by Goldy, 05/27/2007, 1:33 PM

Gee… and I thought Republicans were for “open government.” But you wouldn’t know that from the way some of the righty trolls responded to my post about WA Attorney General Rob McKenna appointing Tim Ford to be his new “Open Government Ombudsman.”

Apparently, it is “insulting” to point out that Ford is not only a former (un)Sound Politics contributor, but like his predecessor, he’s also a former attorney for the right-wing BIAW. And apparently, it is antithetical to the spirit of “open government” to reveal the political biases of those tasked with safeguarding it.

All I did was point out McKenna’s penchant for packing his office with ruthless partisans, but I guess if that can be portrayed as an attack on the very notion of government oversight, then critiquing Ford’s analytical and legal skills must be downright anti-democratic. Which is exactly what Carl at Effin’ Unsound has done with his thoroughly entertaining fisking of some of Ford’s posts over at (u)SP.

I particularly enjoyed rereading Ford’s analysis of Judge Bridge’s Feb. 4, 2005 ruling that the court, not the Legislature, was the proper venue for hearing an election challenge. Ford gloated:

It was predictable. Even Democrat Legislators admit the election contest belongs in a court and not in the Legislature.

But that didn’t stop the Democrat party from trying to dismiss the election contest. They claimed that the Legislature is the proper venue.

Not only was this motion based on questionable legal arguments, but now there will be a “perception” that momentum has shifted to Dino Rossi. The newspapers will report on the Democrats’ loss, and the story will gain fresh interest. Keeping the story alive in the media is necessary to fight voter apathy, and the Democrats are helping the Republicans with questionable lawyering based only on the transparent desire to throw the election contest to a partisan tribunal in the Legislature. While the Democrats motion to dismiss doesn’t sink to the frivolous, public opinion will continue to favor Rossi because of bad lawyering by the Democrats.

Uh-huh. I love Carl’s response:

First, it’s called the Democratic Party, and you sound like an asshole.

But to the substance, lawyering by the Democrats won the case. Ultimately the lawyering was just so bad that Dino Rossi decided not to press ahead and appeal his bullshit case. So good call. And momentum? Really? It’s bad enough when sports commentators do it, but hiring someone who believes that lawyers should take it into consideration is kind of a demonstration of failing up ain’t it?

Of course, it is easy to criticize Ford’s legal analysis in hindsight. Anybody can do that. Who knew the way this case would play out? Who knew the Republicans’ evidence would be so weak? Certainly not Ford, who at the time was an attorney for the BIAW, the organization providing Rossi’s legal team with the bulk of their investigative and financial resources. If only there was a contemporaneous example of somebody getting the legal analysis right, where Ford got it so wrong, then we could really make fun of him.

Well… um… it turns out that three days before Judge Bridge’s ruling, I nailed it right on the head:

While conservative talk radio attacks the Democrats as hypocrites for now arguing that Art. III, Sec. 4 of the state Constitution gives the Legislature jurisdiction over a contested gubernatorial election, everybody has missed a very clever — and possibly decisive — piece of legal strategy. Remember, in Foulkes, the court also wrote:

Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, sec 6, unless it were “by law vested exclusively in some other court.”

And as Lawyer X explains:

The GOP and Secretary of State argue that the Legislature has delegated its decision making power to the courts by means of RCW 29A.68.020 et al. If that argument is sustained, the court may have jurisdiction to decide this matter, but only within the confines the legislature has set up by its contest statute–not under any general equity jurisdiction.

“Not under any general equity jurisdiction.”

See, that’s the real reason Democratic attorneys are playing the Art. III, Sec 4 card. Unlike other elections, the Constitution clearly grants to the Legislature jurisdiction over contested elections for executive offices, and any such powers not specifically granted to the courts by statute, remain with the Legislature. If the Democrats win this one point, then the court must rule entirely within the narrow confines of existing statute… and that would be the final nail in Rossi’s legal coffin.

Brilliant attorney that he is, Ford ridiculed Democrats for “bad lawyering” that he predicted would shift the momentum to Rossi, but entirely missed the clever legal strategy on which the entire case turned… a strategy I had outlined just days before.

The Democrats never wanted this contest settled in the Legislature; that would have been a political disaster. The Democratic strategy was to force the GOP to argue — and Judge Bridges to determine — that the Legislature had specifically delegated such jurisdiction to the courts, thus forcing him to rule within the narrow confines of the statute without the possibility of resorting to any “plenary powers.” And that’s exactly what happened. The result? A new election was eliminated as a possible remedy, and Rossi’s attorneys were forced to meet the “clear and convincing” burden of proof as defined in the contest statute… a burden they never had a snowball’s chance of meeting.

Again, one could argue, how was Ford to know? Well how the fuck was I to know? I’m not an attorney — much to my mother’s everlasting shame — and yet I was able to figure it out with a little help from Lawyer X. And not after the judge’s decision, but three days before!

Yet Ford, with all his legal training and experience, couldn’t see through his Rossi-colored glasses to understand what was perfectly clear to an amateur like me. No wonder the Republicans and their BIAW patrons lost this case so badly. And no wonder that watching the same trial, our friend Stefan predicted that Rossi would prevail, whereas I predicted that he would lose. I had better legal advice than he did. (And I wasn’t delusional.)

