Print this Page  
City of Seattle
Ed Murray, Mayor

SUBJECT: Holmes suggests clarifications of AG's authority

12/8/2010  12:00:00 PM
Kimberly Mills  (206) 684-8602

In testimony Tuesday, Dec. 7, before the Washington Senate Judiciary Committee, Seattle City Attorney Pete Holmes called for the Legislature to "clarify current law governing the scope of the Attorney General's authority."

That authority is at stake before the Washington Supreme Court in two cases. In one, the City of Seattle argues that Attorney General Rob McKenna exceeded his power by adding Washington to a multistate challenge of the federal health care reform law.

Sen. Adam Kline, a Seattle Democrat and chairman of the Senate Judiciary Committee, said he wants to make sure that if there's any ambiguity in state statutes, lawmakers shouldn't wait for the court to make a decision.

"If we're going to change the statutes, and that's a big if, we need to do that, not the court," he told The Associated Press, noting that no bills on the issue have been introduced.

Holmes' testimony to the committee follows:

"Thank you, Mr. Chairman, for holding this hearing and inviting me to address this Committee on the limits of our state Attorney General's constitutional and statutory authority.

Assistant City Attorney John Schochet joins me today. John and I worked together on the City's direct petition to the Supreme Court for a writ of mandamus against the Attorney General, along with Assistant City Attorney Laura Wishik, who argued our case in City of Seattle v. Rob McKenna in the Temple of Justice on November 18.

First, some background: Last March, Congress enacted comprehensive federal healthcare reform legislation. A few days later, Attorney General McKenna joined the State of Washington as a plaintiff in a lawsuit filed in a Florida federal trial court to challenge the legislation's validity under the United States Constitution. No state officer or agency asked Mr. McKenna to join the State in the Florida lawsuit, nor did he consult with the Governor or even the Insurance Commissioner before filing the lawsuit. In fact, Governor Gregoire, the Senate Majority Leader, and the Speaker of the House all objected in writing to Mr. McKenna's actions. His response: That the State of Washington could be both a plaintiff and a defendant in the Florida trial court.

In April the City of Seattle asked our Supreme Court to direct Mr. McKenna to withdraw the State of Washington from the Florida litigation. Under current law, the Attorney General has no unilateral constitutional or statutory authority to make our sovereign State a plaintiff in the Florida litigation. The issue of the AG's legal authority has been thoroughly briefed and argued. I hope the Supreme Court addresses this important issue, follows its own legal precedent, and requires Mr. McKenna to withdraw the State from the Florida litigation.

But whatever happens in the mandamus petition pending before the Supreme Court, this is fundamentally a statutory question. Under Washington's Constitution, the Attorney General is "the legal adviser of the state officers," and beyond that is only empowered to "perform such other duties as may be prescribed by law." (Art. III, Sec. 21) As such, the scope of the Attorney General’s authority is a question for the Legislature, and with two separate disputes regarding this issue reaching the Supreme Court this year, the Legislature can and should clarify the current law governing the scope of the Attorney General’s authority.

Like the Attorney General, I am an independently elected lawyer. That's not always an easy or simple role to play—especially in Seattle City Hall. An attorney who is elected by the people has a direct responsibility to the people and necessarily has to think and function a bit more like a client than an unelected "hired gun" does. But we’re still lawyers, and we still have clients. That’s why I sought the advice and consent of the Mayor and City Council before the City of Seattle brought its mandamus petition against Mr. McKenna. Unlike Mr. McKenna, I have a client.

Seattle's petition and Commissioner Goldmark's petition raise different, but related, questions: Ours asks when the Attorney General can act in the name of the State of Washington without the consent of the Governor or another official, and Commissioner Goldmark's asks when the Attorney General can say "no" to a state official requesting legal action. I suggest revising RCW Chapter 43.10 to make it clear that only the Governor—the State’s "supreme executive" under the Constitution—has the authority to authorize a lawsuit in the name of the State, except where the Constitution or other statutes explicitly provide otherwise—for example, criminal prosecutions and Consumer Protection Act enforcement actions. I also suggest revisions to make it clear that the Attorney General must pursue legal actions requested by state officials within their official subject matter unless the legal action would violate the standards of Civil Rule 11.

We’ve provided some possible statutory revisions to these ends. Thank you for holding this hearing, considering this important issue, and offering me the opportunity to testify. We would be happy to answer any questions you may have at this time."

Attachment: Holmes' Suggested Statutory Revisions

Back to News Release Home Page and News Release Search