Seattle Times editorial over Seattle’s lawsuit over state attorney general’s authority is political

I’ve warned Rep. Jay Inslee and his staffers. Our local news media and pundits don’t just love Washington State Attorney General Rob McKenna… they’re in love with him. Or at least, in love with the notion of being in love, which in practice, is basically the same thing.

In fact, so enamored are they of the ideal of McKenna as a “different kind of Republican,” and so desperate are they to see a Republican in the governor’s mansion for the first time in 30 years, that I wouldn’t be surprised if Inslee doesn’t get a single daily newspaper endorsement in his 2012 gubernatorial bid against McKenna. Not one.

And as evidence of our media’s weak-kneed, pouty-lipped infatuation with McKenna, I present the headline on today’s Seattle Times editorial: “Seattle’s lawsuit over state attorney general’s authority to sue feds is political.”

Yeah, well, no shit Sherlock, but then, that’s pretty much inevitable considering that McKenna’s decision to sue the feds over health care reform was nakedly political in itself. But the Times doesn’t call out McKenna for his political lawsuit… you know, the one that started all this.

Why? Because they’re in love with him.

The Times editors also ignore the other lawsuit against McKenna that was argued before the State Supreme Court the very same day—the lawsuit that McKenna will surely lose—the one seeking to force him to live up to his statutory duty to provide adequate legal representation Public Lands Commissioner Peter Goldmark.

McKenna’s refusal to represent Goldmark in an appeal of a Superior Court decision, well, that was political as well. Birdies tell me that McKenna nixed the appeal after being personally lobbied by a couple of legislators on behalf of the Okanogan PUD, though everybody was careful to be sure there was no written record available to disclose.

But regardless, it was a ridiculous legal stance that McKenna took—that he and he alone has the discretion to determine whether state officers and agencies get access to the courts—a stance that in itself questions his qualifications to be attorney general, let alone governor.

But the editors won’t write about this, because… well… they’re in love McKenna. And that makes this editorial even more political than any of the lawsuits discussed.


  1. 1

    Xar spews:

    I have been greatly disappointed by my friends who work for newspapers and who have failed to cover the greatest constitutional crisis Washington has faced in decades . . . we have an Attorney General who is essentially arguing that he is the supreme executive authority in Washington. And even he knows he’s in a weak position, becuase he’s picked a fight with the Commissioner of Public Lands, not the Governor or the Insurance Commissioner, or even a Legislator. I’m waiting for state agencies to start filing bar complaints against individual AAGs and Rob McKenna for failure to follow the Rules of Professional Conduct, though I’m sure the Bar would just punt the complaints.

    Has anyone from the Times, the PI, or the regional papers (like the Everett Herald, Olympian, etc.) ever even tried to explain why they’re not covering this story?

  2. 2

    ArtFart spews:

    If the state GOP is really serious about the next gubernatorial race, they ought to persuade Dan Evans to come out of retirement.

  3. 3

    ba spews:

    McKenna also penned a legal opinion that contravenes a plain reading of the state’s minimum wage law – a dog-whistle to hard-right business interests (Grange, Restaurant Association, etc.) who are now using it to try to stop a small cost-of-living adjustment for the poorest workers in Washington. And of course those are the same people McKenna will ask for donations for his campaign for governor. He has a heart of coal.

  4. 4

    sarge spews:

    @3) A shocking percentage of those lowest wage earners, the ones that vote, anyway, will vote for McKenna.

  5. 5

    rhp6033 spews:

    Unfortunately, newspapers have never been very good at covering court cases, unless they are high-profile trials involving murder, sex, etc. Even then they miss the legal issues and concentrate on the sordid aspects of the stories.

    When it involves constitutional issues, they figure the reader is going to skip reading after the first paragraph, so they seldom bother to cover it at all.

    What’s so shameful about this is that they are missing the opportunity to educate the public on the issues and how our system works. The public isn’t interested in large part because they don’t understand the issues at stake. If the newspapers spent the time explaining what the issues are, and why they are important, then more people would read the articles.

    But I guess Lindsey Lohan’s recent drug rehab attempt is more of what the public needs to know, according to the coverage I see.

  6. 6

    Richard Pope spews:

    I think McKenna and Goldmark are both entitled to have access to the courts. Goldmark should be able to get legal representation to file an appeal, including outside counsel if McKenna believes an appeal would be frivolous. And McKenna or any other state official should be able to sue in the name of the state, if it relates in any way to their official duties of office.

    That being said — Goldy is 100% correct about the bias of the news media towards McKenna. Not a word about Goldmark’s lawsuit in the editorial, and very little news coverage of that case otherwise.

  7. 7

    FricknFrack spews:

    I confess that in the past I have voted for McKenna, even though I’m a Dem.

    Won’t happen again, no matter what office he runs for!

