On Friday I warned my friends in the media that they were missing the big story in the escalating dispute between Lands Commissioner Peter Goldmark and Attorney General Rob McKenna. And after a sunny weekend and no further headlines, I feel compelled to raise the alert one more time.
Hey media… you’re missing a big story!
At issue here is more than just whether Okanogan PUD should be allowed to build transmission lines through state Common School Trust lands, or even the legal question of whether a political subdivision can unilaterally take state lands via eminent domain. (I’ve been advised by experts in the field that case law in WA and other states is very clear that such authority is not presumed; more on that later.)
No, the big story is AG McKenna’s refusal to comply with his statutory obligation to provide the legal representation Commissioner Goldmark has lawfully requested… an action — or rather, inaction — whose precedent threatens to dramatically expand the scope and authority of the Attorney General’s Office, essentially giving the AG veto power over the policy decisions of state legislators, executives and even The People acting through the initiative and referenda process.
As I’ve previously stated, the relevant statute is unambiguous:
RCW 43.12.075
Duty of attorney general — Commissioner may represent state.
It shall be the duty of the attorney general, to institute, or defend, any action or proceeding to which the state, or the commissioner or the board, is or may be a party, or in which the interests of the state are involved, in any court of this state, or any other state, or of the United States, or in any department of the United States, or before any board or tribunal, when requested so to do by the commissioner, or the board, or upon the attorney general’s own initiative.
“It shall be the duty of the attorney general” to defend DNR “when requested so to do by the commissioner.” The word “shall” is understood to mean that the AG’s duty is mandatory; there’s no other way of reading this provision.
McKenna’s spokesman, former right-wing talk radio host Dan Sytman argues that “usually, when we’re working with clients and we explain the legal reasoning, they defer to our expertise… generally they’ll defer to us on legal matters, just as we defer to them on policy matters.” Okay, maybe usually. But his client’s deference is not a statutory requirement, whereas the AG’s duty to defend his client is.
And by refusing to fulfill this statutory duty, McKenna most certainly is intruding into DNR’s business on matters of policy.
The risk is clear. If the AG is given discretion as to which laws and policies to defend, then he essentially holds veto power over any law or policy subject to a legal challenge. For example, should the BIAW sue to overturn storm water regulations, a suit against which the AG subsequently refuses to defend, these regulations will be overturned. Likewise, already on the record with an opinion that an income tax is unconstitutional, McKenna might choose not to adequately defend I-1098 from the inevitable legal challenge should it be passed by voters.
That is why neither the Constitution nor the RCW gives the Attorney General such broad discretion. Rob McKenna is our state’s attorney, and according to RCW 43.10.040, that means “the state and all officials, departments, boards, commissions and agencies of the state” are clients who he is legally and ethically obligated to represent. Outside of an obviously frivolous claim, McKenna simply has no choice but to honor a client’s lawful request for representation. And as I will show in subsequent posts, DNR’s claim is far from frivolous.
What we have here is the makings of a constitutional crisis… a dispute that, assuming neither Goldmark nor McKenna back down, will generate headlines for months to come, and that could possibly haunt McKenna throughout his 2012 gubernatorial campaign.
Like I said… this could be a big, big story. The only question remaining is whether media scrutiny will force McKenna to do his job, or whether McKenna’s refusal to do his job will ultimately force media scrutiny.
goldy is right on here: McKenna is sucking up to the political power of the Public Utility districts and willing to screw Goldmark and DNR’s legitimate interest in preventing out of control PUD’s from condemning state lands for their dumb projects. Sure, this has political overtones and implications but, hey, it’s McKenna that started it. goldmark deserves a lawyer, period.
But Goldy, the media have spent the last umpteen years pushing the story that Rob McKenna is a moderate. If they were to push this story it would make McKenna look un-moderate and would contradict their McKenna as moderate meme. And we can’t have that!
It pains me to say this. Pain like when I broke my arm on my jetski, or sent a 16 penny nail from a nailgun through my thigh pain, but- God it hurts to say this- Goldy is right.
According to the same statute, of course the AG is fully authorized to join in the Florida suit regarding Obamas welfare program for health insurance (“or upon the attorney general’s own initiative”) but that doesn’t excuse his behavior here.
The AG can and should advise his client when the legal course they are pursuing is ill advised but the statute seems clear about his duty to give representation nonetheless. I imagine he feels he is doing his duty. I imagine he feels he is protecting Goldmark from doing something stupid, but that doesn’t excuse his actions. But, as Goldy points out he is not a policy maker and undermines the democratic process in acting as one.
Well, I’m off to take about 14 showers. Agreeing with Goldy just makes me feel like I’ve waded through Seattles public sewer system. Without rubber boots.
re 3:
Who is McKenna representing in the Florida suit — himself or the people of Wa??
Lucy,
A majority of people in the US in 1810 believed slavery was fine. Would an AG have been in line fighting it?
A majority of people in 1940 believed we were perfectly justified in imprisoning all Japanese people in the country. Would an AG have been justified in defending his Japanese American constituents?
In 2010 we were told that somehow the federal government has a rightful role telling me what financial purchases (insurance) I must make. The AG is perfectly justified defending even those citizens who don’t understand that their rights are in jeapardy.
@3: Kudoos to you, Losty. You don’t know how much it pains me to say that.
Save some hot water for me, please.
1810-that AG would have been tarred and feathered and run out of town on a rail. If it was a locale in the south, he would have been lynched.
1942-that AG would have been fired.
2010-that AG is simply polishing his bona fides with his party’s base.
The situations are in no way comparable.
Considering that a failure to appeal would let the lower court ruling stand, it could be used as stare decisus against the state in other actions by other utilities.
