The governor's attorney
Democrat Gov. Chris Gregoire hasn't yet decided what her next move will be to oppose the health-care lawsuit being pursued by Attorney General Rob McKenna and a dozen other Republican AGs. So far, she has issued a statement and joined in a letter signed by three other governors to U.S. Attorney General Eric Holder, supporting the new U.S. legislation.
The governor's attorney
But will she actually file legal papers in federal court? And who, by the way, will be her attorney? Her attorney general, perhaps?
It's possible McKenna could wind up arguing both for and against the new federal laws, but whether he'll be asked hasn't been decided. "It's a good question," says Gregoire spokesperson Karina Shagren.
If Gregoire opts to submit a brief opposing the AG lawsuit, "We don't yet know if it would be the attorney general or her general counsel," says Shagren. Narda Pierce, the general counsel, is a member of the governor's staff, independent of the AG's office. McKenna's office typically handles litigation for the governor, however.
"They're still mulling it over," says Shagren of the governor and her staff, "and haven't decided on the next step." But should Gregoire ask - if not order - McKenna to represent her office in opposing the lawsuit his office is supporting, it could make for an intriguing political and legal clash.
That's already happening in Michigan, where Governor Jennifer Granholm (one of the signatories with Gregoire on the letter to Holder) has ordered Republican Attorney General Mike Cox to intervene on her behalf in the lawsuit he, McKenna and the other AGs filed in Florida.
In what might be considered a strategic approach for Gregoire and other Democrat governors to follow, Granholm said she didn't question Cox's decision to advocate against the new law. Yet:
"Your statutory authority does not, however, override the superior constitutional authority vested in the governor to determine the position to be taken by the executive branch of state government and certainly does not authorize you, as attorney general, to unilaterally, and without consultation, to determine and declare the policy position of the state of Michigan."
Cox is not yet saying what he'll do. Constitutional law professor Robert Sedler (who believes the AG's lawsuit is doomed) says Granholm "can't order him to drop the lawsuit, and the attorney general in turn can't stop her from having lawyers intervene on her behalf to represent the opposite side for the state." The question is, which lawyers?