  8. 8

    Xar spews:

    @6: The problem with letting the Attorney General sue in the name of the State of Washington is that it can result in the ridiculous situation where the state can be on both sides of the “v.”.

    We elect Governors to be chief executive officers. We elect Attorneys General to be chief legal counsel, not the ultimate arbiter of all things government. McKenna’s position on this could be interpreted to give himself total executive authority. After all, if the Governor’s staff (or the Governor herself) can’t seek justice through the courts, can they really effectively govern?

    Attorneys outside of government must either following the wishes of their clients or withdraw. McKenna’s duty here is to either file an appeal or authorize Goldmark to hire outside counsel (which, ironically enough, will likely cost him no more than paying the AG on an hourly basis already does). His failure to do so should trigger bar complaints (and either sanctions or disbarrment) against him and any staff members that have refused to assist the clients they are legally obligated to assist.

  9. 9

    Roger Rabbit spews:

    Look, everyone knows the Seattle Times is nothing more than a GOP flak sheet, so why is anyone surprised?

  10. 11

    Richard Pope spews:

    Xar @ 8

    I agree with you 100% on the Goldmark case. Although I think the AG’s hourly billing rate is a little bit less than that of most private law firms. On the other hand, the AG’s office may take more hours to do something than a private firm would, especially on billing out their hours.

    As for who can authorize a lawsuit in the name of the state, is there anything in the RCW that speaks clearly on this? Gregoire sued the tobacco companies in the state’s name on her own initiative, and so did numerous other Attorneys General across the country.

    One analogy might be that of the county prosecuting attorney. The RCW 36.27.020(4) allows the PA to “[p]rosecute all criminal and civil actions in which the state or the county may be a party”. However, the PA always has the discretion as to which criminal actions to prosecute. Neither the county executive, county council or commissioners, nor the governor or legislators for that matter, have to give their approval for the PA to prosecute a particular criminal case, nor can they direct the PA NOT to prosecute a particular case.

  11. 12

    Xar spews:

    @11: Better. The Constitution.
    , in Article III:

    “SECTION 2 GOVERNOR, TERM OF OFFICE. The supreme executive power of this state shall be vested in a governor, who shall hold his office for a term of four years, and until his successor is elected and qualified.”

    SECTION 21 ATTORNEY GENERAL, DUTIES AND SALARY. The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law. [salary information deleted]”

    The AG is a legal advisor, and performs other duties prescribed by law. Here’s his list of duties:

    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.

    (2) is the only one that’s looks close to me, and even it says he can prosecute actions “which may be necessary in the execution of the duties of any state officer.” There has to be some leeway for the AG to participate in multi-state actions, but McKenna’s position essentially makes him the ultimate arbiter of what Washington does. That strikes me as a power intended for a chief executive. That’s not the AG. At the very least, the Washington Governor didn’t oppose participation in the tobacco case, and my understanding is that he whole-heartedly supported it (though that predates my time in WA, so I might be incorrect).

    Also, haven’t checked in a while, but the last I heard the AG was billing out more than $100/hour.

  12. 14

    Richard Pope spews:

    Xar @ 12

    Obviously McKenna is wrong at least 50%. McKenna isn’t the sole arbiter of litigation decisions for the State of WA. He is dead wrong on the Goldmark case. On the Obamacare case, there can be a diversity of positions — in the absence of a law setting forth the state’s position. Gregoire and McKenna both took the position that the other elected official could sue or defend over Obamacare as well, but differed as to how they should sign their legal pleadings (i.e. McKenna as Washington AG vs. Washington by AG McKenna).

    Count on the WA Supreme Court to come up with a “politically correct” decision that respects the political rights of all players — McKenna, Gregoire and Goldmark — and to issue both decisions on the same day as well.

    Of course, McKenna’s office bills more than $100 per hour. Private law firms bill a lot more than $100 per hour.

  13. 15

    Xar spews:

    @14: Fair points. I think the SC will split the baby too.

    As for the billing thing: I know that some private firms are more expensive, but at the rates we pay we could get a decent law firm to represent us. They would probably do at least as good a job, as I’m not overly impressed with our AAG’s effectiveness. I guess I’m more concerned about the fact that my agency’s total AG bill is more than $1M/year, in exchange for which we get part time access to four or five attorneys (almnost certainly less than 3 FTEs total). Their total salaries and benefits are way less than our bills, even adding in support personnel.

    Basically, other agencies are subsidizing the AG’s programs. That makes some sense for General Fund agencies, but not for non-GF agencies.

    Larger agencies should have AAGs assigned to them full-time, with salaries and benefits paid by the agency, not the AG. We end up wasting a lot of money on AAGs, sometimes on things we haven’t asked them to review. If that’s not possible, then the AG should at least accept that attorneys employed directly by agencies are in fact acting as attorneys.