In defending his refusal to fulfill his statutory duty to represent Public Lands Commissioner Peter Goldmark in court, Washington State Attorney General Rob McKenna has publicly worried that an appeal in the underlying eminent domain case could create “bad law,” an ironic concern considering that by forcing a constitutional showdown with Goldmark, McKenna could end up narrowly redefining the powers of his office… including his claimed power to participate in the Florida lawsuit seeking to toss out key provisions of the landmark Patient Protection and Affordability Act.
As I’ve previously explained in detail (here and here), Washington’s constitution and statutes are unambiguous. In states where the constitution requires that the attorney general “shall perform such other duties as may be prescribed by law,” courts have generally ruled that the office does not retain the traditional common law powers attributed to the position, but rather only those that, well, “may be prescribed by law.” And RCW clearly states that “It shall be the duty of the attorney general” to represent the commissioner “when requested so to do by the commissioner.”
McKenna appears to claim a broader power to protect the public interest that trumps his statutory duty to provide legal representation to state officers, a claim on which he seems unlikely to prevail given the clear language of the constitution and the statutes. And the state Supreme Court could merely leave it at that, granting Goldmark a writ of mandamus, and compelling McKenna to either bring the appeal or hire outside counsel to do so.
But the court could go further, by settling this issue once and for all. And if the court were to follow the West Virginia example and rule that office grants the attorney general no common law powers, but only those powers and duties prescribed in statute, it could prove a major blow to McKenna’s efforts to fend off a lawsuit from Seattle City Attorney Pete Holmes that asks the court to compel McKenna to withdraw from the Florida suit.
Indeed, as part of a recently filed brief, Holmes makes the exact same argument in a section titled “The Attorney General has only the authority granted by statute.”
Respondent assumes that the fact he is “independently elected” somehow clothes him with extrastatutory authority. … The history and provisions regarding the role of the Attorney General in this state demonstrates otherwise.
Holmes goes on to quote State ex rel. Winston v. Seattle Gas & Electric Co. (the same case I’ve previously cited), in which the court was unambiguous about the matter:
The legislation of the state shows that the legislature has not considered that the attorney general is clothed with any other power than that conferred upon him by the constitution or by express legislative enactment. Where it has been deemed necessary for the attorney general to appear and represent the state, authority for that purpose has been give to him by express enactment.
While I admit that there is a stronger legal argument to make that the attorney general has the discretion to take affirmative actions than he does to refuse statutory duties (for example, McKenna probably could have brought the appeal on his own initiative without Goldmark’s request), a ruling in Goldmark v. McKenna that confirms Holmes argument against extrastatutory powers would breath new life into a case that few have paid much attention to thus far.
And in the event that Holmes prevails, and the state Supreme Court orders McKenna to withdraw from the Florida lawsuit, it could have a huge impact in other states that share similar statutory construction where parties are challenging their attorney general’s power to join the Florida suit.
That’s admittedly a lot of “ifs,” but if McKenna is as cognizant of creating case law as he implies, then perhaps he should have thought this thing through before stubbornly denying an equally stubborn Goldmark his right to due process.
“…the state Supreme Court orders McKenna to withdraw from the Florida lawsuit,…”
And…we can then replace the state Supremes.
John425:
You actually can replace the State Supremes because they are elected, unlike the cabal of right-wing wackjobs installed by Bush and Reagan in the US Supreme court. On the other hand, interpreting the law is the whole idea of the judicial leg in the separation of powers system developed by our secular, Enlightenment driven, founding fathers.
Other than broad discretion McKenna claims for himself, what is his interest in denying Goldmark? Is he claiming the PUD eminent domain effort better serves the State as a whole than Goldmark’s position? Would that even be ethical, given that Goldmark is his client?
Is his claim the appeal is without merit? That’s not really his call, is it? ‘
Is he arguing that his office has limited resources therefor he must be frugal in allocating those resources in an efficient manner? If so, doesn’t that undercut his participation in the Florida HCR lawsuit?
Seems like McKenna is on shaky ground any way you slice it.
It’s the same legal principle, relating to the power of the AG office. But in both cases McKenna is making consistent claims: that his office has broad discretion in determining how to represenet the state, based upon his independent election to the office. He’s not going to get tripped up by arguing inconsistent opinions.
I think McKenna SHOULD lose both of these cases, based upon the constitutional and legislative authority of the AG office. But in general, I think it’s a shame. I think it is better if the AG office has some discretion, which would allow them to refuse, for example, to pursue politically motivated criminal prosecutions.
But McKenna’s positions in both cases are likely to create the opposite result. This is a fight which McKenna should have avoided.
sarge,
rhp6033 @4 pretty much said it.
Bobby Mac claims discretion in which state cases his offices will or will not work.
@4
McKenna still retains discretion in state prosecution. His office gets to determine if there is enough evidence to go to grand jury and to make pleas, etc, or to even drop charges. In those cases, the state is is client and he is the state in that case. He could choose to underprosecute (similar to how Seattle City chooses to basically ingore simple possession from a criminal perspective). This is one part of his role.
Another is defending passed law in court (as in the petition signatures made public). In this case, there is no discretion. Law has prescribed that he defend the law…he doesn’t get to choose which laws to defend…he must defend all, reserving the power to legislature to make and change laws.
In the case of Goldmark and DNR, he shouldn’t have discretion again.
Thus, I argue he is inconsistent, but between these various parts, but with the law. Each of these functions has different allowances for discretion.
Also note, one form of discretion he can never use is weak argument, or poor legal work because he doesn’t like it. That’s unethical.
It seems to me that the bottom line, CONSERVATIVE position ought to be that we do not elect the AG to serve as a Supreme Court Judge.
He is, in effect, hired by the people to be OUR attorney, That must mean working for officials we elect to represent us .. especially officials like Goldmark who are elected to regulate parts of our economy. If the Lands Commissioner, the Education Director, the Insurance Commissioner do not have access to legal services, how are they supposed to do their jobs?
If Attny McKenna disagrees with his clients wished then the law give him the right to assign a substitute or to step down.
I got to thinking…
Sometimes appeals reveal all sorts of mistakes made by the trial attorneys, and the judges have to decide whether that affects the outcome of the appeal.
That could be a reason why the AG, or any other lawyer or law firm, isn’t particularly enamoured with his client’s insistence on appealing a case.
And no, I’m not accusing anybody of anything. I have absolutely no evidence one way or another. It just passed my mind when I considered the question of why, in Heaven’s name, McKenna doesn’t just prosecute the appeal. I don’t have any other potential to that question, as of now.
McKenna is merely practicing his G.W. Bush impersonation in preparation for the 2012 election. Republicans love politicians who attempt to overreach their legal powers. It stirs the authoritarianism in their souls.
GOPers Vote To Increase Homelessness
Not content with putting millions of ordinary Americans out of work, Republicans are trying to make them starve, too. But hey, the bright side is they’re against making CEOs pay taxes on the multimillion-dollar buyouts they get after running their companies into the dirt!
http://www.businessweek.com/ne.....boost.html
Why would anyone in their right mind vote for these asswipes?