Challenge to Washington State's participation in health care lawsuit clears initial hurdle

Posted on July 7, 2010 by Michael Reitz

The City of Seattle is petitioning the Supreme Court of Washington to order Attorney General Rob McKenna to withdraw from the multistate lawsuit challenging the constitutionality of the health care bill recently adopted by Congress (the Patient Protection and Affordable Care Act).

The initial decision for the Court is whether to send the case to superior court for additional fact finding, to send the matter forward in the Supreme Court for consideration and a decision, or to dismiss the action.

The Commissioner of the Court issued an order on July 2 allowing the action to move forward in the Supreme Court. The Commissioner noted that the federal lawsuit would proceed regardless of McKenna's involvement, and therefore there is no need for accelerated consideration of the case. Seattle's opening brief is due September 13, the Attorney General's response is due October 4, and the Supreme Court will hear arguments in the case on November 18.

The case is City of Seattle v. McKenna, No. 84483-6.

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What the Morgan order means (and what it doesn't)

Posted on June 12, 2009 by Michael Reitz

As Trent notes below, the Supreme Court issued an order in Morgan v. City of Federal Way, with an opinion to follow. For the time being, we know the outcome, but not how the court reached it.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record—rather than belonging to the court—Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint, so the report should be covered by attorney-client privilege or the attorney work product privilege.

So how will the opinion read? My best guess is that the Supreme Court determined that the Stephson report was in the city’s possession, and was therefore a public record. Making this determination would allow the court to skirt the issue of whether court records should be disclosed. Having determined the report to be a public record, it wouldn’t difficult for the Supreme Court to dismiss the attorney-client claim. Judge Morgan did not hire Amy Stephson and did not want her to investigate. The report was ordered by the city, and the city retained it when the investigation concluded.

So, it’s likely we’ll see a ruling favoring the release of reports about official misconduct, but I doubt this will be a sweeping determination that internal court records are subject to the Public Records Act. (Note: The court record question is not dead. This is squarely at issue in Koenig.)

Congratulations to attorneys James Beck and Ramsey Ramerman on this win.

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