HorsesAss.Org

Judging from the cursory coverage thus far of the Goldmark v. McKenna dispute, I can only assume that our local media just doesn’t get it. And while I expect this sort of thing from the McKenna-infatuated Seattle Times, I’m a bit surprised by the apparent lack of interest from even our dramatically shrunken Olympia press corps.

I mean, you’d think one of several story lines might catch some editor’s attention. You’ve got one statewide elected official taking another statewide elected official to the state Supreme Fucking Court… and for not doing his job, for chrisakes. That sure sounds sexy. And then you have the Okanogan County born and raised Commissioner of Public Lands — the only statewide elected official hailing from the other side of the mountains — attempting to protect his obscure part of the state from the Republican 2012 gubernatorial frontrunner’s expansive defense of a rapacious use of eminent domain. Just imagine the headlines.

Well, you may have to keep on imagining, because to be honest, political reporting in Washington state just isn’t all that good.

On the one hand, reporters in Olympia know state government really well, but politics… not so much. Oh, they think they know politics, because they hang out with legislators, but considering the odd fact that legislators don’t really drive politics in Washington state, this actually puts the Olympia press corps at a disadvantage. Then you have the Seattle reporters, who tend to kinda get the political stuff, but don’t really know the ins and outs of state government… at least not as well as the Olympia full-timers.

Oh… and our state’s few remaining experienced environmental reporters… the journalists most likely to be assigned a story that appears to concern natural resources…? No offense intended, but they really don’t know politics or state government.

Of course, everybody thinks they know everything — that’s human nature — so they don’t bother to ask about what they don’t know they don’t know.

It wasn’t always this way — you know, just a few years ago, when the Capitol press houses were packed to the gils with seasoned reporters competing with each other to break stories — but the sudden collapse of political coverage in our state has been absolutely stunning. And so stories like this tend to fall through the cracks because they are too political for environmental reporters, too environmental for Capitol reporters, too inside-Olympia for Seattle reporters and too wonky/legal for just about everybody in a state press corps that I’m not sure includes a single lawyer amongst its ranks.

And that’s how a constitutional crisis gets virtually ignored while a cute baby seal grabs front page headlines.

The United States advances to the second round of the World Cup tournament with a 1-0 victory over Algeria, after dramatically scoring their second goal of the match in the 91st minute of, um, a 90 minute game. Go figure.

One of the downsides to media relations staff refusing to relate with the media, is that with our questions left unanswered, we’ve got no choice but to speculate. And one of the speculations going around the environmental community these days is that Attorney General Rob McKenna decided not to appeal, partially at the urging of representatives from the Public Utility Districts.

So I repeat the question I posed to his office in the email they refused to even acknowledge:

7. Has the AG or his staff discussed this case with representatives from the Okanogan PUD or the WA PUD Association? Whom? When?

I believe there may already be a public records request put in on this question, but I’m not really interested in whether McKenna slipped up and communicated with the PUDs via his state email address, or arranged a meeting or telephone call via official channels. I want him to come clean with the public and tell us whether he or his staff ever talked to the folks on the other side, under any circumstances, before deciding not to file the appeal.

Because listening to him talk about his obligation to protect the broader public interest, it certainly sounds that way.

A few random items:

– How a drunken bus ride from Paris to Berlin may result in a major change to our Afghanistan train wreck.

– Adam Serwer writes about how we turned Faizal Shahzad from a warrior into a pathetic loser by giving him access to our justice system.

– Haven’t been able to sign the I-1068 petition yet? Just pick up a copy of The Stranger this week.

– Gene Johnson writes about how medical marijuana patients can get the shaft in custody disputes.

– KUOW aired a discussion on marijuana policy yesterday. I didn’t get a chance to listen to it yet, but you can listen to it online here.

– Mark Cooke also discusses the futility of the recent DEA sweep.

UPDATE: And one more link…

– What happens if both liquor privatization initiatives pass?

Please join us tonight for an evening of politics under the influence at the Seattle chapter of Drinking Liberally. We meet at the Montlake Ale House, 2307 24th Avenue E. beginning at about 8:00 pm. Stop by even earlier and enjoy some dinner.

Not in Seattle? There is a good chance you live near one of the 327 other chapters of Drinking Liberally.

Who says my comment threads are total garbage? Well… I often do, but of course I’m exaggerating, as there’s always the occasional gem amongst turds, like yesterday’s comment pointing to this post from The Center on Budget and Policy Priorities: “If you tax them, will they flee?”