So what does this rehashing of the 2004 election contest have to do with Ford’s cushy new job? Well, nothing. And everything.

No, there’s nothing wrong with McKenna appointing like-minded attorneys to top positions in his office, as long as they represent some of the top talent available for the job… and their primary qualification isn’t their BIAW pedigree. For if the AG’s Open Government Ombudsman is merely a partisan shill for an organization that hates government and absolutely despises the Democrats running it, then it calls into question the credibility and impartiality of the office.

It’s not for me to judge whether Ford is otherwise qualified, as once again, I’m not an attorney. But I’m just sayin’….

20 Responses to “Have you driven a Ford lately?”

1. Roger Rabbit spews:

What IS Happening In Iraq?

“Absolute carnage.”

So says Army Command Sergeant Major Thomas Adams, the highest-ranking enlisted man in one of Fort Lewis’ Stryker brigades.

“During a yearlong tour in Mosul, Iraq, Adams’ … brigade was subject to 1,387 attacks by roadside bombs, 84 assaults by vehicles packed with explosives, and daily threats from mortars, small-arms fire and rocket-propelled grenades. The brigade lost 45 soldiers; 632 were wounded. By Adams’ count, the brigade killed 550 insurgents.”

Now, this soldier’s soldier is going public with his complaint that Bush’s Pentagon has utterly failed to support the troops with the mental health counseling many of them need. Read his story in the Seattle Times.

http://seattletimes.nwsource.com/html/localnews/2003723997_adamsstory27m.html

P.S. — Doesn’t sound like we’re winning.

2. Roger Rabbit spews:

“the clever legal strategy on which the entire case turned”

While I can see how a non-lawyer like you might see it this way, I don’t consider it that, Goldy. I consider it sound lawyering by the Democratic legal team. A point like this goes to the heart of the fundamental organization of our government — separation of powers — and involves who has power to do what; and, at a more nuanced level, whether and to what extent a branch of government (e.g., the legislative branch) can delegate or assign its powers to another branch of government (e.g., the judicial branch). Arcane and complex but important stuff.

3. Roger Rabbit spews:

Kind of frightening that the lawyer McKenna hired to put in charge of overseeing open government and public records for all the citizens of our state could get so fundamental and important a point so badly wrong.

4. Roger Rabbit spews:

However, all-in-all, Goldy has done a very decent job of explaining arcane but important legal concepts — for a non-lawyer. Goldy wouldn’t have had any problem getting into or graduating from law school had he chosen to follow that route.

5. Roger Rabbit spews:

Put it this way: Goldy the non-lawyer understands the law better than Ford-the-lawyer does. Either that, or Ford set aside his knowledge of the law and became a wingnut blatherer when he posted on Sucky Politics.

6. Roger Rabbit spews:

“For if the AG’s Open Government Ombudsman is merely a partisan shill for an organization that hates government and absolutely despises the Democrats running it, then it calls into question the credibility and impartiality of the office.”

Bingo!

7. Roger Rabbit spews:

If McKenna can hire Ford for this position, then there shouldn’t be any Republican squawking if the next Democratic attorney general hires Roger Rabbit for this position. And why not? I’m every bit as impartial as Tim Ford is.

8. Roger Rabbit spews:

Roger Rabbit has posted 100% of the comments on this thread. If you don’t like it, go kiss your armadillo.

9. Dave Gibney spews:

87.5%

10. Roger Rabbit spews:

90.0%

11. YOS LIB BRO spews:

I HOPE MARK SIDRAN OR SOMEONE ELSE RUNS AGAIN FOR AG AND PUTS THAT BIAW SHILL MCKENNA BACK OUT ON THE STREET WITH HIS BUDDY CHRIS VANCE.

I WAS OVER AT THE RIGHT-WING SHILL BLOG (UN)SP AND VANCE ACTUALLY HAD THE NERVE TO DROP IN AND DEFEND HIMSELF OVER THE 2004 ELECTION CONTEST DEBACLE.

WHAT A LAUGH! ALL THE NUTCASES OVER THERE TURNED ON HIM LIKE HE WAS GOLDY!

12. Dan Rather spews:

Why are all the military mouthpieces for the left retired and not currently fighti….nevermind.

13. Goldy spews:

Dan @12,

Because they can’t publicly criticize their commanders while in uniform, asshole.

Oh, and thanks for trying to change the subject. Guess I’m touching on a sore spot here about the partisan appointments in the AG’s office. But I guess, that’s what Republican AGs do these days, huh?

14. Josef spews:

Goldy,

I think you raise some legit points. I also apologize for all these people who get made for you raising the issue.

I think they do though share my concern and have anger for your… spin of the facts.

I presume a union attorney would have that ombudsman position if a Democrat AG was hired. Oh, that’s right… it took a Republican Attorney General to hire an Open Government Ombudsman!!!

