Election lawsuit: Attorney general assumes control

OLYMPIA — Attorney General Rob McKenna took control this week of the state's legal strategy in the lawsuit over the governor's election, moving aside the private Seattle attorneys that Republicans have complained about.

"We've assumed responsibility as the lead attorney for the secretary of state," McKenna said yesterday. The private attorneys that had been representing Secretary of State Sam Reed remain part of the team. "But the team has a new quarterback: The Attorney General's Office."

McKenna is a Republican who took office Wednesday, shortly before Democrat Christine Gregoire was sworn in as governor.

For 12 years before that, Gregoire was attorney general. Because she was at the center of the post-election legal wrangling with Republican candidate Dino Rossi, Secretary of State Sam Reed hired private attorneys to avoid the appearance of a conflict by the attorneys assigned to his office who had worked for Gregoire.

The attorney general is a partisan elected office and generally does not hire outside attorneys, even for cases involving political parties. But because the state's legal position could have helped determine whether Gregoire became governor, Reed said there was no question other attorneys should be hired to handle the case.

Now, though, Reed says he wants Assistant Attorney General Jeff Even on the case and to have him work with attorney Thomas Ahearne and his firm, Foster Pepper & Shefelman.

Reed praised Ahearne — who played a prominent role in successfully defending Reed in two Supreme Court cases in the recount — but said Even is an expert in election law and the state has been at a disadvantage without him.

David Boerner, a professor at Seattle University School of Law, said attorneys general often face political cases and need not shy away from them.

"There can be lots of issues over his term that deal with hotly contested partisan issues, and once you say you won't get involved, how do you draw the line? You're not going to be able to get involved in any of them," said Boerner, who has worked under Democratic and Republican attorneys general.

The state filed papers in the Chelan County Superior Court case this week changing its attorneys from Ahearne and his firm to McKenna, Even and Maureen Hart, the senior attorney in the AG's solicitor general's office.

Reed and McKenna differ in their descriptions of McKenna's role.

Reed said McKenna was well aware of the highly political and partisan nature of the dispute.

"I don't think he wants to be personally involved for that reason," Reed said.

But McKenna said he will be as involved as he would in any case and will work with Reed on the state's defense.

"He has access to me whenever he needs it, and his staff are working closely with the lawyers in my office," McKenna said.

McKenna is an Eastside Republican like Rossi, and he is close to him and Chris Vance, chairman of the state Republican Party.

McKenna said yesterday no Republican asked him to get involved. He said that sort of contact with political players in the dispute might have meant he had to disqualify himself.

"The secretary of state has done a good job being nonpartisan, and I'm going to be nonpartisan in representing him," McKenna said.

Some Rossi supporters have been critical of the law firm Reed hired, saying the Seattle firm was too closely tied to Democrats to be fair to Republicans.

Former state Rep. Phil Dyer, a Rossi backer, wrote an open letter to Reed saying the hiring of the firm disturbed him.

Ahearne referred all questions to McKenna's office.

Asked about Republican critics of the outside attorneys, McKenna said, "If they do have that concern they should take comfort in the fact that I'm overseeing this now."

University of Washington Law School professor Robert Aronson said the election case has a high profile and McKenna's role will be watched carefully — particularly, he said, if the strategy laid out by the private attorneys changes under McKenna.

"If he dictates it from a higher level and they reverse course, the possibility of undermining any confidence of the independence of the attorney general would be incredible," he said.

David Postman: 360-943-9882 or dpostman@seattletimes.com