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If you haven’t read it yet, you really need to take a gander at Dominic Holden’s in-depth spelunking of the deep-bore tunnel cost-overrun controversy in the current issue of The Stranger, in which a local journalist finally asks the rather obvious question: “What Could Possibly Go Wrong?”

I know it’s all the fad these days amongst the Rainier Club crowd to roll one’s eyes at the mention of Mike McGinn’s name, all the while planning for Mayor Burgess’s election night victory party, but considering what’s at stake, it’s nice to know that there’s at least one elected official standing up for Seattle taxpayers (whatever his motives or sometimes clumsy methods). For at a time when the Seattle Center is preparing to auction off a couple acres of rare, designated open space to the highest bidder, in pursuit of a mere couple hundred thousand dollars of additional annual revenue, just imagine what a couple hundred million dollars in cost-overruns will do to our ability to pay for the things we want and need, let alone the billion-plus bill we could be presented with should things go seriously wrong.

And as Dominic explains, things could go seriously wrong.

Now I’m not one of those who points to Boston’s “Big Dig” and similar fiascos and concludes that America has somehow lost its ability to engineer and construct big projects. Large infrastructure projects do sometimes come in on time and near budget, and WSDOT has had a particularly good track record in recent years. But I’m no pollyanna either, especially when it comes to the least studied, least engineered, most speculative of any of the various Viaduct replacement alternatives.

In fact, when the Discovery Institute first floated the idea of what I immediately dubbed “The Big Bore,” I ridiculed their apparently faith-based proposal as “Intelligent Transportation Design.”

I once proposed building a gigantic rollercoaster along the West Seattle to downtown portion of the Monorail’s abandoned Green Line, and you didn’t see my joke of a transportation proposal picked up by the MSM, let alone labeled “visionary”. And yet the Seattle Rollercoaster Project is no less technically challenging nor politically, well, utterly fucking ridiculous than Discovery’s deep bore, crosstown tunnel. … In a city where completion of a 1.3 mile vanity trolley line is feted like some transportation miracle, the very notion that local voters might commit more than a half billion dollars a mile to an untested technology is a dramatic tribute to Discovery’s primary mission of promoting the exercise of faith over reason.

Much to my chagrin our political establishment quickly embraced Discovery’s Big Bore proposal, ignoring the technical challenges while attempting to bypass the political ones by excluding Seattle voters from the process… only to run into the electoral equivalent of a stuck tunnel-boring machine: the surprising election of Mayor Mike McGinn.

Like a stuck TBM, Mayor McGinn can’t possibly reverse himself, and with the cost-overrun issue still conveniently blocking his way, he sure as hell ain’t moving forward. Vindictive, short-sighted and/or lazy legislators may have thought they cleverly short-circuited our city’s famously obstructionist civic fetish with process, but where there’s a will, there’s a Seattle Way.

Observers who don’t believe last year’s mayoral election was at least in part a referendum on the Big Bore Tunnel are smoking crack. McGinn long and loudly campaigned on his opposition to the tunnel, and even when he relented during the final weeks, he still promised to fight any effort to stick Seattle taxpayers with open-ended cost-overruns. So why should anybody roll their eyes at the sight of Mayor McGinn attempting to fulfill his promise? The irony is, while the wise, old sages at the Seattle Times blame Mayor McGinn for the cost-overrun controversy, it’s actually the controversy that deserves the blame for Mayor McGinn.

As with the underlying technical challenges in drilling the largest diameter deep-bore tunnel ever, the powers that be have also failed to fully think through the financial and political challenges associated with the proposal. When I hear Governor Gregoire, City Council president Richard Conlin and other tunnel boosters warn that further delays will only increase costs, my immediate response is, well what the fuck did you think was going to happen to when you attempted to ram this through? It’s been nine years since the Nisqually quake marked the Viaduct for immediate demolition; did anybody really think that spitefully sticking Seattle taxpayers with all the risk for a tunnel they don’t particularly want was gonna speed up the replacement process?

And what if the tunnel comes in way over-budget, as mega-project history suggests it is likely to do? Where’s the money gonna come from to finish it? Are we gonna sit for years with a half-dug hole in the ground while the state and the city endlessly litigate their financial obligations? Or will the state shift funds from other parts of the project to complete the tunnel, while leaving the decrepit Viaduct standing like some ancient Roman ruin, until some future tumbler finally knocks it over onto the waterfront? I mean, how the fuck do you even start a project like this without knowing how you’re gonna ultimately pay for it?

