Internal AGO documents reveal scheme to discredit Goldmark; McKenna contradicts his own attorney

Internal emails obtained via a public records request by environmental attorney Peter Goldman, reveal a concerted effort by Washington State Attorney General Rob McKenna and his staff to mislead the media regarding crucial legal issues in the Goldmark v. McKenna dispute, even after an Assistant AG alerted her colleagues to the inaccuracy of their public statements, in her words, “in case accuracy is important.”

Well, apparently, it is not, because McKenna himself went on KUOW the very next day and repeated these inaccurate assertions at least three times, in a performance that questions both McKenna’s integrity, and his ability to credibly represent his client, regardless of the Supreme Court’s ultimate decision on the AG’s statutory duties.

In a 6/10/2010 email with the subject “FYI: Natural Resources legislation from 2010 session,” ATG Communications Director Janelle Guthrie calls attention to SB 6838, a bill that would have prohibited political subdivisions from condemning by eminent domain state trust lands, and for which DNR supervisor Lenny Young was the only person to testify in favor at a 2/5/2010 Ways and Means hearing. Writing to a list of recipients that included ATG spokesperson Dan Sytman, Chief of Staff Randy Pepple, Solicitor General Marnie Hart and Legislative Affairs Director Hunter Goodman, Guthrie used Young’s testimony as the basis for a line of attack that McKenna and his office have relied on ever since:

This is helpful in our talking points as well because it demonstrates that the Dept. of Natural Resources recognized the law allows their trust land to be condemned and they tried to change the law but the Legislature did not move forward with it.

Rhetorically, it’s a powerfully simple argument — why would DNR seek to change a statute that it believed already supported its position? — and it’s an argument both Guthrie and Sytman repeated to members of the press over the weeks that followed, and as recently as today. But legally, it’s an utter load of crap, a point made clear to Sytman in more polite, though only slightly less emphatic terms, in a 6/21/2010 email from Pamela Kreuger, the Assistant AG who represented DNR in the underlying eminent domain case:

Dan,
I noticed your quotes today and just wanted [you] to know the statements you made are not accurate, in case accuracy is important. The testimony on 6838 was not on point — DNR’s testimony on it had nothing to do with believing the PUD already had condemnation authority. That bill (which itself was not DNR request legislation and which we advised DNR about, by the way) would have exempted all state trust lands from condemnation, however, the arguments we made in the appeal below did not deny the express language existed — instead, the case below was about the fact that “state lands devoted to a public use” could not be condemned. So, the failure of the bill had no effect on the case because the bill did not alter existing condemnation law that lands devoted to a public use are protected from condemnation. Also, the law is not clear that a PUD can condemn state land “devoted to a public use” (you left out the last part) — your statement effectively is the opposite of what we argued below by leaving out the key substantive element. These statements, by the way, have broader implications that could negatively impact any state agency’s ability to defend against condemnation for lands that are already devoted to public use.
Pamela

The fact that Kreuger even raises the question of whether “accuracy is important,” clearly suggests that she suspects it is not… a suspicion confirmed the very next day when McKenna himself repeated these inaccurate claims on multiple occasions in his 6/22/2010 interview with KUOW’s Steve Scher, including these two clips in which he virtually mimics the words of his public affairs officers:

[audio:http://horsesass.org/wp-content/uploads/McKennaOnGoldmark.mp3]

“In fact the statute’s quite clear that public entities, including public utility districts, ports, cities, counties, can in fact condemn property held by other public entities, including trust lands, the statute’s pretty clear about that. And I think that’s why the Department of Natural Resources went in and testified on a bill that was before the state legislature in the 2010 session, which sought to change the law…

[Goldmark] must realize that, because he sent the Natural Resources Supervisor Lenny Young to testify before Senate Ways and Means Committee on February 5th, in favor of Senate Bill 6838, which would have changed the law had it been voted out of committee and passed by the legislature. It was not. In fact, Lenny was the only person to testified in favor of this measure to prohibit the use of eminent domain on trust land.”

