City of Seattle v. Mckenna

• Decision Date: 01 September 2011
• Docket Number: No. 84483–6.,84483–6.
• Citation: 259 P.3d 1087,172 Wash.2d 551
• Parties: CITY OF SEATTLE, a municipal corporation, Petitioner,v.Robert M. McKENNA, Attorney General, Washington State, Respondent.
• Court: Washington Supreme Court

172 Wash.2d 551

259 P.3d 1087

CITY OF SEATTLE, a municipal corporation, Petitioner,

v.Robert M. McKENNA, Attorney General, Washington State, Respondent.

No. 84483–6.

Supreme Court of Washington, En Banc.

Argued Nov. 18, 2010.Decided Sept. 1, 2011.

Peter Samuel Holmes, Laura Beth Wishik, Seattle City Attorney's Office, Seattle, WA, for Petitioner.Jeffrey Todd Even, Maureen A. Hart, Office of the Attorney General, Olympia, WA, for Respondent.Adam J. Berger, Schroeter Goldmark & Bender, Seattle, WA, amicus counsel for Governor Christine O. Gregoire.OWENS, J.

[172 Wash.2d 553] ¶ 1 The attorney general of Washington made the State a plaintiff in a multistate lawsuit in federal court challenging the constitutionality of the health care reform legislation recently passed by Congress.¹ The city of Seattle seeks a writ of mandamus directing the attorney general to withdraw the State of Washington from the litigation. Resolution of this case requires that we determine the scope of the powers of the attorney general under the Washington Constitution and our statutes. We need not and do not express any opinion on the constitutionality or wisdom of the health care reform legislation, nor do we express any view on the wisdom of the attorney general's decision to make the State a party to litigation challenging the constitutionality of the legislation. We instead confine ourselves to the limited question of whether a writ of mandamus is available.

¶ 2 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).

FACTS

¶ 3 Few facts are relevant to our disposition of the case. On March 23, 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA), Pub.L. No. 111–148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub.L. No. 111–152, 124 Stat. 1029 (2010), into law. That same day, the attorneys general of 13 states, including Washington, filed a complaint in the United States District Court for the Northern District of Florida challenging the constitutionality of the PPACA and seeking to enjoin its enforcement. Included in the complaint as a plaintiff is “STATE OF WASHINGTON, by and through ROBERT M. McKENNA, ATTORNEY GENERAL OF THE STATE OF WASHINGTON.” Agreed Statement of Facts, Attach. 1, at 2. On April 10, 2010, the city of Seattle filed a petition requesting that this court issue a writ of mandamus to compel Attorney General McKenna to withdraw the State of Washington from the litigation. On May 7, 2010, Governor Christine Gregoire wrote to Attorney General McKenna, indicating her objection to the federal litigation and requesting that he amend the designation of the party to “ ‘Robert M. McKenna, Attorney General of The State of Washington.’ ” Id. Attach. 5. Attorney General McKenna replied, declining to amend the caption and instead suggesting that Governor Gregoire intervene on the opposite side of the case as “ ‘State of Washington, by and through Christine O. Gregoire, Governor of the State of Washington.’ ” Id. Attach. 6.

¶ 4 In May 2010, the plaintiffs in the federal litigation amended their complaint, adding eight additional states, a nonprofit corporation, and two individuals. The caption still included the State of Washington, by and through Robert M. McKenna, Attorney General of the State of Washington. Since that time, a number of developments have taken place in the federal litigation, none relevant to the city of Seattle's petition for a writ of mandamus. The federal litigation is ongoing and the State of Washington remains a party.

ANALYSIS

A. Standing

¶ 5 The city of Seattle asserts that it has standing based on its status as a taxpayer and as a representative of its residents. We assume, without deciding, that the city of Seattle has standing to pursue the present action.