There is not, as the Times and others suggest, consensus support for a multi-billion dollar tunnel with no downtown exits or onramps that will only serve 40,000 vehicles a day, though there may very well be a consensus by now to just get this debate over with and build something. I even find myself in “something” camp these days. Hell, I’d settle for anything.

But I’m not willing to settle for anything at any cost… and outside of the Times editorial board, the folks at the Discovery Institute and an apparent majority of city council members, neither are most Seattle taxpayers.

There may not have been consensus support for the surface/transit proposal either, but had the legislature forced that option down our throats — the cheapest and least financially risky of any of the alternatives — we’d probably be building it already, because whatever its downsides, it was by far the most technically, financially and politically doable. Instead, the legislature chose to risk the future fiscal stability of our city for the sake of folks wanting to quickly drive through it.

As utterly fucking ridiculous as the original Big Bore proposal was, that’s nothing compared to the notion of the state assuming all of the responsibilities for building it, while assuming absolutely none of the risks. And until the state proves it can navigate the well-charted sink holes and boulders of Seattle politics, nobody should have confidence in its ability to bore through the uncertain terrain hidden beneath the city.

As a legislator, State Rep. Geoff Simpson is absolutely one of my favorite Dems in Olympia. He’s not just reliably progressive, he’s outspokenly so, and in a swing district no less. Where many other Dems — even some pretty good Dems — tend to couch their votes and their public statements with an eye toward their next reelection campaign, Rep. Simpson doesn’t seem to even give shit. Then he fights like hell during the campaign, and somehow manages to win.

You could say he’s one of the few Dems in Olympia with balls.

So it really pains me to read the news that Simpson has been charged with a gross misdemeanor assault stemming from an incident at Seattle Children’s Hospital where his ex-wife attempted to keep him out of a room where their 12-year-old daughter was recovering from surgery.

According to the police report a social worker with Children’s Hospital witnessed the scene and her description of the incident matched what the ex-wife told the officer.

The social worker told the officer she saw Simpson “barrel” into the room, push his wife out and shut the door. According to the social worker’s statement in the police report Simpson closed the blinds and “barricaded himself inside using his body.” The social worker’s statement noted he was yelling inside the room and would not open the door.

I have to admit that if Simpson were a Republican I’d be more than rubbing his nose in this — it’s kinda my job — but I wouldn’t be having much fun. I have empathy for all the parties involved in this incident, Simpson, his ex-wife and their daughter, and I take no joy from reporting (or even exploiting) such personal family tragedies. Corruption and hypocrisy, that’s different, but this kinda stuff is always painful to write about.

And it leaves a lot of Democrats with a terrible dilemma. Rep. Simpson is a great legislator… an effective, outspoken progressive leader who always seems to have the interests of working families at heart. He’s not just another vote in the caucus, and would be hugely missed in Olympia.

And yet, domestic violence, whatever the circumstances (and for a moment, put yourself in Simpson’s shoes and imagine how you might react should your ex-wife block you from entering your daughter’s hospital room) is not something that can be dismissed lightly. I don’t know much more about this incident than what I’ve read online, but I have to trust Seattle City Attorney Pete Holmes that his office wouldn’t be prosecuting if they didn’t feel it worthy of prosecution.

So is this enough to ditch Simpson, not only handing over his swing district to the Republicans, but costing us one of our most passionate and effective voices in the state House?

I dunno. I guess I’ll have to wait to learn all the details, and see what Simpson ultimately says for himself. In the wake of an incident two years ago in which charges were dropped after he spent a night in jail, Simpson made a point of reiterating his support for domestic violence laws that left police with little discretion but to detain and charge him in response to a complaint from his ex-wife:

“I’ve thought a lot about this the past several weeks. I don’t like what happened to me and I didn’t like going to jail with all the unpleasantness associated with that. But I think that’s better than the alternative.”

The alternative being that domestic violence reports not be taken seriously enough by the police and the courts.

It’s a complicated issue. Almost as complicated as the dilemma this incident creates for Simpson’s many friends in the Democratic Party.

