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.
In 1982’s Manchin v. Browning, the West Virginia Supreme Court of Appeals ruled in favor of Secretary of State A. James Manchin, who filed a pro se petition for writ of mandamus to compel Attorney General Chauncey H. Browning Jr. to either provide legal representation, or appoint a Special Assistant Attorney General to represent the petitioner in litigation. Manchin had sought to file suit challenging congressional reapportionment; Browning, over Manchin’s objections, declared that the reapportionment was constitutional, and denied the Secretary’s lawful request for legal counsel.
At issue was whether the Attorney General was required by law to provide legal representation to state officers in any civil action in which the officer is made a party in his official capacity. AG Browning claimed broad common law powers to represent the public interest, that gave him equally broad discretion to completely control litigation on behalf of the state and its officers.
But after reviewing the centuries old history of the office, the Court determined that under the “plain language” of the West Virginia constitution, which provides that the Attorney General “shall perform such duties as may be prescribed by law,” the office does not possess the common law powers attendant in those states that do not make such a narrow constitutional prescription.
The plain language of this constitutional provision, when viewed against the historical backdrop of the development of the office of Attorney General in the Virginias, leads us to conclude that the Attorney General of West Virginia does not possess the common law powers attendant to that office in England and in British North America during the colonial period. … The people of West Virginia specifically expressed their intent that the Attorney General should not exercise those powers by providing that he “shall perform such duties as may be prescribed by law.” Under settled rules of construction, the word “shall” when used in constitutional provisions is ordinarily taken to have been used mandatorily, and the word “may” generally should be read as conferring both permission and power. State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953). The phrases “prescribed by law” and “provided by law” mean prescribed or provided by statutes. Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E. 786 (1917). The plain effect of the provision is to limit the powers of the Attorney General to those conferred by law laid down pursuant to the constitution.
Washington’s constitution, it should be noted, contains similar language:
ARTICLE III, SECTION 21
The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.
And West Virginia is not the only jurisdiction to conclude that such constitutional provisions limit the Attorney General’s historical common law powers. In Estate of Sharp Flatley v. State, the Supreme Court of Wisconsin concludes:
Wisconsin, unlike numerous states, has specifically circumscribed the powers and duties of the office of Attorney General. Art. VI, Sec. 3 of the Wisconsin Constitution limits those powers and duties to those “prescribed by law.” This constitutional principle has been interpreted by the courts in numerous decisions as removing from the office of the Attorney General any powers and duties which were found in that office under common law.
The West Virginia court goes on to quote State v. Huston, a “rather exhaustive” Oklahoma opinion:
“The correct rule appears to be that where the office of Attorney General is created in states where the common law prevails, without any reference to the duties of such office, the word is used with its accepted meaning under the common law, and carries with it such duties and powers as were usually incident to the office of Attorney General in England under the common law, when not locally inapplicable.
But when the constitution provides in the same article in which it creates the office of attorney general that that officer “shall perform such duties as are prescribed by this Constitution and as may be provided by law” and that his powers and duties “shall be as prescribed by law,” it cannot be said that the constitution is silent as to his duties and powers. It is true that it does not itself enumerate them but in stating that they shall be “as prescribed by law” it refers to them and clearly makes it the duty of the legislature to say what they shall be. … From this it follows necessarily, as most courts hold, that under constitutions containing provisions similar to those in Arizona, 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.”
Having determined that the Attorney General exercises only those powers and duties prescribed by law, the WV Court then turns to the question of whether he is required to provide legal counsel for officers sued in their official capacity. And again, the WA statute I quoted above is awfully damn similar to the corresponding WV statute:
The attorney general shall give his written opinion and advice upon questions of law, and shall prosecute and defend suits, actions, and other legal proceedings, and generally render and perform all other legal services, whenever required to do so, in writing, by the governor, the secretary of state …. W.Va. Code § 5-3-1 (1979 Replacement Vol.)
And like WA, WV statute also bars state officers from expending public funds to retain outside legal counsel, making such officers “totally dependent upon the Attorney General for legal representation.” Thus while acknowledging that the Attorney General ordinarily exercises complete control of the litigation conducted in his own name, the WV Court concludes that the Legislature has created a “traditional attorney-client relationship between the Attorney General and the state officers he is required to represent.”
