HorsesAss.Org

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!

Luke 19:27
Now bring me the enemies who didn’t want me to be their king. Kill them while I watch!”

Discuss.

(And there are about 50 more clips from the past week in politics at Hominid Views.)

This post from Bruce Ramsey on I-1068 and the ACLU is a week old now, but I wanted to call it out and add some extra thoughts. Except for a few minor quibbles, I think Ramsey is mostly correct about both that post and his earlier post on differentiating liberals and progressives. The inability for Democratic interest groups in this state to rally around this initiative does demonstrate that Democrats in this state are more progressive than liberal – the difference between the two being that progressives are more concerned with things that government should be doing, while liberals are more concerned with what it shouldn’t be doing. Ideologically, most progressives are liberal and most liberals are progressives, but within circles of entrenched power, the people who want government to do more always win out over the people who want it to do less.

My first minor quibble has to do with this statement:

ACLU-WA’s statement says, “The ACLU isn’t willing to support an incomplete initiative in hopes that the Legislature will fix it.”

I can understand why a group of attorneys might take that position. But the ACLU statement also says, “A negative vote on the initiative would be a significant setback for our ongoing reform movement.” And that is also true.

I don’t agree with this at all. There’s absolutely no reason to believe that losing a statewide vote on marijuana legalization does anything to set the movement back. In fact, Colorado voters largely rejected a marijuana legalization initiative in 2006 that was doomed from the start, yet the organizers of that initiative saw their effort as a way to kick off public discussions that weren’t already happening. They were able to do that, and since then, Colorado has seen several big advancements in drug law reform, from medical marijuana dispensaries to successful city-wide legalization initiatives, things that we haven’t seen yet in Washington state. Their effort was derided at the time as foolish, but it most certainly did not set back the cause of drug law reform there. In fact, it pushed it forward.

My second minor quibble (ok, maybe this one is more than minor) concerns the nature of the ACLU of Washington’s failure to endorse the initiative. It had little to do with a progressive vs liberal ideological divide. When the ACLU of Washington declared that they were declining to endorse I-1068, they listed multiple reasons, but the belief that the initiative had no chance of passing was the primary motivator. In fact, their concerns over the lack of regulation in the bill weren’t exactly genuine, as ACLU of Washington Drug Policy Director Alison Holcomb wrote to me in email that it would be “great” if it passed. They were just more concerned about what an endorsement of what they saw as an ill-fated initiative effort would have on their credibility. When I asked Holcomb to provide an example of when an organization’s endorsement of an initiative they had no direct involvement with ever hurt that organization’s credibility, she complained about having too many unread emails in her inbox.

In the end, exacerbating existing fissures within the drug law reform community has done far more damage to the cause of ending marijuana prohibition (which I don’t doubt the ACLU of Washington wants) than a failed initiative attempt would have. With the I-1068 campaign, we ended up with a well-connected – but politically clueless – ACLU of Washington effectively derailing an amateurish but eager attempt to force a vote on the issue of marijuana legalization this year. The I-1068 campaign showed their lack of experience by continually venting through press releases (which rather foolishly just got more people to notice the difficulties they were having), but in the end, they built up a network of thousands of activists and continued to raise awareness of this important issue. As for the ACLU of Washington’s credibility, all I can say is that an organization that I’ve admired and defended throughout my life profoundly disappointed me with their actions this year.

So far, our state’s Capitol press corps has been too busy covering important political stories about furniture restoration to be bothered with wrapping their minds around something as trivial as an unprecedented constitutional crisis, so as a service to my friends in the media, I’ve decided to do a lot of the legal legwork for you, so that you’ll be prepared to cover the story accurately once it explodes beyond your ability to ignore it.

In a nutshell, Washington Attorney General Rob McKenna has refused to comply with Public Lands Commissioner Peter Goldmark’s lawful request to provide legal representation in appealing a lower court ruling giving Okanogan PUD the right to take Common School Trust lands via eminent domain. I’ll get to the specifics of the eminent domain case in a later post, but for now I want to address the implications of McKenna’s extraordinarily broad claim of common law powers, the relevant case law, and the inevitable next steps in a dispute between statewide elected officers that appears to be headed to a historic showdown before the Washington State Supreme Court.

