HorsesAss.Org

State Attorney General Rob McKenna issued the following statement in response to the lawsuit filed yesterday by Commissioner of Public Lands Peter Goldmark:

“The Constitution, state law and case law interpreting the powers and duties of the Attorney General affirm that the AG is more than just a passive observer of state agency action and grant this office authority to determine whether or not to appeal cases of interest to the state,” McKenna said.

Huh. Really? “The Constitution, state law and case law” all support McKenna’s claim to broad discretionary powers. I look forward to McKenna’s brief, and reading how he backs up this assertion.

Because the Constitution affirms absolutely nothing except that “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” There is no other mention in the Constitution about the AG’s powers and duties.

As for state law, we’ve already gone over that exhaustively, and I don’t see anything in there explicitly giving the AG’s office the authority to determine whether or not to appeal cases against the wishes of his client. I see RCW 43.12.075 defining a traditional attorney-client relationship between the AG and the Commissioner of Public Lands, mandating that it shall be the AG’s duty to defend the Commissioner when requested so to do, and explicitly stating that it is the Commissioner who represents the state in any proceedings relating to public land. But I see nothing in state law granting McKenna the broad powers he claims.

As for case law, well, I’ve already admitted that there is some case law on both sides of this argument, although absolutely nothing directly to this point in Washington state, as none of McKenna’s predecessors has ever stubbornly pushed such a dispute this far. I believe the case law I’ve previously discussed is pretty damn persuasive that the AG does not have the authority McKenna claims, but this will ultimately be decided in court.

So while the jury remains out on whether case law supports his claim, McKenna is clearly blowing smoke out his ass when he tells the media that both Constitution and state law support give him such authority. They don’t. He does not point to a single line in either to support his claim, because he can’t.

And the media should remember this kinda disrespect before credulously reporting McKenna’s comments in the future.

I always thought the word “news” was found in the word “newspaper” for a reason.

If you’ve been reading my ongoing legal analysis of the constitutional showdown between Commissioner of Public Lands Peter Goldmark and State Attorney General Rob McKenna (here and here), you should find little surprising in the petition filed today on behalf of Goldmark.

In Section VI of the petition, titled “The Attorney General Has a Statutory Mandate to Represent the Commissioner of Public Lands and to File the Appeal at His Behest,” Goldmark’s attorney David Bricklin makes the same general argument I made (though embarrassingly, more concisely), citing many of the same statutes and case law. His conclusion?

Apparently, the Attorney General believes he has discretion to ignore the request of the Commissioner of Public Lands based on his view of what will serve the public interest. The Attorney General lacks the authority to make policy decisions or to decide, unilaterally, what is in the “public interest.” In this State, the Attorney General only has such authority as is prescribed to that office by the Constitution and the statutes implementing the Constitution. Unlike some other states, the Attorney General has no “common law” authority. He only has such authority as is prescribed to him by statute.

[…] In sum, the Attorney General has a non-discretionary duty to represent the Commissioner of Public Lands and to file and vigorously prosecute the appeal as requested by the Commissioner of Public Lands. This Court should issue a writ of mandamus directing the Attorney General to do so or, in the alternative, ordering the Attorney General to appoint a Special Assistant Attorney General to do so.

Like I said, you read it here first.

But as much as I’d love to pat myself on the back for my brilliant legal analysis, as Bricklin states in his section requesting reimbursement of attorneys’ fees, there’s really “no reasonable basis for contending otherwise”:

RCW 4.84.185 allows a prevailing party to recover attorneys’ fees and other litigation expenses if the defense to the action was “frivolous and advanced without reasonable cause.” We have not yet seen the Attorney General’s defense to this Petition, but if it is the same as has been advanced by the Attorney General in the run up to this litigation, we believe an award of litigation fees and costs under RCW 4.84.185 will be justified. The constitutional and statutory provisions at issue here are unambiguous. The duty of the Attorney General to represent the petitioner and his agency is unqualified. The Attorney General has no reasonable basis for contending otherwise. Reasonable attorneys’ fees and costs should be awarded.

Hear that? In requesting reimbursement of legal fees, Bricklin is inherently calling McKenna’s claims “frivolous.” So if Goldmark wins, and Bricklin’s fees are reimbursed, what will this say about the legal acumen — and/or ethics — of our state’s top lawyer?

