Who does McKenna represent? Courts will consider

Two efforts, one connected to the national health care reform, ask the courts to tell state Attorney General Rob McKenna when he must or cannot take a court case.

By Daniel Jack Chasan

July 21, 2010.

It's mandamus city out there: Commissioner of Public Lands Peter Goldmark has asked the state supreme court for a writ of mandamus ordering Attorney General Rob McKenna to appeal a superior court decision letting the Okanogan PUD condemn an easement across state trust land. The Seattle City Attorney, Pete Holmes, has asked the court for a writ of mandamus ordering McKenna to pull out of the state attorneys generals' suit against parts of the Obama healthcare plan. Does anyone know who's in charge?

Not really. The question is how much discretion the attorney general has to refrain from acting when he has been asked to, or to act when he hasn't. What the law says is pretty clear. What the law means is not.

A court issues a writ of mandamus to order an official, a lower court, or a government agency to do something. It doesn't happen very often. The Washington State Supreme Court has made it clear that mandamus is a last resort. ("Mandamus is an extraordinary writ, the issuance of which is not mandatory . . .") In a recent ruling accepting the Seattle case, the Supreme Court commissioner, Steven Goff, explained that as the attorney general argued, "mandamus will not . . . compel a discretionary act." He paraphrased an earlier case in which the court held that "mandamus will issue only if the act to be done . . . leav(es) nothing to the exercise of discretion or judgment." On the other hand, he wrote, that as the city pointed out, "when a state officer lacks authority to do a certain act, no discretion is involved, and mandamus is appropriate."

Seattle &mdash where the city council passed a grandstanding resolution in favor of Obamacare on a 6-0 vote last March — has argued that McKenna had no authority to get involved in the healthcare suit unless he was representing another state officer. The attorney general has only those powers given him by the state constitution and state law. The city "suggests that none of these provisions expressly grants authority to the attorney general . . . to bring or join in this federal lawsuit."

McKenna has argued that "he may prosecute actions not only as necessary in the execution of the duties of other state officers, but also as necessary to the execution of his own duties, seemingly including a duty to defend Washington interests and the state and federal constitutions. Apparently, under this theory if the attorney general determines that federal legislation may be unconstitutional or may infringe this state's interests or laws, he is authorized to bring a federal action challenging the legislation. And he may do so independent[ly] of the wishes of other state officers, including the governor."

Again, the big question is whether or not the attorney general has the discretion to do as he pleases. The attorney general, the commissioner of public lands, and the governor are all elected independently, and have no authority over each other.

The system of electing all the state's executive officers separately creates some interesting juxtapositions. In 2004, for example, after Dino Rossi apparently edged then-Attorney General Christine Gregoire in the state's closest gubernatorial election ever, the Democratic Party sued Secretary of State Sam Reed before the hand recount to make him reassess all ballots rejected during previous counts, then Republicans sued to keep him from correcting errors discovered after the machine recount; then, after the hand recount showed Gregoire edging Rossi by 129 votes, Rossi and the Republicans sued Reed again, alleging he should set aside the result because the election had been corrupted by fraud and illegal voting. "One thing that made (the situation so) difficult," Reed recalls, is that he couldn't consult the people in the AG's office who were experts in election law.

Because the attorney general was a candidate for governor, Reed said, his office couldn't use the attorney general's office at all. Instead, "we had to go to outside counsel, which was unfortunate" because it meant bypassing the state's own in-house expertise. Reed didn't have his choice of outside firms, either. He was given a short list of three firms. Two were already working for the Democrats or Republicans. That didn't leave many options. Not that Reed has any complaints about his outside counsel's performance: The state supreme court ruled unanimously against both Democrats and Republicans on the recount issues, and the Chelan County Superior Court ruled so emphatically against the suit alleging fraud — "There is no evidence in this record that Ms. Gregoire received any illegal votes” — that Rossi wisely decided not to appeal.

The attorney general clearly has a lot of discretion. Does he have discretion not to take the DNR's appeal? The DNR;s petition for mandamus argues that he doesn't. The state constitution says the AG "shall be the legal adviser of the state officers and shall perform such othe duties as may be prescribed by law."

One law, RCW 43.12.075, says it "shall be the duty of the Attorney Geneal to institute or defend any action or proceeding to which the state or the Commissioner or the Board (of Natural Resources) is or may be a party . . . when requested to do so by the Commissioner."

Does that mean what it says?

