The more I think about the escalating spat between the Washington State Department of Natural Resources and Attorney General Rob McKenna over his refusal to provide legal counsel in appealing a lower court decision, the more I think that our local media may be missing an awfully big story in the making. Let’s just say my spidey sense is tingling.
The issue at the center of this dispute is whether a local government agency, the Okanogan Public Utility District, can condemn state Common School Trust land through eminent domain, an action for which there is little if any precedent, but the precedent the Attorney General seeks to set in refusing to represent DNR on appeal could be much more far reaching. Indeed, it essentially boils down to who gets to set policy priorities in Washington state: elected executives like Lands Commissioner Peter Goldmark and Governor Chris Gregoire… or the Attorney General himself?
The statute is clear; it is “the duty” of the attorney general to defend the state “when requested so to do by the commissioner”:
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.
Yet despite Commissioner Goldmark’s repeated requests for a Special Assistant Attorney General to appeal the decision, McKenna has refused. In a statement, McKenna claims that the decision not to appeal was based on the likelihood of success, but that is not his decision to make. The statute is unambiguous, and McKenna’s refusal to comply may be unprecedented.
Meanwhile, RCW 43.10.067 appears to bar DNR from retaining outside legal counsel, leaving the department powerless to legally defend itself in the absence of adequate representation on the part of the Attorney General.
So what is really going on here? Reading between the lines, Goldmark appears to give a hint in his earlier statement on the dispute:
“By refusing to represent the Common School Trust and the non-tax revenue it generates, Mr. McKenna is choosing to allow the inappropriate use of eminent domain over Washington’s schools,” said Commissioner Goldmark. “Mr. McKenna is choosing to play politics with our state’s heritage.”
This is a case that puts the state in the unusual position of opposing an expansive use of eminent domain, and one can’t help but wonder if McKenna is choosing to sacrifice the interests of one client to what he believes to be the general interest of others (DOT, for example). Yes, in the broadest sense, McKenna represents the people of Washington state, but according to statute the specific duty of his office is to serve as the sole attorney to the state’s individual departments, agencies and commissions.
If the Attorney General is given the option of choosing which laws and policies to defend, then he is essentially put in the position of setting policy, trumping the power of elected executives like Commissioner Goldmark. Which I suppose is why the RCW does not give the Attorney General such an option.
As DNR’s attorney, McKenna is free to strongly advise Commissioner Goldmark not to appeal. But to refuse a statutory request for legal counsel represents an unprecedented usurpation of executive power that could greatly expand the role of the Attorney General’s Office in setting state policy at nearly every level.
And that is a story our media shouldn’t ignore.