The conclusion? Not really.

As Ezra Klein’s research desk explains, most studies show that rich people don’t flee higher-tax states for lower-tax ones and “the revenue generated by state tax increases on high earners overwhelms that lost from taxpayers’ leaving.” …  In fact, raising taxes on the highest-income households — a group that’s enjoyed the greatest rise in incomes and the greatest decline in taxes in recent decades — is a sensible and effective way for states to help offset the huge drop in revenues during the recession.

Tax rates just aren’t a big part of most people’s decisions about where to live — though that doesn’t stop some opponents of raising taxes on the wealthy from stringing together a few anecdotes in hopes that the rest of us will believe millionaires are in full flight from states that have called on them to pay their fair share.

[…] Perhaps the most definitive study, by Princeton University researchers, found that after New Jersey increased taxes on those making over $500,000, it experienced a yearly revenue loss of about $38 million because of those who left — but a gain of more than $1 billion from those who stayed.

I mean, it’s strange enough that one of I-1098 opponent’s loudest arguments against a high-earner’s income tax is that wealthy people are essentially a bunch of selfish, bean-counting misers who will collectively pick up and move to Nevada to avoid it. (A little projection there?) But it’s not even true.

FYI, for those of you who think my coverage of Goldmark v. McKenna has been a bit one-sided, I have repeatedly attempted to communicate with the Attorney General’s office, but to no avail:

From: David Goldstein

Date: June 17, 2010 3:51:36 PM PDT

To: “Janelle (ATG) Guthrie” , “Dan Sytman (ATG)”

Subject: Re: Questions RE: DNR case

Janelle & Dan,

Not even a response to tell me that you’re not going to respond? Your office has talked to other journalists, why not me? Is it something I’ve said?

David

On Jun 16, 2010, at 8:54 AM, David Goldstein wrote:

Janelle,

Having not heard back from you, I’m resending my questions while copying Dan, just in case you weren’t in the office.

Since time is of the essence on this story, I would at least appreciate knowing if the ATG intends to promptly respond.

Thanks,

David

Begin forwarded message:

From: David Goldstein

Date: June 15, 2010 2:12:29 PM PDT

To: “Janelle (ATG) Guthrie”

Subject: Questions RE: DNR case

Hi Janelle,

I was hoping the ATG might answer some questions regarding the recent controversy over its refusal to appeal the DNR case.

1. Is there precedent in WA for a state agency or political subdivision successfully exercising eminent domain to to condemn Common School Trust lands?

2. Are there other cases in which the ATG has declined a lawful request for legal representation from a state officer? Does the ATG take the position that Washington is a state in which the Attorney General can overrule requests of state agency clients?

3. Isn’t it always the duty of an attorney to represent a client on appeal so long as the appeal is not frivolous?

4. Does the ATG consider the DNR’s claims to be frivolous, and if so, why did the ATG pursue these claims in Superior Court?

5. Since the appellate court reviews cases “de novo” as a matter of law, what difference does it make that the Superior Court ruled against DNR?

6. Are other agencies nervous that an appeal could result in a ruling that no one can condemn Common School Trust lands?

7. Has the AG or his staff discussed this case with representatives from the Okanogan PUD or the WA PUD Association? Whom? When?

Thanks for your time. If some answers take longer than others, I’m happy to take them one at a time.

David

http://www.horsesass.org/

“Politics as unusual.”

Frankly, I find this snubbing as surprising as it is rude. ATG Communications Director Janelle Guthrie and her staff have always been very friendly and responsive — she even emailed me her condolences when she heard my KIRO show was canceled — but now, crickets. As for Dan Sytman, you’d think he’d show more empathy for one partisan hack from another, considering our shared history as budding talk radio hosts who had our respective dreams crushed by the suits at Bonneville.

Besides, with so little media left for the media relations folks to relate to, this just strikes me as bad strategy. Keep your friends close, and your enemies closer, and all that.

UPDATE:
By comparison, Goldmark Communications Director Aaron Toso not only replies to inquiries from apparently hostile parties, he even dives into their comment threads. I remember when Janelle used to do spontaneous stuff like that, but apparently the spark has gone out of our relationship.

State Attorney General Rob McKenna issued the following statement in response to the lawsuit filed yesterday by Commissioner of Public Lands Peter Goldmark:

“The Constitution, state law and case law interpreting the powers and duties of the Attorney General affirm that the AG is more than just a passive observer of state agency action and grant this office authority to determine whether or not to appeal cases of interest to the state,” McKenna said.