The DNR says yes. Its mandamus petition argues that "the attorney general has a non-discretionary duty to represent the commissioner.” Therefore, it wants a court order telling him to "vigorously prosecute" the appeal or hire a special assistant AG to do so.

At a 2008 program on "The Prosecutorial Ethic," held as a tribute to the late King County Prosecutor Norm Maleng at the University of Washington Law School, Wayne C. Wikowski of the Office of the Attorney General for the District of Columbia suggested that Washington's attorney general "is not required to bring affirmative litigation requested by state officers, when the attorney general believes the litigation is unwarranted.” (In a somewhat analogous 1977 case, the state Supreme Court majority noted that “the 'duty' imposed upon the attorney general here was to exercise discretion.”)

That's pretty much what McKenna says. The AG said that his "decision not to appeal the Okanogan County Superior Court decision was based, as all of our appellate decisions are, on whether legal error was made by the trial court judge, consideration of the trial court record, and the likelihood of the appeal's success." Goldmark just had a lousy case.

The facts of the case are clear enough: The Okanogan PUD wanted a right-of-way through state land for a Pateros-Twisp transmission line in the Methow Valley. The land is part of the roughly 2 million acres the state that was given at statehood (or swapped for land given it at statehood) for the support of schools and other public institutions. The PUD was negotiating with the DNR last year, when it filed a motion in superior court to take the right-of-way through condemnation.

An attempt to stymie the PUD through legislation went no place. "A bill that could have interfered with the PUD's ability to acquire state land for the Methow transmission line failed to get enough support to move out of committee," the Methow Valley News reported. "The proposed legislation would have prohibited cities, counties, school districts and entities such as public utility districts from condemning lands held in trust by the state to fund schools. In her presentation to the Senate Committee on Ways & Means, Sen. Karen Fraser (D-Olympia), a co-sponsor of the bill, explained that the legislation would have required local governments to negotiate for the use of state trust lands through a purchase or land swap, rather than allow them to condemn what she called Washington’s 'dowry from statehood.'&thinsp"

That left the courts. The DNR, represented by the attorney general's office, filed a motion for summary judgment, arguing that the PUD had no legal power to condemn state land. The DNR lost on summary judgment and then lost on the underlying issue. This spring, the superior court granted the PUD a declaration of necessity, so the condemnation could proceed.

The DNR wanted to appeal, and assumed that the attorney general would represent it again. On June 8, two days before the final date to file an appeal, the attorney general said he would not. "I plead with you to reconsider," Goldmark wrote McKenna. If McKenna really didn't want to take the case, Goldmark asked him to appoint a special assistant attorney general who could do it for him. McKenna l did neither.

On the last possible day, Conservation Northwest, which has a long history of interest in state forest issues, filed an appeal of its own, keeping the window open for another two weeks. "We're in this to support the lands commissioner," says Conservation Northwest science and conservation director Dave Werntz. He explains that Goldmark had raised significant questions about the impact and cost of the project, but that before those questions could be answered, the PUD filed its condemnation claim.

Werntz says CNW has "some concern about what kind of a precedent (would be set by) a ruling that allows an entity like a PUD to take or condemn public land." The DNR, represented pro bono by environmental lawyer David Bricklin, filed a petition for mandamus. McKenna subsequently filed a contingent appeal. If he loses on the issue of mandamus, he'll stay in the fight; if he wins, he's out of there.

"By refusing to represent the Common School Trust and the non-tax revenue it generates, Mr. McKenna is choosing to allow the inappropriate use of eminent domain over Washington's schools," Goldmark said in a press release. "Mr. McKenna is choosing to play politics with our state's heritage."

"It's unfortunate that the lands commissioner has inserted politics into a purely legal decision by the Attorney General's Office,” McKenna replied in a press release of his own. "The assertion that politics played any part in our decision is wrong, and frankly, insulting."

The state supreme court will hear arguments in both cases on Nov. 18. The decisions may clarify some of the attorney general's responibilities and options. But they won't resolve the basic ambiguities of a system in which all the state's top executive officers are elected independently and may not even be of the same party. And they probably won't resolve the question of how free the AG is to act in the public interest — however that's defined.

"Some scholars take the position that the public/public interest is the real client of the government lawyer,” D.C.'s Witkowski notes, but he suggests that, rather than having any established legal basis, this "view is based on a policy preference." There are things to be said for it, but also many to be said against it, not least that if “government attorneys impose their views over those of the officials running the government, the latter will have nowhere to go for needed legal services and the attorneys will effectively step into their shoes and become the clients. This will leave the government lawyer without a real client and the government client without a lawyer."

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