With time running out to appeal the use of eminent domain against Common School Trust lands in Okanogan County, the contentious face-off between Lands Commissioner Peter Goldmark and Attorney General Rob McKenna is about to come to a head.
Either McKenna blinks, and accedes to Goldmark’s lawful request for legal representation, a concession that could come as early as today, or he plunges our state into a constitutional crisis by forcing Goldmark to take unprecedented legal actions that could ultimately lead to a Supreme Court showdown, and potential disbarment proceedings against McKenna.
And no, I’m not being hyperbolic.
“I am deeply disappointed that Attorney General Rob McKenna has denied my request to appoint a Special Assistant Attorney General that would allow DNR to appeal the use of eminent domain against the Common School Trust in Okanogan County.
As Commissioner of Public Lands, I have a fiduciary responsibility to defend the trust. It is puzzling that our Attorney General will not allow his client’s argument to be heard in court when he already supported trying it in a lower court.
While I am unsure what changed his mind, I hope he changes his mind again and appoints a Special Assistant Attorney General.
It is uncertain if there is a precedent for denying a request for a Special Assistant Attorney General to an agency headed by an independently elected official.”
Don’t be distracted by the measured wording of Goldmark’s press release; this is clearly a threat, and a clear indication that Goldmark has no intention of backing down in the face of his “fiduciary responsibility to defend the trust.” Just as the RCW mandates that McKenna must provide legal representation to Goldmark, the RCW also bars Goldmark from retaining outside counsel. Within days, both of these statutes may be violated, leading to a messy court fight over a court fight.
As a partisan blogger already focusing on the 2012 gubernatorial contest, I’d personally prefer that McKenna maintain his arrogant, illegal and unethical stance. It would be a dramatic, political misstep… but I’m not betting on it. My best guess is that McKenna will momentarily back away from the dark side and assign a Special Assistant Attorney General to DNR, while publicly criticizing Goldmark for ignoring his legal advice. That would be the smart political move, and up until recently, McKenna has proven to be a smart politician.
But if he doesn’t… well… Katie bar the door. So far the media has largely ignored this dispute — I guess they just can’t be bothered to wrap their minds around such complicated legal issues. But they won’t be able to ignore what comes next.
It doesn’t look very mavericky when you back down durning a power struggle. What will the wingnuts think?
sarge @1,
The problem for McKenna in terms of what the wingnuts think is not backing down, it’s holding his ground in defense of an expansive use of eminent domain.
That’s really what’s at issue here. The PUDs, as well as state agencies like WSDOT, fear that should DNR win on appeal, it would limit their ability to use eminent domain to condemn state trust land, thus creating a legal barrier to future projects. That’s the pressure McKenna has been responding to.
Poor Robbie, torn between the powers that be in his party and his sworn, legal obligation. This will be interesting to watch. Truly a stain on this state’s major media to be ignoring this struggle.
An example of implications: Radar Ridge wind power project being proposed by Energy NW (the old WPPSS) is on DNR land in SW Washington. If OkPUD’s gambit succeeds, Radar Ridge project owner PUDs could be put up to condemn land if Goldmark obstructs permit due to impacts on marbled murrelets, the little ESA listed bird that happens to have a stronghold adjacent to the site.
Goldmark is a clusterfuck. The court ruled against him and now he wants to shop for a judge that will validate his puny position.
What makes this most fun is that McKenna and his conservative crowd rail against condemnation but here they are advocating FOR condemnation! I suppose McKenna thinks that condemnation is OK when the government’s land is being condemned because (1) everyone hates government; and (2)enviornmentalists “hide” behind govt.
What media? We don’t have any media in this town, only a GOP party newsletter.
@5 You’re an ignorant fuck who knows less about how our legal system works than the average ninth-grader. Appealing a trial court ruling isn’t judge-shopping, idiot! You don’t even know what the term means.
If Goldmark files a complaint with the state bar association, expect an investigator to be assigned and the entire process to be put on the back-burner until well after the 2012 election. Mostly they go after the small fry anyway, it’s pretty rare to see them go after an attorney in a high-powered firm, much less the attorney general.
By the way, I don’t think he needs a license to practice law to be the attorney general. It would affect him only if he returned to private practice.
@6 It’s merely another example of the fact that conservatives say one thing but do another. For example, for nearly 40 years they’ve paid lip service to overturning Roe v. Wade, but that’s the last thing they want to see happen, because it would deprive them of the best issue they’ve got for rallying their base.
# 8: Perhaps he was thinking of the judge-shopping that the GOP did when they tried to overturn Gregoire’s victory in the 2004 govenatorial election? They selected a solidly Republican county with only two superior court judges. Yet they still lost, because the only real evidence of illegal voting was by Republicans.
