From the DNR website:
OLYMPIA – Commissioner of Public Lands Peter Goldmark today filed a petition for a writ of mandamus with the Washington State Supreme Court. The petition asks the court to compel the state Attorney General to represent their client, the Office of the Commissioner of Public Lands and the Washington State Department of Natural Resources, and the interests of the state.
Commissioner Goldmark was forced to appeal to the Supreme Court following multiple refusals from Attorney General Rob McKenna to file an appeal with the Division III Court of Appeals of the State of Washington or even appoint a Special Assistant Attorney General to do so. Goldmark has retained the pro bono legal services of attorney David Bricklin, at no cost to the state or trusts.
“It is essential that the Office of the Commissioner of Public Lands has the ability to carry out its fiduciary responsibility to the trusts, and not having counsel leaves the Common School Trust defenseless,” said Goldmark. “The Supreme Court will be answering a very important question around the role of the Attorney General to set policy for the entire state.”
The original deadline to appeal the Okanogan PUD condemnation case was June 10. That deadline was extended by two weeks due to actions by interveners in the case. Attorney General McKenna has now agreed to file the appeal “contingently,” pending action from the Supreme Court on the writ of mandamus. Should the petition fail, the Attorney General has signaled that he would withdraw the appeal.
In covering this story, I urge my friends in the media to review my extensive legal analysis here and here.
UPDATE:
McKenna will be on KUOW’s Weekday tomorrow morning at 9AM. Educated by my coverage, I urge folks to call in and ask the Attorney General whether he really believes that all “branches and agencies of government [should be] deprived of access to the court except by his grace and with his consent.”
Well, well … McKenna’s brief is going to be graded by the state supreme court justices. This should be interesting. We’re about to find out whether the guy is a lawyer, or just a hack politician who doesn’t know how to read a statute describing the duties of the public office he holds.
The times finally picked up on the story with perhaps the shortest story one could write on the subject.
http://seattletimes.nwsource.c.....spute.html
RR @ 1: Good point. McKenna’s whole argument is that the appeal is without merit. But he also says he has discretion on whether to file the appeal or not. If the Supreme Court says he doesn’t have such discretion, then what does it say about his ability to judge the merits of the appeal itself?
By the way, expect him to argue that he has an obligation under Rule 11 not to pursue a frivolous appeal. But since he has an affirmative constitutional duty to proceed, I don’t expect the court to find that particularly persuasive.
Personally, I think McKenna backed into this one, and is probably now trying to find a gracefull way out. He “presumed” that he had more authority than he does, and expected Goldmark to roll over, in awe of McKenna’s higher status. Now that the briefing is going to be done, he’s going to be asking his assistants to find some authority to support his position – which is exactly backward of what he should have done (i.e., determine his authority, and adopted a position consistent with it).
David Bricklin should make McKenna into diced ham.
“Attorney General McKenna has now agreed to file the appeal “contingently,” pending action from the Supreme Court on the writ of mandamus. Should the petition fail, the Attorney General has signaled that he would withdraw the appeal.”
This is really bugging the crap out of me. I’ve commented about this several times here, and haven’t had a satisfactory response.
How can someone represent a client when they are in an adversarial relationship with that same client?
There is more to the law than “filing”. What the “filings” actually contain is relevant. Whether or not your legal representative wants you to win your case is relevant. McKenna simply cannot be relied upon to do anything to support the Commissioner of Public lands or the DNR, because the AG himself loses if the DNR wins. He’s on the wrong team. McKenna want’s Goldmark to lose his legal challenges, yet McKenna office is Goldmark’s legal representation.
How can this adversarial relationship, created solely by the AG’s refusal to carry out his statutory obligations, be anything less than a violation of legal ethics, if not outright malpractice?
Good work Goldy!
Bobby Mac is building quite the record of incompetence.
rhp6033 @3,
McKenna would have a tough time arguing that a case his office argued in Superior Court is now “frivolous” on appeal. Perhaps he really thinks an appeal would be futile, but “futile” and “frivolous” are not the same thing, and even a decision to file a futile appeal belongs to the client.
What McKenna is really arguing is that he does not have a traditional attorney-client relationship with Goldmark, and that he is not bound by the plain language of the statute, nor his professional ethics, because he has some sort of broader common law obligation to protect the “public interest,” whatever he thinks that may be. Too bad for him that case law doesn’t support him on this.
@5 sarge 06/21/2010 at 6:05 pm,
Good point. Goldmark’s next filing after the court finds with him on this one is to demand the AG’s office appoint external counsel.
