On Friday I laid out a thorough legal analysis of the statutory duties of Washington’s Attorney General, and I thought about bumping it to the top of the home page this morning because it is absolutely must reading for anybody truly wishing to understand the looming constitutional showdown between AG Rob McKenna and Public Lands Commissioner Peter Goldmark.
Honestly. If you are a member of the media eventually tasked with covering the unprecedented case of a Washington state officer suing the Attorney General to force him to comply with the law, you’re gonna thank me for the relevant case law I’ve cited and the relatively cogent and concise manner in which I’ve summarized it. (Well, you won’t actually thank me. Nobody in the media ever thanks me. But I guarantee you’ll find it useful.)
But rather than simply repeat myself, I thought I’d take the opportunity to briefly elaborate on Friday’s post by presenting those powers and duties McKenna does clearly possess.
In a nutshell, in states with similar constitutional and statutory construction, courts have found that the law prescribes a traditional attorney-client relationship between the Attorney General and state officers that cannot generally be abrogated by claims to broader common law powers. Article III, Section 21 of the Washington State Constitution clearly defines the duties of the Attorney General as such: “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” In State v. Huston, the Oklahoma Supreme Court concludes…
[A]s most courts hold, that under constitutions containing [similar provisions], the attorney general is not a common-law officer, one upon whom “the duties and powers of the attorney general as the same was known in common law” have been engrafted, but is one whose powers and duties may be ascertained only by resort to the statutes.”
Again, there are plenty of similar citations in Friday’s post. Read the whole thing.
So what are Rob McKenna’s duties as Attorney General? Well, the most obvious and paramount one is the one duty specifically prescribed in the constitution itself: “The attorney general shall be the legal adviser of the state officers…”
After that, the RCW lays out a number of specific powers and duties which follow in full:
RCW 43.10.030
General powers and duties.The attorney general shall:
(1) Appear for and represent the state before the supreme court or the court of appeals in all cases in which the state is interested;
(2) Institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer;
(3) Defend all actions and proceedings against any state officer or employee acting in his or her official capacity, in any of the courts of this state or the United States;
(4) Consult with and advise the several prosecuting attorneys in matters relating to the duties of their office, and when the interests of the state require, he or she shall attend the trial of any person accused of a crime, and assist in the prosecution;
(5) Consult with and advise the governor, members of the legislature, and other state officers, and when requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers;
(6) Prepare proper drafts of contracts and other instruments relating to subjects in which the state is interested;
(7) Give written opinions, when requested by either branch of the legislature, or any committee thereof, upon constitutional or legal questions;
(8) Enforce the proper application of funds appropriated for the public institutions of the state, and prosecute corporations for failure or refusal to make the reports required by law;
(9) Keep in proper books a record of all cases prosecuted or defended by him or her, on behalf of the state or its officers, and of all proceedings had in relation thereto, and deliver the same to his or her successor in office;
(10) Keep books in which he or she shall record all the official opinions given by him or her during his or her term of office, and deliver the same to his or her successor in office;
(11) Pay into the state treasury all moneys received by him or her for the use of the state.
These powers and duties are quite specific, including paragraph (2), which requires the Attorney General to “institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer.” Notice that nowhere in that list of enumerated powers and duties is an obligation to broadly protect the public interest, or to balance the policy objectives and interests of one state agency against another, or to protect the future interests of DNR against the policies of the current office holder, or to completely control state litigation in defiance of the wishes the officers who are his statutory clients.
But if that’s not specific enough, the RCW drills down even further in defining the Attorney General’s duty as it relates to the powers and duties of the Commissioner for Public Lands:
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.
The commissioner is authorized to represent the state in any such action or proceeding relating to any public lands of the state.
The constitution is clear; the Attorney General “shall perform” those duties “as may be prescribed by law.” And the statute is clear; “It shall be the duty of the attorney general” to defend DNR “when requested so to do by the commissioner.” It is the Commissioner, not the Attorney General, who is statutorily authorized to “represent the state in any such action or proceeding relating to any public lands of the state.” It is the Attorney General’s duty to represent the Commissioner as his lawyer.
McKenna’s refusal to comply with a lawful request by Goldmark to file an appeal is a clear violation of the Attorney General’s constitutional and statutory duties, as well as the ethics of the legal profession pertaining to the attorney-client relationship. In plain language: our Attorney General is breaking the law.
No doubt when this dispute comes to a head, and Goldmark files suit against McKenna, as I’m guessing he shortly will, McKenna and his office will attempt to dismiss Goldmark’s charges as unfounded. But before credulously reporting McKenna’s defense, our media has a duty to examine the relevant statutes and case law, as well as the consequences of presuming the Attorney General to hold the broad, extra-constitutional, discretionary powers McKenna apparently claims. As the court wrote in Motor Club of Iowa v. Dept. of Transportation:
To accord the attorney general the power he claims would leave all branches and agencies of government deprived of access to the court except by his grace and with his consent. In a most fundamental sense such departments and agencies would thereby exist and ultimately function only through him.
This is a constitutional crisis, and as such, AG McKenna’s expertise and intentions should not be presumed.
These have been great and scholarly posts.
In the real world, however, isn’t it necessary for some group to push for a law suit, impeachment, or a recall?
@2 The first and foremost (unwritten) rule of law is that laws aren’t self-executing, they must be enforced — which is why I had a job for nearly 30 years (and now have a state pension).
