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On Friday I warned my friends in the media that they were missing the big story in the escalating dispute between Lands Commissioner Peter Goldmark and Attorney General Rob McKenna. And after a sunny weekend and no further headlines, I feel compelled to raise the alert one more time.

Hey media… you’re missing a big story!

At issue here is more than just whether Okanogan PUD should be allowed to build transmission lines through state Common School Trust lands, or even the legal question of whether a political subdivision can unilaterally take state lands via eminent domain. (I’ve been advised by experts in the field that case law in WA and other states is very clear that such authority is not presumed; more on that later.)

No, the big story is AG McKenna’s refusal to comply with his statutory obligation to provide the legal representation Commissioner Goldmark has lawfully requested… an action — or rather, inaction — whose precedent threatens to dramatically expand the scope and authority of the Attorney General’s Office, essentially giving the AG veto power over the policy decisions of state legislators, executives and even The People acting through the initiative and referenda process.

As I’ve previously stated, the relevant statute is unambiguous:

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.

“It shall be the duty of the attorney general” to defend DNR “when requested so to do by the commissioner.” The word “shall” is understood to mean that the AG’s duty is mandatory; there’s no other way of reading this provision.

McKenna’s spokesman, former right-wing talk radio host Dan Sytman argues that “usually, when we’re working with clients and we explain the legal reasoning, they defer to our expertise… generally they’ll defer to us on legal matters, just as we defer to them on policy matters.” Okay, maybe usually. But his client’s deference is not a statutory requirement, whereas the AG’s duty to defend his client is.

And by refusing to fulfill this statutory duty, McKenna most certainly is intruding into DNR’s business on matters of policy.

The risk is clear. If the AG is given discretion as to which laws and policies to defend, then he essentially holds veto power over any law or policy subject to a legal challenge. For example, should the BIAW sue to overturn storm water regulations, a suit against which the AG subsequently refuses to defend, these regulations will be overturned. Likewise, already on the record with an opinion that an income tax is unconstitutional, McKenna might choose not to adequately defend I-1098 from the inevitable legal challenge should it be passed by voters.

That is why neither the Constitution nor the RCW gives the Attorney General such broad discretion. Rob McKenna is our state’s attorney, and according to RCW 43.10.040, that means “the state and all officials, departments, boards, commissions and agencies of the state” are clients who he is legally and ethically obligated to represent. Outside of an obviously frivolous claim, McKenna simply has no choice but to honor a client’s lawful request for representation. And as I will show in subsequent posts, DNR’s claim is far from frivolous.

What we have here is the makings of a constitutional crisis… a dispute that, assuming neither Goldmark nor McKenna back down, will generate headlines for months to come, and that could possibly haunt McKenna throughout his 2012 gubernatorial campaign.

Like I said… this could be a big, big story. The only question remaining is whether media scrutiny will force McKenna to do his job, or whether McKenna’s refusal to do his job will ultimately force media scrutiny.

I just wanted to let Pacific NW natives know that in other regions of the nation, weather forecasters are actually able to somewhat reliably forecast the weather more than, say, 12 hours in advance. You know, like if they tell us on Friday to expect a week of relentless sunshine, the forecast on Monday won’t generally flip to clouds and rain.

I’m not blaming Cliff Mass and his cohorts; it’s apparently more difficult to make five-day forecasts here during much of the year than it is most anywhere else. But damn is it frustrating.

Last week’s contest was won by milwaukeehockey (aka milwhcky). It was a Valero gas station in downtown Kansas City where there was a mysterious explosion in a nearby donation bin. There are still no updates on a suspect or motive, but one wonders if it was one of the folks who caused the Valero to have to post this sign inside the gas station mini-mart.

Here’s this week’s photo, good luck!

And for those of you who enjoy this challenge, Andrew Sullivan has started doing a similar contest with his reader-submitted “View From Your Window” photos.

Genesis 6:6-7
The LORD was grieved that he had made man on the earth, and his heart was filled with pain. So the LORD said, “I will wipe mankind, whom I have created, from the face of the earth—men and animals, and creatures that move along the ground, and birds of the air—for I am grieved that I have made them.”

Discuss.

I’ve been following the saga of Wikileaks over the past few days. The secretive website’s founder, Julian Assange, has been on the run from the Pentagon:

American officials are searching for Julian Assange, the founder of WikiLeaks in an attempt to pressure him not to publish thousands of confidential and potentially hugely embarrassing diplomatic cables that offer unfiltered assessments of Middle East governments and leaders.

Assange is like the kid in school who found the popular girl’s secret diary where she talks shit about the people she pretends to be friends with.

