a resolution supporting Obamacare. Then, Seattle City Attorney Pete Holmes filed a suit asking the court for a writ of mandamus, ordering McKenna to drop out.
Gregoire, in an amicus brief in that case, argues that the attorney general shouldn't be able to file a suit on behalf of the state unless the governor concurs, but he could still file a suit on his own behalf as attorney general.
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