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:
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.