The Attorney General’s office apparently no longer replies to my emails short of threats of violence, but those who have talked with the office about this case uniformly report that McKenna and his cohorts have been, well, cute in their response. On the one hand, they insist that they can’t talk about this case due to attorney-client privilege, while on the other hand they immediately go about disparaging Goldmark and his legal claims, you know, off the record. It’s a media strategy that borders on legal malpractice, but that’s an issue for the Washington State Bar Association to resolve when a formal complaint is inevitably filed.

In addition to disparaging his own client’s case, thus damaging its prospects, McKenna has also privately justified his refusal to file an appeal by claiming a broader common law obligation to protect the public interest. McKenna has apparently insisted that, in addition to the narrow interests of his client, the Attorney General must weigh the potential harm across the state posed by either failure or success in court; it’s not clear which outcome has him more concerned. McKenna has also claimed that he must look out for DNR’s future interests, which could be harmed by the legal precedent set on appeal.

That’s what reporters and other interested third parties tell me McKenna has been saying privately. Publicly, McKenna spokesperson (and former right-wing talk radio host) Dan Sytman merely claims that the Attorney General’s discretion on such matters is presumed:

“Usually, when we’re working with clients and we explain the legal reasoning, they defer to our expertise,” Sytman said. “Generally they’ll defer to us on legal matters, just as we defer to them on policy matters.”

Now, I don’t doubt that it is true that, usually, the client defers to the Attorney General’s expertise on legal matters. And judging from the dearth of prior case law, the rare times such disagreements do lead to a game of constitutional chicken, I suspect the client generally backs down, for practical reasons I will get to later. But while such deference may be common practice, it is not a matter of law, common or otherwise, and as ill advised as McKenna may believe an appeal to be, he has a statutory obligation not only to comply with Goldmark’s request for representation, but to comply with it to the best of his ability.

State law appears unambiguously clear on this matter:

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.

It is the duty of the Attorney General to represent the Commissioner in any legal proceeding to which he is a party, “when requested so to do by the commissioner.” There are no two ways of reading this. Furthermore, it is the Commissioner — not the Attorney General — who is authorized to represent the state in any action relating to public lands.

This provision clearly defines an attorney-client relationship in which the Commissioner represents the interests of the state in proceedings relating to public lands, while the AG represents the interests of his client, the Commissioner. Further reinforcing this traditional attorney-client relationship is RCW 43.10.067, which explicitly bars state officers other than the Attorney General from employing, appointing or retaining outside legal counsel.

By statute, the AG is not only the Commissioner’s attorney, he is the Commissioner’s only attorney; for McKenna to deny Goldmark legal counsel is to deny him and DNR access to legal representation and access to the courts. That is why disputes of this sort are so unlikely to reach a court: officers like Goldmark have no means of suing the Attorney General.

McKenna appears to claim that despite this unambiguous statutory construction, the Attorney General serves multiple clients, including a common law obligation to serve the broader public interest, and that when the interests of these various clients come in conflict, his primary obligation is to protect the public good. This interpretation would seem to give the Attorney General broad discretion over which policies and laws to defend, and which not, but since such a dispute has never come before Washington’s courts, there is no precedent to back it up. Indeed, such disputes are so rare that relevant case law is scarce in any state, and most of what I’ve found is both ambiguous, and not entirely analogous.

But there is one case from West Virginia that is entirely to the point, and is all the more instructive because our two states share similar constitutional language defining the powers of the Attorney General. And well… it doesn’t look so good for Rob McKenna.

[Read more…]

So, while I have my head buried in legal briefs, providing the only media coverage of the dramatic constitutional showdown between Attorney General Rob McKenna and Public Lands Commissioner Peter Goldmark, the Seattle Times is devoting column inches to an expose on Gov. Gregoire’s conference table.