Since the Attorney General is designated as the statutory counsel for state officers sued in their official capacities, he is required by the Code of Professional Responsibility to make legal counsel available to those officers in such circumstances. The Attorney General is required to exercise his independent professional judgment on behalf of a state officer for whom he is bound to provide legal counsel. In this regard his duty is to analyze and advise his clients as to the permissible alternative approaches to the conduct of the litigation. The Attorney General should inform his client of the different legal strategies and defenses available and of his professional opinion as to the practical effect and probability of the outcome of each alternative, so as to enable the officer to make an intelligent decision with respect to how the litigation could be conducted. He should then stand aside and allow his client to exercise his independent judgment on which course to pursue. We emphasize the importance of this independent judgment because “advice of counsel” is not a defense to civil or criminal liability for nonfeasance, misfeasance or malfeasance in office. Once the state officer whom the Attorney General represents has determined the course he desires the litigation to take, it is the duty of the Attorney General to zealously advocate the public policy positions of his client in pleadings, in negotiations, and in the courtroom and to avoid even the appearance of impropriety by appearing to be in conflict with the desires of his client.
In summary, the Attorney General’s statutory authority to prosecute and defend all actions brought by or against any state officer simply provides such officer with access to his legal services and does not authorize the Attorney General “to assert his vision of state interest.”
The WV Court concludes that the petitioner did not receive the legal representation to which he was lawfully and ethically entitled, and as such was deprived of his due process right to counsel and right of access to the courts. But it goes even further in adopting the view of Motor Club of Iowa v. Dept. of Transportation, which lays down in very blunt terms the fundamental problem with granting the Attorney General such broad discretion as McKenna apparently claims:
Governmental departments and agencies, in common with individuals, must ultimately resort to the courts and must submit to the court’s decrees to effectuate their acts or to be made to comply with the lawful acts of others. Access to the courts gives life to the affairs of governmental departments and agencies. For government to properly function that access must be unimpeded.
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.
As I’ve previously argued, McKenna’s claim to broad discretion over which legal cases to pursue, and which not, regardless of lawful requests for representation from state officers and agencies, constitutes a dramatic expansion of the powers of his office, and an unconstitutional incursion into matters of policy. McKenna may very well be looking out for the broader interests of the state, or for those of other state agencies, or even for the future interests of DNR. But that is not his job. The Attorney General’s job, in this particularly instance, is to either serve as the Commissioner’s lawyer, or barring that, appoint a Special Assistant Attorney General who can.
Of course, none of the cases cited above are from Washington state, although they will all likely be cited when this dispute inevitably comes before our supreme court. Indeed, the fact that this particular issue has never been raised here before illustrates just how extraordinary McKenna’s actions are.
That said, while there is no Washington state case law that addresses this particular issue, there are decisions that appear to contradict McKenna’s broad claim to common law powers. The widely cited State ex rel. Attorney Gen. v. Seattle Gas & Elec. Co., 28 Wash. 488, 70 P. 114 (1902) clearly states the proposition that “the attorney general has no common-law powers” where the Legislature has prescribed such powers and duties, and in State v. O’Connell, the court unambiguously states that:
The powers of the Attorney General are created and limited not by the common law but by the law enacted by the people, either in their constitutional declarations or through legislative declarations in pursuance of constitutional provisions.
And even though State ex rel. Dunbar, Atty. Gen., v. State Board of Equalization appears to acknowledge that there could be narrow circumstances where it would be impossible or improper for the Attorney General to represent state officers (where state officers are in conflict with each other or in violation of state law, or even “antagonistic” to the public interest), the court concludes that the correct remedy would be to appoint private counsel.
Dismissing the merits of the appeal, and accusing Goldmark of “playing politics” (a bizarre attack coming from an AG who employs former Sound Politics contributors and KTTH talk show hosts), McKenna’s office has thus far managed to successfully brush aside media inquiries… but not for long. Unless McKenna agrees to file the appeal or appoint a Special Assistant Attorney General, Goldmark will have no choice but to follow the West Virginia example and file a pro se petition for a writ of mandamus to compel McKenna to do his job. And with time running out on the deadline, Goldmark may have to file the appeal pro se as well.
As far as I can tell, no state officer in Washington history, acting in his official capacity, has ever been forced to act as his own attorney. And if that doesn’t get the media’s attention, I’m not sure what will.
Hmmm, makes me wonder if McKenna won’t ultimately, reluctantly, agree to represent the Commissioner, and then give it at best a half-hearted effort, hiring someone who just passed the bar as the lead attorny in the effort.
Of course, neglicence would be grounds for a malpractice complaint, but that would be pretty hard to prove in this case.
Goldy, you just earned another contribution from me. It’ll be $25 plus whatever I can get in punitive damages from RM for alienation of affection with the AG.
