What is an attorney general? They’re more attorney than general

“The easiest way that I’ve been able to describe it is to say the attorney general is the lawyer for the entire state,” said Gregoire, attorney general from 1993 to 2005. “It represents all state organizations and institutions of higher education. And it represents you, the consumer. If you have been improperly treated as a consumer, then it represents you.”

With a staff of nearly 800 attorneys, the attorney general manages the state’s largest public law firm, tasked with representing state agencies in court as well as defending the rights of Washington residents by enforcing consumer protection laws, filing civil rights lawsuits, and going after those who have violated the state’s environmental regulations.

Rob McKenna, who served from 2005 to 2013, notes that unlike other states, Washington doesn’t allow individual agencies to have their own legal staff. “So there’s no general counsel office in the state Department of Transportation, for example, or the Department of Corrections,” McKenna said. “As a result, when I was in office, we were the fifth largest AG office in the country.”

With an office of that magnitude, Washington has been at the forefront of major national consumer lawsuits in the past 30 years, including successful settlements against tobacco companies, mortgage lenders and opioid manufacturers.

Current attorney general Ferguson, who has led the office since 2013, said that one of the AG’s critical roles is taking on powerful entities that don’t play by the rules. “If you’re a farmworker in Central Washington, what chances do you really have to take on your company?” he said. “If Comcast is overbilling you five bucks a month on your bill, what chance do you really have to hold them accountable for that? Let’s be honest, it's pretty dang small.”

And while consumer protection is a large part of the office’s docket, in recent years more high-profile civil rights cases – including Ferguson’s lawsuits against controversial Trump-administration policies on immigration – made the post of attorney general even more visible.

Protecting consumers

Because Washington cities and counties are responsible for criminal prosecutions, about 98 percent of the AG’s cases are civil, not criminal. Those few instances when the office does prosecute crimes generally involve serious, complicated felonies for which less-populous counties or municipalities request assistance.

“The role of the attorney general is really quite limited when it comes to the criminal side,” Gregoire said. “We end up doing rather high-profile things – say first-degree murder cases in jurisdictions who do not have the experience to do it.”

A big portion of the AG office’s civil lawsuits center on enforcing the state’s Consumer Protection Act – which covers both fraudulent business practices and antitrust. A recent example is Ferguson’s case against the proposed merger of grocery chains Kroger and Albertsons. In a statement earlier this year, Ferguson said of the proposed sale, “Shoppers will have fewer choices and less competition, and, without a competitive marketplace, they will pay higher prices at the grocery store. That’s not right, and this lawsuit seeks to stop this harmful merger.”

Gregoire, as attorney general, was one of the leading negotiators in a massive multistate tobacco case – which in 1997 led to a record settlement that provided all 50 states with hundreds of billions in continual payments so long as the tobacco companies continue to do business. Washington is expected to receive a total of $4.5 billion from the companies by 2025 for health care and smoking prevention programs.

That lawsuit was sparked by documents released by tobacco company whistleblower Jeffrey Wigand, Gregoire said, noting that “what we came to understand was going on was appalling.”

“So, a couple of states went out and sued,” she said. “The rest of us tried to bring the whole group together, and ultimately we were able to get the largest settlement in the history of the world.”

During his tenure, attorney general Rob McKenna also was involved in a multistate class action suit against national mortgage lenders for fraudulent practices. That eventually led to a $25 billion settlement in 2012, of which Washington received $648 million. “We were able to provide mortgage relief to thousands of homeowners in Washington state,” McKenna said. “That was very gratifying.”

Ferguson’s most prominent consumer protection lawsuit involved holding opioid manufacturers, distributors and pharmacies accountable for the addiction and overdose crisis in Washington, which has claimed over 17,000 lives statewide in the past 15 years. Originally part of a class action with other states, Ferguson’s office chose to reject those national settlements and pursue Washington’s cases independently. “I just felt it wasn’t enough money and we could do better by going our own way,” he said.

It was a calculated risk that paid off. The AG’s office says that individual opioid case settlements, including those with Johnson & Johnson this year, Purdue Pharma in 2022 and other companies, have resulted in a total of $1.2 billion for state health care and treatment programs – about $113 million more than if the state had accepted the national settlements. Ferguson said the size and experience of his team was a deciding factor. “I could reject national settlements because I knew I had the team to prosecute our case. Whereas I know for a lot of my colleagues, their teams aren’t big enough or have the expertise to do it.”

