The more I think about the escalating spat between the Washington State Department of Natural Resources and Attorney General Rob McKenna over his refusal to provide legal counsel in appealing a lower court decision, the more I think that our local media may be missing an awfully big story in the making. Let’s just say my spidey sense is tingling.
The issue at the center of this dispute is whether a local government agency, the Okanogan Public Utility District, can condemn state Common School Trust land through eminent domain, an action for which there is little if any precedent, but the precedent the Attorney General seeks to set in refusing to represent DNR on appeal could be much more far reaching. Indeed, it essentially boils down to who gets to set policy priorities in Washington state: elected executives like Lands Commissioner Peter Goldmark and Governor Chris Gregoire… or the Attorney General himself?
The statute is clear; it is “the duty” of the attorney general to defend the state “when requested so to do by the commissioner”:
RCW 43.12.075
Duty of attorney general — Commissioner may represent state.
It shall be the duty of the attorney general, to institute, or defend, any action or proceeding to which the state, or the commissioner or the board, is or may be a party, or in which the interests of the state are involved, in any court of this state, or any other state, or of the United States, or in any department of the United States, or before any board or tribunal, when requested so to do by the commissioner, or the board, or upon the attorney general’s own initiative.
Yet despite Commissioner Goldmark’s repeated requests for a Special Assistant Attorney General to appeal the decision, McKenna has refused. In a statement, McKenna claims that the decision not to appeal was based on the likelihood of success, but that is not his decision to make. The statute is unambiguous, and McKenna’s refusal to comply may be unprecedented.
Meanwhile, RCW 43.10.067 appears to bar DNR from retaining outside legal counsel, leaving the department powerless to legally defend itself in the absence of adequate representation on the part of the Attorney General.
So what is really going on here? Reading between the lines, Goldmark appears to give a hint in his earlier statement on the dispute:
“By refusing to represent the Common School Trust and the non-tax revenue it generates, Mr. McKenna is choosing to allow the inappropriate use of eminent domain over Washington’s schools,” said Commissioner Goldmark. “Mr. McKenna is choosing to play politics with our state’s heritage.”
This is a case that puts the state in the unusual position of opposing an expansive use of eminent domain, and one can’t help but wonder if McKenna is choosing to sacrifice the interests of one client to what he believes to be the general interest of others (DOT, for example). Yes, in the broadest sense, McKenna represents the people of Washington state, but according to statute the specific duty of his office is to serve as the sole attorney to the state’s individual departments, agencies and commissions.
If the Attorney General is given the option of choosing which laws and policies to defend, then he is essentially put in the position of setting policy, trumping the power of elected executives like Commissioner Goldmark. Which I suppose is why the RCW does not give the Attorney General such an option.
As DNR’s attorney, McKenna is free to strongly advise Commissioner Goldmark not to appeal. But to refuse a statutory request for legal counsel represents an unprecedented usurpation of executive power that could greatly expand the role of the Attorney General’s Office in setting state policy at nearly every level.
And that is a story our media shouldn’t ignore.
Sounds like a pretty clear cut case of Robby not doing his job too me. And yeah, the idea that any little podunk entity can decide that they want state land and just take it is just plain wrong.
A Republican’s only duty is to himself and his own selfish concerns. That’s their whole philosophy.
Goldmark is no dummy. He’s got a PhD in molecular biology, among other academic achievements, and has been immersed in public policy for a very long time. In fact he’s quite the renaissance man. Peter Goldmark is perhaps the smartest individual in State government.
McKenna can’t just write this off as a situation where he has superior legal knowledge, not that such a circumstance would even be relevant to the law and his duty as AG.
Why should McKenna take the DNR’s side in a battle between TWO GOVERNMENT AGENCIES.
The AG represents the people that form the local PUD as well.
Remember the “non-tax revenue” we’re talking about is the decreased value of taking 145 acres from a) grazing land to b) grazing land with transmission towers on it.
Goldmark just wants the power and control.
@3 Goldmark is not stupid. He is, however, venal, power hungry, wrong and disingenuous.
His comment about schools is another variation on “it’s for the children”, which is lefty speak for “don’t question my motives or methods.”
delbert @4,
No the AG represents the state, not local government entities. And, FYI, McKenna had no qualms about representing DNR in the court case; it’s only the appeal he’s refusing to represent.