UPDATE:
Much is being made in the comment thread about this being Simpson’s second  domestic violence charge, but I think it’s important to note that the previous charges were dropped. According to the dismissal motion:

“… based on the alleged victim’s stated intentions for calling 911 at the time of the incident, there is no evidence that the alleged victim was calling 911 to specifically report a domestic violence incident or that the defendant would have reason to believe that she was calling to report domestic violence.”

As I explained at the time, police have little discretion when responding to what they believe to be a domestic violence complaint but to detain and charge the defendant, and for good reason. So while Simpson and his ex clearly have their problems, I’m not sure these two incidents are comparable.

Apparently, Rep. Jay Inslee has been following my coverage of Goldmark v. McKenna, even if most of our local media hasn’t:

“He [McKenna] seems to think he’s the Lands Commissioner, the Secretary of State, the Governor, and the AG,” Inslee said of his potential rival for Governor in 2012.

Huh. You’d think the press might find that interesting. Apparently not.

The oil spill in the Gulf of Mexico has been highlighting for me a very interesting paradox in how we understand the concept of responsibility:

BP repeatedly disregarded safety problems, according to a new damning investigation from ProPublica that was copublished with The Washington Post. Documents about internal safety investigations leaked to ProPublica by “a person close to the company” show a pattern of neglect and a culture skewed toward silencing whistle-blowers.

The investigations described instances in which management flouted safety by neglecting aging equipment, pressured employees not to report problems, and cut short or delayed inspections to reduce production costs.

That article was from a month ago, even before Texas Congressman Joe Barton expressed regret that BP was being pressured to take responsibility for the spill with a $20 billion fund set aside to cover the damage.

We often point to how the law treats corporations as equals to individuals as a major problem that creates skewed outcomes within our legal system and a dangerous downstream effect on society. But I’m not sure that that alone captures the depth of the problem. The problem is that we have two separate notions of what it means to be responsible – and that individuals and corporations are held to very different standards.

We make a lot of laws in this country that focus on our individual behavior. We zap speeders on the freeway and set up red light cameras. We fine people for jaywalking or drinking a beer on the sidewalk. We make people wear helmets on motorcycles and seat belts in their cars. The value of these restrictions are sometimes debated (and I certainly don’t like some of them), but they almost always have the broad support of the public – and few politicians dare to challenge the necessity of these laws that require responsibility on our part, both to ourselves and others. Government is seen as being the hammer necessary to force people to be responsible citizens.

But when it came to the years leading up to the devastating oil spill that wrecked both the environment and the economy of the Gulf Coast, the government was completely hamstrung in its ability to get BP or its partners to exercise even a minimal amount of responsibility, or even punish them when their previous irresponsibility led to actual damage (like when the Texas City refinery blew up, killing 15 people).

Part of this happens through outright corruption, but part if it is also from a belief that if we hold companies responsible with regulations, we’ll make it too hard for them to succeed and move our economy forward. Following this idea to an extreme, we now treat corporations far more kindly than we treat individuals. It has become an internalized double-standard that government protects society by holding individuals responsible, but endangers society by holding corporations responsible.

This article from last weekend in the New York Times shows how easy it is for companies like the ones at the heart of the Gulf oil spill to exploit this tendency:

With federal officials now considering a new tax on petroleum production to pay for the cleanup, the industry is fighting the measure, warning that it will lead to job losses and higher gasoline prices, as well as an increased dependence on foreign oil.

But an examination of the American tax code indicates that oil production is among the most heavily subsidized businesses, with tax breaks available at virtually every stage of the exploration and extraction process.

According to the most recent study by the Congressional Budget Office, released in 2005, capital investments like oil field leases and drilling equipment are taxed at an effective rate of 9 percent, significantly lower than the overall rate of 25 percent for businesses in general and lower than virtually any other industry.

…

Jack N. Gerard, president of the American Petroleum Institute, warns that any cut in subsidies will cost jobs.

“These companies evaluate costs, risks and opportunities across the globe,” he said. “So if the U.S. makes changes in the tax code that discourage drilling in gulf waters, they will go elsewhere and take their jobs with them.”

