HorsesAss.Org

Last week on KUOW, Washington Attorney General Rob McKenna defended his refusal to comply with Commissioner of Public Lands Peter Goldmark’s lawful request for legal counsel, repeatedly describing an appeal to a lower court ruling as “meritless.”

“The trial record didn’t suggest any basis for appeal,” McKenna told KUOW’s Steve Scher. “We don’t take up appeals that lack legal merit … and this one does not have merit.”

Even when a caller pointed out that the Superior Court judge suggested the case was a toss up that should be settled on appeal, McKenna stuck to his guns, insisting that there was nothing to that effect in the judge’s “written order.”

And to a point, McKenna is correct: there is nothing to this effect in the written order. But what the caller was referring to were the oral statements given from the bench in which Judge Jack Burchard laid out “the Court’s reasonings,” an unofficial transcript of which I have finally obtained. And Judge Burchard couldn’t be any clearer in his introduction:

The parties will eventually present an order on summary judgment but usually these orders don’t contain the Court’s reasoning, and the Court doesn’t make findings of fact on summary judgment because summary judgment is reviewed by the Court of Appeals and the Supreme Court de novo, from the beginning, so they don’t really take account of what my view is. And probably most of us know and believe that this won’t be the final stop for this decision. I believe this Court’s job is to make a decision as best I can and do my part in the process.

The emphasis is mine, but the meaning is clear. It’s hard to imagine that Judge Burchard would express the opinion that “probably most of us know and believe that this won’t be the final stop for this decision,” if he believed the grounds for an appeal to be meritless. Likewise, reading through the 13-page transcript, it’s equally clear that Judge Burchard didn’t consider this to be a cut and dry case.

“I believe this Court’s job is to make a decision as best I can and do my part in the process.” And that’s what Judge Burchard did, with the full expectation that the next part of the process would be an appeal.

So not only is McKenna being disingenuous when he repeatedly asserts that the appeal lacks merit, he intentionally deceives Scher and his listeners by pointing to the written order rather than Judge Burchard’s lengthy oral exposition from the bench. McKenna was fully aware of Judge Burchard’s oral statements, and thus fully aware that they weren’t included in the written order.

A clever, lawyerly distinction, for sure. But it’s also just plain dishonest.

As much of the media focused on the political farce that is Elena Kagan’s confirmation hearings (Republican senators took it as an opportunity to slam Justice Thurgood Marshall? Really?), I learned everything I need to know about Supreme Court politics from an Associated Press report on a recent court decision:

“In requiring CLS – in common with all other student organizations – to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,” said Justice Ruth Bader Ginsburg, who wrote the 5-4 majority opinion for the court’s liberals and moderate Anthony Kennedy.

Let’s be clear: Justice Kennedy is not a “moderate.” He is in many ways a classic conservative. It’s just that he sometimes appears moderate compared to the activist, right-wing, wacko judicial philosophy espoused by his fellow Republican appointees.

And honestly, by historical standards, “the court’s liberals” really aren’t all that liberal either. Justice Breyer, now he’s a classic pro-business/civil-libertarian  moderate, and even Justice Ginsburg, who is now the court’s liberal leader on social issues, is hardly such when it comes to issues of commerce.

Republican presidents succeeded in appointing perhaps the most conservative court since the Dred Scott decision. So please, let’s not water down the political significance of their accomplishment by attempting to define the justices’ true ideological leanings by comparing them to each other, rather than their predecessors.

My only complaint with PubliCola’s reporting of King County Councilman Pete von Reichbauer’s illegal campaign contribution scheme, is that they failed to identify him as a Republican. (Yeah, I know that the Council is now putatively “nonpartisan,” but we all know that’s a load of bullshit. Von Reichbauer is a Republican. Deal with it.)

For his part, von Reichbauer, who was caught soliciting $7,500 in over-limit campaign contributions, had no qualms about generously flinging the party labels:

After being contacted by PubliCola about the matter last week, the state  Public Disclosure Commission contacted Von Reichbauer today and told him he had to return the excess contributions. PDC Spokeswoman Lori Anderson said von Reichbauer, who refused to talk to PubliCola because, as he told the Seattle Times, he believes we’re  an “arm of the Democratic Party,” has agreed to the return the money.

Wait… I thought I was the media arm of the Democratic Party. I feel… I dunno… jilted?

So nice work PubliCola for catching von Reichbauer with his trousers down… but fuck you for stealing my sweetheart.

Some of my uber-techy co-workers have been impatiently waiting to get their hands on a new iPhone 4. I’m sticking with my Blackberry for now (I don’t know how I ever lived without that thing), but regardless of what phone you use, a good friend of mine has been working with a startup company that created a web app that reads your cell phone bill and lets you know if you’re getting ripped off by your cell phone company.

Having failed to interest our media in the precedent setting legal issues surrounding Goldmark v. McKenna (Attorney General Rob McKenna will lose on his extra-statutory claims), and having no success in enticing the press on the broader policy issue underlying the case (did our legislature really intend to give the Attorney General the discretion to deny state officers due process?), I’ve been reduced to appealing to our media’s political sensibilities.