Occasionally, a case doesn’t go their way. Of the 800 or so consumer lawsuits filed under Ferguson’s tenure, the office has lost two, including a five-year case against the thrift chain Value Village. Because the state is by law on the hook to pay for defendants’ legal costs if they lose, the office sets aside a pot of about $10 million from its successful lawsuits for those instances. “Those payments come from bad actors that we’ve held accountable to our protection laws,” Ferguson said. “We simply bank some of those dollars to make sure we wouldn’t have to have taxpayers pay for it.”

Prominent opposition to Trump’s policies

Ferguson rose to national prominence when Washington became one of the first states to legally challenge the Trump administration’s controversial policies – most notably, the administration’s ban on travel and refugee resettlement from seven predominantly Muslim countries in January 2017.

In 2015, Ferguson had created the Wing Luke civil rights division, named for a former assistant attorney general and Seattle City Council member. “I certainly didn’t have in my mind the idea that someday we would be filing a lawsuit against the president,” he said. But over the course of a weekend after Trump signed the order enacting the so-called Muslim ban, Ferguson’s civil rights team filed the first lawsuit against the policy and won a halt to the ban from federal judge James Robart. Later rulings in the Ninth Circuit Court of Appeals also sided with Ferguson, who notes that the Trump administration “was articulating a shockingly broad interpretation of presidential authority.”

Although that case grabbed national headlines, other Washington attorneys general have also sued the federal government or defended the state before the U.S. Supreme Court, representing the interests of Washington residents.  

McKenna, during his tenure, sued the Obama administration in 2010 to oppose the mandate within the Obamacare health care bill requiring people to purchase health insurance. He lost in the U.S. Supreme Court, but the mandates were essentially ended by Congress in 2019.

McKenna also argued before the U.S. Supreme Court defending the state’s “top-two” primary election system, in which Washington voters don’t have to declare a party affiliation. In 2008, the court ruled 7-2 in favor of the state’s system. “We went up to the U.S. Supreme Court and persuaded them that this is not a blanket primary – that this is a qualifying primary, not a nominating primary,” McKenna said. “The top two can advance and so it doesn’t infringe on the First Amendment rights of the political parties.”

For his part, Ferguson doesn’t believe the AG’s office has become more politicized, and he’s quick to point out that his office also joined a multistate lawsuit against the Biden administration this year regarding the Food and Drug Administration’s policies on the abortion medication Mifepristone. “Lots of people called and said hey, this is embarrassing, don’t file a lawsuit against the Biden administration on reproductive rights,” Ferguson said. “But we did that because it’s protecting the rights of Washingtonians.”

Looking toward the governor’s mansion

The attorney general is also tasked with enforcing the state’s environmental regulations, and after Gregoire negotiated an agreement with the federal government as head of the state’s Department of Ecology, as attorney general she was tasked with enforcing that agreement. Ferguson, over the past dozen years, has increased the size of the environmental division and taken numerous companies to court, including a successful case against Crown Resources, owner of the closed Buckhorn Mountain gold mine in north-central Washington, which was found to have broken environmental regulations 3,539 times.

Now Ferguson hopes to become the next resident of the governor’s mansion – and he’s certainly not the first to attempt a leap from attorney general to governor. Ken Eikenberry, a Republican AG from 1981 to 1983, ran for governor in 1992 and narrowly lost to Democrat Mike Lowry. Gregoire was elected governor in 2004 after serving three terms as attorney general, and spent eight years in the governor’s mansion. McKenna entered the gubernatorial race in 2012 against Jay Inslee and lost by a slim margin.

In the current attorney general’s race, voters will decide between Democrat Nicholas Brown, former U.S. Attorney for Western Washington; Democratic state senator Manka Dhingra, D- Redmond; and Republican Pete Serrano, mayor of Pasco.

Gregoire said that while nothing quite prepares someone for the job of being governor, working as attorney general is certainly a logical step and probably why many past AGs have tried to make the transition. “Nothing that I can even fathom will prepare you to be governor,” Gregoire said. “But being attorney general is probably the best preparation you can get.”

“Because you have to represent every state agency. You have to represent the public. And in doing so, you come in with a wealth of knowledge and understanding of how government works – or doesn’t work – and what each agency is actually responsible for.”