If you’ve been reading my ongoing legal analysis of the constitutional showdown between Commissioner of Public Lands Peter Goldmark and State Attorney General Rob McKenna (here and here), you should find little surprising in the petition filed today on behalf of Goldmark.
In Section VI of the petition, titled “The Attorney General Has a Statutory Mandate to Represent the Commissioner of Public Lands and to File the Appeal at His Behest,” Goldmark’s attorney David Bricklin makes the same general argument I made (though embarrassingly, more concisely), citing many of the same statutes and case law. His conclusion?
Apparently, the Attorney General believes he has discretion to ignore the request of the Commissioner of Public Lands based on his view of what will serve the public interest. The Attorney General lacks the authority to make policy decisions or to decide, unilaterally, what is in the “public interest.” In this State, the Attorney General only has such authority as is prescribed to that office by the Constitution and the statutes implementing the Constitution. Unlike some other states, the Attorney General has no “common law” authority. He only has such authority as is prescribed to him by statute.
[…] In sum, the Attorney General has a non-discretionary duty to represent the Commissioner of Public Lands and to file and vigorously prosecute the appeal as requested by the Commissioner of Public Lands. This Court should issue a writ of mandamus directing the Attorney General to do so or, in the alternative, ordering the Attorney General to appoint a Special Assistant Attorney General to do so.
Like I said, you read it here first.
But as much as I’d love to pat myself on the back for my brilliant legal analysis, as Bricklin states in his section requesting reimbursement of attorneys’ fees, there’s really “no reasonable basis for contending otherwise”:
RCW 4.84.185 allows a prevailing party to recover attorneys’ fees and other litigation expenses if the defense to the action was “frivolous and advanced without reasonable cause.” We have not yet seen the Attorney General’s defense to this Petition, but if it is the same as has been advanced by the Attorney General in the run up to this litigation, we believe an award of litigation fees and costs under RCW 4.84.185 will be justified. The constitutional and statutory provisions at issue here are unambiguous. The duty of the Attorney General to represent the petitioner and his agency is unqualified. The Attorney General has no reasonable basis for contending otherwise. Reasonable attorneys’ fees and costs should be awarded.
Hear that? In requesting reimbursement of legal fees, Bricklin is inherently calling McKenna’s claims “frivolous.” So if Goldmark wins, and Bricklin’s fees are reimbursed, what will this say about the legal acumen — and/or ethics — of our state’s top lawyer?
Thanks for staying out on point on this.
We already know that McKenna thinks of himself as Governor material, but now he has decided to bypass election and start acting as Governor immediately. Hey, maybe Gregoire will just step down and let Boy Rob claim the office by acclimation.
And don’t expect the Washington State Bar Association to take any action as long as McKenna is in a position of power. Like any other bunch of soulless thugs, the WSBA only preys on the weak.
Note to Deborah Senn: Where are you now that we need you? Our Attorney General is a dolt.
I don’t get how McKenna got this one so wrong. For a career politician, you’d think he would have some political intuition. He’s blown this one big time, and he blew the healthcare suit. What the hell is driving him to make such huge mistakes?
Brenda @ 2
Please do not encourage Deborah Senn to run for anything. She doesn’t need much encouragement. She is the reason we have McKenna as our AG. She is not a strong candidate; we have innumerable Democratic lawyers in this state who would make a great AG.
You can claim just about anything you want to claim in this kind of petition. Whether the Court buys into the claim is a different question altogether.
But I appreciate the work and the coverage you’ve put into this, Goldy; so much so that I just made a donation to the 2010 HA Fund Drive.
The shit will really hit the fan if an already-filed public disclosure request finds that McKenna has had contacts with the PUD Ass’n over this issue. PUD’s have big plans to run roughshod over state owned “waste lands” (in their uninformed opinion) and if they lobbied McKenna over the interests of his agency client, DNR, that’s ground for McKenna’s impeachment. But is McKenna, who probably loves to drewel over “open government,” dumb enough to leave a paper trail of his contacts with the PUD’s? Probably not.
@6
Good point!
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Dear moderator (if there is one). Please delete #8 for being:
1) wildly off topic
2) racist
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.