Can you imagine if individuals were treated the way we treat oil companies? Sure, your honor, I killed a busload of children while driving drunk, but if you make me pay too step a penalty or force me to stop drinking and driving again, I’ll just take my productivity to another country!

Even within the White House, which is supposedly run by anti-business socialists, this skewed mindset has a foothold:

I was on Good Morning America this not-so-good morning, doing what I could. But I was struck by something that George Stephanopoulos said: he claimed to have been speaking to an administration official who asserted that what we need to get businesses investing is for business to know that the government has stopped — presumably, that means no new spending, no new regulation, whatever.

GS is a careful guy, so this must be true. And it’s shocking — not that people are saying this, but that someone inside the administration is saying it.

It’s garbage, of course: businesses are refusing to invest because they don’t see enough demand for their products. And administration economists know that it’s garbage. But obviously some people in the WH — I’m guessing a political person, but who knows — have bought the right-wing line hook, line, and sinker.

In the meantime, while we cower in fear of potentially spooking these fragile businesses who can’t survive unless government becomes completely subservient to their every whim, we can’t even extend unemployment benefits to the folks who aren’t being hired by any of these great, glorious businesses. And this may highlight the full extent of our double-standard. Politicians see spending money on subsidies for oil companies as being necessary to help our economy, but see spending money on the unemployed as a waste, even though the latter belief is completely baseless. It’s as if we could have the perfect economy by keeping the corporations perfectly happy but jettisoning all these pesky human beings weighing down the system.

David Frum criticizing a Sarah Palin ad today [emphasis mine]:

Here’s Sarah Palin’s new ad. Lots of images of the former governor speaking to adoring crowds, meeting admirers, encountering women and children.

But here’s the remarkable thing. Republicans normally work hard to ensure that their ads feature non-white faces, to present an image of welcome and inclusion.

…

In Palin’s ad — not one. Now listen carefully to the audio, which twice warns of a “fundamental transformation of America,” twice emphasizes a threat to children and grandchildren from malign unnamed forces.

I think she’s talking about healthcare. I hope so. But she never does say so.

David Frum – May 3:

Three years ago, ETS — the people who administer the SAT — released an alarming study. It combined information on test scores with demographic trends to predict that the U.S. work force of 2030 would be less literate, less skilled and worse paid than the U.S. work force of 1990.

ETS reported: “[B]y 2030 the average levels of literacy and numeracy in the working-age population will have decreased by about 5 percent while inequality will have increased by about 7 percent. Put crudely, over the next 25 years or so, as better-educated individuals leave the work force they will be replaced by those who, on average, have lower levels of education and skill. Over this same period, nearly half of the projected job growth will be concentrated in occupations associated with higher education and skill levels. This means that tens of millions more of our students and adults will be less able to qualify for higher-paying jobs.”

Why?

One word: Immigration.

In a preview of the looming battle over Initiative 1107 here in Washington state, New York Gov. David Patterson has dropped his proposed penny-an-ounce tax on soda and other sweetened drinks in the face of a relentless, multi-million dollar ad campaign from, you guessed it, I-1107’s sponsor, the American Beverage Association. The NY tax would have raised about $1 billion over two years to offset cuts in health care.

“The beverage industry takes the position that you can’t allow this to happen anywhere at any time, based on the slippery-slope theory,” Michael A. Nutter, Philadelphia’s mayor, who has proposed a 2-cents-an-ounce tax, said this week. “They’re successful the old-fashioned way. They pay for it.”

Of course, the industry won’t be able to run quite the same sort of ads here in WA; at only two-cents per 12 ounce serving, our tax is a mere one-sixth that proposed in NY — and only applies to bottled water and carbonated beverages, not fruit juices and other sweetened beverages — so it really would amount to only pennies a day for all but the most profligate soda drinkers. Still, expect the attitude to be the same, and to loudly attack “wasteful spending” in Olympia.

But don’t be deceived. This is all about protecting beverage industry profits, not the health or welfare of Washington citizens. The American Beverage Association is fighting similar proposals in a dozen states, and Washington is just one more line in the sand, much in the same way that the plastic bag industry spent millions to defeat Seattle’s proposed bag ban in an effort to stop or slow similar bans elsewhere.