The person who’s believed to have turned over these cables was a 22-year-old Army Intelligence Analyst named Bradley Manning. Manning was arrested last week after admitting to the leak in a series of online chats. Manning also took credit for leaking the video that Wikileaks unveiled in April.

There will be a lot of debate about whether Manning should be considered a whistleblower or a traitor. In leaking the video, he was clearly trying to expose a coverup (Reuters had been unsuccessful in getting the footage showing U.S. troops killing one of their photographers). But with the cables, it’s not clear if Manning was trying to expose any particular wrongdoing or if he was just bent on undermining American foreign policy. Yet even if that distinction matters to some of us, it certainly won’t matter to the Obama Administration and the Pentagon.

While the true nature of what he revealed remains a big unknown, what isn’t a mystery is how this young Army analyst became disillusioned to the point of doing this. In his lengthy online chats with the man who eventually turned him in – a former hacker named Adrian Lamo – he pointed to one specific incident:

(02:31:02 PM) Manning: i think the thing that got me the most… that made me rethink the world more than anything
(02:35:46 PM) Manning: was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees…
(02:35:46 PM) Lamo : I’m not here right now
(02:36:27 PM) Manning: everything started slipping after that… i saw things differently
(02:37:37 PM) Manning: i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against…

Even as someone who thought the war in Iraq was ill-advised from the very beginning, and who fully expected an outcome where our occupation would eventually begin imitating the tyranny we’d set out to replace, I still find it fascinating to see this young man running into that glaring contradiction between our ideals and our actions. I have no idea yet how history will eventually judge Manning, but I understand how he ended up doing what he did.

If these cables are released, what will come next? Would it cause the unraveling of key alliances to the point that our national security would be threatened? Or does it merely expose embarrassing things that would only affect a narrow set of people and interests? Either way, the diary of the popular girl may be posted online soon.

Or perhaps I should have titled this “(U.S. vs. England) vs. Sunny Day open thread.” I had planned to watch the game, but given the first relentlessly beautiful day in God-knows-when, I’m not sure I can bear to be indoors for that amount of time.

Anyway, at the risk of upsetting all those crybaby Brits whining over President Obama’s criticism of BP, let’s get some payback for what British Petroleum is doing to our Gulf.

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

The more I think about the escalating spat between the Washington State Department of Natural Resources and Attorney General Rob McKenna over his refusal to provide legal counsel in appealing a lower court decision, the more I think that our local media may be missing an awfully big story in the making. Let’s just say my spidey sense is tingling.

The issue at the center of this dispute is whether a local government agency, the Okanogan Public Utility District, can condemn state Common School Trust land through eminent domain, an action for which there is little if any precedent, but the precedent the Attorney General seeks to set in refusing to represent DNR on appeal could be much more far reaching. Indeed, it essentially boils down to who gets to set policy priorities in Washington state: elected executives like Lands Commissioner Peter Goldmark and Governor Chris Gregoire… or the Attorney General himself?

The statute is clear; it is “the duty” of the attorney general to defend the state “when requested so to do by the commissioner”:

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.

Yet despite Commissioner Goldmark’s repeated requests for a Special Assistant Attorney General to appeal the decision, McKenna has refused. In a statement, McKenna claims that the decision not to appeal was based on the likelihood of success, but that is not his decision to make. The statute is unambiguous, and McKenna’s refusal to comply may be unprecedented.

Meanwhile, RCW 43.10.067 appears to bar DNR from retaining outside legal counsel, leaving the department powerless to legally defend itself in the absence of adequate representation on the part of the Attorney General.

So what is really going on here? Reading between the lines, Goldmark appears to give a hint in his earlier statement on the dispute:

“By refusing to represent the Common School Trust and the non-tax revenue it generates, Mr. McKenna is choosing to allow the inappropriate use of eminent domain over Washington’s schools,” said Commissioner Goldmark. “Mr. McKenna is choosing to play politics with our state’s heritage.”

This is a case that puts the state in the unusual position of opposing an expansive use of eminent domain, and one can’t help but wonder if McKenna is choosing to sacrifice the interests of one client to what he believes to be the general interest of others (DOT, for example). Yes, in the broadest sense, McKenna represents the people of Washington state, but according to statute the specific duty of his office is to serve as the sole attorney to the state’s individual departments, agencies and commissions.

If the Attorney General is given the option of choosing which laws and policies to defend, then he is essentially put in the position of setting policy, trumping the power of elected executives like Commissioner Goldmark. Which I suppose is why the RCW does not give the Attorney General such an option.

