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Originally published Thursday, November 18, 2010 at 8:59 PM

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High court hears challenges to attorney general's authority

The state Supreme Court heard arguments Thursday over Seattle City Attorney Pete Holmes's claim that Attorney General Rob McKenna overstepped his authority when he signed up Washington as one of 20 states challenging the constitutionality of the federal health-care reform law.

Seattle Times staff reporter

Did state Attorney General Rob McKenna overstep his authority when he signed up Washington as one of at least 20 states challenging the constitutionality of the federal health-care-reform law?

And now that Gov. Chris Gregoire is preparing a brief defending the federal law in the same case, who really speaks for the state?

Those were some of the questions the state Supreme Court grappled with Thursday as it heard oral arguments on Seattle City Attorney Pete Holmes' request that the court order McKenna to withdraw from the federal case.

But the nine justices had about as many questions about Seattle's legal standing to challenge McKenna as they did about the attorney general's authority to file cases without a request from the governor or other state officials.

McKenna, a possible Republican candidate for governor in 2012, signed on to a lawsuit in March against the health-care law that has been President Obama's legislative centerpiece. The suit, led by Florida Attorney General Bill McCollum, a Republican, and supported by attorneys general or governors of 19 other states, claims the law violates the Constitution by requiring all Americans to obtain health insurance or pay a tax.

McKenna's role in the national suit — spearheaded by Republicans — has prompted sharp partisan squabbling.

Gregoire objected to McKenna's involvement in the suit. She is joining some other governors in a plan to file amicus, or friend-of-the-court, briefs defending the health-care act.

Both sides of case

That puts Washington in the position of arguing both sides of the case. Gregoire claims in an amicus brief that the attorney general can file lawsuits on his own authority, "but not on behalf of the state of Washington as a sovereign state."

Holmes, the Seattle city attorney, argues in his suit that McKenna lacks authority to sue the federal government without consulting the governor or another state official.

McKenna's assistant, Solicitor General Maureen Hart, defended his right to represent the state, telling the Supreme Court: "If the attorney general cannot appear in that case to establish the rights of the state of Washington as a sovereign government in the United States, then there is no point being there."

That prompted Justice Debra Stephens to ask whether the brief Gregoire is expected to file should be considered the "the state of Washington's amicus brief" or whether the governor is filing in "her individual capacity?"

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Hart replied that "the precise capacity" in which Gregoire is acting "is not necessarily clear to me."

Chief Justice Barbara Madsen questioned whether the state as represented by McKenna in the lawsuit means individuals, agencies or "this sort of amorphous entity."

Seattle Assistant City Attorney Laura Wishik said McKenna's "view of his authority is so expansive that it turns the constitutional framework on its head."

Wishik said Seattle has a stake in health-care legislation because it spends more than $11 million a year on medical services and the city is a state taxpayer.

Hart said the right of taxpayers to challenge public officials in court belongs to individuals, not to governments, and Seattle forfeited any possible right to sue by failing first to ask McKenna to withdraw from the health-care suit.

After Justice Mary Fairhurst said it was "somewhat ironic" that Holmes seemed to be suing McKenna "on his own behalf," Seattle's Wishik said the suit was supported by the City Council and the mayor.

Separate case

Immediately after the hearing on the health-care lawsuit, the Supreme Court heard arguments in a separate case.

Lands Commissioner Peter Goldmark claims in the second case McKenna has an obligation to appeal a lower-court decision allowing a public-utility district to run a power line on Okanogan County property owned by Goldmark's Department of Natural Resources. McKenna has said he used proper discretion when he decided an appeal would carry legal risks for state agencies.

Keith Ervin: 206-464-2105 or kervin@seattletimes.com

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