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Originally published September 1, 2011 at 5:59 PM | Page modified September 2, 2011 at 11:45 AM

State high court rules McKenna challenge on health care OK

The state Supreme Court on Thursday ruled Republican Attorney General Rob McKenna had the authority to join other attorneys general last year to challenge the national health-care overhaul.

Seattle Times Olympia bureau

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OLYMPIA — State Attorney General Rob McKenna had the authority to join other attorneys general last year to challenge the national health-care overhaul, the state Supreme Court ruled Thursday.

But in a separate decision that seemed to limit McKenna's powers, the court ruled his office must represent state Lands Commissioner Peter Goldmark in a case he'd earlier declined to take on.

McKenna, a Republican who is running for governor in the 2012 race, viewed the health-care ruling as a clear win, and said the impact of the lands-commissioner decision on his office is limited. His critics argue otherwise.

In the health-care case, McKenna joined 26 other states in an effort led by Florida Attorney General Bill McCollum to challenge the national health-care law approved by Congress two years ago. Their suit claims, in part, that Congress doesn't have the constitutional right to force people to buy health coverage.

Seattle City Attorney Pete Holmes later sued McKenna, arguing he overstepped his authority.

The state Supreme Court ruled state statute gives McKenna "broad authority" and that his decision to join the health-care case was within his rights.

In a statement, McKenna said, "I'm pleased the court affirmed the authority and responsibility of the attorney general to challenge the constitutionality of federal laws that threaten the constitutional rights of this state and its people."

Holmes, however, pointed out the court ruling said McKenna's authority was based on state law, not the state Constitution. That means the Legislature next session could direct McKenna to pull out of the lawsuit or prevent him from joining other cases on his own, he said. Democrats control the state House, Senate and the governor's office.

McKenna disagreed with Holmes' take, saying "the specific authority the attorney general has is statutory but it is rooted in the Constitution. It would be difficult for the Legislature to draw a line clearly enough that it doesn't raise a constitutional question."

He also said there would be no practical effect if the Legislature took action because the suit will move ahead regardless.

The Supreme Court also appeared to suggest the governor could intervene to stop McKenna's action, saying there's merit to the argument that the state's chief executive has superior authority when the two agencies disagree on the correct course of action. Gov. Chris Gregoire was not a party to the case, and the justices said they would rule separately on that issue if it comes to them.

The governor, who supports the federal health-care law, has criticized McKenna for joining the suit without consulting her. However, Gregoire said she doesn't plan to try to force McKenna to withdraw from the case.

"At this time I do not intend to hand to the courts a constitutional dispute about our authorities," she said in a statement.

In the lands-commissioner case, Goldmark, a Democrat, last year lost a court battle that allowed the Okanogan Public Utility District to condemn state trust lands so it could build a new transmission line across the property. McKenna declined to appeal on behalf of the state, so Goldmark asked the state Supreme Court to force him.

The court on Thursday ruled that state law requires McKenna to represent Goldmark in any court when asked. "This duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation," the court said.

In a statement, Goldmark said, "I applaud the Supreme Court for striking down what would be a dangerous precedent by the attorney general to dictate policy for another statewide elected official."

However, McKenna contends the decision is essentially confined to the lands commissioner, who apparently has the ability to direct litigation in a fashion that other state officials do not.

"I don't think that there's that much practical effect," McKenna said. "You're not going to see a lot of clients running out and deciding to override the advice of their attorney."

Kathryn Watts, an associate dean and assistant professor of law at the University of Washington, said she doesn't think either decision by the Supreme Court does "anything groundbreaking in terms of giving the attorney general significantly more power or less power."

Andrew Garber: 360-236-8266 or agarber@seattletimes.com. Seattle Times reporter Jim Brunner and The Associated Press contributed to this story.

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