Updated July 9 with comment from Knoll Lowney.
OLYMPIA, July 6.—A King County Superior Court judge has dismissed a lawsuit against Attorney General Rob McKenna that has a little to do with the national challenge to Obamacare and a lot to do with politics in this year’s governor’s race. Yet somehow you have to figure this one will keep going and going and going, right up until election day.
Knoll Lowney, a Seattle attorney who has made a name for himself over the last six years with his take-no-prisoners lawsuits against Republican candidates and their supporters, filed suit in May against the gubernatorial contender. Suing on behalf of 89 women, he alleged McKenna had committed a “breach of legal ethics” regarding a strategic legal decision in the national Republican lawsuit against the Affordable Care Act.
The problem is that case is ancient history now. On June 28 the health care reform law was upheld by the U.S. Supreme Court. So King County Judge Sharon Armstrong ruled Friday that the Lowney suit no longer has a point. It was a simple one-sentence ruling: “The plaintiff’s claims have been rendered moot by the U.S. Supreme Court’s decision on the Affordable Care Act.”
So what’s next? In an email Monday, Lowney said, “No decision has been made. We don’t believe the case is moot.” And certainly there are avenues through which the case could be kept alive through at least November, when the merits of the case may not be as important as the creation of a campaign issue. Lowney could appeal all the way up the chain to the state’s highest court, a process that could well last through election season. Another strategy to keep the matter before voters is outlined in a press release from FUSE Washington, an activist group that has helped publicize the Lowney litigation. It said plaintiffs are considering filing a complaint with the Washington State Bar Association. And so it goes, and so it probably will go, right up until ballots are counted — though if the case runs to form critics say the case will fizzle sometime after that. “I’m sure if there’s an opening there, he will follow it up,” said Randy Pepple, manager of McKenna’s gubernatorial campaign. “It will be dismissed again also. It’s what always happens to a Lowney lawsuit. It gets dismissed.”
Amplified Democratic Campaign Theme
The case has to do with a rather fine point of law. McKenna was among the Republican governors and attorneys general in 26 states who were behind the big lawsuit against health care reform that was finally decided last week. They challenged the “individual mandate” in the Affordable Care Act – the requirement that all Americans obtain health insurance, most of them by purchasing it from private insurance companies. In his public statements back in 2010, McKenna said he believed the law could stand even if the mandate was struck down. But when the case reached the nation’s high court, the plaintiffs argued that the issues were not “severable,” and the entire law ought to be thrown out with the mandate.
It was one of those strategic decisions that the attorney general’s office says is commonplace in big multi-state lawsuits. But Lowney’s suit maintains that McKenna committed a breathtaking violation of legal ethics. Lowney’s argument is that McKenna did not represent the best interest of his clients, the people of the state of Washington. “Taking legal action against your client’s best interests is one of the most serious breaches of ethical duties that a lawyer can make,” Lowney explained at the news conference announcing the suit. “In fact, it is often reason for disbarment.”
It was a novel legal theory in many respects. The case essentially argues that McKenna is legally required to advance the same position that he expressed as a matter of political opinion. It also implies that 89 women, most of them associated with political activist organizations of a progressive stripe, are better qualified to decide the state’s legal strategy than the state’s top legal officer, who is elected by the people. The argument is based on the state Bar Association’s rules of professional conduct. Yet it is the Bar Association that enforces those rules, not the courts, and the Bar Association maintains that the rules are not supposed to be used as the basis of litigation.
The primary goal of the case was to require McKenna to draft an amended brief in the health care case before the Supreme Court. Whether the court might have accepted it is another issue entirely. The deadline for the filing of briefs passed six months ago. And now, of course, since the decision has been made, no new brief could have any bearing on the outcome.
Critics say the whole thing is poppycock. “The lawsuit itself is political, it is frivolous and it is utterly worthless,” former U.S. Attorney Mike McKay told Washington State Wire the day after it was filed. “It is not a legitimate lawsuit brought on behalf of aggrieved parties.” Instead, he said, political activists have been using the courts to stage a news conference.
Indeed, the suit read in many places like a press release, amplifying a campaign theme that has been sounded frequently by Democratic activists in this year’s political races – that Republicans are waging a “war on women.” The complaint alleged that if the health care law were to be overturned, it would impact health care programs for women – though of course the reform measure affects members of both sexes. The legal argument stated in part, “Thirteen male attorneys general lack moral standing to decide the fate of women’s health care.”
Essentially Decided a Month Ago
Not that the suit came as a surprise to anyone. Since 2006 Lowney has filed lawsuits that whatever their legal merits, have tied down opponents and created maximum embarrassment during election cycles. First Lowney sued Republican Senate candidate Mike McGavick, and when that case was dismissed after the election, he took on the Building Industry Association of Washington, at one time a major supporter of Republican candidates. To be sure, Lowney scored one point in that complicated multi-year, multi-million-dollar litigation. A judge ruled that BIAW had committed a minor accounting violation but did not award damages. It also might be argued Lowney’s fishing expedition through BIAW records during the discovery process turned up documents that led indirectly to a large fine from the state Public Disclosure Commission for a campaign violation. But the legal fees were far more punishing than any fine, and the most memorable element of the case was the widely publicized deposition Republican Dino Rossi was required to give a week before the 2008 election, forcing him to parade in front of television cameras on his way to a grilling that proved nothing.
Essentially this latest case was decided a month ago, when it came up for its first hearing. Lowney argued for an injunction that would have required McKenna’s office to draft a new brief reflecting the position that Lowney’s clients preferred. Whether the U.S. Supreme Court would have accepted a brief six months after the deadline — that would have been another matter. But Armstrong rejected Lowney’s argument. She said the attorney general’s public statements are one thing, legal strategy is another, and the attorney general has the right to decide it. Lowney filed a motion for reconsideration. Armstrong also denied that request Friday when she dismissed the case.
“We are not surprised by this outcome,” said Janelle Guthrie, spokeswoman for the attorney general’s office. “Since the lawsuit was filed so late in the process, and so close to the date the [Affordable Care Act] decision was expected, it made sense for Judge Armstrong to wait until the decision was released to make her ruling.”
Matter of ‘Silliness’
Lowney has argued that the case ought to proceed because it raised a secondary issue. Lowney told Judge Armstrong at a June 22 hearing that even if the U.S. Supreme Court made a decision regarding the Affordable Care Act, the courts in this state still ought to decide whether McKenna’s behavior was unethical.
Critics say the question ought to be aimed the other direction. “Justice was served,” said Kirby Wilbur, chairman of the state Republican Party. “This is a sign that the judicial system works and that some judges can recognize silliness when they see it. One would hope that Mr. Lowney would learn a lesson, but I expect not.”