As DNR’s attorney, McKenna is free to strongly advise Commissioner Goldmark not to appeal. But to refuse a statutory request for legal counsel represents an unprecedented usurpation of executive power that could greatly expand the role of the Attorney General’s Office in setting state policy at nearly every level.

And that is a story our media shouldn’t ignore.

Alternate headline for this post: “You can tell we are Teabaggers by our misspelled signs.”

There’s little doubt that Washington State Attorney General Rob McKenna’s decision to join the lawsuit challenging health insurance reform was purely political; like the other Republican AGs in the suit, McKenna was apparently pandering to the hard-right teabagger faction on which the GOP has recently pinned its electoral hopes.

But TPM takes a look at how this strategy has thus far worked out for AGs facing electoral challenges in 2010, and apparently, not so well:

Take a look at Tuesday’s primary in South Carolina, where Attorney General Henry McMaster boasted in his gubernatorial campaign that he was protecting “South Carolina’s sovereignty, “standing tall for states’ rights,” and opposing Obama on health care. McMaster came in third place with 17%, failing to make the GOP runoff.

And in Florida, state Attorney General Bill McCollum joined the lawsuits at a time when he was the presumptive Republican nominee for governor at time he joined the lawsuits. But no longer. He is now trailing in a new poll against self-financing former health care executive Rick Scott — who is touting his own opposition to the health care bill, and the activism he spearheaded during the debates.

In Michigan, state Attorney General Mike Cox is running for governor in a five-way Republican primary. And he has not broken out of the pack. The TPM Poll Average currently has him running in third place with 17.6%, behind Rep. Pete Hoekstra at 24.4% and businessman Rick Snyder with 18.5%.

And last but not least, look at Alabama Attorney General Troy King, who joined the lawsuits — he already lost his primary to Luther Strange, an attorney and the 2006 GOP nominee for lieutenant governor, by a margin of 60%-40%.

Not all the AGs in the case have found themselves on the losing side of the ballot. Pennsylvania AG Tom Corbett easily won his Republican primary for governor, but he was already the frontrunner before the lawsuit. And a bunch of other AGs remain unopposed in primaries for their reelection. But as we see above, those AGs in closely contested races haven’t found the health reform lawsuit to be the electoral bonanza they thought it would be.

Of course McKenna’s strategy may already have achieved its main objective; by striking first for the teabagger vote, he may have forced Dino Rossi out of the 2012 gubernatorial race and into an ill-advised run for the U.S. Senate. But so far there is little evidence to suggest that McKenna’s stunt will produce further electoral payoffs two years down the road, especially as the benefits of reform begin to kick in, and voters become loath to give them up.

Apparently, Dan Savage also had a conversation with Dino Rossi about abortion, and the U.S. Senate wannabe is not only opposed, he told Dan that women who have the procedure should be arrested and prosecuted for murder. Who knew that Dan and Dino and I all hang out at the same bar?

Well it turns out that we weren’t the only ones, for a reliable source writes that he was also at the bar that night, and after Dan finished talking with Rossi, my source followed up to ask, “You would prosecute for murder… even in cases of rape, incest or when the health of the mother is at risk?”

“All life is sacred,” Rossi responded, as he picked the olive from his umpteenth martini.

Or so my source says. If Rossi recalls otherwise, he’s free to publicly clarify his stance on the issue.

Anyway, with over 150 comments already in yesterday’s thread, I just thought the HA community needed more space to debate why Rossi thinks women shouldn’t have control over their own bodies.

…I’m picking England, 2-1.

Also, I’m participating in the Times’ King of the Cup competition, And you can make your picks for Round One right now. (Somebody has got to take North Korea over Brazil. You could be that person.)

My favorite soccer ads are after the jump.

[Read more…]

State Sens. Steve Hobbs and Brian Hatfield were apparently all smiles at Tuesday’s lobbyist-sponsored “Roadkill Caucus” fundraiser at the Indian Summer Golf Club.

Huh. Considering the tough primary and general election challenges Hobbs faces, perhaps “roadkill” is an apt name?

I have the Netherlands, Chile, Nigeria, and the Kiwis in my pool. The greatest sports tournament on Earth begins Friday at 7am.

So if Dino Rossi refuses to talk about issues, or even post an issues page on his website, I suppose we’re just going to have to talk about issues for him.

So here’s the first one: safe and legal abortion. He opposes it. And would vote against reproductive rights, if elected to the U.S. Senate.

How do I know? He told me. I ran into him at a bar some months back and asked him, and he said “Goldy, I oppose a woman’s right to choose.” End of conversation.

And if Rossi wants to deny our conversation, or my representation of his opposition to reproductive rights, he’s free to go public and set the record straight. But he won’t. Because he opposes safe and legal abortion. So there.