Soda giants like Coke and Pepsi have already pumped $2.5 million into their I-1107 campaign, but with more at stake than just the WA tax, we can expect several million dollars more between now an November. In the face of such an intense media campaign, it remains to be seen whether WA voters will be willing to stand up to such powerful out-of-state interests, when NY politicians clearly weren’t.

Well, at least one newspaper in Washington state appears to think that a constitutional standoff between the Attorney General and the Commissioner of Public Lands is newsworthy… The Wenatchee World:

A dispute between Public Lands Commissioner Peter Goldmark and State Attorney General Rob McKenna is scheduled to go before the Washington State Supreme Court on Thursday.

At issue is whether McKenna’s office should be forced to appeal an Okanogan County judge’s decision that allows the Okanogan County PUD to condemn state land to build a transmission line from Pateros to Twisp.

It’s not much of an article, and the World apparently didn’t assign a copyeditor to check for typos, but at least they assigned a reporter, and that counts for something. So watch out Seattle Times, you’re about to get scooped on a precedent setting case by more than just a foul-mouthed blogger.

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.

My only complaint with PubliCola’s reporting of King County Councilman Pete von Reichbauer’s illegal campaign contribution scheme, is that they failed to identify him as a Republican. (Yeah, I know that the Council is now putatively “nonpartisan,” but we all know that’s a load of bullshit. Von Reichbauer is a Republican. Deal with it.)

For his part, von Reichbauer, who was caught soliciting $7,500 in over-limit campaign contributions, had no qualms about generously flinging the party labels:

After being contacted by PubliCola about the matter last week, the state  Public Disclosure Commission contacted Von Reichbauer today and told him he had to return the excess contributions. PDC Spokeswoman Lori Anderson said von Reichbauer, who refused to talk to PubliCola because, as he told the Seattle Times, he believes we’re  an “arm of the Democratic Party,” has agreed to the return the money.

Wait… I thought I was the media arm of the Democratic Party. I feel… I dunno… jilted?

So nice work PubliCola for catching von Reichbauer with his trousers down… but fuck you for stealing my sweetheart.

– State Democrats endorsed I-1068, but not without some consternation:

There was a small political skirmish here in Vancouver this afternoon—delegates made motions to consider 1068 separately, to extend debate, and to officially endorse the initiative. [State Vice Chair Sharon] Smith said that, “we expected this to come to a floor discussion. There are some things that are clearly Democratic party values, and then there are things like this that aren’t so clear.”

I’m not really sure what the heck Smith is referring to with that comment, so I went to the Washington State Democrats homepage to see if my previous notions of what Democrats stood for have changed radically in the past week. Here’s what they have listed on their “What We Stand For” page:

– Maintaining safety and security while seeking peace and cooperation

This is pretty obvious. I-1068 will greatly reduce crime by taking the production, sales, and massive profits out of the hands of criminal organizations. Crime decreased significantly after the end of alcohol prohibition, and it will do the same after the end of marijuana prohibition for exactly the same reason.

– Sustainable stewardship of our environment

The establishment of above-ground marijuana production and distribution will allow for environmentally responsible growing, rather than the environmentally destructive ways that it’s grown today.

– Fairness and economic opportunity, access to quality education and health care for all

I-1068 will finally allow for doctors and patients to openly discuss the benefits and risks of marijuana without fear of arrest or retribution. It will also provide for a large number of new above-ground jobs, just as what occurred when alcohol prohibition ended and legal beer distribution started up again.

– Equal treatment of all before the law

Drug law enforcement is arguably the single biggest problem with respect to ensuring that all people get treated equally within our criminal justice system.

– Fiscal responsibility, integrity, openness and accountability in government

One estimate from UW put the amount of money saved by the state after marijuana legalization and regulation at $105 million per year.

– Personal freedom, security, and privacy

The Democratic party simply can’t claim that they stand for personal freedom if they also believe that marijuana needs to be kept illegal. The two beliefs are directly incompatible. You either believe in personal freedom or you believe that government exists to impose morality over private adult decisions.

I understand that for years this was a topic that voters couldn’t have rational conversations about, but those days are clearly over now. Even Fox News has been running a number of pro-legalization pieces recently. Coming out in support of ending marijuana prohibition doesn’t carry the risks that it once did, and it might even help win elections. It was good to see the delegates at the state Democratic convention take this stand. Hopefully, Sharon Smith and the other holdouts will notice that it’s not 1988 any more.