In other words, I’m playing the Deborah Senn card.

We all know that our media establishment just loves Rob McKenna. Well, no, they don’t just love McKenna, they’re in love with him and his open-records-defending, reporter-shield-law-touting, faux-moderate, different-kinda-Republican, geeky good looks. Through the adoring eyes of our media’s adolescent crush, McKenna is downright dreamy… in that bipartisanship-besotted, we-haven’t-elected-a-Republican-to-the-governor’s-mansion-since-1980 sorta way.

They simply believe McKenna to be the McKenna they want and need him to be. That’s the nature of infatuation.

But as much as they trust McKenna’s legal judgment in this case, and as much as they may even trust McKenna to use his broadly claimed discretionary powers with, well, discretion, it is important to remind my friends in the media that he won’t always be Attorney General. Indeed, if not for a several million dollar smear campaign at the hands of the U.S. Chamber of Commerce, our current Attorney General might be Deborah Senn.

And would the thus far silent Seattle Times editorial board, for example, really trust such expansive discretionary powers in the hands of an unabashedly partisan Democrat like Senn?

Would they really trust Senn to solely determine which initiatives to defend, on which elections cases Secretary of State Sam Reed deserves legal representation, and whether State Auditor Brian Sonntag should have access to the courts to compel government agencies to comply with audits? Would they really trust Senn with the power McKenna claims, as the Iowa Supreme Court described it, to deprive all government agencies of access to the court “except by his grace and with his consent”…?

In our society and under our system of law the nature, scope, indeed the very existence of all rights and obligations turn on what would be decreed if those involved went to court. Governmental departments and agencies, in common with individuals, must ultimately resort to the courts and must submit to the court’s decrees to effectuate their acts or to be made to comply with the lawful acts of others. Access to the courts gives life to the affairs of governmental departments and agencies. For government to properly function that access must be unimpeded.

To accord the attorney general the power he claims would leave all branches and agencies of government deprived of access to the court except by his grace and with his consent. In a most fundamental sense such departments and agencies would thereby exist and ultimately function only through him.

I actually like Deborah Senn. I enthusiastically voted for her, and I would trust her to defend the public interest. But even I would be uncomfortable handing her such extraordinary powers, let alone Rob McKenna.

So my question is: if it were Senn, not McKenna, who was making this unprecedented, extra-statutory claim, would our media remain so silent?

Somehow, I don’t think so.

At it’s convention this weekend, Washington State Democrats voted overwhelmingly both to endorse Initiative 1068, which would legalize the sale and use of marijuana, and to oppose initiatives 1100 and 1105, which would privatize liquor sales, shuttering Washington’s profitable State Store monopoly.

And while Slog’s Dominic Holden might find it “weird” for Dems to support liberalizing the sale of pot while opposing the same for liquor, I don’t. In fact, as I wrote last year, our State Store system actually provides our fast and surest path toward rationalizing marijuana laws in Washington state:

Other states may be further along the political path toward de facto legalization, but no other state, with the exception of my native Pennsylvania, has a more robust system already in place for effectively executing it. Washington already heavily regulates the in-state manufacture of wine, beer and distilled spirits, and maintains an extensive statewide network of retail stores and distribution centers for the sole purpose of operating its exclusive monopoly on the retail sale of liquor. A similar monopoly on the legal sale of marijuana would not only be easily implemented, but highly profitable for taxpayers and state farmers alike.

At an estimated street value of over $1 billion a year, marijuana is already Washington’s number two cash crop, second only to apples, and consistently ranking us among the top five pot-producing states.  By legalizing and regulating a crop that is already being grown, the state could impose standards of consistency and quality on the product, and by setting prices as the only legal buyer for the crop, farmers could be assured a stable, legal income for their efforts.

And considering the existing federal ban on marijuana, and the federal government’s constitutional authority over interstate commerce, Washington’s State Stores, by necessity, would initially only be able to buy and sell state-grown product, thus nurturing a nascent hemp industry that would eventually produce a valuable export commodity once the ban is lifted nationally, perhaps even dominating the market.

As for retail and consumption, the same restrictions that apply to the sale and use of liquor would apply to the sale and use of marijuana, with the state likely maintaining prices at or near current street levels. The result would be hundreds of millions of dollars a year in additional state revenues, plus hundreds of millions of dollars in savings from law enforcement and incarceration (not to mention the elimination of the incalculable human suffering caused by our current prohibition.) Distribution to minors, for profit or otherwise, would be strictly prohibited and harshly punished, as would driving under the influence of marijuana. And just as consumers may already legally make their own beer and wine for their own consumption, the current guidelines on medical marijuana could be easily adapted to apply to all home growers.