Stupid fucking comment @4 says:
The AG does not represent the PUD, nor its commissioners, you fucking dumbshit. A local PUD is not a state agency. In effect a PUD is incorporated and operates like a municipality, only without the taxing authority. As such, this is like the State of Washington suing the City of Seattle, if the city sought control of DNR trust lands through municipal condemnation. The state would be represented by the State AG, and the city would be represented by the City Attorney.
It is perfectly normal and expected that the State AG would represent a state agency in a civil dispute with a local, quasi-municipal, non-state authority. He may have good legal reasoning behind his decision to decline. And for all I know it may even be his decision to make. It doesn’t look like it from a plain reading of the statute. But there may be more to the legal history here than the statute. However, this certainly isn’t the AG declining to involve himself in an internecine dispute between two parties he represents. That’s just plain fucking stupid.
Yup! But, you’d have to have media that gives a shit about such things for them to look into it and right now we don’t. Well, we might if we can beat them up online and make them look bad enough, then, maybe, they’ll take a peek. Freakin’ bloggers, making us cover real news…
************************************************
@5
The finical concerns were focused on the other side of the balance sheet, costs not revenue.
@5 Goldmark just wants the power and control.
Yep, because that’s the job he was elected to do – oversee the use of the Common School Trust land.
@6: Goldmark might also be the most honest and decent human being in all of WA State Government. He isn’t, and never has been “venal” and/or “disingenuous”.
So, wait. McKenna is now refusing to represent the state in a case he’s been asked to by a state official, but earlier this year he was refusing NOT to represent the state in a case he was asked NOT to by a state official, the health care law issue?
When did we elect McKenna governor?
See this is the kind of story our papers like. Everyone gets a laugh out of the story, it gets emailed around and it barely costs them anything to write it.
“Don’t taze me in the nuts bro.”
@13
So, your message is: taze Robbie in the nuts?
@14
Or catch Dino fucking someone/thing on his front lawn. Short of that the media doesn’t seem to care what they do.
If the law says he has to do something and he doesn’t, isn’t he breaking the law? Isn’t breaking the law against the law? I thought you could be charged with a crime for that. If charged would the State have to defend him, so that he would be his own attorney? Would this then prove the maxim that a man who is his own attorney has a fool for a client. Ah…Mr. Orwell, I think we have a short story for you here.
Remarkable. As a lawyer, I hate to weigh in, but permit me, if you would-attorneys are supposed to represent clients, for good or for ill. We are not supposed to represent ourselves. Rob McKenna seems to have forgotten that he has a client. He does not seem to understand his job. He represents himself. That is not what our Attorney General is supposed to do.
But said client is a D. And McDumbass is not. There’s your reason, simple as that. Goldmark really ought to go tase McDumbass in the nuts until he complies.
@18
There sure is a lot of nut tazing going on. You know, of course, that “Don’t Taze Me Bro” is a reality show coming to Spike this fall, right?
Rob McKenna is a weasel and the media make money, not by exposing weasels, but by having good footage. There’s no footage in this so far.
Goldy… Since you own HA you can search this yourself through your own database. Everyone else needs to ask their unfriendly and hateful dumb brick arschloch who has is own personal copy on his home server.
Remember the Kelo SCOTUS decision on eminent domain? Remember the national commentary from those who think right on how this decision could affect other eminent domain thievery? Suzette Kelo’s property was being acquired by eminent domain. Puddy placed this decision on HA and told everyone it would come back to bite some of you leftists in the ASS. Do you remember the stupid commentary from many on your side of the political aisle? You can look it up Goldy. Maybe McKenna remembers this and how it blew up to the SCOTUS and he wants no part of it in a potentially similar arena.