June 10: Guthrie and McKenna’s other top lieutenants formulate their attack. June 21: Assistant AG Kreuger refutes the argument as misleading, harmful and “inaccurate.” June 22: McKenna goes on the air and repeats the claim again and again and again.

Now perhaps Sytman never forwarded Kreuger’s strongly worded concerns to their boss, and perhaps none of the other attorneys on Guthrie’s seminal email ever bothered to speak out, or even pay it much attention. And yeah sure, this is a fairly technical legal issue.

But McKenna is the Attorney General for chrisakes! He should know this stuff! Especially since Kreuger explicitly addressed this very same issue in court, a case that McKenna assures us that he and his top attorneys personally reviewed before concluding it unworthy of appeal. From Section II of Kreuger’s Reply in Support of Summary Judgment:

The PUD also seems to rely on recent failed legislation related to the condemnation of trust lands. It is axiomatic that a bill that does not pass cannot be evidence of legislative intent. More to the point, the bill the PUD references did not relate to the question at issue here — the bill did not include any language regarding state lands already “devoted to or reserved for” a public use by law. Instead, it involved eliminating condemnation authority over all state trust lands irrespective of whether or not they were devoted to a public use by law. The Legislature’s failure to adopt the bill, which was not legislation requested by DNR, only indicates that if an entity has the authority to condemn state lands, they still have that authority. If, on the other hand, the entity does not have authority because of the current judicial interpretation of the limits of that authority, which the Legislature has acquiesced to by not amending the applicable statutes, that entity still does not have authority. The status quo has not changed. The PUD’s assertion that this bill is somehow relevant to this case ignores the body of condemnation law that has focused very precisely on state land already “devoted to a public use” as a matter of factual inquiry.

The final emphasis is mine, and I add it to highlight the irony that the very factually and legally inaccurate and irrelevant argument McKenna has chosen to use to discredit Goldmark in the court of public opinion is one which the Okanogan PUD first attempted to use in a court of law… and which McKenna’s own attorneys summarily eviscerated.

It was not just former right-wing talk radio host Dan Sytman who, in Kreuger’s words, attempted to argue “the opposite of what we argued below by leaving out the key substantive element” (the key substantive element being that the land in question is already devoted to public use), but Attorney General Rob McKenna himself. Which raises the very uncomfortable question of whether McKenna really is that bad an attorney and/or that uninformed about the underlying case, or whether, confirming Kreuger’s earlier suspicion, accuracy just isn’t all that important.

These emails reveal a truly stunning culture within the AGO’s leadership that demands further investigation. As DNR’s lawyer the AG’s office should not be developing arguments about what their client “believes” is the law, let alone feeding these musings to the press, nor should it be scheming ways to undermine the legal arguments that their own attorney made in support of her client. And the AGO certainly shouldn’t be making one argument in a court of law and the opposite in the court of public opinion.

More specifically, while there is some controversy as to whether the Rules of Professional Conduct strictly apply to an attorney general due to the conflicts inherent in the office, it is certainly reasonable to argue that McKenna and his attorneys have clearly violated key provisions of the RPC:

RPC 1.2 (a) … a lawyer shall abide by a client’s decisions concerning the objectives of representation…

RPC 1.8 (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent…

RPC 3.6 (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Back in June when I wrote that McKenna has pursued “a media strategy that borders on legal malpractice,” I clearly understated the situation. Of course, most attorneys I’ve consulted doubt that the Washington State Bar Association would have the balls to touch this controversy should a formal complaint ever be filed, but then, that’s why we have a free press, isn’t it…? To watchdog the powerful, especially when the powerful refuse to watchdog themselves?

For incredible as the AGO’s words and actions have been, even more incredible has been our media’s near total lack of interest in the political intrigue underlying this story. Prosecutable or not, our attorney general has likely committed legal malpractice in pursuit of a broad redefinition of his office that would deny other state agencies access to the courts except by his grace and his consent… in a fundamental sense assuring that the machinery of the state would only function through him.

You’d think there might be a big story there. But I’m just some partisan blogger, so what do I know?