The law:
The attorney general shall also represent the state and all officials, departments, boards, commissions and agencies of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings
Rob McKenna’s own argument why he doesn’t really have to follow the law (my emphasis throughout):
“The Constitution, state law and case law interpreting the powers and duties of the Attorney General affirm that the AG is more than just a passive observer of state agency action and grant this office authority to determine whether or not to appeal cases of interest to the state,” McKenna said.
Goldy’s assessment:
Huh. Really? […] Because the Constitution affirms absolutely nothing except that “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” There is no other mention in the Constitution about the AG’s powers and duties.
As for state law, we’ve already gone over that exhaustively, and I don’t see anything in there explicitly giving the AG’s office the authority to determine whether or not to appeal cases against the wishes of his client. I see RCW 43.12.075 defining a traditional attorney-client relationship between the AG and the Commissioner of Public Lands, mandating that it shall be the AG’s duty to defend the Commissioner when requested so to do, and explicitly stating that it is the Commissioner who represents the state in any proceedings relating to public land. But I see nothing in state law granting McKenna the broad powers he claims.
As for case law, well, I’ve already admitted that there is some case law on both sides of this argument, although absolutely nothing […] in Washington state…. I believe the case law I’ve previously discussed is pretty damn persuasive that the AG does not have the authority McKenna claims….
The court’s decision:
None of the case law cited confers on the attorney general the discretion he seeks to refuse to pursue an appeal despite his client’s directive that he do so. Nor does the attorney general’s constitutional role counsel otherwise. Given the mandatory language of the statute and the prohibition of hiring outside counsel, no discretion is involved, and representation is required. Therefore, we grant the writ.
So bad, in fact, that McKenna was out-lawyered by a fucking blogger!
Now, that Goldy…. He should have gone to law school…if only for his mother’s sake.
Beat you to it! See comments #5 & 6 in preceding thread.
If Goldy had gone to law school he’d be unemployed like a lot of other law graduates.
Why are there too many lawyers? (1 of every 300 Americans is a lawyer.) Because law schools are cash cows for colleges, which can’t resist the temptation to pump out more law grads than our economy needs or can employ, in order to line their own pockets.
We have unemployed law grads because a law school makes almost as much money for a college as a medical school does, but costs only a fifth as much to operate, and lawyers don’t have a medical association working to limit the number of medical school places to the number of doctors that are actually needed.
“…lawyers don’t have a medical association working to limit the number of medical school places to the number of doctors that are actually needed.”
One of the flaws of US medicine: the AMA acts like a super union, keeping down the number of docs produced each year. If we had more docs, maybe the price would be lower?? Maybe health care could be affordable?
@3 They can’t keep foreign-educated doctors from coming here to practice.
Politically Incorrect,
“…maybe the price would be lower?? Maybe health care could be affordable?”
Sure…the way Lawyers are really, really inexpensive….
How bad a lawyer is McKenna? Very bad. In Goldmark v. McKenna the court acidly says,
“This is an issue of first impression. We have never been squarely presented with an instance of the attorney general refusing to represent a state officer on an appeal. The plain language of the statutes, however, leaves little to question.”
You don’t have to be a lawyer to figure out that in the entire 122-year history of our state, no previous attorney general has been idiotic enough to flout “the plain language of the statutes,” and until now, no court has ever had to deal with one who did.
http://www.profimedia.si/pictu.....082171791/
The dissent in Goldmark v. McKenna is interesting reading, but didn’t attract support from any other justice except Sanders.
http://www.courts.wa.gov/opini.....=847045Di1
Roger Rabbit Commentary: While the dissent appears to be well-reasoned, I think the other justices’ reluctance to embrace it stems from their concerns that giving the attorney general carte blanche power to decide when other state officers and agencies can go to court would give the AG near-dictatorial powers over the administration of state agencies and programs.
8: Agreed, McKenna’s interpretation makes the Attorney General’s office a de facto fourth branch of government, with veto power over the other three by simply refusing to act to enforce laws enacted by the legislature, signed by the governor, and declared constitutional by the Supreme Court. It’s hardly likely that the Court would agree to give up that much power.
Roger @ 6: “The plain language of the statutes, however, leaves little to question.”
I think you’d agree that is judicialese for “your argument is frivolous.” Way to go, McKenna.
Of course, McKenna can get even with Goldmark by assigning a wet-behind-the-ears, fresh-out-of-law-school lawyer to prosecute the appeal. After losing the appeal, McKenna would say, “See, I told you this wasn’t an appealable case!” Goldmark would be left with the unsatifactory remedy of trying to sue the young state’s attorney for malpractice, which ends up leaving the bad precedent in place and merely moves money from one side of the state’s coffers to another.
@9 My gut tells me “frolicking” fits better than “frivolous,” although I’ll concede the latter is a legal term of art whereas the former is not, and therefore is likely to be preferred by judicial writers.
Of course, this is just one more example that McKenna is using the State Attorney General’s office for partison purposes, refusing to represent a state agency on appeal because the commissioner is a Democrat, and using his office to score political points with the tea party by trying to overturn the health care reform.
If an attorney believes an appeal is frivolous but his client insists that he proceed anyway, the lawyer has only one choice: resign from the case (which might require permission from the court). He can’t simply refuse to prosecute the appeal but remain as the attorney for the client.
Maybe McKenna should have resigned his post as Attorney General?
@10 “Of course, McKenna can get even with Goldmark by assigning a wet-behind-the-ears, fresh-out-of-law-school lawyer to prosecute the appeal.”
Which might launch a great legal career.
@12 If Goldmark wins the appeal, that could be used as a campaign ad against McKenna in his run for the governorship, which puts the young wet-behind-ears assistant AG who wins the appeal for Goldmark in an awkward spot, doesn’t it?
I thought Goldy turned into a no-shit real live journalist with a paying gig?
MikeBoyScout,
“I thought Goldy turned into a no-shit real live journalist with a paying gig?”
Uh-huh That happened in February of this year. But he was just a blogger in June of 2010 when he wrote the series of post on the McKenna—Goldmark dispute.