There will certainly be Public Records Requests made of Goldmark & his staff related to any & all communication related to this issue, copies of Attorney’s Bills, copies of e-mails & phone records.
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.
Clearly Goldy is motivated by creating a political firestorm for McKenna.
No objective analysis of alternative Goldmark had…like hiring his own outside Counsel to file the Appeal. That would have been the prudent thing to do.
Like some of you KLOWNS noted, there was not much involved in filing the timely Appeal.
Yet Goldmark chose to go after McKenna instead of making certain a timely appeal was filed.
This will backfire on the fringe lunatic left…of which Goldmark is a card-carrying member. Political hatchet job as evidenced by Goldmark’s failure to pursue to appeal by other available means.
For a REpublican, you’re such an ass.
@11 & 12
that was covered. I’ll pull a Puddy and tell you to look it up yourself. But one of Goldy’s earlier posts on this topic quotes the statute that Goldmark is prohibited from hiring outside counsel.
And why should he? The AG is statutorily required to make his tax payer supported services available to state officers. For a CON, you sure you would like Goldmark “double dip” spend tax dollars to hire outside counsel to do McKenna’s constitutional duties?
@2 “Like any other bunch of soulless thugs, the WSBA only preys on the weak.”
I disagree with you very strongly, Brenda. I’m a 35-year member of the WSBA and know something about its leadership. They’re everyday practicing lawyers who take seriously their responsibilities to the public.
I have no reason to believe that Rob McKenna has any special pull inside WSBA that will shield him from consequences for actions that would get an average-joe lawyer in trouble. To the contrary, I would argue there is no such thing as “pull” in the WSBA. Case in point: A few years ago, the president of WSBA was caught having sex with several of his clients, and even though there was no specific ethical rule against that at the time (there is now), he wasn’t spared public exposure or professional sanctions.
Whether McKenna has done anything that warrants professional discipline is a technical question. Someone has to file a complaint with the WSBA before they will undertake an investigation. In all professional discipline matters, WSBA merely acts as agent of the state supreme court, which by law is the sole licensing, regulatory, and discipline authority over lawyers in our state.
There are a number of factors that could enter into the analysis of whether McKenna’s actions violate the RPC. A spat between two state elected officials probably will be viewed differently than the relationship between a lawyer and a private client, because it involves such things as interpreting constitutional and statutory powers and authorities, and good-faith judgment calls. Generally speaking, a judgment call, even if wrong, doesn’t get a lawyer in trouble.
In the case of a lawyer-politician, the court will not want to second-guess policy decisions or actions of a political rather than legal nature, for obvious reasons.
Most disciplinary proceedings involve one of the following: (1) misappropriating client funds; (2) other trust account violations; (3) neglecting client matters; and (4) dishonesty. McKenna’s actions don’t neatly fit into one of these boxes, so — quite understandably — don’t expect either the WSBA or the state supreme court to come up with a pat answer, in the event someone files a complaint.
Cynical @11,
You only raise one new question. Why didn’t Bricklin file the appeal? Because when he informed McKenna yesterday morning that he was going to file the appeal, McKenna blinked (sorta) and said he would file it.
I say sorta blinked, because this is actually a clever way for McKenna to retain control of litigation.
Goldmark isn’t using any taxpayer money to sue McKenna. He can’t, he’s constitutionally prohibited from employing counsel other than the state A.G., either to prosecute the appeal or to compel the A.G. to do his job.
Can the same be said of McKenna? Can he use taxpayer money to defend against this suit? What if he’s compelled to pay attorney’s fees to Goldmark?
Your other points aside, Don Joe @5 makes an excellent observation about your final point in this post. Plaintiffs can claim pretty much anything. I imagine you’d be hard-pressed to find a case wherein the parties DID NOT claim reasonable attorneys’ fees somewhere in the complaint, answer, or crossclaims.
First rate journalism Goldy. Been a long time since we’ve seen journalism in this state.
“what will this say about the legal acumen — and/or ethics — of our state’s top lawyer?”
His legal acumen ain’t so hot. His administrative abilities are sorely lacking.
This dispute with Goldmark should have been resolved with the AG’s filing an appeal at least a week ago.
Goldy:
(my emphasis)
So none of the information in your posts has been fed to you from someone else? All your previous posts were generated from your own independent research?