Nice work, Goldy. Of course McKenna himself cannot now represent the DNR, because he has demonstrated bias, an adversarial relationship with Commissioner Goldmrk, and is personally vested in an unsuccessful outcome. It is unclear to me whether or not McKenna can even be relied upon to fairly appoint council that won’t be similarly biased.
I suspect he’s poisoned the well to the extent that the process itself has been irreparably corrupted.
Goldy,
You’ve got to think that an attorney, presumably conversant with relevant case law, knows as much as Goldy about this. You’ve got to think maybe he’s doing this for what strikes him as legally binding reason. After all what possible political gain can he get from something so abstract that most voters and even the media haven’t noticed it at all?
The problem with case law from states with similar language is that word ‘similar.’ I only finished my first year of law school (at which point I determined that not only is the world inherently unjust, but that the judicial system more often makes it more unjust than more equitable), but a whole lot can hinge on a couple of words that aren’t similar in other states.
This is beside the point that Virginia or any other state case law isn’t necessarily binding in Washington, unless something has changed since I was at school. (Which, together with the possibility that I’m simply not remembering correctly is a distinct possibility.) If I am remembering correctly, such decisions can be used to show how disputes have been resolved in other circumstances with certain common elements. If no Washington precedent or principles of law help, they may be considered persuasive, but Washington courts could reject the thing out of hand anyway. But I’m very open to correction, as I’m not an attorney, and am going by a 25 year old memories together with an amateurs love of following current case law.
At any rate, it looks like you did your homework, fairly exhaustively and impressively. And much better than I have time to do, frankly. But you aren’t an attorney, and when dealing with legal details a layman simply isn’t in a position to judge on which side the law will fall.
Was it the Democratic Party or some activist group that fed you this information?
@4: “and when dealing with legal details a layman simply isn’t in a position to judge on which side the law will fall.”
Yet the “layman”, as with all people, is bound by the law and subject to the consequences of violating the law.
McKenna seems to be arguing that all relevant code is by nature ambiguous therefor he has absolute power to do whatever the hell he wants.
The code is what it is, and was put there for a reason. Any layman can clearly divine the intent of the law that Goldy is citing. Surely any attorney could also.
McKenna seems to be relying on a vague “principle”, without actually citing any language that would specifically supercede RCW 43.12.075.
Why do Republicans seem to always think they are above the law?
Re 6
I don’t know what McKenna is arguing. I haven’t heard anything about it from his office, nor does anything come up on an admittedly cursory web search.
I meant no disrespect to Goldy, who appears to have spent quite a lot of time on this. I merely meant that principle often falls in the law to some not altogether obvious detail lawyers understand that laymen do not.
Statuatory authority for an agent of the government is notorious for being difficult to interpret in a way that most of the non-lawyers can make any sense of. It isn’t as simple as divining intent, but also interpreting wording as it is legally enforced and defined. Intent plays a role, but it isn’t the only standard applied.
Well, I promised the kids I’d take them camping. Supposed to be raining, but that’s only Gods’ liquid sunshine, right? I look forward to reading from some of the resident attorneys where I was wrong on my return.
Have a nice weekend.
@7) That’s exactly what pisses me off. Ignoring the “intent”, just because they can, seems to be the way Republicans roll.
Why do they hate democracy?
We elect representatives, they write the law, then Republicans ignore the very law our duly elected representatives established.
Invariably they then cynically and obtusely argue their recalcitrance is a matter of principle.
I’d rather McKenna stopped playing games and just did his f*&#!@g job.
ACtually, Goldie has done a remarkable job for someone not trained in the law. Absent case citations using the Harvard Blue-Book methodology, Goldmark could pretty much cut and past it as his brief to have the court issue a Writ of Mandamus.
But the timing of this all is tricky – if Goldmark files suit, he would have to get a VERY fast hearing, and at the same time preserve his rights for the appeal. McKenna would defend saying hes’ under no obligation, and argue for a conventional trial on the merits, in some two or three year’s time.
I’m wondering if Goldmark has to pay for this out of his own pocket, does McKenna still get to use the AG office budget to defend himself from being compelled to do his job?
great post
Good work, Goldy.
The law prohibits Goldmark from hiring an attorney, but could an attorney accept the case on a pro bono basis?
Another wrinkle in this fabric … the egg beaters CLAIM they want strict construction of the law.
