Thursday, September 1, 2011

Washington Supreme Court refuses to order Washington AG to withdraw from Florida v. HHS

The always-helpful Howard Bashman has pointed me to an interesting ACA-related decision handed own today by the Washington Supreme Court, City of Seattle v. McKenna. In the lawsuit, Seattle sought an order that Washington Attorney General Rob McKenna withdraw the state as a plaintiff in Florida v. HHS (and presumably as an amicus in some of the other cases).

You may recall that Washington is one of the states in which the Governor and the Attorney General have taken opposing positions on the constitutionality of the ACA--leading to the odd situation in which they have made conflicting arguments to a federal court in the same case. Governor Chris Gregoire has filed amicus briefs in Florida v. HHS urging the court to uphold the ACA in its entirety. Washington Attorney General Rob McKenna has represented Washington as one of 26 state plaintiffs in Florida v. HHS.

Here, the City of Seattle specifically sought a writ of mandamus ordering General McKenna to withdraw the state from Florida v. HHS. The Washington Supreme Court today declined to issue the writ. Here is a critical passage summarizing the court's holding:
We hold that a writ of mandamus is not available because the attorney general has no clear duty to withdraw the State of Washington from the federal litigation. Statutory authority vests the attorney general with the discretionary authority to participate in the litigation at issue. We also determine, however, that this result is not constitutionally compelled; the Washington Constitution does not vest the attorney general with any common law authority. It is for the people of the state of Washington, through their elected representatives or through the initiative process, to define the role of the attorney general. The power of the attorney general is “created and limited, not by the common law, but by the law enacted by the people, either in their constitutional declarations or through legislative declarations in pursuance of constitutional provisions.” State ex rel. Attorney Gen. v. Seattle Gas & Elec. Co., 28 Wash. 488, 500, 68 P. 946, 70 P. 114 (1902).

You can find Howard Bashman's coverage at How Appealing here. You can find the Washington Supreme Court's opinion here.