Article by Erik Smith. Published on Tuesday, December 08, 2010 EST.

Bizarre Scene in Senate Judiciary Committee Underscores Political Nature of Democrats’ Beef – McCaslin Says Just Call the Guy, Willya?

Senate Judiciary Chairman Adam Kline, D-Seattle (left) did everything short of calling Attorney General Rob McKenna a chicken for failing to show up for a hearing before his committee Tuesday. But it became clear Kline had inside dope on a high-profile case and hoped to use it to embarrass McKenna. He planned to ask questions the AG is forbidden to answer. Makes you wonder — who leaked?

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, Dec. 7.—State Sen. Adam Kline was all ready for a fight, but the guest of honor didn’t show. And so the chairman of the Senate Judiciary Committee spent a large part of a hearing Tuesday morning calling out Attorney General Rob McKenna and doing everything short of calling him chicken.

            Kline, a Democrat, said he wanted to raise questions about the way McKenna, a Republican, is using his power in office. Not that Kline has any doubt about the answer. He said McKenna is as wrong as can be. He was set to give McKenna a grilling based on insider information on a high-profile case – questions McKenna couldn’t have answered for legal reasons, and which would have put Washington’s Number One lawyer in a tricky spot if he’d actually come. 
            By raising those issues anyway during the hearing, Kline also inadvertently appeared to reveal that he has an insider source feeding him confidential legal information from the Department of Natural Resources.

            Republicans are mighty suspicious about the whole thing. They say there might possibly, somehow conceivably, however distantly, be a political motive in there somewhere.

            “You’re a Democrat and he’s a Republican,” said state Sen. Bob McCaslin, R-Spokane Valley, “I suspect, but I’m not sure – I can’t read your mind – but I suspect there is a political motivation in this towards Mr. McKenna.”

            Certainly not, said Kline. “I believe that if he were an attorney general of my own party I would still raise these questions.”

            It went without saying during the hearing, but McKenna is widely viewed as a strong candidate for governor in 2012 – perhaps the strongest Republican candidate in 30 years. McKenna has earned high marks from most observers during his six years in office, winning all three of the cases he has argued before the U.S. Supreme Court, and stirring little controversy until this point. As the election nears Democrats have been looking for a chink in his armor. They think they’ve found it with a pair of high-profile cases they say prove McKenna is misusing his position.

            McCaslin said the whole thing seems a bit overblown. If Kline has a beef with McKenna, maybe he ought to sit down with the guy and hash things out. “Do you want me to get his phone number so you can call him?” he asked.

            Dems Make AG Power an Issue

            Democrats have been hammering the attorney general for months, ever since McKenna signed onto a lawsuit in the state of Florida that challenges the federal health care reform legislation passed this year by a Democratic president and a Democratic Congress. Every other independently elected Republican attorney general in the country has done the same thing, and so have a handful of Republican governors in states where the top legal officials are Democrats. But Democrats in this state say there’s something singular about what happened here, and they contend that McKenna abused his authority.

            No state officials asked him to join the lawsuit. That’s why the Democrats say he stepped over the line. But if anyone has the standing to ask him to do something, it’s Gov. Christine Gregoire. She’s a Democrat, and she’s not about to do that. McKenna says the state constitution gives him the power to sue on his own.

            In the other case, McKenna refused to pursue an appeal for the Democratic state commissioner of public lands, in a case involving a power line in Okanogan County. An appeal isn’t in the best interests of the state, McKenna maintains, and he’s the one who gets to decide.

            A pair of lawsuits have been filed against McKenna in the two matters. The state Supreme Court heard arguments Nov. 18 and has yet to make a decision.

            But Kline says the Legislature might want to short-circuit the court. He’s considering legislation to rein McKenna in. At the very least he said the issue needs to debated at length before the Legislature so that the entire state can hear about it.

            Being Totally Objective

            Kline said he is being totally objective about the matter. “I think these are legitimate questions that all of us as legislators need to be asking, regardless of the attorney general’s party and regardless of our own,” he said.

            The argument hinges on this – the state constitution, written in 1889, is actually pretty sketchy about the attorney general’s powers. It says, “the attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.”

            That doesn’t tell us much. So we have to turn to the law that outlines the duties of the attorney general. It says, among other things, that the attorney general shall “appear for and represent the state before the supreme court or the court of appeals in all cases in which the state is interested.”

            What the law doesn’t say is who gets to decide. McKenna says he gets to, because he is an independently elected officer. He’s not a hired gun who has to do a client’s bidding. If he was, the constitution would have made the attorney general an appointee of the governor.