But, you know, I just represent the Democrats’ “amen corner” of the blogosphere, so you can pretty much ignore everything I have to say.

Talking Points Memo has picked up the story of Dino Rossi’s decision to continue headlining seminars teaching real estate speculators how to profit off of the foreclosure crisis. “It’s a strange strategy,” TPM points out, joining just about everybody else in scratching our collective head.

And NRSC spokesperson Brian Walsh’s response?

“Unless foreclosed properties are purchased don’t those properties stand vacant with no tax base coming into the local community, fewer families with roofs over their heads, and urban blight eventually resulting? Is that what the Democrats believe should happen? Or is their alternative policy that we resort to Communism, turn these properties into government housing and tell people where they should live?”

Really? He’s playing the commie card? That’s the best he can do? What a lazy douche-bag.

Oh, and by the way Brian, no, that’s not what happens when a property stands vacant. Somebody still owns the property, even if it’s the bank, and they still pay the property taxes. And as for urban blight, I’m not sure that’s much of a problem in the neighborhoods surrounding those $11 million waterfront homes Rossi is hawking.

No wonder the NRSC is getting it’s ass kicked this primary season.

Having the North Koreans in the soccer World Cup is quite a spectacle:

North Korean manager Kim Jong-Hun reportedly gets coaching advice directly from the country’s diminutive dictator via an invisible cell phone.

According to ESPN.com the coach has claimed he gets “regular tactical advice during matches” from Jong Il “using mobile phones that are not visible to the naked eye.”

“Jong Il is said to have developed the technology himself,” coach told ESPN.com.

And it gets even weirder:

Cameras caught a contingent of North Korean supporters in the stands cheering eagerly, each dressed exactly the same in a red shirt and cap and waving North Korean flags.

It’s not certain, however, that any of those flag waving fans were North Korean.

In May, 1,000 Chinese nationals were essentially rented by the government of North Korea to sit in the stands and cheer, according to Xinhua, the official Chinese news agency.

Given that few citizens of the impoverished nation could afford to attend the games, or would be allowed to leave the country, the North Korean Sports Committee gave tickets to Chinese nationals, many of them actors and singers, to attend the event, Xinhua reported.

Having never bought into the breadth, depth or staying power of the so-called Tea Party “movement,” particularly here in Washington state, I somewhat what agree with Eli Sanders’ assessment of the “Didier Bubble” over on Slog:

Now, I love the Didier story line as much as the next person—a tractor-driving, government-handout-slurping, Sarah-Palin-endorsed insurgent? irresistable!—but this idea that he’s about to become the favorite of the National Republican Senatorial Committee just doesn’t have anything to it.

That said, I’m open to being surprised, at least to the extent that Clint Didier could potentially create enough trouble for Dino Rossi that it seriously damages his prospects in November. And in that context, I’m particularly intrigued by Didier’s “impromtu” meeting with Sarah Palin last week, in which, according to PubliCola, the two discussed “a series of Didier fundraisers with Palin.”

Like many Alaskans, Palin has strong ties to Washington, and is frequently in-state visiting family, so it’s not surprising that she would take a special interest in our U.S. Senate election. Likewise, if Palin chooses to headline “a series of Didier fundraisers,” it wouldn’t be unreasonable to suppose that they might be able raise a substantial amount of money.

How much qualifies as substantial? I’d say a million or two, and while even that likely wouldn’t be enough to overcome Rossi’s substantial lead, it could potentially take an awfully big bite out of it, assuming the money is spent well. And by “spent well,” of course I mean relentlessly negative.

As Sanders writes, “If Didier were really a surging threat, would Rossi’s campaign be so studiously ignoring him?” Probably not, and if I were advising Rossi I’d tell him to focus solely on Sen. Murray too. But faced with a well-funded attack from Didier (and perhaps Nevada-style independent expenditures from the likes of the Tea Party Express and Club For Growth), that strategy would have to change.

