Goldy

Having failed to interest our media in the precedent setting legal issues surrounding Goldmark v. McKenna (Attorney General Rob McKenna will lose on his extra-statutory claims), and having no success in enticing the press on the broader policy issue underlying the case (did our legislature really intend to give the Attorney General the discretion to deny state officers due process?), I’ve been reduced to appealing to our media’s political sensibilities.

In other words, I’m playing the Deborah Senn card.

We all know that our media establishment just loves Rob McKenna. Well, no, they don’t just love McKenna, they’re in love with him and his open-records-defending, reporter-shield-law-touting, faux-moderate, different-kinda-Republican, geeky good looks. Through the adoring eyes of our media’s adolescent crush, McKenna is downright dreamy… in that bipartisanship-besotted, we-haven’t-elected-a-Republican-to-the-governor’s-mansion-since-1980 sorta way.

They simply believe McKenna to be the McKenna they want and need him to be. That’s the nature of infatuation.

But as much as they trust McKenna’s legal judgment in this case, and as much as they may even trust McKenna to use his broadly claimed discretionary powers with, well, discretion, it is important to remind my friends in the media that he won’t always be Attorney General. Indeed, if not for a several million dollar smear campaign at the hands of the U.S. Chamber of Commerce, our current Attorney General might be Deborah Senn.

And would the thus far silent Seattle Times editorial board, for example, really trust such expansive discretionary powers in the hands of an unabashedly partisan Democrat like Senn?

Would they really trust Senn to solely determine which initiatives to defend, on which elections cases Secretary of State Sam Reed deserves legal representation, and whether State Auditor Brian Sonntag should have access to the courts to compel government agencies to comply with audits? Would they really trust Senn with the power McKenna claims, as the Iowa Supreme Court described it, to deprive all government agencies of access to the court “except by his grace and with his consent”…?

In our society and under our system of law the nature, scope, indeed the very existence of all rights and obligations turn on what would be decreed if those involved went to court. 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.

I actually like Deborah Senn. I enthusiastically voted for her, and I would trust her to defend the public interest. But even I would be uncomfortable handing her such extraordinary powers, let alone Rob McKenna.

So my question is: if it were Senn, not McKenna, who was making this unprecedented, extra-statutory claim, would our media remain so silent?

Somehow, I don’t think so.

At it’s convention this weekend, Washington State Democrats voted overwhelmingly both to endorse Initiative 1068, which would legalize the sale and use of marijuana, and to oppose initiatives 1100 and 1105, which would privatize liquor sales, shuttering Washington’s profitable State Store monopoly.

And while Slog’s Dominic Holden might find it “weird” for Dems to support liberalizing the sale of pot while opposing the same for liquor, I don’t. In fact, as I wrote last year, our State Store system actually provides our fast and surest path toward rationalizing marijuana laws in Washington state:

Other states may be further along the political path toward de facto legalization, but no other state, with the exception of my native Pennsylvania, has a more robust system already in place for effectively executing it. Washington already heavily regulates the in-state manufacture of wine, beer and distilled spirits, and maintains an extensive statewide network of retail stores and distribution centers for the sole purpose of operating its exclusive monopoly on the retail sale of liquor. A similar monopoly on the legal sale of marijuana would not only be easily implemented, but highly profitable for taxpayers and state farmers alike.

At an estimated street value of over $1 billion a year, marijuana is already Washington’s number two cash crop, second only to apples, and consistently ranking us among the top five pot-producing states.  By legalizing and regulating a crop that is already being grown, the state could impose standards of consistency and quality on the product, and by setting prices as the only legal buyer for the crop, farmers could be assured a stable, legal income for their efforts.

And considering the existing federal ban on marijuana, and the federal government’s constitutional authority over interstate commerce, Washington’s State Stores, by necessity, would initially only be able to buy and sell state-grown product, thus nurturing a nascent hemp industry that would eventually produce a valuable export commodity once the ban is lifted nationally, perhaps even dominating the market.

As for retail and consumption, the same restrictions that apply to the sale and use of liquor would apply to the sale and use of marijuana, with the state likely maintaining prices at or near current street levels. The result would be hundreds of millions of dollars a year in additional state revenues, plus hundreds of millions of dollars in savings from law enforcement and incarceration (not to mention the elimination of the incalculable human suffering caused by our current prohibition.) Distribution to minors, for profit or otherwise, would be strictly prohibited and harshly punished, as would driving under the influence of marijuana. And just as consumers may already legally make their own beer and wine for their own consumption, the current guidelines on medical marijuana could be easily adapted to apply to all home growers.

This isn’t some half-cocked, pot-induced fantasy (I don’t personally use the stuff) but rather a pragmatic, rational, working model for legalization. I don’t know what Dominic is smoking or drinking when he says he’ll vote for both the marijuana and the liquor privatization initiatives (you’d think that hundreds of millions of dollars in state revenues would be enough to offset the inconvenience of not being able to buy a bottle of Maker’s Mark at 3AM), but given the self-destructive failure of marijuana prohibition, and the way its widespread illicit use undermines respect for the law by normalizing its violation, now is exactly the wrong time to dismantle our best path toward legalization by rashly dismantling our State Store system.

