Trial judge contradicts McKenna’s assertion that appeal would be “meritless”

Last week on KUOW, Washington Attorney General Rob McKenna defended his refusal to comply with Commissioner of Public Lands Peter Goldmark’s lawful request for legal counsel, repeatedly describing an appeal to a lower court ruling as “meritless.”

“The trial record didn’t suggest any basis for appeal,” McKenna told KUOW’s Steve Scher. “We don’t take up appeals that lack legal merit … and this one does not have merit.”

Even when a caller pointed out that the Superior Court judge suggested the case was a toss up that should be settled on appeal, McKenna stuck to his guns, insisting that there was nothing to that effect in the judge’s “written order.”

And to a point, McKenna is correct: there is nothing to this effect in the written order. But what the caller was referring to were the oral statements given from the bench in which Judge Jack Burchard laid out “the Court’s reasonings,” an unofficial transcript of which I have finally obtained. And Judge Burchard couldn’t be any clearer in his introduction:

The parties will eventually present an order on summary judgment but usually these orders don’t contain the Court’s reasoning, and the Court doesn’t make findings of fact on summary judgment because summary judgment is reviewed by the Court of Appeals and the Supreme Court de novo, from the beginning, so they don’t really take account of what my view is. And probably most of us know and believe that this won’t be the final stop for this decision. I believe this Court’s job is to make a decision as best I can and do my part in the process.

The emphasis is mine, but the meaning is clear. It’s hard to imagine that Judge Burchard would express the opinion that “probably most of us know and believe that this won’t be the final stop for this decision,” if he believed the grounds for an appeal to be meritless. Likewise, reading through the 13-page transcript, it’s equally clear that Judge Burchard didn’t consider this to be a cut and dry case.

“I believe this Court’s job is to make a decision as best I can and do my part in the process.” And that’s what Judge Burchard did, with the full expectation that the next part of the process would be an appeal.

So not only is McKenna being disingenuous when he repeatedly asserts that the appeal lacks merit, he intentionally deceives Scher and his listeners by pointing to the written order rather than Judge Burchard’s lengthy oral exposition from the bench. McKenna was fully aware of Judge Burchard’s oral statements, and thus fully aware that they weren’t included in the written order.

A clever, lawyerly distinction, for sure. But it’s also just plain dishonest.


  1. 1

    proud leftist spews:

    Wow. The trial judge is all but recommending an appeal. You don’t hear equivocal language about a decision, as in this case, coming from trial judges very often. They don’t like to be reversed on appeal and the best way to avoid reversal is to avoid any appeal. McKenna is truly on shaky ground. He just may go down.

  2. 3

    notaboomer spews:

    someone should hang the arrogant little prick by his undies from the back of his executive bathroom stall door.

  3. 4

    notaboomer spews:

    trial judge has no control over whether an appeal is taken. that comment is superfluous or dicta if you like. doesn’t change mckenna’s duties though. 3/4 of the legislature can remove the ag. art iv sec 9. go get ‘em.

  4. 5

    Sarge spews:

    I’m starting to think that McKenna is a weasel. I tried to find an archive for a KZOK radio interview I quoted several months back, but haven’t been successful.

    McKenna was crowing about how he was going to appeal the 9th Circuit Farrakhan vs. Gregoire case that granted voting rights to felons based on the fact that systemic racial bias in the criminal justice system disproportionally disenfranchises blacks & other minorities, and is therefor in conflict with the Voting Rights Act.

    The “systemic racial bias” was not disputed. It was based upon two UW studies that found that minorities were more likely to be stopped, if stopped, more likely to be searched, if searched and something was found, more likely to be arrested, if arrested, more likely to be charged, if charged more likely to go to trial, if tried, more likely to be convicted, if convicted, more likely to receive harsher sentences.

    The fix is in.

    The court found that such systemic racial bias exists. Counsel for defense did not dispute the findings.

    That systemic racial discrimination exists and that it leads to disproportionality was not in dispute, and still isn’t.

    McKenna’s stated grounds for appeal is not that there isn’t systemic racial bias, but given such bias, the VRA is nonetheless misapplied in this case.

    That’s enough background. Back to my point. During the KZOK interview, Bob Rivers said something like..” but we are locking up a disproportional amount of minorities”. To which McKenna replied, and this is a verbatim quote:

    “unfortunately our prison population is disproportionate based on race, but disproportionality isn’t in and of itself an indication of racial discrimination.”

    And that was the end of the discussion on the issue.

    The problem is, McKenna knows that the UW studies and the court never argued disproportionality itself was an indication of racial discrimination. The studies showed, the court agreed, and defense offered no evidence to the contrary, that the racial discrimination in question was the direct result of “systemic racial bias” throughout the criminal justice system.

