News Flash: Republican AG McKenna has Washington State Dems seeing RED!

By Jim Brunner
Seattle Times political reporter

OLYMPIA — Democrats ratcheted up attacks on Republican Attorney General Rob McKenna on Tuesday after he made Washington a party to the 13-state lawsuit challenging the health-care bill signed by President Obama.
Democrats in the Legislature are considering a budget proviso to block McKenna from spending state money on the lawsuit.

"We are looking at that," said Senate Majority Leader Lisa Brown, D-Spokane. "We're researching it right now, but there is no decision yet." In a letter to McKenna, Brown called his lawsuit "far outside the mainstream interests" of the state and asked him to reconsider.
Meanwhile, the state Democratic Party filed a broad public-records request with McKenna's office, demanding to see all documents related to his decision.

It's unlikely those actions will have any immediate effect on the lawsuit, filed Tuesday in a Florida federal court. The lawsuit challenges the health-care law's requirement that every person buy health insurance, calling it an "unprecedented encroachment" on individual liberty.
Legal experts and other critics have bashed the lawsuit as a cheap political stunt unlikely to succeed. But McKenna denied any political motive in a posting on his Web site, saying "it could just as easily be suggested that those in favor of the legislation are willing to ignore serious legal questions for their own political reasons."

McKenna spokesman Dan Sytman said the lawsuit would cost Washington only a "negligible" amount because Florida is taking the lead. But he did not have a dollar estimate or information about which attorneys in McKenna's office were working on the case.

Democrats' talk of a budget maneuver targeting McKenna is only possible because of the Legislature's ongoing special session.

Lawmakers were supposed to adjourn March 11 but have failed to agree on a package of taxes and spending cuts to close a $2.8 billion budget gap, despite big Democratic majorities in the House and Senate.

McKenna's office has been deluged with phone calls and e-mails, pro and con, since he announced his decision to join the lawsuit Monday.

Twelve of the 13 attorneys general involved in the lawsuit are Republicans. But McKenna stands out as a Republican in a state dominated by Democrats.

Gov. Chris Gregoire and other Democrats were infuriated, and Gregoire said she'll file a legal brief with the court to make it clear McKenna doesn't speak for the whole state.

"He cannot be a Lone Ranger," she told reporters Tuesday, saying the attorney general is supposed to consult with other state officials before taking such a major position in a lawsuit.
Gregoire was attorney general before McKenna, and her highest-profile lawsuit was a multistate assault on tobacco companies, which eventually led to a $206 billion settlement.

While Gregoire was clearly the driving force behind the state's involvement in that case, former Gov. Mike Lowry said Tuesday that Gregoire regularly consulted with him on the matter.
Can McKenna do this?

McKenna's office maintains he has the right to pursue the case as an independently elected official.

"The bottom line is the attorney general is not a member of the governor's cabinet," Sytman said. "He can make these calls."

Sytman likened it to consumer-protection cases, which McKenna pursues all the time without first consulting other state officials.

McKenna's decision to join the Florida lawsuit on his own may be unusual, but it's almost certainly legal, said Hugh Spitzer, adjunct law professor at the University of Washington and co-author of a book on the state constitution.

The state constitution says the attorney general "shall be the legal adviser of the state officers" and can perform other duties "as may be prescribed by law."

State law says the attorney general can represent the state "in all cases in which the state is interested."

"Basically, he does not have the inherent authority (in the constitution) to join a lawsuit like this, but there is a good argument that he has the authority under this statute," Spitzer said.
"If the leadership of the Legislature and the governor really wanted to do something collectively, of course, they could change the statute," he added.

Gregoire said she did not want to diminish the authority of the Attorney General's Office, and declined to say whether she'd support a budget proviso aimed at McKenna.

Meanwhile, state Republican Party Chairman Luke Esser issued a statement taking a shot at Gregoire's intent to file her own legal brief in the health-care case.
"Supporters of the constitution would be more concerned about Gov. Gregoire's brief if we had any confidence that it would be filed on time," Esser said.

That was a reference to a blunder when Gregoire was attorney general in 2000. Attorneys in her office lost track of a case and missed a deadline to appeal a $17.8 million jury verdict.
Gregoire's office said it was still uncertain whether she will hire outside counsel to represent her own position in the health-care lawsuit, or rely on attorneys in McKenna's office.
Seattle Times reporter Andrew Garber contributed to this report.

Jim Brunner: 206-515-5628 or jbrunner@seattletimes.com