Huh. Really? “The Constitution, state law and case law” all support McKenna’s claim to broad discretionary powers. I look forward to McKenna’s brief, and reading how he backs up this assertion.

Because the Constitution affirms absolutely nothing except that “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” There is no other mention in the Constitution about the AG’s powers and duties.

As for state law, we’ve already gone over that exhaustively, and I don’t see anything in there explicitly giving the AG’s office the authority to determine whether or not to appeal cases against the wishes of his client. I see RCW 43.12.075 defining a traditional attorney-client relationship between the AG and the Commissioner of Public Lands, mandating that it shall be the AG’s duty to defend the Commissioner when requested so to do, and explicitly stating that it is the Commissioner who represents the state in any proceedings relating to public land. But I see nothing in state law granting McKenna the broad powers he claims.

As for case law, well, I’ve already admitted that there is some case law on both sides of this argument, although absolutely nothing directly to this point in Washington state, as none of McKenna’s predecessors has ever stubbornly pushed such a dispute this far. I believe the case law I’ve previously discussed is pretty damn persuasive that the AG does not have the authority McKenna claims, but this will ultimately be decided in court.

So while the jury remains out on whether case law supports his claim, McKenna is clearly blowing smoke out his ass when he tells the media that both Constitution and state law support give him such authority. They don’t. He does not point to a single line in either to support his claim, because he can’t.

And the media should remember this kinda disrespect before credulously reporting McKenna’s comments in the future.

I always thought the word “news” was found in the word “newspaper” for a reason.

If you’ve been reading my ongoing legal analysis of the constitutional showdown between Commissioner of Public Lands Peter Goldmark and State Attorney General Rob McKenna (here and here), you should find little surprising in the petition filed today on behalf of Goldmark.

In Section VI of the petition, titled “The Attorney General Has a Statutory Mandate to Represent the Commissioner of Public Lands and to File the Appeal at His Behest,” Goldmark’s attorney David Bricklin makes the same general argument I made (though embarrassingly, more concisely), citing many of the same statutes and case law. His conclusion?

Apparently, the Attorney General believes he has discretion to ignore the request of the Commissioner of Public Lands based on his view of what will serve the public interest. The Attorney General lacks the authority to make policy decisions or to decide, unilaterally, what is in the “public interest.” In this State, the Attorney General only has such authority as is prescribed to that office by the Constitution and the statutes implementing the Constitution. Unlike some other states, the Attorney General has no “common law” authority. He only has such authority as is prescribed to him by statute.

[…] In sum, the Attorney General has a non-discretionary duty to represent the Commissioner of Public Lands and to file and vigorously prosecute the appeal as requested by the Commissioner of Public Lands. This Court should issue a writ of mandamus directing the Attorney General to do so or, in the alternative, ordering the Attorney General to appoint a Special Assistant Attorney General to do so.

Like I said, you read it here first.

But as much as I’d love to pat myself on the back for my brilliant legal analysis, as Bricklin states in his section requesting reimbursement of attorneys’ fees, there’s really “no reasonable basis for contending otherwise”:

RCW 4.84.185 allows a prevailing party to recover attorneys’ fees and other litigation expenses if the defense to the action was “frivolous and advanced without reasonable cause.” We have not yet seen the Attorney General’s defense to this Petition, but if it is the same as has been advanced by the Attorney General in the run up to this litigation, we believe an award of litigation fees and costs under RCW 4.84.185 will be justified. The constitutional and statutory provisions at issue here are unambiguous. The duty of the Attorney General to represent the petitioner and his agency is unqualified. The Attorney General has no reasonable basis for contending otherwise. Reasonable attorneys’ fees and costs should be awarded.

Hear that? In requesting reimbursement of legal fees, Bricklin is inherently calling McKenna’s claims “frivolous.” So if Goldmark wins, and Bricklin’s fees are reimbursed, what will this say about the legal acumen — and/or ethics — of our state’s top lawyer?

From the DNR website:

OLYMPIA – Commissioner of Public Lands Peter Goldmark today filed a petition for a writ of mandamus with the Washington State Supreme Court. The petition asks the court to compel the state Attorney General to represent their client, the Office of the Commissioner of Public Lands and the Washington State Department of Natural Resources, and the interests of the state.