@8) Or, his next filing could be declaring himself a candidate for Governor.
McKenna lately seems to be exposing himself as nothing more, or less, than a political hack.
Goldy @ 7: There’s a difference in the consequences between proceeding on a “futile” and “frivolous” claim.
An attorney can proceed with a case, even if it goes against existing case law, if there is a rational argument for the reversal or abandonment of existing case law. The claim may be “futile”, but it is not “frivolous”.
A “frivolous” claim, however, is one where there is no reasonable argument upon which the claim could prevail. Attorneys can be sanctioned by the court for presenting a frivolous claim.
Last year that crazy birther attorney out of California Orely somthing-or-other, was hit with substantial monetary sanctions for continuing to present the same claim over and over again, albeit with different plaintiffs and in different courts. Eventually courts get tired of having their time wasted.
sarge @ 5
Actually, filing a notice of appeal does not involve much by way of substance. The notice, for the most part, simply identifies the order or judgment from which the appeal is taken. Any litigator knows that if you don’t file the notice of appeal, due 30 days from entry of order or judgment, your client is forever screwed–it’s like a statute of limitation. So, even if you don’t believe the appeal will succeed, you file it if your client so requests because the odds of the client finding other counsel in that short time span is so small. The attorney’s first job is to protect the client. McKenna seems to think his client is Rob McKenna.
@10: That would be Taitz and $20k.
while i disagree with McKenna on the policy underlying the appeal, and on his decision to not file on behalf of the Department of Public Lands, it should be noted that he is not a hack. his office recently received an award from the National Association of Attorney’s General for its briefing to the supreme court on R-71, and for the most part he runs a fine office.
it’s always better to concede where your opponents are correct, and doing a fine job. it adds credibility to your criticisms. also, though their cases may have been coordinated in the MDL proceeding, McKenna is no Orly Taitz.
@13: I said “political hack”. Recently, he has made what appears to be purely political moves on three important cases:
1) Farrakhan v. Gregoire, where he dismissed the court finding of institutional racial bias and pursued action to reverse the results of that ruling in hopes of arguing in front of the Supreme Court against felons voting from jail.
2) He joined the Florida AG in a purely political and meritless suit to undo the health care bill.
3) He now refuses to provide the statutory required legal representation for the DNR. Since a legal basis for this move appears to be nonexistent, I can only conclude his motive is political.
Question-
Why didn’t Goldmark have his buddy Bricklin file the Appeal?
I think he is spending close to the same amount of tax dollars going after McKenna as he would have had he simply had Bricklin file the Appeal.
This is clearly a leftist political hatchet job…all at the taxpayers expense.
It will certainly be a campaign issue against Goldmark next time around.
Goldmark had plenty of time to get other counsel if he was really motivated by the legal issue. Obviously this was a political witch-hunt against McKenna.
@15
Wrong again, Cyn. At least you’re consistent.
Goldmark asked, and is now demanding, that McKenna do his job. To not confront McKenna is de facto acknowledgment that the AG has common law powers – as McKenna wrongly claims.
McKenna, true to his Republican worldview, is grabbing power to which he is not entitled.
Cynical @ 15: You wern’t paying attention. Goldmark is expressly prohibited from employing a lawyer to prosecute the appeal on his behalf. He can’t even hire a lawyer to compel McKenna to do his job. The Constitution specifically says that only the Attorney General can represent the State or it’s agencies.
Goldmark’s lawyer is doing the work for free. No taxpayer money is involved. I wouldn’t bet the same thing for McKenna, he will probably use his office resources to defend the suit, which would indeed be a waste of taxpayer money.
Hey, from what I’m reading, it seems that some Washingtonians are waking up: McKenna functions not as the enforcer of laws, but as a protector of the old boy network that actually runs the state.
In June, 2009 we rote to McKenna to ask that he file a Writ of Mandamus to force the Department of Licensing to apply Washington’s real estate licensing laws to the state’s largest real estate firm.
Concerning the duties of the Director of the Department of Licensing, RCW 18.85.040(2) states: “The director SHALL enforce all laws, rules, and regulations relating to the licensing of real estate brokers, associate real estate brokers, and salespersons.” (Emphasis added.)
We asked for KcKenna’s help because we — and others — found that DOL repeatedly excuses Windermere brokers and agents from egregious violations of licensing laws: Windermere is not disciplined for, among other things, knowingly selling a meth lab house to an unsuspecting family, knowingly selling a rat-infested house to an unsuspecting customer, and abusing a vulnerable adult by persuading her to sell her ocean-view property to Windermere agents at a fraction of the land’s actual value. These and many other such cases are documented at http://www.Windermere-Victims.com.