No, I’m not all that impressed by either Didier or the folksy antics of our indigenous teabaggers. But I retain a profound respect for the transformative power of targeted political money.

Given Dino Rossi’s refusal to detail his stance on reproductive rights (or just about anything) I’ve taken to speculating recently on what an imaginary conversation on the subject with Rossi might sound like. I suppose I could’ve just tried asking Rossi directly, but given my past failures to get his campaign to respond to me through formal channels, I didn’t see much of a point.

Well, Josh at PubliCola did recently ask Rossi some Yes or No questions on choice, and surprisingly, Rossi provided answers. Not surprisingly, the answers were all “No.”

Specifically, Josh queried Rossi on seven pro-choice vs. pro-life votes Sen. Patty Murray took since 2000, and Rossi confirmed that in each case he would have voted the opposite. Plan B? No. Privately funded abortions at overseas military bases, for any reason? No. $100 million to reduce teen pregnancy through education and services? No.

You get the point.

Rossi nearly won in 2004 because the Gregoire campaign and the state Dems did not do a good enough job of shattering the moderate image he crafted for himself in that race. That’s how Republicans win statewide in Washington: by presenting a blank slate to voters on controversial issues in an effort to convince enough independents and soft-Dems that they’re a different kind of Republican. And every Republican running statewide (or King County wide) ever since Rossi’s near victory, has attempted the same tabula rossi strategy.

But the problem with refusing to define yourself — you know, Rossi’s “I’m not running on that issue” approach — is that you give your opponents the opportunity to define you for you. And unlike Gregoire circa 2004, that’s an opportunity I don’t expect the Murray camp to miss.

A new poll was released today in the Washington Senate race by Elway. The most interesting part of the poll was the head-to-head match-up between Sen. Patty Murray and perennial candidate and real estate salesperson Dino Rossi. Dino is, of course, best know as the loser to Christine Gregoire in the 2004 gubernatorial election and post-election challenge of the contest. He is second-best known for losing handily to Gov. Gregoire in 2008.

Elway polled 405 registered voters, of which 352 went for either Murray or Rossi. The respondents gave Murray 47% to Rossi’s 40%. If we normalize this poll (i.e. look only at the 352 who had an opinion) Murray is at 54% to Rossi’s 46%. As usual, I’ll approximate the probable outcome of a hypothetical election held today using Monte Carlo simulations. A million simulated elections of 405 voters at the percentages observed gives Murray 853,011 wins to Rossi’s 138,593 wins. The results suggest that if the election was held now, Murray would win with a probability of 86% and Rossi would wins with a probability of 14%. Here is the distribution of results from the simulated elections:

Goldy has more analysis of this poll and what it means for the November election.

(Cross posted at Hominid Views.)

I just got my hands on the latest Elway Poll, and I gotta say, it has me feeling pretty damn smart. While the headlines generated by the top-line numbers don’t look so great for Sen. Patty Murray — Publicola, for example, reported that “Rossi Gains Ground on Murray in New Poll” — the details are much more copacetic.

Yeah sure, Murray’s lead has shrunk from 51-34 to 47-40 since Dino Rossi officially entered the race, and I’m sure she’s not happy to find herself under 50 percent regardless of the opponent. But if anybody should be discouraged by these results, it’s Rossi and his Republican supporters.

Although Murray is below 50%, this survey suggests that in order to win, Rossi would have to convince 85% of the undecided voters to vote for him. This would be a stretch, even though challengers typically receive a disproportionate share of the undecided voters. The assumption is that voters are familiar with the incumbent. If they were going to vote for the incumbent, they would know it already.

The problem for Rossi, as I’ve previously suggested, is that having already run high profile campaigns in 2004 and 2008, voters are already familiar with him too. In fact, as a candidate, voters are probably more familiar with Rossi than with Murray, thanks to the $20 million-plus spent on his behalf just two years ago. Elway confirms my intuition:

Because Rossi has run in 2 of the last 3 statewide elections, however, most voters will have formed an opinion about him prior to this campaign. He was recruited as the strongest candidate to face Murray based on his runs for Governor. Ironically, he may not benefit as much from being the non-incumbent as would be the case had he not run these races.