15. Toby Nixon spews:

Goldy, open government is not a partisan issue, and it’s too bad you seem to want to make it one. Access is more of an “ins vs. outs” issue, with whoever is out of power using access to records and meetings to hold accountable those who are currently in power, at all levels of government. I know that you are committed to holding the government accountable, as you’ve demonstrated by your dogged pursuit of disclosure of information on the melamine poisoning scandal, and I’m sure that if you could separate the people from the issue for a moment that you would speak boldly in favor of access — correct?

The fact is, as Josef mentioned, we didn’t even have an “open government ombudsman” under previous attorneys general (regardless of party). Having such an ombudsman to assist citizens who otherwise couldn’t afford legal counsel is necessary, because our state Public Records Act and Open Public Meetings Act are enforced through lawsuits brought by those seeking access, not by prosecutors or the AG. With the exception of large media organizations, few people can afford to hire legal counsel to pursue records than an agency claims don’t exist or wrongly claim are exempt from disclosure. Since the AG’s primary job is to give legal advice to state agencies, having someone inside the AG’s office who will advise agencies to follow the law when it comes to disclosure is a great benefit to the people, regardless of the party in power.

We shouldn’t be surprised that Tim Ford advocated for BIAW’s positions when he was employed by BIAW. You know as well as I that any attorney worth their salt can argue either side of a case, but they ethically must make the strongest possible argument on behalf of whoever has hired them — even if the best argument they can make is lame. I think we ought to give Tim an opportunity to prove himself in this new role and see if he earns the same level of respect from both agencies and requesters that Greg Overstreet did for his balanced approach to the job.

16. John Barelli spews:

Mr. Nixon.

Anything can be made a partisan issue, and open government is one of the easier ones.

Even if Mr. Ford does his absolute best to avoid being partisan, the appearance will still be there. If he had a long, distinguished record of balanced opinions and of sticking up for what was obviously right without regards to party loyalty, he might be able to manage.

But he doesn’t have such a record.

So, when there are delicate negotiations underway that could bring important benefits to the state, but if they succeed will strengthen the Democrats, and he insists that they be open to the public despite the possibility that this will scuttle them, there will be many that will assume that his actions were a partisan attempt to avoid letting Democrats look good (regardless of his actual reasoning).

This is a job that not only needs to be impartial, it needs to look impartial, and as such, the appointment of a very partisan individual by a rather partisan AG just doesn’t cut it.

Perhaps the answer is to have the open government ombudsman answer to the courts, rather than the AG. I’m not sure that there is a legal framework for doing that, but if there is, it would be one way to reduce the potential for abuse while giving a certain confidence in the impartiality of the office.

17. Dave Gibney spews:

52.9

18. Carl Ballard spews:

Goldy,

Thanks for the link as always. I’d just gotten back from a wedding and was wondering why all the crazies had found the place.

19. Goldy spews:

Toby, I know we disagree on this, but in real life, everything is partisan. We can’t escape our biases, even if we try. That’s one of the reasons I oppose so-called “non-partisan” elected offices. It’s dishonest.

I believe we’ve discussed this before, but I think part of the solution to really supporting open government is to use technology to make the public record public, so that we don’t have to make requests, but rather can search a database directly. Unfortunately, you know what will happen, and that is electeds and government employees will simply stop using email, and most sensitive conversations will be held face to face. That’s because we know that somebody like Stefan (or me) will always be lurking, looking to spin shit out of silk.

So, hmm… maybe there is a balance to open government after all? Maybe there are some conversations which need to be held in private? And maybe our public records laws can be used vindictively or politically to harass government officials and agencies? And maybe, under that scenario, the open government ombudsman should be somebody beyond the suspicion of partisanship?

And finally, as I implied in the lede to this post, people who are really fans of open government should applaud my efforts to explain what kind of people are being appointed to safeguard open government. Ford was a BIAW attorney and a (u)SP contributor… two organizations known for their ruthless partisanship. Nothing wrong with accurately informing the the public about resumes of McKenna’s appointees.

20. Toby Nixon spews:

So, how do we go about getting an open government ombudsman who is truly independent? I tried to move us that direction by introducing a bi-partisan bill back in 2005 that would have created a more independent ombudsman within the office of the state auditor, but it died in Appropriations because, well, setting up an independent office can be expensive (or, at least, the expense is more visible). I originally called for the ombudsman to be under the state auditor, because (a) the auditor already has responsibility for auditing compliance with open government laws and (b) the attorney general can from time to time have conflicts of interest (since the AG has to defend state agencies in lawsuits). I think the auditor’s office has generally been viewed as less partisan than the AG, but maybe that’s just because we’ve been blessed to have Brian Sonntag serving so admirably; I honestly don’t know if the auditor’s office has been more openly partisan in the past, perhaps during times when the auditor was from a different party than the governor.

I agree with you, Goldy, that we ought to use technology to make more records and meetings open to more people without the need to even make requests. Hopefully we’ll be able to elect a director of elections who is committed to doing that with the King County department of elections.

Well, in any case, I do agree with you that it’s good to help people be aware of the previous partisan activities of appointed officials, whether it be you sharing the history of those appointed by Rob McKenna or Stefan sharing the history of those appointed by Ron Sims. A healthy skepticism is necessary to ensure government accountability.