A Constitutional Crisis?

Peter Goldmark, a UW PhD and our current Land Commissioner , wants the Attorney General, Rod McKenna, to appeal a Superior Court decision that gave an Okanogan PUD the right to condemn state land in order to build a new power transmission line across pristine sections of the sun-drenched Methow Valley. McKenna on Wednesday declined to appeal.

This is relevant, VERY relevant, to UW issues because  the controversies around NIKE, the recent action of the Faculty Senate, and the Aprikyan affair are all issues of law. If any of these come to court, the legal case for the UW will be made by McKenna or by an attorney he appoints.

Over at HorsesAss, David Goldstein has set out the legal issues.  I abridged his post here but recommend you go to the original article:

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.


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.

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  1. Steve Schwartz, from HA #

    Bottom Line … Money.

    The Office of AG is a problem.

    As I wrote in The-Ave, this is not the only example of McKenna’s politicization of his office.

    McKenna is also taking the side of the UW President against a scientific finding by the UW faculty. A faculty panel found for innocence on the part of a faculty member .. Andrew Arikyan.

    Mark Emmert, the UW President, is himself controversial for promoting dubious relationships of the UW to NIKE. Emmert, who has no credentials in science or even a record of scholarly research in any field, claims that the faculty were incompetent and capricious for overrinding an administration finding of guilt.

    The question of respect for expertise also affects McKenna’s decision on the use of State lands. Goldmark is also a highly respected graduate of a UW PhD program in science. While his degree is in biochemistry, Goldmark .. unlike McKenna has the training to make objective rather than political judgments. McKenna sees his own political judgement as overriding in deciding what to and not to prosecute.

    Add in McKenna’s effort to redefine the Constitution to outlaw national health care.

    The only way to change this is either to make the AG’s office truly non partisan OR to use the courts to force the AG to be non-partisan.

    The latter approach raises THE issue.

    Money .. who pays for the law suit.

    The only way to move this beyond Goldy’s brilliant writing would be to find the money to sue McKenna.

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