From the DNR website:

OLYMPIA – Commissioner of Public Lands Peter Goldmark today filed a petition for a writ of mandamus with the Washington State Supreme Court. The petition asks the court to compel the state Attorney General to represent their client, the Office of the Commissioner of Public Lands and the Washington State Department of Natural Resources, and the interests of the state.

Commissioner Goldmark was forced to appeal to the Supreme Court following multiple refusals from Attorney General Rob McKenna to file an appeal with the Division III Court of Appeals of the State of Washington or even appoint a Special Assistant Attorney General to do so. Goldmark has retained the pro bono legal services of attorney David Bricklin, at no cost to the state or trusts.

“It is essential that the Office of the Commissioner of Public Lands has the ability to carry out its fiduciary responsibility to the trusts, and not having counsel leaves the Common School Trust defenseless,” said Goldmark. “The Supreme Court will be answering a very important question around the role of the Attorney General to set policy for the entire state.”

The original deadline to appeal the Okanogan PUD condemnation case was June 10. That deadline was extended by two weeks due to actions by interveners in the case. Attorney General McKenna has now agreed to file the appeal “contingently,” pending action from the Supreme Court on the writ of mandamus. Should the petition fail, the Attorney General has signaled that he would withdraw the appeal.

In covering this story, I urge my friends in the media to review my extensive legal analysis here and here.

UPDATE:
McKenna will be on KUOW’s Weekday tomorrow morning at 9AM. Educated by my coverage, I urge folks to call in and ask the Attorney General whether he really believes that all “branches and agencies of government [should be] deprived of access to the court except by his grace and with his consent.”

The other day the Seattle Times endorsed Tim Eyman’s I-1053, arguing that it would help restrain state government, as if our current budget crisis is the result of out-of-control government spending. Of course, it’s not.

The chart above plots Washington state and local taxes as a percentage of personal income from 1977 through 2008, and compares it to the national average of the 49 other states. As you can see, WA taxes as a percentage of the total economy is near a thirty-year low at the moment, after plummeting dramatically from the mid 1990’s. You can also see that WA state and local tax “burden” is also well below the national average, and has been for more than a decade.

And in case you’re wondering where I cherry-picked my numbers, it’s from the conservative Tax Foundation, the same source Eyman often uses to support his preposterous claims.

I know the Times would like you to think that all our budget woes are due to profligate Democrats lavishing our tax dollars on organized labor, but that is simply not the case. In fact, our budgets are unsustainable, but not because spending is out of control. Rather, we have an antiquated tax structure that simply cannot keep pace with the economy and the associated growth in demand for public services.

That’s the real economic reality both the Times and our legislators refuse to address.

On Friday I laid out a thorough legal analysis of the statutory duties of Washington’s Attorney General, and I thought about bumping it to the top of the home page this morning because it is absolutely must reading for anybody truly wishing to understand the looming constitutional showdown between AG Rob McKenna and Public Lands Commissioner Peter Goldmark.

Honestly. If you are a member of the media eventually tasked with covering the unprecedented case of a Washington state officer suing the Attorney General to force him to comply with the law, you’re gonna thank me for the relevant case law I’ve cited and the relatively cogent and concise manner in which I’ve summarized it. (Well, you won’t actually thank me. Nobody in the media ever thanks me. But I guarantee you’ll find it useful.)

But rather than simply repeat myself, I thought I’d take the opportunity to briefly elaborate on Friday’s post by presenting those powers and duties McKenna does clearly possess.

In a nutshell, in states with similar constitutional and statutory construction, courts have found that the law prescribes a traditional attorney-client relationship between the Attorney General and state officers that cannot generally be abrogated by claims to broader common law powers. Article III, Section 21 of the Washington State Constitution clearly defines the duties of the Attorney General as such: “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” In State v. Huston, the Oklahoma Supreme Court concludes…

[A]s most courts hold, that under constitutions containing [similar provisions], 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.”

Again, there are plenty of similar citations in Friday’s post. Read the whole thing.

So what are Rob McKenna’s duties as Attorney General? Well, the most obvious and paramount one is the one duty specifically prescribed in the constitution itself: “The attorney general shall be the legal adviser of the state officers…”

After that, the RCW lays out a number of specific powers and duties which follow in full:

RCW 43.10.030
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.

These powers and duties are quite specific, including paragraph (2), which requires the Attorney General to “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.” Notice that nowhere in that list of enumerated powers and duties is an obligation to broadly protect the public interest, or to balance the policy objectives and interests of one state agency against another, or to protect the future interests of DNR against the policies of the current office holder, or to completely control state litigation in defiance of the wishes the officers who are his statutory clients.