BTW, while this is happening, McKenna apparently found it within his authority to support the UW in a very, very dubious case against Professor Andrew Aprikyan. In this case the President (who has NO relevant academic background) fired the Professor, He did this despite the finding of a blue ribbon, formal UW faculty panel that Aprikyan was innocent of the claim that he committed fraud.
To make matters worse, the UW is filing a patent application based on Aprikyan’s work!
dan @11,
The statute says that “No officer … shall employ, appoint or retain in employment any attorney … in the exercise of any of the powers or performance of any of the duties specified by law to be performed by the attorney general.”
I would take that to mean that an attorney could accept the case on a pro bono basis.
if Goldmark files suit, he would have to get a VERY fast hearing . . . .
Actually, he could file a Notice of Appeal, along with a motion to stay proceedings based on this Constitutional Conflict.
The West Virginia case would be highly-persuasive authority, particularly with the similarity of the statutes. Om addition, the term “shall” is unambiguous.
It is really awesome to see Rob start to flame out before 2012. Just don’t bottom out too soon, there, chief.
It is generally accepted by Republicans and Democrats alike that McKenna is a pretty intelligent fellow.
The only possible explanations for his recent actions on Health care & the DNR case is that he really isn’t very smart after all, or that he is abusing his office for personal political gain.
Either way, it reflects rather poorly on the AG.
@14: Yep. The term “shall” is strong tea in the law and contract language.
Keep up the good work Goldy. We don’t really need the MSM for a story to go big any more, just ask Trent Lott.
Helluva job, Goldy. If McKenna is truly claiming that he has some common law obligation to refuse to represent his client that trumps statutory and constitutional mandates that he represent that client, then he not only slept through law school, but failed 8th grade civics. This state’s Rules of Professional Conduct and Rules of Civil Procedure, not quite statutory nor constitutional mandates, often prevent me, a private attorney representing clients that neither statute nor the state’s constitution tells me I must represent, from bailing on them, no matter how much I come to believe I’m not on the right side of the public’s interest. Sometimes, we must represent those with whom we disagree, those whose cause bothers us. And, we must do it zealously.
McKenna has a client. He is compelled to represent that client. Let’s start, for instance, at the beginning, RPC 1.2(a): “… a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.” Does McKenna understand the adversary system at all?
WTF, people, WTF?
Surely there is one Demo connected lawyer in this town who isn’t scared of McKenna and will consider taking on the case pro bono?
Gates, Ellis has been somewhat progressive in the things they have supported. Bill Gates, Sr.! Where you at? You’ve been a lawyer longer than McKenna’s been alive.
Come on down! Put a capper on your career by slapping down McKenna!
Good luck getting the Seattle Times to understand the legal issues here, much less write about them, much less be correct about them!
Very nicely laid out. I’d like to see an equally well-mannered and orderly rebuttal to see what the arguments would be.
For pro bono, how about the law firm that represented Gov. Gregoire in Gregoire v. Rossi in 2004, Perkins Coie? The attorneys from that firm were a pleasure to behold during the trial. Very very smart and well-prepared.
$100 in HorsesAss tip jar for this.
This is impressive…I barely see this level of staff work in the NYTimes, let alone the Blethren family newsletter. This isn’t complete, but shows a very likely scenario McKenna will face when his ass is sued by Goldmark. If McKenna’s ‘protecting’ the state interest, isn’t there also in interest in protecting the state from getting sued by Goldmark (as Commissioner)?
Keep it up and there will be more moola.
“Usually, when we’re working with clients and we explain the legal reasoning, they defer to our expertise,” Sytman said.
As a lawyer, I can tell you this reasoning is ass-backwards, and is the last thing you’d want to tell the Washington State Bar Association if they were investigating a complaint that you failed to diligently represent a client’s interests, because the Rules of Professional Responsibility are crystal clear on this point: The client, not the lawyer, calls the shots. The lawyer’s job is to provide advice, not make decisions that belong to the client. But don’t expect the WSBA to get between two catfighting politicians from opposing political parties and opposite ends of the ideological spectrum, even if one of them has a license and pretends he’s a lawyer.
Hey, Mr. Attorney General,
Any chance you might want to respond to Goldy’s memorandum?
I think McKenna has breached ethical duties as a lawyer. (See above.) Unfortunately, he perceives himself as a political beast, whose self-interest matters more than any legal obligation he might have. His political position, however, is that of the top lawyer in this state. He forgets that, as a lawyer, he primarily should pursue his ethical obligations, not his political aspirations.
