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:
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.