Six years of almost continuous campaigning, and yet here Rossi sits, in the wake of his post-announcement bounce, at a mere 40 percent.

This reminds me of the 2006 contest between Sen. Maria Cantwell and Mike McGavick. It was around this time in the campaign when the polling numbers narrowed, and pundits started talking about how this would be a close race. The problem for McGavick was that the only numbers that were moving were Cantwell’s, while he never managed to climb above the low 40’s. McGavick’s path toward fifty plus one was never very clear, and he ultimately never found one.

Rossi’s path is equally unsure, if for different reasons, and made all the more so by the fact that he polls best with those respondents least likely to vote.

As Elway explains, Murray leads Rossi 56-33 with “perfect voters” (those who have voted in all 4 of the previous primary and general elections) and 52-37 among “likely voters” (those who are 3 for 4), while Rossi leads 47-39 among “marginal voters”… those who have voted in 2 or fewer of the past 4 elections. This appears to create a bizarro world kinda scenario, where Republican victory might hinge on increasing voter turnout.

The other challenge facing Rossi is that according to Elway, more Washington voters would vote against a Tea Party candidate than for one, by a 5-to-3 margin. Once again echoing my earlier analysis, Elway observes that the Tea Party represents a bigger problem for Rossi than it does for Murray:

Tea Partiers are never going to vote for Murray anyway. Rossi will need Tea Party voters in November, but if he is too closely identified with them, he risks driving away more voters than he will attract.

Rock, meet hard place.

It wasn’t so long ago that Florida Attorney General Bill McCollum was the overwhelming favorite to win this year’s gubernatorial election, but now it looks like he might not even get out of the Republican primary:

It is a stunning shift for a seasoned politician who seemed to have a lock on the race just two months ago…Supporters fault McCollum’s TV message, his inability to connect with an angry electorate, fundraising shortcomings and a dated campaign style, emphasizing endorsements from establishment figures such as Jeb Bush and Mitt Romney at a time when voters feel alienated.

Sounds a bit like Washington AG Rob McKenna, who appears to have a lot in common with his Florida counterpart. Both are stiff, spectacled, Republican establishment type attorney generals with gubernatorial ambitions, and both have prominently placed themselves in opposition to health care reform, McCollum taking the lead on the lawsuit challenging it, and McKenna quickly signing on. McKenna and McCollum both kinda look alike, too.

So perhaps there’s a lesson for McKenna to learn from McCollum, who didn’t get much right-wing traction from his blatant teabagger pandering on health care reform. Perhaps if you empower the teabaggers by legitimizing them, they can come back and bite you in the ass? You know, especially if they learn you’ve risked a constitutional crisis in defense of broadening the powers of eminent domain?

McKenna is gonna have to make a decision about the Tea Party: he’s either with them or against them. And unless he’s with them 100 percent of the time, he sure can’t count on them being with him come election time.

The Association of Washington Businesses claims its board unanimously endorsed Tim Eyman’s anti-democratic I-1053 at its May 13 board meeting, but after a bit of digging, the folks over at the Washington State Labor Council can’t find a single AWB board member who admits to attending the meeting and endorsing the initiative.

Can this be true? Amid severe recession-related budget cuts to higher education, transportation and other state funding priorities strongly supported by many of our largest private employers, the AWB board voted UNANIMOUSLY for this starve-the-beast strategy to avoid taxes?

Not Boeing.  Company spokeswoman Susan Bradley says the company has no position on I-1053 and had no representative at AWB’s May 13 board meeting in Spokane.

And not Microsoft.  Government Affairs Director Delee Shoemaker, an AWB board member, reports that the company will not take a position on I-1053 at least until it qualifies for the ballot. She adds that she wasn’t at the May 13 meeting either.