This isn’t some half-cocked, pot-induced fantasy (I don’t personally use the stuff) but rather a pragmatic, rational, working model for legalization. I don’t know what Dominic is smoking or drinking when he says he’ll vote for both the marijuana and the liquor privatization initiatives (you’d think that hundreds of millions of dollars in state revenues would be enough to offset the inconvenience of not being able to buy a bottle of Maker’s Mark at 3AM), but given the self-destructive failure of marijuana prohibition, and the way its widespread illicit use undermines respect for the law by normalizing its violation, now is exactly the wrong time to dismantle our best path toward legalization by rashly dismantling our State Store system.

No state is better positioned to move our nation’s marijuana laws forward. Let’s not blow it.

UPDATE:
Dominic points out via email that in pursuit of a springboard I quoted the word “weird” out of context:

Sure it seems weird, but this comes down to cash.

So yeah, Dominic was actually explaining why it’s not all that “weird.”  My bad.

That said, I still find it weird that somebody like Dominic, who understands the budget impact of liquor privatization, would vote for it regardless.

Posts of mine occasionally get mentioned in the Seattle Times, with and without attribution, but it’s been quite a while since they’ve printed the full name of my blog in their print edition, and actually threw me a link from anywhere but their blogs:

DelBene will try to capitalize on a gaffe Reichert made this month, when he told a gathering of Republican precinct-committee leaders that some of his pro-environment votes were an effort to prevent environmentalists from trying to unseat him. Reichert thought he was speaking in confidence, but a recording of the meeting was leaked to the political website HorsesAss.org.

Huh. Must’ve slipped past the editors.

And in case any visitors from the Times are wondering, this is the leaked audio the reporter is talking about.

– Senator Robert Byrd has passed away at age 92.

– Dave Weigel’s ouster last week was incredibly disheartening. He’d become one of my regular reads in recent months and I hope he finds a new home.

– Greenwald writes about how the McChrystal affair showcases our broken media culture. He also uses the Weigel affair to make some very similar points.

– Arizona’s Governor is even too crazy for McCain.

– State Democrats endorsed I-1068, but not without some consternation:

There was a small political skirmish here in Vancouver this afternoon—delegates made motions to consider 1068 separately, to extend debate, and to officially endorse the initiative. [State Vice Chair Sharon] Smith said that, “we expected this to come to a floor discussion. There are some things that are clearly Democratic party values, and then there are things like this that aren’t so clear.”

I’m not really sure what the heck Smith is referring to with that comment, so I went to the Washington State Democrats homepage to see if my previous notions of what Democrats stood for have changed radically in the past week. Here’s what they have listed on their “What We Stand For” page:

– Maintaining safety and security while seeking peace and cooperation

This is pretty obvious. I-1068 will greatly reduce crime by taking the production, sales, and massive profits out of the hands of criminal organizations. Crime decreased significantly after the end of alcohol prohibition, and it will do the same after the end of marijuana prohibition for exactly the same reason.

– Sustainable stewardship of our environment

The establishment of above-ground marijuana production and distribution will allow for environmentally responsible growing, rather than the environmentally destructive ways that it’s grown today.

– Fairness and economic opportunity, access to quality education and health care for all

I-1068 will finally allow for doctors and patients to openly discuss the benefits and risks of marijuana without fear of arrest or retribution. It will also provide for a large number of new above-ground jobs, just as what occurred when alcohol prohibition ended and legal beer distribution started up again.

– Equal treatment of all before the law

Drug law enforcement is arguably the single biggest problem with respect to ensuring that all people get treated equally within our criminal justice system.

– Fiscal responsibility, integrity, openness and accountability in government

One estimate from UW put the amount of money saved by the state after marijuana legalization and regulation at $105 million per year.

– Personal freedom, security, and privacy

The Democratic party simply can’t claim that they stand for personal freedom if they also believe that marijuana needs to be kept illegal. The two beliefs are directly incompatible. You either believe in personal freedom or you believe that government exists to impose morality over private adult decisions.

I understand that for years this was a topic that voters couldn’t have rational conversations about, but those days are clearly over now. Even Fox News has been running a number of pro-legalization pieces recently. Coming out in support of ending marijuana prohibition doesn’t carry the risks that it once did, and it might even help win elections. It was good to see the delegates at the state Democratic convention take this stand. Hopefully, Sharon Smith and the other holdouts will notice that it’s not 1988 any more.

Last week’s contest was a challenge, but it was eventually solved by Don Joe. It was the FBI office in Pocatello, Idaho, which was one of a number of northwest federal buildings that received a package of white powder sent by some yahoo near Spokane. The white powder turned out to be chalk.

Here’s this week’s, good luck!

Proverbs 21:19
It’s better to live alone in the desert than with a quarrelsome, complaining wife.

Discuss.

Both the U.S. and Washington state constitutions guarantee the right to due process of law. That means that every citizen has the right to an attorney and the right to equal access to the courts… except, according to state Attorney General Rob McKenna, statewide elected officers, who only enjoy such fundamental rights given the blessing of the Attorney General, and solely at his whim.

Pore through the statutes and engage in all the legal hair-splitting you like, but such a broad interpretation of the powers of the Attorney General surely defies common sense, let alone legislative intent.

(And there are dozens of other links to media from the past week in politics posted at Hominid Views.)