I guess I’ll have to urge my Snohomish County PUD to exercise imminent domain to plow right through I-5 to create an access corridor for their power lines. Then they can charge tolls to every vehicle seeking to travel through it. I might not have to pay a power bill for the rest of my life! But traveling northwards wouldn’t be fun.
Wow. It’s rare for a law enforcement official to just ignore a commandment like that, spelled out so unambiguously in Black Letter law.
Prediction: The Seattle Times will pick up the story in, oh…a couple of weeks, after interest has died down in the blogosphere (another reason I’m a soon-to-be-former Times subscriber).
@5). So this is a civil rights case? Wow. You are lost. The local PUD isn’t a repressed minority, it is a governmental agency, for God’s sake. That could be the worst analogy/false equivalency I’ve seen in a long time.
Sarge,
You’re right, or would have been if that was what my response to Lucy touched on.
In passing I mentioned that “According to the same statute, of course the AG is fully authorized to join in the Florida suit regarding Obamas welfare program for health insurance (”or upon the attorney general’s own initiative”).. To which Headless Lucy responded with some ire.
That was the civil rights issue to which I was referring. Had you read a bit more closely, you’d have noted that in principle and for once I was in agreement with Mr. Goldstein.
Lost,
Had you read a bit more closely, you’d have noted that it was my post @ no. 6 not HL. Soap get in your eyes?
Proud,
No soap in my eyes, though I still don’t feel clean. Maybe a brillo pad will get it.
I was responding to Sarge at 9. He in turn was responding to me at 5, where I was rebutting Lucy at 4. And ‘I don’t know’ is on third.
I do, by the way, understand the vast moral difference between slavery and the internment of the Japanese on the one hand and forced purchase of insurance on the other. I was merely making a point that the AG can represent citizen civil rights without necessarily having full agreement from the citizens on just what those rights are.
One other quick note, then I’ve got meetings until 6:00.
“The local PUD isn’t a repressed minority, it is a governmental agency, for God’s sake…” seems to me to miss the point of civil rights.
Repressed minorities, the local PUD or government beauracracy overseeing it, multinational oil company or just an irritated citizen are all entitled to the same process of law. We all expect that the law will treat us in accordance with the dictates of the Constitutions, Federal and applicable State, which guide government in the powers it has or doesn’t have. A person or entity doesn’t have to be in a repressed minority to be worthy of civil rights. I know it can be hard to swallow, but BOA has rights under the law in the same way that a poor black person living in a ghetto does. This equality under the law is the cornerstone of our democracy, and the only reason liberals put up with conservatives, and vice versa.
Dickwad McKenna was on some cable chatter this weekend and the dickwad talking head never asked about this issue. McKenna’s response to the Florida case was that he had to make a quick decision and things were moving fast.
WTF? How fast were they moving? He could have taken more time to actually research the case before joining or not joining the case.
McKenna’s decision was a pure dickwad political decision.
McKenna is a punk who lets the AG office be used by state agencies to attack state workers. Many times the workers he allows to be attacked are whistleblowers. Robby boy is a corporate punk who doesn’t care about anyone but the people at the top with the money to buy his vote.
Goldy–
Thanks for highlighting this story.
This is one of the multitude of ways energy costs end up getting subsidized: by the use of eminent domain hide the true cost of transmission lines.
McKenna should do his job.
Great going Goldy,
jazzerciser
Goldy,
Outstanding. Keep this story going. You’ve got it so right. McKenna cares far less about the laws of this state than he does about his own political future. Lawyers, and he claims to be one, are charged with representing clients. Sometimes, neither the client nor the client’s cause are all too attractive, but there you are. You represent the client. And, here, McKenna not only has his duty under the Rules of Professional Conduct to represent his client, but a statutory duty as well. He chooses, nonetheless, to represent himself.
I wonder whether Goldmark’s position has much legal merit. RCW 54.16.020 gives a public utility district the same eminent domain powers as cities and towns. RCW 8.12.030 allows cities and towns to condemn property belonging to the state or to a county (and even to condemn school lands!), including property outside their city limits located anywhere within the state.
On the other hand, McKenna evidently argued Goldmark’s position to the Okanogan County Superior Court. If McKenna didn’t think it was frivolous in the trial court, it shouldn’t be frivolous on appeal either. Especially if it is a purely legal issue, which an appeals court would determine de novo.
Curious to see McKenna apparently on the side of (oh, horrors!) a PUBLIC power operator. If something like California’s Proposition 16 got on the ballot here, he’d likely be all for it.
Lots of SAD here.
1. Our AG’s office is apparently challenged when it comes to reading law.
2. Our MSM can’t figure out how to follow-up on a story even when Goldy spoon feeds ’em.
3. Lost is more lost than we had suspected. Why are you shooting 16 penny nails in to yourself? :-(
I’m not that surprised the local media hasn’t picked up on the story. It doesn’t involve any sensationalistic angles, cute pictures, drama, etc. Half of the story would be spent trying to explain to people why they should care how this issue is resolved, one way or another. TV doesn’t do this well at all, and lately the print media only seems able to do this AFTER it becomes a big problem.
@14 “McKenna’s response to the Florida case was that he had to make a quick decision and things were moving fast”
Time was indeed a wastin’. He had to move fast in order to bag the teabaggers. And a smooth move it was. As Rossi found out this last weekend, this isn’t the Republican Party that even he once knew. It now belongs to the teabaggers. It’s a KLOWN show now. Between McKenna and Didier’s solidly staked claim to teh krazies, I suggest that Rossi’s political career is fucked and will soon be over.
Since the federal courts don’t decide on cases until there are actual damages, and since the provisions that McKenna and McCollum are so hot about don’t even go into effect — much less “damage” anyone — until 2014, what was the rush?
Yep, the rush to bait dumb Dino into running for Senate, thereby clearing him out of Rob’s path for 2012.