May 29, 2012
Washington Judge Defers to State AG in Health Reform Challenge
Washington Superior Court Judge Sharon S. Armstrong denied the plaintiffs' motion for a preliminary injunction, or in the alternative for a permanent injunction and mandamus, in Mackey v. McKenna, the state court suit by a group of Washington women against the state attorney general challenging the state AG's role in the Affordable Care Act litigation now at the Supreme Court.
As we posted, a group of Washington women sued state AG Rob McKenna seeking a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate. The plaintiffs claimed that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place--in other words, to sever the mandate. Yet he joined the state in the multi-state suit challenging the entire ACA, and the plaintiffs' position in that case that the mandate was not severable. The plaintiffs said that this violated his professional duties to Washingtonians.
Judge Armstrong rejected the argument. She wrote:
Had Attorney General McKenna taken the formal legal position that only severability could protect the interests of the State of Washington and its citizens, and then filed contrary briefing in the federal courts, he would have violated his ethical duty to faithfully represent the interests of the State of Washington and its residents, would have improperly relinquished control over his role in the litigation to other attorneys general, and filed an erroneous brief to the U.S. Supreme Court.
But here the court found that statements by McKenna contrary to his litigation position were merely "political statements by an elected official," and were thus "issues to be addressed in the political realm." In the end, Judge Armstrong wrote that the court "lacked authority to second-guess the attorney general's legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy."
The ruling is hardly a surprise. The case was a stretch to begin with, and even the plaintiffs' requested relief wouldn't have changed the picture at the Supreme Court. It was really about holding AG McKenna accountable for his statements, and his actions. Judge Armstrong was clear: Any holding-to-account should go through the ordinary political process, not the courts.
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