But if that’s not specific enough, the RCW drills down even further in defining the Attorney General’s duty as it relates to the powers and duties of the Commissioner for Public Lands:

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.

The constitution is clear; the Attorney General “shall perform” those duties “as may be prescribed by law.” And the statute is clear; “It shall be the duty of the attorney general” to defend DNR “when requested so to do by the commissioner.” It is the Commissioner, not the Attorney General, who is statutorily authorized to “represent the state in any such action or proceeding relating to any public lands of the state.” It is the Attorney General’s duty to represent the Commissioner as his lawyer.

McKenna’s refusal to comply with a lawful request by Goldmark to file an appeal is a clear violation of  the Attorney General’s constitutional and statutory duties, as well as the ethics of the legal profession pertaining to the attorney-client relationship. In plain language: our Attorney General is breaking the law.

No doubt when this dispute comes to a head, and Goldmark files suit against McKenna, as I’m guessing he shortly will, McKenna and his office will attempt to dismiss Goldmark’s charges as unfounded. But before credulously reporting McKenna’s defense, our media has a duty to examine the relevant statutes and case law, as well as the consequences of presuming the Attorney General to hold the broad, extra-constitutional, discretionary powers McKenna apparently claims. As the court wrote in Motor Club of Iowa v. Dept. of Transportation:

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.

This is a constitutional crisis, and as such, AG McKenna’s expertise and intentions should not be presumed.

– Jacob Sullum at Reason does some thorough fact checking on Fox News buffoons Bill O’Reilly and Megyn Kelly. But while parts of the Fox empire are still living in a fantasy world when it comes to the drug war, not all of it is.

– The L.A. Times printed a lengthy profile of Marc Emery earlier in the week, but some important details about the political nature of Emery’s prosecution were left out of the finished piece.

– Another child will be born into this world without a father because of the drug war. And Pete Guither links to a follow-up from the case in Georgia where another father-to-be was gunned down by drug cops last year. Now one of those drug cops has been arrested for making false statements.

– Washington’s Good Samaritan Law (only the second in the nation after New Mexico’s) took effect on June 10.

– David Borden discusses why the DEA’s recent “Project Deliverance” was a waste of your taxpayer dollars.

– The drug Sativex, which is made directly from marijuana plants by British pharmaceutical firm GW, has won regulatory approval in Britain for the treatment of multiple sclerosis. Meanwhile in the United States, the federal government still classifies marijuana as a Schedule I drug with no medical use.

Last week’s contest was won by Troll – who first guessed what the view was – and wes.in.wa who provided the link just before Don Joe. The correct answer was the home in Perugia, Italy where British student Meredith Kercher was murdered in 2007. Last week, a jailed mobster claimed to have proof that University of Washington student Amanda Knox did not commit the crime.

Since Troll was able to win last week’s contest, it appears I’ll have to make these a bit harder. Each picture will still be related to something in the news from the past week. Here’s this week’s, good luck! And happy Father’s Day!

Luke 19:27
Now bring me the enemies who didn’t want me to be their king. Kill them while I watch!”

Discuss.

(And there are about 50 more clips from the past week in politics at Hominid Views.)

This post from Bruce Ramsey on I-1068 and the ACLU is a week old now, but I wanted to call it out and add some extra thoughts. Except for a few minor quibbles, I think Ramsey is mostly correct about both that post and his earlier post on differentiating liberals and progressives. The inability for Democratic interest groups in this state to rally around this initiative does demonstrate that Democrats in this state are more progressive than liberal – the difference between the two being that progressives are more concerned with things that government should be doing, while liberals are more concerned with what it shouldn’t be doing. Ideologically, most progressives are liberal and most liberals are progressives, but within circles of entrenched power, the people who want government to do more always win out over the people who want it to do less.

My first minor quibble has to do with this statement:

ACLU-WA’s statement says, “The ACLU isn’t willing to support an incomplete initiative in hopes that the Legislature will fix it.”

I can understand why a group of attorneys might take that position. But the ACLU statement also says, “A negative vote on the initiative would be a significant setback for our ongoing reform movement.” And that is also true.

