January 17, 2012

State Senator Adam Kline

Washington State Senate

223 Cherberg Building

Olympia, WA 98504-0437

Subject:  In opposition to Senate Bill 6286, limiting the authority of the Office of the Attorney General

Dear Senator Kline:

I am writing concerning a bill you introduced along with Senators Kaiser, Kohl-Welles, and Frasier that I believe will fundamentally undermine the basic authority of the Washington State's Attorney General’s Office.  As a candidate for Attorney General and a concerned citizen of Washington State, I must strongly oppose this problematic legislation.

Senate Bill 6286 would virtually eliminate the independent authority of the Attorney General’s Office.  This new legislation would preclude the Attorney General, on his own initiative, from challenging potentially unconstitutional actions that by the federal government or other state officials.  Such a change would leave Washington vulnerable to future unconstitutional policy decisions of partisan elected officials without regard to the legal ramifications.

Proper Role of the Attorney General

Currently, under the Washington State Constitution and state statutes, the Attorney General has the independent authority to challenge a potentially unconstitutional action.  A recent unanimous decision of the Washington Supreme Court found that a writ of mandamus seeking to compel the Attorney General to withdraw Washington State from litigation was not appropriate where the Attorney General had properly challenged the constitutionality of the federal Patient Protection and Affordable Care Act.  City of Seattle v. McKenna 172 Wn.2d 551, 259P.2d 1087 (2011).

The independent elected office of the Attorney General has long been recognized as possessing the authority to use sound legal discretion to initiate litigation on behalf of Washington State.  Even former Attorney General and current Democratic Governor Christine Gregoire agreed with this principle along with the attorneys general of 47 states and territories.  In the 2003 case of Perdue v. Baker, 277 Ga. 1, 586 S.E.2d 606 (2003), her office stated in an amicus brief:

In the vast majority of States and Territories … the rule is that the Attorney General litigates on behalf of the people and of the State itself, not simply on behalf of the Governor or some other executive or subdivision of state government that can override the litigation decisions of the Attorney General.  Without such prerogative, the Attorney General would be unable to institute and maintain a uniform and coherent legal policy that takes full account of the public interest (emphasis added).

The independence of the Attorney General is also critical to the preservation of ordered liberty.  The State must speak with one voice in the courtroom, and that voice is of the Attorney General.  It is for the Attorney General to reconcile the interests of individual state officials with the interests of the State and of the people.  Sometimes this responsibility requires the Attorney General to take positions to which individual state officials or agencies object.  To permit these officials … to displace the Attorney General’s determination of the public interest, and to dictate what lawsuits should be brought and what legal remedies should be sought, would turn the Attorney General into a mouthpiece for other political interests (emphasis added).  See generally, Br. Of Amici at 3-4, Perdue v. Baker, 277 Ga. 1, 586 S.E.2d 606 (2003) (No. S03A1154), (2003 WL 23220942).

Proposed SB 6286 Undermines the Attorney General’s Ability to Protect Washington Citizens.

The Attorney General is an independent constitutional office, the chief legal officer of the state and is independently elected by statewide voters.  While the Attorney General acts as counsel for 230 state agencies, boards, commissions, colleges, universities, the Governor, and the Legislature, it is also his or her fiduciary responsibility to safeguard the constitutional protections of Washington State citizens when laws conflict with constitutional rights.  SB 6286 would repeal this independent authority and leave the Attorney General helpless to challenge laws that violate important constitutional protections.

It is the nature of a legislative body to debate political issues. Often the partisan composition of the Washington State Legislature or the U.S. Congress will produce outcomes with which voters may or may not agree.  In cases where laws are passed that conflict with the state or federal constitution, it is important that the Attorney General retain the authority to take up those arguments in defense of these rights.  SB 6286 is clearly an effort to retaliate against what you see as an inappropriate challenge to the federal Patient Protection and Affordable Care Act.  Yet, a permanent altering of the basic structure of the Attorney General’s authority should not be undertaken as a fundamental policy difference over one issue – no matter how important that issue may be.  To allow other state officials to control the legal interests of Washington solely through their personal policy preferences will prevent the Attorney General’s Office from fulfilling its duty to balance the interests of individual state officials with the legal interests of the state and its citizens as a whole.

The protections afforded the people through the authority of the Attorney General are far greater than any one issue.  This bill leaves the citizens of Washington State without another voice in defense of their rights should future issues arise.  It disrupts a fundamental aspect of a democracy: that checks and balances are necessary to preserve constitutional liberties afforded our citizens.

Should this bill become law does the Attorney General simply become a mouthpiece for the Governor or the State Legislature?  What about unelected state bureaucrats?  Such an outcome stands in stark contrast to the role of the independently-elected Attorney General, who is himself accountable to all of Washington’s citizens.

I urge you to reconsider this legislation.  While all of us engaged in the realm of public policy have disagreed from time to time with the actions of our colleagues, certainly we can all agree that protection of a constitutional, independent officer entrusted with safeguarding the rights of citizens takes precedence over the regular give-and-take of political debate.

Very truly yours,

Reagan Dunn

Candidate for Attorney General