First, he joined in the frivolous lawsuit of southern states challenging the healthcare legislation, now he refuses to represent the Commissioner of Public Lands, whom he is statutorily and constitutionally required to represent. What is the common thread? He represents Republican interests, despite this state’s interests. McKenna is toast, toast that has been in the toaster way too long.
@4 What I think, “lost,” is that you know squat about law and should leave discussion of this subject to people who do.
Yeah, Rodent most definitely is qualified on the subject of “law”. Thirty plus years as head courthouse janitor certainly qualifies one for that. FAIL. Nice try old timer.
Re 26
I know that you disdain my political views Rabbit.
How about tellling me where I was wrong, as in my post I clearly said I could well be?
You’ve been posting very rarely so if health issues are the reason please ignore this request. Health is more important than politics any day of the week.
Amazing job, Goldy. The statute prohibits Goldmark from hiring a lawyer to represent DNR in the underlying condemnation case but does NOT prohibit Goldmark from hiring a lawyer to sue McKenna to get the AG’s office (or independent counsel) to represent DNR on the appeal.
The beauty of this situation is that it will shed light on the AG’s powers AND whether trustlands can be condemned by renegade PUD’s.
Out of curiousity,
What political gain did McKenna get in a blue state from joining the Florida suit exactly?
What political gain does he get from this case on which Goldy has put a great deal of time, but which no-one else seems to have noticed at all.
All the claims of politically driven actions by McKenna seem to ignore that he gets no political gain from either decision. He is therefore either irrational or doing it for reasons that don’t appear to you folks. You might exercise the tolerance you lay claim to and at least consider the latter. But that would require intellectual honesty. Never mind.
BTW, I find it hilarious that all of you consider Goldys arguments convincing without ever having heard McKennas side. I’d hate to have you folks on a jury. You’d convict after the prosecutors opening arguments.
Transcript of trial with progressive jury and a defendant with whom they disagree politically-
Prosecutor-…And so, in summation I believe that you the jury will, in considering this evidence, find the defendant guilty of the crimes with which he has been charged.
Judge-Attorney for the defendant will…
Jury Foreman- Your honor, we find the defendant guilty as charged.
Judge- Well, we actually need to hear from his attorney, hear from witnesses and so on. Please sit down.
Foreman-Guilty! Guilty! Guilty!
Uh.. The teabagger vote for 2012 Governor?
I think it’s called securing the base or something like that. Doh!
Read Goldy’s post again.. We’ve heard little to nothing from McKenna’s office. It’s McKenna’s own fault, (and that of the traditional media) that it’s up to resource strapped bloggers to save the day.
The best time to lie, cheat or steal is when nobody seems to be paying attention.
Proud,
Umm, no. No attorney with an interest in staying in the legal profession will comment on ongoing or probable litigation. McKenna can’t comment and Goldy is using that to attack without fear of a defense. Even better he can invent reasons why McKenna is doing this (politics, teabaggers, pact with the devil etc) with no fear of being proved wrong.
Additionally, I doubt very much that McKenna thinks it worth while responding to Goldy. Nothing he can say will change the mans mind. Nothing will stop the ongoing smear campaign against anyone Goldy dislikes, whether on this issue or some other he comes up with. McKenna has chosen, wisely, to ignore this calumny and focus on, you know, his job.
As for the Tea Party (not tea bagger, as that is really just a lousy way to make a cup of Earl Gray. Loose leaf is the only way to make good tea.) the fear and borderline paranoi with which the left views this group is also quite funny. It IS NOT the base of the Republican party, anymore than socialists are the base of the Democrats. It is a group within and often critical of the party. Yes, the Republican party must take account of them, but not in anything like the deference you folks believe they do.
Re 33
Lie cheat and steal to gain… what exactly? What Goldy and you both miss, counselors, is the motive. So McKenna will put his career on the line, in your narrative. For what?
RE 34
Corrections and clarifications prior to going outside and living a real life-
YLB, I should have addressed you rather than proud. Sorry.
Before 15 of you folks mention it, I know ‘teabagger’ has a less pleasant connotation. I choose not to join those in the gutter who think this funny.
lost @34,
I have a lot of suspicions as to McKenna’s motives, but how about this simple, nonpolitical one: he’s an arrogant prick.
He simply misread Goldmark, expecting him to back down like other state officers have surely done when the AG refused to proceed on some matter or another, but when Goldmark wouldn’t, McKenna’s ego prevented him from making the smart political move of assigning a Special Assistant Attorney General, and wiping his hands of the matter.
That, to me, sounds like a very reasonable scenario.
