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One court has already weighed in on McKenna’s authority

Post by Jordan Schrader / The News Tribune on Aug. 30, 2010 at 1:13 pm |
August 30, 2010 1:20 pm

My story from the weekend takes a look at the attempts to have the state Supreme Court limit the power of Attorney General Rob McKenna.

McKenna is being targeted by Seattle City Attorney Pete Holmes for joining a legal challenge to the federal health care bill, and by Lands Commissioner Peter Goldmark for balking at Goldmark’s request to appeal an unfavorable court decision. They are two different cases, but both claim McKenna has overstepped his authority — that he’s essentially going rogue.

There is another avenue to make that case: trying to recall McKenna from office. One McKenna critic, David Stromquist of Tacoma, has taken that route without success.

Stromquist’s case caught my eye today when I was looking into a different recall request, which Olympia activist Arthur West says he is filing today against McKenna over a long list of grievances. He will hope to have better luck than Stromquist, whose attempt to recall McKenna over the health care lawsuit was thrown out by a King County Superior Court judge in May before supporters could even start the Herculean effort of trying to collect the more than 700,000 signatures it would need to get on the ballot.

Judge Paris Kallas’s reasoning is interesting when considered in connection with the Supreme Court case pending on McKenna’s authority. Kallas says:

… part of the Attorney General’s oath is to support the Constitution of the United States. RCW 43.01.020. Thus, it rests within the Attorney General’s authority and discretion to bring litigation on behalf of the State to ensure that federal law does not infringe upon the rights afforded to Washingtonians under the United States Constitution. The statutes also expressly grant the Attorney General authority to represent the State in all legal proceedings and to “institute and prosecute all actions and proceedings for … the state.” RCW 43.10.030(2) and .040.

We won’t find out until at least November whether the Supreme Court agrees.

Holmes, however, told the Supreme Court this month the attorney general’s power must be limited to what’s explicitly laid out in state laws, or else why would the Legislature create those laws? And Holmes notes the AG’s power to “institute and prosecute all actions” is followed by a caveat: “which may be necessary in the execution of the duties of any state officer.” In this case, there’s no officer other than McKenna himself who’s seeking to have the health care bill derailed. McKenna can’t sue on behalf of Washington without having a client, like the governor or another state official, Holmes says.

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