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

Discuss.

Who says my comment threads are total garbage? Well… I often do, but of course I’m exaggerating, as there’s always the occasional gem amongst turds, like yesterday’s comment pointing to this post from The Center on Budget and Policy Priorities: “If you tax them, will they flee?”

The conclusion? Not really.

As Ezra Klein’s research desk explains, most studies show that rich people don’t flee higher-tax states for lower-tax ones and “the revenue generated by state tax increases on high earners overwhelms that lost from taxpayers’ leaving.” …  In fact, raising taxes on the highest-income households — a group that’s enjoyed the greatest rise in incomes and the greatest decline in taxes in recent decades — is a sensible and effective way for states to help offset the huge drop in revenues during the recession.

Tax rates just aren’t a big part of most people’s decisions about where to live — though that doesn’t stop some opponents of raising taxes on the wealthy from stringing together a few anecdotes in hopes that the rest of us will believe millionaires are in full flight from states that have called on them to pay their fair share.

[…] Perhaps the most definitive study, by Princeton University researchers, found that after New Jersey increased taxes on those making over $500,000, it experienced a yearly revenue loss of about $38 million because of those who left — but a gain of more than $1 billion from those who stayed.

I mean, it’s strange enough that one of I-1098 opponent’s loudest arguments against a high-earner’s income tax is that wealthy people are essentially a bunch of selfish, bean-counting misers who will collectively pick up and move to Nevada to avoid it. (A little projection there?) But it’s not even true.

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…]

The Association of Washington Businesses claims its board unanimously endorsed Tim Eyman’s anti-democratic I-1053 at its May 13 board meeting, but after a bit of digging, the folks over at the Washington State Labor Council can’t find a single AWB board member who admits to attending the meeting and endorsing the initiative.

Can this be true? Amid severe recession-related budget cuts to higher education, transportation and other state funding priorities strongly supported by many of our largest private employers, the AWB board voted UNANIMOUSLY for this starve-the-beast strategy to avoid taxes?

Not Boeing.  Company spokeswoman Susan Bradley says the company has no position on I-1053 and had no representative at AWB’s May 13 board meeting in Spokane.

And not Microsoft.  Government Affairs Director Delee Shoemaker, an AWB board member, reports that the company will not take a position on I-1053 at least until it qualifies for the ballot. She adds that she wasn’t at the May 13 meeting either.

And the list goes on: Weyerhaeuser, Avista Corp., Ben Bridge Jewelers, US Bank… nobody would admit to even attending the meeting. In fact, of the AWB board members who responded to WSLC’s inquiries, only one, Safeway Director of Public Affairs Cherie Myers, expressed support for the initiative. But… “I was not there to vote,” Myers told the WSLC.

Huh. Reminds me of a lyric from Les Miserables:

Phantom faces at the window.
Phantom shadows on the floor.
Empty chairs at empty tables
Where my friends will meet no more.

The bulk of the board members WSLC contacted wouldn’t respond to inquiries, but there’s a reason why local businesses might be reluctant to embrace I-1053 despite the business community’s natural knee-jerk support for anything that makes it harder to raise their taxes: as WSLC explains, the Californiafication of Washington government simply isn’t good for our state’s business climate:

Our biggest private-sector employers report that one of their greatest challenges is the insufficient number of skilled workers available. Microsoft regularly argues that more H-1B visas are needed to meet its demand for engineers. Boeing’s aging workforce — of both machinists and engineers — is considered a looming crisis.

This problem has been exacerbated by the recession. Plummeting state revenue has resulted in college and university budgets being slashed; University of Washington reports that its state funding was cut by one-third in the past 15 months. College instructors are being laid off, departments eliminated, class sizes sharply increased, and double-digit tuition hikes imposed. And all this is happening as Boeing laments its demand for engineers consistently exceeds the state’s production by a two-to-one ratio, a supply gap that is widening as its aging work force retires in droves.

WSLC includes a list of companies that have refused to respond, and it wouldn’t hurt if they heard from their customers that we don’t particularly enjoy doing business with companies that spend their profits ensuring that a one-third minority of the Legislature has veto power over our state budgets. At the very least, they need to know that they can’t continue to hide behind their empty chairs.