Commissioner Goldmark was forced to appeal to the Supreme Court following multiple refusals from Attorney General Rob McKenna to file an appeal with the Division III Court of Appeals of the State of Washington or even appoint a Special Assistant Attorney General to do so. Goldmark has retained the pro bono legal services of attorney David Bricklin, at no cost to the state or trusts.

“It is essential that the Office of the Commissioner of Public Lands has the ability to carry out its fiduciary responsibility to the trusts, and not having counsel leaves the Common School Trust defenseless,” said Goldmark. “The Supreme Court will be answering a very important question around the role of the Attorney General to set policy for the entire state.”

The original deadline to appeal the Okanogan PUD condemnation case was June 10. That deadline was extended by two weeks due to actions by interveners in the case. Attorney General McKenna has now agreed to file the appeal “contingently,” pending action from the Supreme Court on the writ of mandamus. Should the petition fail, the Attorney General has signaled that he would withdraw the appeal.

In covering this story, I urge my friends in the media to review my extensive legal analysis here and here.

UPDATE:
McKenna will be on KUOW’s Weekday tomorrow morning at 9AM. Educated by my coverage, I urge folks to call in and ask the Attorney General whether he really believes that all “branches and agencies of government [should be] deprived of access to the court except by his grace and with his consent.”

(Source: The Tax Foundation)

The other day the Seattle Times endorsed Tim Eyman’s I-1053, arguing that it would help restrain state government, as if our current budget crisis is the result of out-of-control government spending. Of course, it’s not.

The chart above plots Washington state and local taxes as a percentage of personal income from 1977 through 2008, and compares it to the national average of the 49 other states. As you can see, WA taxes as a percentage of the total economy is near a thirty-year low at the moment, after plummeting dramatically from the mid 1990’s. You can also see that WA state and local tax “burden” is also well below the national average, and has been for more than a decade.

And in case you’re wondering where I cherry-picked my numbers, it’s from the conservative Tax Foundation, the same source Eyman often uses to support his preposterous claims.

I know the Times would like you to think that all our budget woes are due to profligate Democrats lavishing our tax dollars on organized labor, but that is simply not the case. In fact, our budgets are unsustainable, but not because spending is out of control. Rather, we have an antiquated tax structure that simply cannot keep pace with the economy and the associated growth in demand for public services.

That’s the real economic reality both the Times and our legislators refuse to address.

On Friday I laid out a thorough legal analysis of the statutory duties of Washington’s Attorney General, and I thought about bumping it to the top of the home page this morning because it is absolutely must reading for anybody truly wishing to understand the looming constitutional showdown between AG Rob McKenna and Public Lands Commissioner Peter Goldmark.

Honestly. If you are a member of the media eventually tasked with covering the unprecedented case of a Washington state officer suing the Attorney General to force him to comply with the law, you’re gonna thank me for the relevant case law I’ve cited and the relatively cogent and concise manner in which I’ve summarized it. (Well, you won’t actually thank me. Nobody in the media ever thanks me. But I guarantee you’ll find it useful.)

But rather than simply repeat myself, I thought I’d take the opportunity to briefly elaborate on Friday’s post by presenting those powers and duties McKenna does clearly possess.

In a nutshell, in states with similar constitutional and statutory construction, courts have found that the law prescribes a traditional attorney-client relationship between the Attorney General and state officers that cannot generally be abrogated by claims to broader common law powers. Article III, Section 21 of the Washington State Constitution clearly defines the duties of the Attorney General as such: “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” In State v. Huston, the Oklahoma Supreme Court concludes…

[A]s most courts hold, that under constitutions containing [similar provisions], the attorney general is not a common-law officer, one upon whom “the duties and powers of the attorney general as the same was known in common law” have been engrafted, but is one whose powers and duties may be ascertained only by resort to the statutes.”

Again, there are plenty of similar citations in Friday’s post. Read the whole thing.

So what are Rob McKenna’s duties as Attorney General? Well, the most obvious and paramount one is the one duty specifically prescribed in the constitution itself: “The attorney general shall be the legal adviser of the state officers…”

After that, the RCW lays out a number of specific powers and duties which follow in full:

RCW 43.10.030
General powers and duties.