            Rest of it is Hair-Splitting

From there it’s all a matter of legal hair-splitting and arguments about the nuances of statutes and case law. That’s what the Supreme Court is wrestling with right now.

But whatever the court decides, Kline said he knows he’s right. There’s a law on the books that gives the attorney general the power to pursue consumer-protection cases all by himself. That law wouldn’t be necessary if McKenna had power of his own, Kline said. So he must not have power unless the law spells it out.

Puckish Republicans say the lawsuit against Obamacare could be considered a matter of consumer protection, and McKenna ought to be able to dispense with the argument on those grounds alone.

Somehow the legal merits don’t seem to be the only issue.

            Calls McKenna Out

Five times during the course of Tuesday’s hearing Kline declared how “deeply disappointed” he was that McKenna didn’t show up to defend himself. At one point he asked if there was anyone in the room from the attorney general’s office, and he dared them to speak up in McKenna’s behalf. But no one was there.

“There are three empty chairs here and I believe that one of them should be filled by our attorney general,” he said.

Kline said McKenna is using his elected position to make a political statement, and that’s just plain wrong. “I don’t think I’m the only citizen in the state who, when voting for attorney general, did not think deeply about one candidate or another’s policy credentials, where he is on health care. That is not a decision I reached. I don’t think most voters did. We want a lawyer, not a policy maker.”

            Has Inside Dope From Somewhere

It also seemed clear that Kline planned to put McKenna in an uncomfortable position, by asking questions McKenna cannot answer without breaching legal standards of ethics. Kline made two charges that have not appeared in the public record about the Okanogan County power line case, suggesting very strongly that he obtained confidential information from someone on the other side of the issue.

In that case, the Okanogan County Public Utility District has filed a lawsuit to condemn state land for a power line in the Methow Valley. Green groups have been battling the power line for years, as a way of keeping development out of the area. They lost every court battle and the Department of Natural Resources was poised to approve the line – until Democrat Peter Goldmark was elected in 2008 and put his foot down. The frustrated PUD sued for eminent domain, and the Department of Natural Resources battled in court, with the help of an assistant attorney general assigned to it.

DNR lost, and McKenna, who has final say on appeals, declined to take the case any further. An appeals-court precedent could be damaging to other state agencies, McKenna argues. While his office declines to state which other cases might be affected, a successful appeal by Goldmark could, among other things, allow green groups to block a controversial expansion of the 520 bridge on Lake Washington.

Kline insisted during Tuesday’s hearing that the assistant attorney general assigned to the agency had recommended an appeal. That does not weaken McKenna’s argument, because all requests for appeals are kicked to a higher level within his office and vetted by a senior review panel. But the statement is curious because it has appeared nowhere in the public record. The attorney general’s office refuses to confirm it, because it is a matter of attorney-client privilege. So who leaked?

            Claims McKenna Failed to Recognize Conflict of Interest

Kline also claimed that the Department of Natural Resources legal brief argued that a different route ought to be used for the power line. That route is along a state highway, he said, and would require the use of a highway right-of-way. That creates a conflict of interest between the Department of Transportation and the Department of Natural Resources, he said.

 “It’s been suggested that the outcome that DNR wanted, that you have to use the highway in this case, was opposed by the Department of Transportation,” he said.

Kline said that again raises questions about McKenna’s conduct. He said McKenna should have set up separate legal departments representing the two agencies, with a “Chinese wall” in between them. “Did he disclose the conflict to each client as any lawyer is required to do under the rules of professional conduct?” Kline asked.

The curious thing about Kline’s argument is that there is no evidence of a conflict in the public record. DNR’s legal brief never mentioned an alternate route. A source close to the Okanogan County P.U.D. says that the highway route was one of three that was considered for the power line several years ago. But the utility rejected the idea quickly, because it faced heavy opposition from green groups and was opposed by the Department of Natural Resources itself, before Goldmark came aboard. The route crossed the Methow River 17 times and posed major permitting problems.
            It is possible that the issue was discussed as a matter of legal strategy within the Goldmark administration. Another leak to Kline?

            Why McKenna Didn’t Show

McKenna actually has stated his position dozens of times, in a general way, over the last few months, in television and radio interviews and in various public forums. But when you consider the kind of grilling Kline was planning it made sense for McKenna to keep away, said spokesman Dan Sytman.

“He can’t go into things like this,” Sytman said. “These are matters of attorney-client privilege.”

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