    McKenna, in that interview, signaled that he was not going to acknowledge or address the proven systemic bias, but was merely going to appeal to the Supreme Court, if necessary, the question of whether or not the racial discrimination, which was not, and is not in dispute, constitutes a violation of the VRA.

    Whew. Legal issues are complicated, which is why Republicans can get away with this type of obfuscation and dereliction of duty.

    Any reasonable AG would take the court findings as a mandate to try to correct the unacceptable existence of systemic racial discrimination throughout the entire criminal justice system.

    But then, McKenna’s constituents don’t give a crap about that.

    Meanwhile, as McKenna is trying to repeal health care and prevent felons from voting, Washington State continues to be a leader in cybercrimes and identity theft.

  5. 6


    notaboomer @4,

    And the trial judge goes out of his way to point out the appeal would be reviewed de novo, which is why he doesn’t include his reasoning in his written order.

    I’m just pointing out that as much as McKenna insists an appeal is without merit, the judge apparently didn’t think so, nor did he think anybody else in the room thought so. And, of course, that McKenna was being dishonest in pointing to the written order when the caller was talking about the judge’s comments from the bench.

  6. 8

    rhp6033 spews:

    I’m rather astounded at McKenna’s statement that an appeal would be “meritless”.

    A public attorney rarely uses such phrases with respect to his client, especially in public pronouncements regarding a case which is still in progress, at least with respect to the fact that there is still time to appeal. What you would usually hear from a public attorney is some mish/mash about limited resources, likelihood of prevailing on appeal versus cost, balancing the effect of letting the verdict stand, etc.

    But by calling his own client’s case “meritless”, he has poisoned his own client’s well. Any PUD attorney worth his salt would include a claim for Rule 11 sanctions, arguing that if the court finds for the PUD, costs and sanctions should be imposed against the PUD for what the PUD’s lawyer “knew” to be a meritless appeal. Thus he gets a remote shot at extra sanctions being imposed against his own client, but more importantly he gets to remind the appeallate judges that the attorney for the other side believes his own case to be hogwash.

    Moreover, if the summary judgement gets reversed and sent back to the trial court for a trial on the merits, any potential jury pool has likewise been “poisoned” by such comments.

    It seems to me that McKenna has just jumped squarely into legal malpractice territory, and has even gone so far as to breech the rules of professional responsibility. He has a duty to represent his client zealously, and to do him no harm even after the end of the attorney-client relationship. In this case McKenna has gone so far as to intentionally try to impair his client’s future case, killing off any chance of a potential success, due to a conflict of interest between his client’s interests and his own career motivations.

  7. 9

    proud leftist spews:

    I need to dust off my copy of the Rules of Professional Conduct. I think Robbie may have run afoul of a few of them. That would be too bad.

  8. 10

    Chris spews:

    McKenna has actually taken a bad situation and made it worse.

    Professional Rules of Conduct, 1.6 clearly spells it out. Analysis, determinatation of merit, would be considered work product. McKenna has adversely affacted his client, possibly permanently.

    I hope Goldmark is submitting a complaint.

    Can any lawyers determine if 3rd parties (say me) can report this now as an ethics violation?

  9. 11

    sarge spews:

    @8. Yeah. I’ve been complaining about that for a while now, and McKenna just keeps digging in.

    By needlessly and publicly declaring the case meritless, McKenna has established an adversarial relationship with his client, has placed himself in the awkward position of benefitting from an unsuccessful outcome for same, and will be personally, professionally, and politically damaged should his client prevail.

    How can this be anything less than professional misconduct?

  10. 13

    Cracked spews:

    Reading the judges statement transcript it sounded like he thought the PUD’s case was pretty cut and dry.

    On the other hand, McKenna has clearly outrageously violated the RPCs and if we have a functioning independent bar, he should be severely reprimanded. It will be a horrible precedent if the bar elevates political expediency above the RPCs. But that seems to be the general trend in so much of public life these days that I don’t expect any better…

  11. 14

    rhp6033 spews:

    Cracked @ 13: The Washington State Bar Association isn’t a “functioning independent bar”. It is, in effect, a delegated semi-governmental, semi-private agency of the Washington Supreme Court. All disciplinary actions of the Bar Association are subject to the review of the Washington Supreme Court, which considers the Bar Association’s decisions to be advisory, not dispositive.

  12. 16

    Roger Rabbit spews:

    @10 You don’t have to be a lawyer or interested party to file an ethics complaint with WSBA. Anyone can do it.

  13. 17

    Markus spews:

    I love how Steve Scher practically licks Rob McKenna’s shoes every time he interviews that faux moderate / fake populist.