You can make rules. You can tell people what they’re supposed to do. But, human nature being what it is, you don’t get compliance until you put a metaphorical (or, in some cases, real) gun to their fucking heads.
McKenna is like a guy who habitually blows red lights and bowls over pedestrians in crosswalks: Until he gets caught by the cops, hauled before a stern judge, and has his fingers put in a knuckle crusher, he’s gonna continue to be an asshole.
That shouldn’t surprise anyone. After all, his political party are nothing but a gang of thugs and assholes. And, make no mistake about this, McKenna may be drawing state pay but he’s an employee of the Asshole Party.
It troubles me that Goldmark is required to rely on the AG for representation, yet the AG has created an adversarial relationship with Goldmark and is vested in an unsuccessful outcome.
Neither McKenna nor any appointee that is loyal to McKenna would want the appeal to be successful, since McKenna’s excuse for not providing counsel is that the appeal was without merit.
A successful appeal would be extremely embarrassing to McKenna and damaging to his credibility as both an attorney and budding gubernatorial candidate.
How does Goldmark get the vigorous advocacy he is legally entitled to in this case?
@3 “How does Goldmark get the vigorous advocacy he is legally entitled to in this case?”
Whenever the AG has a conflict of interest with a state agency he is constitutionally and/or statutorily required to represent, he can (and should) retain outside counsel to represent the agency. Failure to do so in this case arguably would constitute an ethical lapse. But then, why would anyone be surprised if a Republican office holder behaves unethically? That’s what Republicans are good at.
@4) But he gets to choose the counsel, correct? I don’t think McKenna can be relied upon to appoint outside counsel that isn’t sympathetic to his own point of view.
The fact that McKenna has a stake in the outcome has compromised the entire process, unless Goldmark gets to choose the outside counsel.
# 5: Arguably, the outside counsel has it’s own reasons for doing a good job for their client (DNR). They have a professional obligation, and unlike the Attorney General if the Wash. State Bar Association ultimately deems them to have been negiglent, then it’s their license which is on the line. Also, no outside firm wants to be accused of an agency of malpractice.
But there’s always a grey area in between “zealous representation” and “negligence amounting to malpractice”. The outside firm would probably be one of the larger firms in the state, and would know upon which side it’s bread is buttered. They know that since only the Attorney General can retain outside counsel on behalf of the state in other cases, there is little benefit in showing up the Attorney General in the process of this particular case.
Also, the Attorney General is in charge of the budget for the case. Since an infinite amount of legal work can be done on any legal case, it’s appropriate that somebody be in charge of overseeing the billings. But what if the AG lets it be known that he’s only going to approve billings which amount to only a bare-bones effort?
All that aside, I’m not seeing any particular complexity in the case. Any lawyer accustomed to dealing with appeals and governmental condemnation issues should be able to handle it.
@6. Thank you.
It may be that the specifics of this particular case make don’t lend themselves to abuse of the process. But that doesn’t get McKenna off the hook ethically. It just doesn’t seem appropriate for him to have inserted himself in a way such that he now has an interest in this case which is in conflict with the DNR.
If he had just done his job, a the result of the appeal would have no effect on his personal or professional reputation.
Now he is clearly vested in an unsuccessful outcome for the Agency his office is obligated to defend . He shouldn’t be.
Some people would call Bobby Mac’s unprecedented actions here “activist”.
One would think the strict constructionist readers of constitutions would be going crazy over this. But not a peep.
I guess we’ll find out after our AG gets sued by our Lands Commissioner.
Bottom Line … Money.
The Office of AG is a problem.
As I wrote in The-Ave, this is not the only example of McKenna’s politicization of his office.
McKenna is also taking the side of the UW President against a scientific finding by the UW faculty. A faculty panel found for innocence on the part of a faculty member .. Andrew Arikyan.
Mark Emmert, the UW President, is himself controversial for promoting dubious relationships of the UW to NIKE. Emmert, who has no credentials in science or even a record of scholarly research in any field, claims that the faculty were incompetent and capricious for overrinding an administration finding of guilt.
The question of respect for expertise also affects McKenna’s decision on the use of State lands. Goldmark is also a highly respected graduate of a UW PhD program in science. While his degree is in biochemistry, Goldmark .. unlike McKenna has the training to make objective rather than political judgments. McKenna sees his own political judgement as overriding in deciding what to and not to prosecute.
Add in McKenna’s effort to redefine the Constitution to outlaw national health care.
The only way to change this is either to make the AG’s office truly non partisan OR to use the courts to force the AG to be non-partisan.
The latter approach raises THE issue.
Money .. who pays for the law suit.
The only way to move this beyond Goldy’s brilliant writing would be to find the money to sue McKenna.
cross posted at
The-Ave.US
of the UW but off campus.
@10 “Add in McKenna’s effort to redefine the Constitution to outlaw national health care.”
McKenna got elected AG by peddling himself as a “moderate Republican,” but his true stripes as a teabag radical are becoming clearer every day.
Democrats can retake this office in 2012, if they come up with a candidate with some heft.
What, no trolls in this thread? I guess their heads exploded when they tried to wrap their pea brains around this topic.
@10: Who are they going to retake it with? The likely opponent will be Reagan Dunn. We need to have a heavyweight to beat Dunn. Who is that candidate? I’m not saying that candidate isn’t out there, I just don’t know who it is. Do you?
Look at Reagan Dunn’s bio (assuming it’s not complete lies). Wooo. I didn’t realize he was such a….um, true Republican.
http://www.kingcounty.gov/Dunn/Biography.aspx