The attorney general shall:

(1) Appear for and represent the state before the supreme court or the court of appeals in all cases in which the state is interested;

(2) Institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer;

(3) Defend all actions and proceedings against any state officer or employee acting in his or her official capacity, in any of the courts of this state or the United States;

(4) Consult with and advise the several prosecuting attorneys in matters relating to the duties of their office, and when the interests of the state require, he or she shall attend the trial of any person accused of a crime, and assist in the prosecution;

(5) Consult with and advise the governor, members of the legislature, and other state officers, and when requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers;

(6) Prepare proper drafts of contracts and other instruments relating to subjects in which the state is interested;

(7) Give written opinions, when requested by either branch of the legislature, or any committee thereof, upon constitutional or legal questions;

(8) Enforce the proper application of funds appropriated for the public institutions of the state, and prosecute corporations for failure or refusal to make the reports required by law;

(9) Keep in proper books a record of all cases prosecuted or defended by him or her, on behalf of the state or its officers, and of all proceedings had in relation thereto, and deliver the same to his or her successor in office;

(10) Keep books in which he or she shall record all the official opinions given by him or her during his or her term of office, and deliver the same to his or her successor in office;

(11) Pay into the state treasury all moneys received by him or her for the use of the state.

These powers and duties are quite specific, including paragraph (2), which requires the Attorney General to “institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer.” Notice that nowhere in that list of enumerated powers and duties is an obligation to broadly protect the public interest, or to balance the policy objectives and interests of one state agency against another, or to protect the future interests of DNR against the policies of the current office holder, or to completely control state litigation in defiance of the wishes the officers who are his statutory clients.

But if that’s not specific enough, the RCW drills down even further in defining the Attorney General’s duty as it relates to the powers and duties of the Commissioner for Public Lands:

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.

The commissioner is authorized to represent the state in any such action or proceeding relating to any public lands of the state.

The constitution is clear; the Attorney General “shall perform” those duties “as may be prescribed by law.” And the statute is clear; “It shall be the duty of the attorney general” to defend DNR “when requested so to do by the commissioner.” It is the Commissioner, not the Attorney General, who is statutorily authorized to “represent the state in any such action or proceeding relating to any public lands of the state.” It is the Attorney General’s duty to represent the Commissioner as his lawyer.

McKenna’s refusal to comply with a lawful request by Goldmark to file an appeal is a clear violation of  the Attorney General’s constitutional and statutory duties, as well as the ethics of the legal profession pertaining to the attorney-client relationship. In plain language: our Attorney General is breaking the law.

No doubt when this dispute comes to a head, and Goldmark files suit against McKenna, as I’m guessing he shortly will, McKenna and his office will attempt to dismiss Goldmark’s charges as unfounded. But before credulously reporting McKenna’s defense, our media has a duty to examine the relevant statutes and case law, as well as the consequences of presuming the Attorney General to hold the broad, extra-constitutional, discretionary powers McKenna apparently claims. As the court wrote in Motor Club of Iowa v. Dept. of Transportation:

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.

This is a constitutional crisis, and as such, AG McKenna’s expertise and intentions should not be presumed.

– Jacob Sullum at Reason does some thorough fact checking on Fox News buffoons Bill O’Reilly and Megyn Kelly. But while parts of the Fox empire are still living in a fantasy world when it comes to the drug war, not all of it is.

– The L.A. Times printed a lengthy profile of Marc Emery earlier in the week, but some important details about the political nature of Emery’s prosecution were left out of the finished piece.

– Another child will be born into this world without a father because of the drug war. And Pete Guither links to a follow-up from the case in Georgia where another father-to-be was gunned down by drug cops last year. Now one of those drug cops has been arrested for making false statements.

– Washington’s Good Samaritan Law (only the second in the nation after New Mexico’s) took effect on June 10.

– David Borden discusses why the DEA’s recent “Project Deliverance” was a waste of your taxpayer dollars.

– The drug Sativex, which is made directly from marijuana plants by British pharmaceutical firm GW, has won regulatory approval in Britain for the treatment of multiple sclerosis. Meanwhile in the United States, the federal government still classifies marijuana as a Schedule I drug with no medical use.

Last week’s contest was won by Troll – who first guessed what the view was – and wes.in.wa who provided the link just before Don Joe. The correct answer was the home in Perugia, Italy where British student Meredith Kercher was murdered in 2007. Last week, a jailed mobster claimed to have proof that University of Washington student Amanda Knox did not commit the crime.

Since Troll was able to win last week’s contest, it appears I’ll have to make these a bit harder. Each picture will still be related to something in the news from the past week. Here’s this week’s, good luck! And happy Father’s Day!