One can find ambiguity in seemingly clear statutory language. And one can find plenty of it in the structure of our state government. Both were obvious last Thursday morning, when the state Supreme Court heard two cases that asked fundamental questions about the role of the attorney general and the nature of Washington's divided executive branch.
Does the attorney general have to bring a case on behalf of the state? Does he have discretion to not appeal a case on behalf of the commissioner of public lands?
For those who've been distracted by the election or the Seahawks or the never-ending cascade of lost jobs and homes, a recap: Attorney General Rob McKenna joined one of the lawsuits by state attorneys general against Obamacare, and he also refused to appeal an Okanogan District Court decision on behalf of the state Department of Natural Resources.
The DNR has asked the courts for a writ of mandamus, ordering McKenna to take its case. The DNR has argued that McKenna must represent it if the lands commissioner wants to appeal. The Seattle city attorney has asked for a writ of mandamus ordering McKenna to drop out of the Obamacare suit. It has argued that McKenna has no right to challenge Obamacare on behalf of the state unless the governor asks him to do so. The governor has filed an amicus brief in the case, arguing that — absent the governor's consent — McKenna can sue on his own as attorney general but not as the representative of the state.
Who's in charge here? The answer may be no one. The DNR case seems more straightforward. It is, at any rate, less burdened with with obvious political considerations and what seems to be blatant grandstanding. The Okanogan PUD wanted a right-of-way across state land managed by the DNR for a transmission line in the Methow Valley. The PUD filed a motion in Superior Court to take the right-of-way through condemnation. The DNR — represented by the attorney general — 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. Last 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 McKenna said he would not. “I plead with you to reconsider,” Commissioner of Public Lands Peter Goldmark responded. 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.
The attorney general did neither. On the last possible day, Conservation Northwest filed an appeal of its own, keeping the window open for another two weeks. 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 won't.
Arguing before the Supreme Court last week, Bricklin suggested that the real question was, “can the Attorney General leave a department unrepresented?” Because the attorney general did, “the Commissioner was left without an attorney in this case.” He suggested the issue was pretty straightforward. “In our briefing,” Bricklin said, “we referred to this as 'a power grab.'”
The semantic discussions were worthy of Bill Clinton. RCW 43.12.075 says “it shall be the duty of the attorney general, to institute, or defend, any action or proceeding . . . when requested so to do by the commissioner.” Alluding to that language, Justice Gerry Alexander suggested that “'it shall be the duty'. . . takes away a bit of the Attorney General's discretion, does it not?”
Bricklin certainly argued that it did. He suggested that the statute meant what is said, so that “there's no discretion.”
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