@34 lostinaseaofblue 06/19/2010 at 12:23 pm,
“Lie cheat and steal to gain… what exactly? What Goldy and you both miss, counselors, is the motive. So McKenna will put his career on the line, in your narrative. For what?”
Surely we can agree that only McKenna can answer for his actions and the actions of his office.
The AG’s office only answer to your question has been
I would add that politicians usually lie, cheat or steal because they feel themselves entitled, and enjoy the power. But if you really want to know why McKenna is flouting the law, pester him.
Re 36
McKenna is a politician, so arrogance and the errors in judgement it leads to seem as good an explanation as any. Wouldn’t be the first time someone in power let a misperception of being untouchable lead to their own fall. If true, the consequences of his arrogance would be on his head.
Personally I’d want to be close to 100% sure of my facts before attempting to ruin a mans career. I’d want to be awfully sure I was doing it for sound reasons of public good, rather than personal politics or dislike. But that’s just me. I was terrible at firing men, even with good cause, on the basis of the probable effects on their career. Guess I’m just a wimp.
Re 34
We can, absolutely, agree that McKenna can and should answer for his office. Any action taken under the auspices of that office are ultimately his responsibility. This is ongoing litigation, though, on which he can’t and shouldn’t speak.
And here’s the rub. It isn’t MY question. All I’m saying is that the very convenient situation in hand is one in which anything can be said about the man, and no defense is possible.
lost,
Attorneys can and do comment on ongoing litigation all the time. Sometimes, serving a client’s best interests requires an attorney to publicly address issues. Here, we have a public servant who is not explaining his actions, other than to offer a legally weak claim that some common law obligation compels his stance. He’s wrong. Perhaps the reason he is not defending himself is that he really has no defense.
Proud,
“Attorneys can and do comment on ongoing litigation all the time.”
I stand corrected. Thank you.
As for the rest of the text, it’s at least as possible that the explanation for no explanation is not guilt but innocence, at least in his own mind.
If I had a political writer who would never write anything good about me no matter what I did or didn’t do, I’m unsure I’d spend much time defending myself to him.
This would be more true if I felt that the allegations made were baseless.
For the same reason I doubt Rossi will ever spend much time worrying about Goldy. He can’t say or do anything Goldy wouldn’t denigrate, so why bother?
I don’t know the legal position McKenna is in. If Goldy is right, the consequences are pretty certain at least as far as his political career goes. If not, McKenna is wise not to devote time to arguing the issue.
Either way the research and writing on this piece reflect well on Goldy. He clearly feels that McKenna is a rogue element in government needing contained. Whether I agree or not, and on this issue given my limited knowledge I really have neither opinion, Kudos on the public spirit that motivates it.
True enough.
In all likelihood McKenna’s relative silence on this very important question is neither legal nor public policy oriented.
As lost points out, this silence is almost certainly political in nature.
@1) Good point. The worst thing politically that can happen to McKenna as a result of this case is for the DNR to win on appeal, since McKenna staked his reputation on his claim that the appeal was without merit.
McKenna should be recused from even appointing council for the DNR, as should any of his subordinates.
Is there a process to provide for such a thing? Can the Governor step in and make the appointment?
If not, has malpractice already occurred? The client simply cannot have any confidence that under these circumstances he will get the vigorous representation he is legally entitled.
Goldy, this is serious legal reporting. McKenna is hardly the type to act petulantly. He apparently really believes he has authority not spelled out in the Constitution or statute, but I’m baffled that he would fail altogether to represent a client agency on such a belief–especially without (apparently) telling Goldmark why.
Given the nature of the underlying decision–the public utility districts, who support McKenna for office, and might be expected to support him for Governor in 2012, were given the court’s permission to condemn a stretch of state forest land for a utility line–it looks like McKenna just doesn’t want to fight a potential supporter. The losers would be the schools who benefit from the proper management of school trust lands. McKenna risks the public perception that he’s favoring his friends over schools, which isn’t a formula for success in 2012 or any year. He better have a good reason. And that’s just the question, isn’t it?
Senator Kline,
Do you have any idea why the state’s mainstream media aren’t following Goldy’s lead on this rather significant story of McKenna’s infidelity to his public duty?
McKenna has trashed the attorney-client relationship and, to defend his refusal to represent DNR on the appeal, has already divulged what is arguably attorney-client privilege. This case boils down to one issue: Can the elected AG in WA,in his/her judgment of “what’s best,” refuse to represent an agency “client” in a case that is clearly NOT frivolous and involves land management policy decisions vested in the client, DNR.