No state is better positioned to move our nation’s marijuana laws forward. Let’s not blow it.

UPDATE:
Dominic points out via email that in pursuit of a springboard I quoted the word “weird” out of context:

Sure it seems weird, but this comes down to cash.

So yeah, Dominic was actually explaining why it’s not all that “weird.”  My bad.

That said, I still find it weird that somebody like Dominic, who understands the budget impact of liquor privatization, would vote for it regardless.

Posts of mine occasionally get mentioned in the Seattle Times, with and without attribution, but it’s been quite a while since they’ve printed the full name of my blog in their print edition, and actually threw me a link from anywhere but their blogs:

DelBene will try to capitalize on a gaffe Reichert made this month, when he told a gathering of Republican precinct-committee leaders that some of his pro-environment votes were an effort to prevent environmentalists from trying to unseat him. Reichert thought he was speaking in confidence, but a recording of the meeting was leaked to the political website HorsesAss.org.

Huh. Must’ve slipped past the editors.

And in case any visitors from the Times are wondering, this is the leaked audio the reporter is talking about.

Proverbs 21:19
It’s better to live alone in the desert than with a quarrelsome, complaining wife.

Discuss.

Both the U.S. and Washington state constitutions guarantee the right to due process of law. That means that every citizen has the right to an attorney and the right to equal access to the courts… except, according to state Attorney General Rob McKenna, statewide elected officers, who only enjoy such fundamental rights given the blessing of the Attorney General, and solely at his whim.

Pore through the statutes and engage in all the legal hair-splitting you like, but such a broad interpretation of the powers of the Attorney General surely defies common sense, let alone legislative intent.

So I just read in the Seattle Times “Rossi’s final real estate talk canceled,” and what immediately struck me, apart from the obvious, is that the headline is written in the passive voice. Notice how the headline doesn’t employ the preferable active constuction, “Rossi cancels final real estate talk…” because, well, he didn’t. And that’s the real story here.

[Seminar organizer Steven] Marshall would not reveal how much Rossi had been paid for the seminars, citing confidentiality. But he said Rossi could have gotten out of them after declaring his Senate bid.

“If he had called me up and said ‘I want out of this,’ we would have let him out instantly,” Marshall said.

It was Marshall who canceled Rossi’s remaining talk, out of concerns that he might run afoul of campaign finance laws. Rossi apparently never asked to be let out of his contract, instead choosing to conduct seminars advising fellow real estate speculators how to profit off the foreclosure crisis, even while in the midst of a U.S. Senate campaign.

Weird.

I just rode light rail into town for the first time in, I dunno, maybe two months, and at 12 noon, I’d never seen the train this full. Standing room only for much of the ride, with a helluva lot of suitcases clogging the aisle. I’d say that’s a good sign for Sound Transit, which has seen an uptick in ridership recently.

Oddly, it was also only the second time I’d seen security check riders’ tickets, and on my very full car, only two freeloaders were pulled off the train to be issued tickets. I’d say a compliance rate like that is a very good sign for ST too.

Opponents of Initiative 1107 — the beverage industry sponsored measure that would slash hundreds of millions from education and health care by repealing state taxes on soda, candy, gum and bottled water — are sponsoring a decline to sign campaign hoping to keep this well financed initiative off the ballot. You can learn more by going to Rebuilding Our Economic Future.

But what if you already signed I-1107, not realizing the measure’s impact, or snowed by the bullshit claims by many of the paid signature gatherers that it repeals a bill extending the sales tax to food? (It doesn’t.) Well it turns out that you can request the Secretary of State to remove your name from a petition if you change your mind before the deadline, and to make it easier, Rebuilding Our Economic Future is facilitating the withdrawal process online here.

Understand that the millions of dollars the beverage industry is pumping into this campaign has nothing to do with the interests of Washington state; it’s all about stopping it here before other states seek to raise taxes on calorie-laden soft drinks in the interest of public health. The beverage industry wants to make an example out of Washington state. Don’t let them.

You know I love you Josh, and I did my best to help you breath life into PubliCola, but honestly, how do you write this about Rob McKenna, without mentioning this?

I mean, the whole raison d’etre behind PubliCola at its onset was to help fill the huge news hole left by the sudden collapse of the Capitol press corps, yet this is exactly the kinda lazy conventional-wisdom-spouting-in-the-face-of-conventional-wisdom-changing-facts that McKenna is counting on to sneak his way into the governor’s mansion as, you know, a “different kind of Republican.”

Yeah sure, McKenna won a Supreme Court case he should’a won (thanks in no small part to the staff attorneys that actually wrote his brief), but the fact that he did his job for a change is not reason enough to ignore the times he doesn’t.

Really.

Every year at least one bill is introduced in the Washington State Legislature to cap payday lending rates somewhere short of the 391% annualized rate currently charged. And every year, due to a total lack of support by Republicans, and aggressive opposition from key, payday-industry-captive Democrats, the bill fails.