As stated in the leftist site WikiPedia…
Now who voted for this eminent domain action and against the Institute for Justice, NAACP, AARP, Martin Luther King’s Southern Christian Leadership Conference and South Jersey Legal Services? The LIBTARDO DUMMOCRAPT loving wing of SCOTUS: Justice John Paul Stevens, Justice Anthony Kennedy, Justice David Souter, Justice Ruth Bader Ginsburg and Justice Stephen Breyer. And who was against it? The superior intellect of Justice Sandra Day O’Connor, Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas, SCOTUS Justices you leftist love to ridicule. HEH HEH HEH. These four superior minds called it
So why all this hue and cry crap over McKenna not jumping in? Well it was you leftists who attacked McKenna on the health care law, remember? Maybe he wants to lay low on this case until the other is settled.
Are you leftist pinheads so devoid of thought you can’t remember anything? More lock step attacks above. Nothing new here! Goldy sez there is no precident. Huh? Goldy you can do much better than this!!!
Puddy, full of sound and fury, signifying nothing.
What’s the relevence? None whatsoever. Puddy’s modus operandi.
And as so often happens, Puddy doesn’t understand the issue. Kelo V. City of New London decided that a municipality (and so by extension a state government) can use emminant domain to shift property from a PRIVATE entitiy to a commercial entity.
What Kelo specifically did NOT do is decide that a municipality can seize STATE OWNED property. Kelo is not precedent in this case. And just to be clear, Puddy misses the point. The undecided question of whether the municipaltiy is within legal rights is a matter for the courts, up to SCOTUS if necessary.
Meanwhile, Puddy ignores the fact that attorneys are REQUIRED to represent their clients or resign as their council. McKenna’s client has retained him to argue a case. He has two choices, do so, or resign.
checksez,
As always sees a Puddy entry, hatred blazes in his mind and then he write nothing significant. Here is what checksez missed when his mind went into Puddy hatred overdrive…
What does other thievery mean dumbASS? This action above? Another dumbASS slapped down! Do you put your thumb up your ASS, detemine the manure content and then start writing checksesz? Mike Rogers always comes to mind with you!
Seems so fool!
Puddy, as usual, failing to see the obvious.
You got your jockey’s all in a wad about a court decision, that in this instance, is not relevant at all. It’s still a matter for the courts, which via Kelo have NOT weighed in on this issue. You may think they have, but you are wrong.
Still playing the same game, eh? “The left was wrong about something so I’m going to claim it has relevence in this case.”
If you fail to see the difference between PRIVATELY owned property and STATE owned property you really are as thick as I suspect.
Silly Puddy. Still unclear?
Puddy sees the big time diff between property types. It’s the eminent domain decision Puddy is trying to get you to think about. And yet, you can’t fathom the far reaching effects of the Kelo decision and how it would affect other future public and private actions. This is what was brought up by conservatives back when the SCOTUS case was decided. This very act was one of the discussions on conservative radio and teevee. This is what is lost in your “mind” checksez, another Mike Rogers moment. Seems you are having more of them lately!
Puddy @20,
I know you’re a smart guy, so use your brain.
Kelo has nothing to do with this. This issue is not whether governments broadly have the right to exercise eminent domain. They do. The issue I’m raising is whether a local governmental organization can exercise eminent domain over the state, and even more specifically, over Common School Trust land.
This is a land grand state, and the land in question has special status. My understanding (having not yet gotten my hands on the summary judgement) was that the lower court made an evidentiary finding that the PUD’s condemnation met the standards to justify a taking via eminent domain, but did not rule on the larger legal issue of whether they actually have that right in this particular situation. That would be one of the main issues in an appeal.
The reason behind McKenna’s reluctance to have this issue heard and settled, I don’t know. But I strongly suspect he fears the precedent that might be set.
Goldy,
The Kelo Decision is the precedent that has been set for any governmental organization to go after anything and against anyone. Puddy will bet you $5 that the Kelo decision ruling will be brought up in some was, fashion, or form during the discussion phase.
Deal?
The other obvious thing Puddy is missing…
You should welcome this case. I agree Kelo will probably be cited as precedent. The courts will then either rule that Kelo is or is not precedent. If they decide it is (doubtful), running this case through the courts gives the new make-up of SCOTUS the opportunity to reverse Kelo.
But it still is off-topic to wether or not McKenna is mandated to argue the case.
Puddy @26,
I don’t give a shit whether Kelo is brought up in the briefs, the point again, is that this not a government exercising eminent domain over private property, but rather a local government exercising eminent domain over state trust lands in a land trust state. That is the new legal ground at issue here, and that is the question that would be addressed on appeal.