I don’t agree with this at all. There’s absolutely no reason to believe that losing a statewide vote on marijuana legalization does anything to set the movement back. In fact, Colorado voters largely rejected a marijuana legalization initiative in 2006 that was doomed from the start, yet the organizers of that initiative saw their effort as a way to kick off public discussions that weren’t already happening. They were able to do that, and since then, Colorado has seen several big advancements in drug law reform, from medical marijuana dispensaries to successful city-wide legalization initiatives, things that we haven’t seen yet in Washington state. Their effort was derided at the time as foolish, but it most certainly did not set back the cause of drug law reform there. In fact, it pushed it forward.

My second minor quibble (ok, maybe this one is more than minor) concerns the nature of the ACLU of Washington’s failure to endorse the initiative. It had little to do with a progressive vs liberal ideological divide. When the ACLU of Washington declared that they were declining to endorse I-1068, they listed multiple reasons, but the belief that the initiative had no chance of passing was the primary motivator. In fact, their concerns over the lack of regulation in the bill weren’t exactly genuine, as ACLU of Washington Drug Policy Director Alison Holcomb wrote to me in email that it would be “great” if it passed. They were just more concerned about what an endorsement of what they saw as an ill-fated initiative effort would have on their credibility. When I asked Holcomb to provide an example of when an organization’s endorsement of an initiative they had no direct involvement with ever hurt that organization’s credibility, she complained about having too many unread emails in her inbox.

In the end, exacerbating existing fissures within the drug law reform community has done far more damage to the cause of ending marijuana prohibition (which I don’t doubt the ACLU of Washington wants) than a failed initiative attempt would have. With the I-1068 campaign, we ended up with a well-connected – but politically clueless – ACLU of Washington effectively derailing an amateurish but eager attempt to force a vote on the issue of marijuana legalization this year. The I-1068 campaign showed their lack of experience by continually venting through press releases (which rather foolishly just got more people to notice the difficulties they were having), but in the end, they built up a network of thousands of activists and continued to raise awareness of this important issue. As for the ACLU of Washington’s credibility, all I can say is that an organization that I’ve admired and defended throughout my life profoundly disappointed me with their actions this year.

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.

[Read more…]

So, while I have my head buried in legal briefs, providing the only media coverage of the dramatic constitutional showdown between Attorney General Rob McKenna and Public Lands Commissioner Peter Goldmark, the Seattle Times is devoting column inches to an expose on Gov. Gregoire’s conference table.

But, you know, I just represent the Democrats’ “amen corner” of the blogosphere, so you can pretty much ignore everything I have to say.

Talking Points Memo has picked up the story of Dino Rossi’s decision to continue headlining seminars teaching real estate speculators how to profit off of the foreclosure crisis. “It’s a strange strategy,” TPM points out, joining just about everybody else in scratching our collective head.

And NRSC spokesperson Brian Walsh’s response?

“Unless foreclosed properties are purchased don’t those properties stand vacant with no tax base coming into the local community, fewer families with roofs over their heads, and urban blight eventually resulting? Is that what the Democrats believe should happen? Or is their alternative policy that we resort to Communism, turn these properties into government housing and tell people where they should live?”

Really? He’s playing the commie card? That’s the best he can do? What a lazy douche-bag.

Oh, and by the way Brian, no, that’s not what happens when a property stands vacant. Somebody still owns the property, even if it’s the bank, and they still pay the property taxes. And as for urban blight, I’m not sure that’s much of a problem in the neighborhoods surrounding those $11 million waterfront homes Rossi is hawking.

No wonder the NRSC is getting it’s ass kicked this primary season.

Having the North Koreans in the soccer World Cup is quite a spectacle:

North Korean manager Kim Jong-Hun reportedly gets coaching advice directly from the country’s diminutive dictator via an invisible cell phone.

According to ESPN.com the coach has claimed he gets “regular tactical advice during matches” from Jong Il “using mobile phones that are not visible to the naked eye.”

“Jong Il is said to have developed the technology himself,” coach told ESPN.com.

And it gets even weirder:

Cameras caught a contingent of North Korean supporters in the stands cheering eagerly, each dressed exactly the same in a red shirt and cap and waving North Korean flags.

It’s not certain, however, that any of those flag waving fans were North Korean.

In May, 1,000 Chinese nationals were essentially rented by the government of North Korea to sit in the stands and cheer, according to Xinhua, the official Chinese news agency.

Given that few citizens of the impoverished nation could afford to attend the games, or would be allowed to leave the country, the North Korean Sports Committee gave tickets to Chinese nationals, many of them actors and singers, to attend the event, Xinhua reported.