Yet Illinois — yes, famously corrupt Illinois — doesn’t seem to have the same problem reigning in legalized loansharking:

Payday loan predators have peddled consumer installment loans with interest rates which have averaged 341% in Illinois, but have also reached 1,000%. Under the new law, rates on consumer installment loans will be capped at 99% for loans $4,000 and less and 36% for loans greater than $4,000.

A few years ago, when a 99% top rate was floated here in WA as a compromise between the 391% currently charged and the 36% rate reformers had proposed, opponents screamed that it would be industry killer. Makes you wonder… if an industry can’t get by charging 99% interest, perhaps it shouldn’t exist?

Meanwhile, all reformers managed to squeeze out of the WA legislature was a law limiting customers to eight loans in a 12-month period, a measure intended to prevent borrowers from having their debt snowball indefinitely. Yet the industry quickly managed to run around even this modest reform.

You’d think Washington could do better in defense of some of our most vulnerable citizens.

Two days in a row of seventy-some degree, almost sunny weather? How could we stay inside?

In defending his refusal to fulfill his statutory duty to represent Public Lands Commissioner Peter Goldmark in court, Washington State Attorney General Rob McKenna has publicly worried that an appeal in the underlying eminent domain case could create “bad law,” an ironic concern considering that by forcing a constitutional showdown with Goldmark, McKenna could end up narrowly redefining the powers of his office… including his claimed power to participate in the Florida lawsuit seeking to toss out key provisions of the landmark Patient Protection and Affordability Act.

As I’ve previously explained in detail (here and here), Washington’s constitution and statutes are unambiguous. In states where the constitution requires that the attorney general “shall perform such other duties as may be prescribed by law,” courts have generally ruled that the office does not retain the traditional common law powers attributed to the position, but rather only those that, well, “may be prescribed by law.” And  RCW clearly states that “It shall be the duty of the attorney general” to represent the commissioner “when requested so to do by the commissioner.”

McKenna appears to claim a broader power to protect the public interest that trumps his statutory duty to provide legal representation to state officers, a claim on which he seems unlikely to prevail given the clear language of the constitution and the statutes. And the state Supreme Court could merely leave it at that, granting Goldmark a writ of mandamus, and compelling McKenna to either bring the appeal or hire outside counsel to do so.

But the court could go further, by settling this issue once and for all. And if the court were to follow the West Virginia example and rule that office grants the attorney general no common law powers, but only those powers and duties prescribed in statute, it could prove a major blow to McKenna’s efforts to fend off a lawsuit from Seattle City Attorney Pete Holmes that asks the court to compel McKenna to withdraw from the Florida suit.

Indeed, as part of a recently filed brief, Holmes makes the exact same argument in a section titled “The Attorney General has only the authority granted by statute.”

Respondent assumes that the fact he is “independently elected” somehow clothes him with extrastatutory authority. … The history and provisions regarding the role of the Attorney General in this state demonstrates otherwise.

Holmes goes on to quote State ex rel. Winston v. Seattle Gas & Electric Co. (the same case I’ve previously cited), in which the court was unambiguous about the matter:

The legislation of the state shows that the legislature has not considered that the attorney general is clothed with any other power than that conferred upon him by the constitution or by express legislative enactment. Where it has been deemed necessary for the attorney general to appear and represent the state, authority for that purpose has been give to him by express enactment.

While I admit that there is a stronger legal argument to make that the attorney general has the discretion to take affirmative actions than he does to refuse statutory duties (for example, McKenna probably could have brought the appeal on his own initiative without Goldmark’s request), a ruling in Goldmark v. McKenna that confirms Holmes argument against extrastatutory powers would breath new life into a case that few have paid much attention to thus far.

And in the event that Holmes prevails, and the state Supreme Court orders McKenna to withdraw from the Florida lawsuit, it could have a huge impact in other states that share similar statutory construction where parties are challenging their attorney general’s power to join the Florida suit.

That’s admittedly a lot of “ifs,” but if McKenna is as cognizant of creating case law as he implies, then perhaps he should have thought this thing through before stubbornly denying an equally stubborn Goldmark his right to due process.

Not surprisingly, the Supreme Court of the United States upheld Washington’s Public Records Act today, rejecting Referendum 71 backers’ claims that revealing the names of those who signed the petition would violate their First Amendment right to free speech. The court ruled 8-1, with only Justice Clarence Thomas dissenting.

R-71 would have repealed WA’s recently passed domestic partnership law. During the signature gathering phase, some gay rights activists had threatened to publish the names of people who signed the petition.

I say the decision is not surprising because state and federal courts have already recognized that there are limited circumstances in which petitions and campaign finance records can be withheld from public disclosure to protect the rights of the participants, so there was no need for such a sweeping ruling. Indeed, the SCOTUS referred the case back down to the lower courts to determine whether R-71’s signers can be revealed under its particular circumstances.

You can read the whole opinion here.

UPDATE:
As mentioned in the comment thread, SCOTUSblog has a good synopsis of the ruling, so I don’t really feel the need to go into any additional detail, except to thumb my nose at Tim Eyman.