Kelo, on the other hand, mainly concerns whether eminent domain can be used to transfer ownership of property from one private party to another, as opposed to from private ownership to public use. It really has nothing specifically to do with this case.
Back in 1999, I’m sure Gregoire was personally opposed to I-695. But she knew she and her office had a job to do, so she defended it as AG. The same thing happened in 2000 with 722.
That’s the difference between Gregoire and McKenna as AGs. One put aside politics to do her job. The other put aside his job to do politics.
I strongly suspect the SCOTUS would decline this case were it appealed that far. As best as I can tell this is a matter of state law and the proper highest court is the State Supreme Court. If the people and the politicians don’t like the court’s ruling then the law can be changed unless there is some underlying state constitutional issue.
So, was McKenna’s decision to join the Florida teabagger lawsuit “based on the likelihood of success?” Somehow I don’t see that.
Hey, can I tase McKenna in the nuts? I seem to recall vaguely that it is part of my job, so it must be OK.
And I really want to, AND Kelo, as I read it , says I can.
Then you should bet $5 against Puddy. Hmmm…? So you are really saying you suspect Kelo would be used as an arguing point in this case? If so, then you are in tacit agreement with Puddy. That’s all Puddy said above which the thick headed checksez couldn’t fathom through the granite around the pea brain!
So Goldy, you don’t wanna bet $5 against Puddy?
@33
Read what I wrote above. I doubt the Federal courts will touch this case with a 20′ barge pole even if one of the parties in the case appeals it that far.
Why? Because ultimately this is a matter of state law. If the legislature says no county, municipality, or other junior entity can use eminent domain against state property then that is the end of the matter.
Chris,
IF is a big word. It tripped up Roger Rabbit a few years ago. All Puddy is saying is Kelo opened the door for these types of actions. If the SCOTUS killed the Kelo case, other entities would think twice pulling the actions Goldy documented above.
Puddy @35,
No, Kelo did not open any doors to this type of action. Kelo fairly narrowly focused on whether “public good” equaled “public use.” In Kelo, the state used eminent domain to take private property, not specifically for public use, but rather to transfer to a private party for redevelopment in the interest of the public good. In that sense, the majority decision did somewhat broaden the power of eminent domain. But the specific issue in Kelo has absolutely nothing to do with whether a local goverment can use eminent domain to seize for itself state land that is already in public use.
Then Goldy,
TAKE THE BET! It’s a simple issue here. Puddy believes it and you don’t. It’s only $5. Puddy thinks Kelo will come up as part of the reason for their actions. You don’t. It’s cut and dry per your “arguments” above. Puddy thinks otherwise!
TAKE THE BET!
@37
just because someone cites Kelo in their brief to a court handling this case doesn’t mean that Kelo has any relevance to the matters at hand at all.
I take it that Puddybud isn’t so hot at poker.
Ahhh Chris… now you are trying to get around what Puddy said above like checksez tried to do. If there is no relevance to Kelo why would a lawyer say it in a brief? You are arguing like Proud Leftist. Are you one of those barrister types too?
These domain land actions are what was discussed by conservative commentators back in 2006 when the SCOTUS ruled in favor of New Haven against Suzanne Kelo. You and others are too thick to admit that maybe, just maybe, the Kelo decision opens the doors to certain actions as stated in the thread head. And to cover your silly ASSes, you run around claiming “well there is really no relevance.” Well we’ll see won’t we?
And you all accuse Puddy of being thick headed. Look in the mirror!
@40
It isn’t uncommon for briefs to include citations that are only marginally relevant to the matters before the court. This is especially true when one side doesn’t have either the facts or the law in its favor (aka “pounding the table”).
Now if one of the courts hearing this case cites Kelo you might have something because then it becomes precedent and not just something thrown in a brief.
Still this is fundamentally a case of State Law and not Federal. The Federal courts will refuse to hear it. Ultimately even if the courts find that the current state law allows a PUD to use eminent domain against state owned land, that is only true until the law is changed by the legislature or the people.
19:
I’d love to see a “Don’t Tase Me, Bro!” reality show. Which trolls should we volunteer to be first?