ACA Litigation Update: Court Refuses to Force McKenna to File Severability Brief with Supreme Court

A while back, I wrote about a lawsuit filed against Attorney General Rob McKenna filed by a plaintiff group of ninety women, regarding McKenna’s statements and litigation actions in connection with the ACA/Obamacare case. Well, the plaintiffs moved for preliminary relief, and today the Superior Court (Judge Sharon S. Armstrong) denied the plaintiffs’ motion (PDF here, via the Olympian). For media coverage of the decision, check out the Seattle Times, the Olympian, or the Capitol Record.

Two thoughts on this: (1) what to make of the Court’s decision, and (2) where do we go from here?

1. The Court’s Decision. — You’ll recall the gist of the plaintiffs’ claims: McKenna has admitted in his public statements that the ACA generally is good for Washington, but that the individual mandate is bad. However, in the ACA litigation, McKenna has signed briefs seeking the invalidation of the entire ACA, not just the individual mandate, because (the briefs argue) that the individual mandate is not severable from the rest of the law. (For more background, see here and here.) The plaintiffs argue McKenna’s litigation tactics are therefore against the interests of his client — the State of Washington — and in violation of his ethical duties.

In my previous post, I talked about how clients have various interests, and how just because a litigation tactic might be against one interest, it may favor another interest. It’s up to the lawyer/client to figure out how to balance competing interests. but the Court’s decision doesn’t get into that. Rather, Judge Armstrong denies the motion on a wholly separate basis.

The Court found, as a matter of fact, that McKenna’s “statements in press releases and on the Office of the Attorney General website are political statements by an elected official.” Therefore, the Court refused to consider them in its ruling. “Whether the statements . . . are accurate, correctly reflect Mr. McKenna’s personal beliefs, or are made for reasons of political expediency, are issues to be addressed in the political realm.” In other words, the statements are not going to be considered in the judicial realm.

That may be true, and maybe there are some sort of general “separation of powers” or “political question” concerns in connection with evaluating McKenna’s statements in a judicial proceeding. But I don’t think you need to go that far to deny the plaintiffs’ motion. And such a broad holding — that the Attorney General’s public statements cannot be considered in litigation — might invite trouble down the road.

As I understood the plaintiffs’ argument, they didn’t much care whether McKenna’s statements were accurate, correct, or made for political expediency. Rather, the point of the statements is that they barred McKenna from disputing in this case that the non-mandate provisions of the ACA are in the interests of the citizens of Washington. He’s already said as much!

However, if I’m the Court, I’d resolve the motion by assuming that the statements are true statements of the interests of Washington citizens. Even so, Washington citizens have other interests, and the AG has the power to balance those interests in his (political? practical?) judgment.

And that’s basically what the Court does. Right after stating that McKenna’s statements should be left to the political realm, the Court concludes that it “lacks authority to second-guess the attorney general’s legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy.” That may be true, but if it is true, it is true regardless of whether McKenna’s public statements can or cannot be considered. Accordingly, the Court’s finding regarding its ability to consider McKenna’s public statements was unnecessary.

2. Where Do We Go from Here? — Despite the loss on this preliminary motion, the plaintiffs are prepared to push forward! According to the Seattle Times:

In a news release, plaintiffs said the lawsuit was “far from over.” They noted a preliminary injunction is hard to obtain and said the case will go on. They’re seeking to show McKenna violated his ethical duties by saying he supports part of the health-care law while arguing in court to overturn all of it.

Well, sure, they want the case to go on. But will it? I sort of doubt it. Generally, after a filing a complaint a plaintiff can move for preliminary (i.e., immediate) relief, which is difficult to obtain due to heightened burdens. If such a motion is denied, then the plaintiff can keep on prosecuting the case, using discovery to collect evidence, and try to win the case at trial.

But here, the Court’s ruling seems to foreclose that result. I would suspect that a motion to dismiss, based in part on the Court’s decision, will be forthcoming from McKenna.

The Court didn’t just conclude that the plaintiffs needed more evidence, or that they had not yet met their burden. Rather, the Court concluded it “lacks authority to second-guess the attorney general’s legal strategy,” and that the Court “does not have a legal basis to grant the requested relief, under a claim for writ of mandamus or under the Declaratory Judgment Act.”

So no relief under mandamus or DJA. Uh oh. That’s pretty much all the plaintiffs ask for! Their first cause of action is for declaratory and injunctive relief; their second cause of action is for mandamus. With those options off the table, what’s left?

Well, the plaintiffs could still seek a declaration that McKenna violated his ethical duties. But even if the Court doesn’t dismiss the plaintiffs’ case on the merits, it is unlikely to entertain a case seeking just a declaration. Courts are not in the business of just declaring rights or violations unless there is some active/live dispute with actual consequences. Once the Supreme Court issues its decision on the ACA case, that’s it, the controversy is over. Whether McKenna violated his ethical obligations would then just be an academic matter. And the courts don’t just sit around deciding academic matters.

Unless, of course, the plaintiffs sued for some sort of monetary damages related to their harm. That would keep the case alive. However, the plaintiffs’ complaint does not seek monetary damages. And even if they did seek such damages, there is absolutely no way they could prove that McKenna’s actions caused their alleged damages. To make such a showing, the plaintiffs would have to prove that the Supreme Court’s ACA decision would have come out differently if McKenna had submitted a “proper” brief arguing for severability. How on earth do you prove that?

So it seems like the plaintiffs are not going to get any relief before the Supreme Court issues its decision in the ACA case. And once that happens, they probably won’t be entitled to any relief whatsoever. My guess is that the case is all but over.

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