And the list goes on: Weyerhaeuser, Avista Corp., Ben Bridge Jewelers, US Bank… nobody would admit to even attending the meeting. In fact, of the AWB board members who responded to WSLC’s inquiries, only one, Safeway Director of Public Affairs Cherie Myers, expressed support for the initiative. But… “I was not there to vote,” Myers told the WSLC.

Huh. Reminds me of a lyric from Les Miserables:

Phantom faces at the window.
Phantom shadows on the floor.
Empty chairs at empty tables
Where my friends will meet no more.

The bulk of the board members WSLC contacted wouldn’t respond to inquiries, but there’s a reason why local businesses might be reluctant to embrace I-1053 despite the business community’s natural knee-jerk support for anything that makes it harder to raise their taxes: as WSLC explains, the Californiafication of Washington government simply isn’t good for our state’s business climate:

Our biggest private-sector employers report that one of their greatest challenges is the insufficient number of skilled workers available. Microsoft regularly argues that more H-1B visas are needed to meet its demand for engineers. Boeing’s aging workforce — of both machinists and engineers — is considered a looming crisis.

This problem has been exacerbated by the recession. Plummeting state revenue has resulted in college and university budgets being slashed; University of Washington reports that its state funding was cut by one-third in the past 15 months. College instructors are being laid off, departments eliminated, class sizes sharply increased, and double-digit tuition hikes imposed. And all this is happening as Boeing laments its demand for engineers consistently exceeds the state’s production by a two-to-one ratio, a supply gap that is widening as its aging work force retires in droves.

WSLC includes a list of companies that have refused to respond, and it wouldn’t hurt if they heard from their customers that we don’t particularly enjoy doing business with companies that spend their profits ensuring that a one-third minority of the Legislature has veto power over our state budgets. At the very least, they need to know that they can’t continue to hide behind their empty chairs.

With time running out to appeal the use of eminent domain against Common School Trust lands in Okanogan County, the contentious face-off between Lands Commissioner Peter Goldmark and Attorney General Rob McKenna is about to come to a head.

Either McKenna blinks, and accedes to Goldmark’s lawful request for legal representation, a concession that could come as early as today, or he plunges our state into a constitutional crisis by forcing Goldmark to take unprecedented legal actions that could ultimately lead to a Supreme Court showdown, and potential disbarment proceedings against McKenna.

And no, I’m not being hyperbolic.

“I am deeply disappointed that Attorney General Rob McKenna has denied my request to appoint a Special Assistant Attorney General that would allow DNR to appeal the use of eminent domain against the Common School Trust in Okanogan County.

As Commissioner of Public Lands, I have a fiduciary responsibility to defend the trust. It is puzzling that our Attorney General will not allow his client’s argument to be heard in court when he already supported trying it in a lower court.

While I am unsure what changed his mind, I hope he changes his mind again and appoints a Special Assistant Attorney General.

It is uncertain if there is a precedent for denying a request for a Special Assistant Attorney General to an agency headed by an independently elected official.”

Don’t be distracted by the measured wording of Goldmark’s press release; this is clearly a threat, and a clear indication that Goldmark has no intention of backing down in the face of his “fiduciary responsibility to defend the trust.” Just as the RCW mandates that McKenna must provide legal representation to Goldmark, the RCW also bars Goldmark from retaining outside counsel. Within days, both of these statutes may be violated, leading to a messy court fight over a court fight.

As a partisan blogger already focusing on the 2012 gubernatorial contest, I’d personally prefer that McKenna maintain his arrogant, illegal and unethical stance. It would be a dramatic, political misstep… but I’m not betting on it. My best guess is that McKenna will momentarily back away from the dark side and assign a Special Assistant Attorney General to DNR, while publicly criticizing Goldmark for ignoring his legal advice. That would be the smart political move, and up until recently, McKenna has proven to be a smart politician.

But if he doesn’t… well… Katie bar the door. So far the media has largely ignored this dispute — I guess they just can’t be bothered to wrap their minds around such complicated legal issues.  But they won’t be able to ignore what comes next.