HorsesAss.Org

In defending his refusal to fulfill his statutory duty to represent Public Lands Commissioner Peter Goldmark in court, Washington State Attorney General Rob McKenna has publicly worried that an appeal in the underlying eminent domain case could create “bad law,” an ironic concern considering that by forcing a constitutional showdown with Goldmark, McKenna could end up narrowly redefining the powers of his office… including his claimed power to participate in the Florida lawsuit seeking to toss out key provisions of the landmark Patient Protection and Affordability Act.

As I’ve previously explained in detail (here and here), Washington’s constitution and statutes are unambiguous. In states where the constitution requires that the attorney general “shall perform such other duties as may be prescribed by law,” courts have generally ruled that the office does not retain the traditional common law powers attributed to the position, but rather only those that, well, “may be prescribed by law.” And  RCW clearly states that “It shall be the duty of the attorney general” to represent the commissioner “when requested so to do by the commissioner.”

McKenna appears to claim a broader power to protect the public interest that trumps his statutory duty to provide legal representation to state officers, a claim on which he seems unlikely to prevail given the clear language of the constitution and the statutes. And the state Supreme Court could merely leave it at that, granting Goldmark a writ of mandamus, and compelling McKenna to either bring the appeal or hire outside counsel to do so.

But the court could go further, by settling this issue once and for all. And if the court were to follow the West Virginia example and rule that office grants the attorney general no common law powers, but only those powers and duties prescribed in statute, it could prove a major blow to McKenna’s efforts to fend off a lawsuit from Seattle City Attorney Pete Holmes that asks the court to compel McKenna to withdraw from the Florida suit.

Indeed, as part of a recently filed brief, Holmes makes the exact same argument in a section titled “The Attorney General has only the authority granted by statute.”

Respondent assumes that the fact he is “independently elected” somehow clothes him with extrastatutory authority. … The history and provisions regarding the role of the Attorney General in this state demonstrates otherwise.

Holmes goes on to quote State ex rel. Winston v. Seattle Gas & Electric Co. (the same case I’ve previously cited), in which the court was unambiguous about the matter:

The legislation of the state shows that the legislature has not considered that the attorney general is clothed with any other power than that conferred upon him by the constitution or by express legislative enactment. Where it has been deemed necessary for the attorney general to appear and represent the state, authority for that purpose has been give to him by express enactment.

While I admit that there is a stronger legal argument to make that the attorney general has the discretion to take affirmative actions than he does to refuse statutory duties (for example, McKenna probably could have brought the appeal on his own initiative without Goldmark’s request), a ruling in Goldmark v. McKenna that confirms Holmes argument against extrastatutory powers would breath new life into a case that few have paid much attention to thus far.

And in the event that Holmes prevails, and the state Supreme Court orders McKenna to withdraw from the Florida lawsuit, it could have a huge impact in other states that share similar statutory construction where parties are challenging their attorney general’s power to join the Florida suit.

That’s admittedly a lot of “ifs,” but if McKenna is as cognizant of creating case law as he implies, then perhaps he should have thought this thing through before stubbornly denying an equally stubborn Goldmark his right to due process.

Not surprisingly, the Supreme Court of the United States upheld Washington’s Public Records Act today, rejecting Referendum 71 backers’ claims that revealing the names of those who signed the petition would violate their First Amendment right to free speech. The court ruled 8-1, with only Justice Clarence Thomas dissenting.

R-71 would have repealed WA’s recently passed domestic partnership law. During the signature gathering phase, some gay rights activists had threatened to publish the names of people who signed the petition.

I say the decision is not surprising because state and federal courts have already recognized that there are limited circumstances in which petitions and campaign finance records can be withheld from public disclosure to protect the rights of the participants, so there was no need for such a sweeping ruling. Indeed, the SCOTUS referred the case back down to the lower courts to determine whether R-71’s signers can be revealed under its particular circumstances.

You can read the whole opinion here.

UPDATE:
As mentioned in the comment thread, SCOTUSblog has a good synopsis of the ruling, so I don’t really feel the need to go into any additional detail, except to thumb my nose at Tim Eyman.

A little more than a year to the day that I freed myself from the international seltzer cartel, I finally drained my CO2 tank, and swapped in a replacement.

I figure we’ve been averaging two to three liters of carbonated beverage a day (mostly water, though some juice, and a few other weird experiments), which is pretty much in line with the 1000-liter estimate I’d seen for a 20-lb tank. So my initial $240 investment worked out to a cost of about $0.24/liter over the first year.

From here on out though it really starts to pay off. The tank exchange cost only $18 with tax; that’s less than two cents a liter from here on out, compared to about a buck a bottle for two liters of the store brand variety. Sweet. (Well, actually, fizzy.)

Whatever your opinion of President Barack Obama and General Stanley McChrystal, and whatever you think about the nature of McChrystal’s remarks or the circumstances in which they were said, I would hope you would agree that the change in military command that took place today is emblematic of the democratic values that have preserved the American experiment over the past couple centuries.

In many other nations, including many democracies, the president or prime minister would have been reluctant to remove a top general under similar circumstances out fear of how the rest of the military might react. But here in these United States, our President had to remove Gen. McChrystal for exactly the same reason.

The President is the Commander-in-Chief of our armed forces, and under our principle of civilian control such public mockery of the President by a top general and his staff is no more acceptable than public mockery of the general by his lieutenants. Regardless of the immediate impact on the war in Afghanistan, had President Obama not accepted McChrystal’s resignation of command, it would have set a dangerous example that could only lead to further insubordination, and a deterioration of military discipline.

While many pundits seem surprised by President Obama’s actions, it’s hard to see how he had any other choice.

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.”