# 6: Perhaps that IS the real issue here. Over the past fifteen or twenty years or so, the Republicans realized that if they can’t win the big elections on the issues, they can perhaps buy elections on the local level, and leverage that into pushing forward that agenda locally.
In the 1990’s, Rove sharpened his skills in that strategy by targeting state Supreme Court elections. Usually these are low-key contests with little money involved. But Rove found that if he targeted a race and flooded it with big money, along with a black-bag operation to dicredit the incumbents, then they could win those posts. Similar efforts went into campaigns for anyone involved in the state election process. Then they levereged that into winning close races by having loyal people in state offices pulling the levers of power to make sure Republicans had an unseen advantage in subsequent elections.
The strategy may be similar here. Goldmark’s victory signalled trouble – they couldn’t win statewide races for governor, U.S. Senator, or even Public Lands Commissioner. But what they COULD do is keep control of public utility districts in red areas. If the PUD can trump the state in a condemnation dispute, then the state authority over public lands outside the Puget Sound corridor is severely limited. Note that here, too, they are leveraging a win in a relatively low-profile election, State Attorney General, into a win on that local strategy.
#11 – not to go way off the track of this post (not that that has ever happened here!!) but the Rs did try to judge shop the governor’s race, only to find the ONLY democrat Judge in Eastern Washington. I’ve known Judge Bridges since I was 6 years old (over 50 years) and I laughed out loud when the Rs picked his courtroom. An R friend of mine still owes me 5 bucks!
# 13: Well, they expected to get the other judge. But the other judge recussed himself (I forget why). I guess if you are going to engage in some judge shopping, you had better make sure the judge you’ve selected wants to hear the case.
Blogosphere has to stop talking about this issue; THEN the Seattle Times will pick it up — just like they did with Reichert’s too-candid comments about how he manipulates environmentalists with a few throw-away votes.
Or another option…
The real journalists have analyzed the issue and just don’t believe there’s any there there. Simply not agreeing with Mr. Goldstein is hardly indicative of anything but good sense.
Just a possibility.
Rabbit, to call ANY Seattle area paper favorable to the GOP is simply laughable. Like the majority of the media in this country the local papers are solidly liberal in bias.
To be clear, if the statutory interpretation Goldy brings to McKennas obligations is correct, he is in fact avoiding his duty.
Seems to me something as important as that would have been picked up, though. After all, when McKenna honorably represented citizens whose basic right to engage or not in commerce in the form of health insurance, the papers were all over it. You think if he actually did something wrong they wouldn’t be? Come on, now.
lost @17,
There are court cases in other states that have almost identical constitutional language, that back up my interpretation of the AG’s duties. Unless the claims are frivolous, he is statutorily required to represent DNR in this appeal.
@16
the local papers are solidly liberal in bias.
No. It’s just that your views are so far to the right of the majority, that everything else seems “liberal” to you.
This sort of “inside baseball” stuff really isn’t of much interest to local media any more.
Partisanship may have nothing to do with it. It’s just that reporting on something like this pushes aside all the “hard” news about cats in trees, car fires, cops punching drunks, and bikini baristas.
Re 18
Fair enough. If that’s true the future of his license to practice law may be in jeapardy. If it is it would be his own doing.
I suppose it’s equally possible that newspapers and TV find the issue too lacking in immediately understandable concepts. I remember from college that newspapers are written to an 8th grade level of comprehension. If that’s still true, concepts of professional responsibilities or the duties of an AG to uphold policies with which he or she may disagree seem too complicated to the editors.
RE 19
No. My views are to the right of yours, certainly. I make no apology for that, nor do I castigate you for your political opinions. But it is no secret that the media as a whole is solidly liberal in bias. Only liberals ever contest this.
You’re right, I am to the right of the majority. Most of the posters here are to the left. To you the media seems ‘corporatist’, or whatever the current liberal catch-phrase is. To most Americans it shows a definite bias to the left.
“To most Americans it shows a definite bias to the left.”
Oh, I see. You are now “most americans”? But to get off topic here, on what basis do you judge the Seattle Times to be “left wing”? Your assertion, and that is all it is, is simply laughable.
Goldmark, Democrats, Liberals, and Goldy.
Why, in a time of massive budget shortfalls, (due to massive spending increases) is the DNR not following their attorneys advice not to proceed? The argument put forward is that the AttyGen is not proceeding for political reasons. I put forward that the exact opposite is the case.
Goldmark sees this as an opportunity to play politics. Why waste the money on a fruitless appeal? The AGO rightly advised his client that an appeal would not return a decision in favor of the DNR, and that an appeal was not warranted or advised. The case was reviewed for grounds to appeal and non were found..
Why is Goldmark continuing down a black hole? Why does he wish to waste tax payer money?
Once again we have spend-drunk liberals playing politics with our tax dollars.