The Attorney General in Washington State is independently elected by the people. Of that there is no controversy. Based on two separate rulings by the State Supreme Court today, however, whether the Attorney General is truly independent is now in question.

In one ruling concerning the City of Seattle’s attempt to get the Attorney General to withdrawal from the multi-state challenge of the federal health care law the Court ruled:

“The framers of the Washington Constitution designed an executive branch of government that dispersed authority among several officers.  In addition to assigning certain duties to each officer, the framers left additional duties to be determined by future generations in the exercise of self-government.  The people of the state of Washington have, by statute, vested the attorney general with broad authority, and Attorney General McKenna’s decision to sue to enjoin the enforcement of the PPACA falls within that broad authority. As such, Attorney General McKenna has no mandatory duty to withdraw the State from the multistate litigation. The city of Seattle’s petition for a writ of mandamus must, accordingly, be denied.”

In another ruling also issued today the Supreme Court ruled that the Attorney General has a mandatory duty to provide legal representation to government agencies even if he disagrees it is in the state’s best interest:

“Under the statutes, the responsibility is clear. Because we find no discretion within this duty, we issue the writ and direct the attorney general to provide the commissioner with legal representation.”

This apparent conflict was pointed out in a dissent authored by Justice Debra L. Stephens:

“We say in McKenna that the attorney general has ‘discretionary authority to act in any court, state or federal, trial or appellate, on ‘a matter of public concern,’ provided that there is a ‘cognizable common law or statutory cause of action.’’ Moreover, the McKenna decision rejects the argument that ‘where the governor and attorney general disagree, the attorney general may not proceed in the name of the State.’ This view is at odds with the majority’s analysis. Reading the two cases together, it is unclear why a writ of mandamus is appropriate to force the attorney general to follow the commissioner’s wishes in this litigation but is inappropriate in McKenna.

Consistent with our decision in McKenna, I would recognize that the attorney general’s duty to represent state officers in litigation is generally not subject to a writ of mandamus. While the attorney general’s role to provide legal counsel is mandated by statute, it fundamentally involves discretion and legal judgment entrusted to an independently elected official. The statutory duty is for the attorney general to exercise discretion. This is no mere ministerial task subject to the extraordinary writ of mandamus.”

So under these two rulings, is the Attorney General the independently elected attorney of the people, or merely the government’s attorney tasked with rubber-stamping his clients wishes?

If the first, independently electing the people’s attorney makes sense. If instead the Attorney General is nothing more than the government’s attorney, perhaps the office would be better suited as an appointed position.


[Reprinted from the Washington Policy Center blog]