McKenna’s response? Despite RCW 18.85.040(2), McKenna’s office wrote and stated that DOL had the *option* of enforcing state law! That’s right: McKenna’s office refused to lift a finger against DOL and it cooperating with Windermere’s unlawful conduct. In fact, McKenna’s office told us if we filed a Writ of Mandamus, McKenna would defend DOL.
“Organized Crime refers to those self-perpetuating, structured, and disciplined associations of individuals, or groups, combined together for the purpose of obtaining monetary or commercial gains or profits, wholly or in part by illegal means, while protecting their activities through a pattern of graft and corruption.” — Internal Revenue Service Manual 9.5.6.1.1 (07-29-1998)
What we need in Washington is a federal investigation of Washington corruption. Washington is, apparently, too rotten to handle its own problems.
18 – Isn’t Jenny Durkan U.S. Attorney for this region?
The Feds have a peculiar agenda of their own but who knows her office may be welcoming of your complaint.
Think of all those law and order Republican U.S. Attorneys that got fired by Fredo Gonzalez and Harriet Miers – they were investigating their own big time.
Thanks for the suggestion! I wrote to Jenny Durkan on April 7, 2010, but have received no reply.
Carol
Carol DeCoursey @18:
Isn’t that his constitutional and statutory role as Attorney General?
@3, etc.,
Rule 11 demands that any filing be certified to be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” (emphasis mine).
The state statute directing McSuicide to represent the agency would serve adequately as “existing law” for the purposes of Rule 11. But Rob hasn’t read either. Frivolous or not (and Rob is certainly entitled to his layman’s opinion) the state statute overcomes any Rule 11 objections.
Even if the appeal were frivolous.
Which it isn’t.
Let’s face it. Rob is way out of his depth on this shit. In eight odd years of practice he never handled major litigation. His focus was on petty commercial litigation and compliance. He’s been a political candidate far longer than a lawyer, and it shows. And the little experience he has as a lawyer did not prepare him for a Constitutional confrontation like this. Goldy’s right. Any minute expect to read a release from the AG basically demanding a mulligan.
Dear N in Seattle:
You write, asking if McKenna’s constitutional and statutory duty is to “defend” the DOL.
RCW 43.10.040 states the Attorney General shall represent state agencies before legal and quasi-legal bodies.
RCW 43.10.030(3) states the Attorney General shall “defend all actions and proceedings against any state officer or employee acting in his official capacity, in any of the courts of this state or the United States.”
But the DOL officers, in effectively granting the Windermere empire a carte blanche to violate state law at will, are not “acting” in their “official capacity.” DOL officers are acting unlawfully, outside their official capacity. The Attorney General is not required to defend DOL’s unlawful conduct.
Many attorneys who represent criminals — when the evidence against the client is clear-cut and irrefutable — advise and assist the client to plead guilty.
Thus it would be proper for McKenna, if the DOL were faced with a Writ of Mandamus, to advise the DOL not to oppose the Writ. And of course even better, as the DOL’s legal counsel, McKenna should advise the DOL of its duties under State law just as any lawyer would do for his client.
Please read Seattle Times Editorial 6/27/2010 quote from Gregoire our former attorney General.
Gregoire said she will no longer accept the excuse that a task is mandated by state law. “That can be changed.” she said “We are the law”
Get it folks the mandated positions as Attorney General and Governor now make these “We” above the law. McKenna was put in office by the builder’s board and while Gregoire was Attorney General her daughter Courtney was given a position in the Preston Gates Law form working on Weyerhaeuser legal issues at the time Weyerhaeuser was having a problem with mold in the homes built by their subsidiary Quadrant Homes. Wa La from the Washington Department of Agriculture: a new mold guidance policy appears two months before a Weyerhaeuser executive secretary wants to sell a moldy home. This policy was not even sent to the WSDA information officer who knew nothing of it 5 years after its production. Then there was the infamous clear cutting of the mountain over the recommendations of the State’s own geological engineer for the benefit of Weyerhauser. Our now governor argued no one is to blame. Peter Goldmark’s election to the DNR over Weyerhaeuser’s candidate was a direct result of that action that cost the State millions in blocked I-5 results. Now he is being punished by the corporate political hacks for trying to do the job we elected him for. Is it not time to get rid of officials who think “We are the law” or better yet we are above the law.