B. Mandamus

¶ 6 The city of Seattle seeks a writ of mandamus. Under our state constitution, this court has “original jurisdiction in ... mandamus as to all state officers.” Wash. Const. art. IV, § 4. Mandamus is only available to compel an official to do a nondiscretionary (i.e., “ministerial”) act. Seattle Times Co. v. Serko, 170 Wash.2d 581, 589, 243 P.3d 919 (2010). The nondiscretionary act may be to undo an action unlawfully done. State ex rel. Burlington N., Inc. v. Utils. & Transp. Comm'n, 93 Wash.2d 398, 410–11, 609 P.2d 1375 (1980) (issuing writ of mandate compelling repayment of funds previously transferred in excess of State's authority). Where the attorney general possesses authority to initiate litigation, that authority is generally discretionary. Boe v. Gorton, 88 Wash.2d 773, 775–76, 567 P.2d 197 (1977); Berge v. Gorton, 88 Wash.2d 756, 761–62, 567 P.2d 187 (1977). In short, if the attorney general had authority to initiate this type of litigation, based on either the Washington Constitution or statute, mandamus is unavailable. We turn, then, to the authority of the attorney general under our system of government.

C. Authority of the Washington State Attorney General1. Constitutional Authority

¶ 7 Attorney General McKenna contends that the Washington Constitution vests him with authority to initiate litigation on behalf of the State. The appropriate starting place is the text of the Washington Constitution. The attorney general is mentioned in six provisions. Article III, section 1 identifies the offices of the executive department and provides for their election but creates no powers. Article III, section 3 specifies the term of office for all the executive officers, including the attorney general, other than the governor. Article IV, section 9 provides for removal of the attorney general. Article III, section 10 identifies the attorney general as fourth in line to perform the duties of the governor, should necessity arise. Under article III, section 24, the attorney general is charged with the duty of keeping “the public records, books and papers relating to” the office at the seat of government. Finally, and most pertinent to the present case, article III, section 21 provides, in relevant part:

The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.

¶ 8 Article III, section 21 has a plain meaning. It establishes one power of the attorney general (i.e., to “be the legal adviser of the state officers”) and identifies a source of additional powers (i.e., laws that “may be prescribed”). Wash. Const. art. III, § 21. The phrase “as may be prescribed by law” clearly refers to laws established after the adoption of the Washington Constitution; this much is clear from the term “may.” Thus, “duties as may be prescribed by law” refers to those duties created by statute.

¶ 9 Importantly, there are no common law or implied powers of the attorney general under our constitution. This court has always insisted on finding an enumerated constitutional or statutory basis for the powers of executive officers, including the attorney general. One of the earliest cases relating to the attorney general's authority was Seattle Gas & Electric. In Seattle Gas & Electric, the attorney general brought a quo warranto action against a Washington corporation. 28 Wash. at 490, 68 P. 946, 70 P. 114. By statute, the legislature had given the prosecuting attorney the authority to institute quo warranto actions. Id. at 495, 68 P. 946, 70 P. 114. The issue before the court was whether the attorney general possessed authority to bring that action. This court concluded that he did not. Id. at 502–04, 68 P. 946, 70 P. 114. The Seattle Gas & Electric court's reasoning is instructive. It stated:

The attorney general of the state, although bearing the same title as the attorney general of England, is not a common-law officer.... Every office under our system of government, from the governor down, is one of delegated powers.

... To the constitution, therefore, and the laws enacted in pursuance thereof, we must look for these powers, and not to the common law.

Id. at 495–96, 68 P. 946, 70 P. 114. The Seattle Gas & Electric court clearly rejected the notion that the Washington Constitution vests the attorney general with common law powers.

¶ 10 Attorney General McKenna argues that the Seattle Gas & Electric court limited its holding in a statement it made in the course of its denial of a petition for rehearing. There, the Seattle Gas & Electric court stated that it was “satisfied with the views expressed in the original opinion as to the common-law powers of the attorney general.” Id. at 512, 68 P. 946, 70 P. 114. It then clarified the context in which the question arose: “At least, in this class of cases the attorney general has no common-law powers, because the legislature has seen fit to confer the power or duty ordinarily exercised at common law by the attorney general upon the prosecuting attorney.” Id. This limitation on its holding was implicit in the original opinion; the court's holding could not have gone any further. Any further conclusions would have been dicta. The court did not,...