At yesterday’s press conference, I brought to light the conference phone call that legislators and staffers had with Noah Purcell, the Solicitor General, in which he told legislators very directly that Rep. Goodman’s goofy 4th option was “too cute by half” and that the “AG opinion is still good advice.” The AG’s office confirmed that yesterday.
This is really significant. When legislators have a goofy idea, like manufacturing a constitutional option that doesn’t exist, they’re supposed to ask the Attorney General’s opinion and it is presumed they should follow it. That didn’t happen.
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This behind-the-scenes maneuvering was first reported last Friday, the day after the session, by Sen. Mike Padden on John Carlson’s radio show 570 KVI.
Sen. Padden: “So Rep. Goodman came up with an idea of adopting the initiative, which is very scary, and then trying to amend it in the same session but having a delayed date to try to get around the Constitution. There’s an Attorney General opinion back in the era when Slade Gorton was our AG that clearly says that this is not correct. And I was in a conference call with the current Solicitor General Noah Purcell and he said, in effect, that that AGO opinion is still good advice. … We’re in unchartered territory, it’s very scary, our best legal advice is that this isn’t going to work. It’s not going to be upheld.” …
John Carlson: “You’ve heard the expression too cute by half?”
Sen. Padden: “Right, that’s exactly what Noah Purcell said in the conference.”
John Carlson: “He did?”
Sen. Padden: “Yes, those exact words.”
Listen to it here (starts at 23:43 and ends at 30:43): http://kvi.com/podcast/carlsoncast-march9-7am-hour
So here they were in a conference call, and it’s Roger Goodman, Jamie Pedersen, Dave Hayes, Mike Padden, Jackson Maynard, and many others and Rep. Goodman floats his goofy idea, and the AG says no you can’t do that. And Goodman respond: no, you don’t understand, we’re going to delay it for 91 days so that’ll work won’t it? And the answer is “the AGO opinion is still good advice.” And Goodman persists, saying “you still don’t get it, this will work.” And Noah responds “it’s too cute by half.” And despite the AG’s advice, they pursue their legislative hopscotch anyway, hoping no one challenges.
Really? This is what passes for due diligence and fealty to their oath to uphold the Constitution? We want to do it, Constitution-be-damned.
Ridiculous
As for the AG’s office confirming they advised Goodman that his goofy idea was unconstitutional, from the Associated Press: “In an email, spokeswoman Brionna Aho said the office would not discuss its analysis of whether it was constitutional.” As the late Ben Bradlee of the Washington Post would so astutely observe: “That is a non-denial denial.” (https://en.wikipedia.org/wiki/Non-denial_denial).
It’s a total confirmation and validation of the conference call.
There were lots of news stories about this in the last 12 hours. The KIRO TV new story I thought did the best job: http://www.kiro7.com/video?videoId=715009047&videoVersion=1.0
My favorite part of the story was at the end where KIRO reporter Essex Porter said:
“Now at his news conference today, Tim Eyman said that a top lawyer, he was told, from the Attorney General’s office spoke to lawmakers and told them not to proceed with the plan as passed. Now the AG’s office, we checked with them, and a spokeswoman said that the office does not comment on the advice given to clients.” Another non-denial denial.
And it’s really important to note that when it comes to that conference call, there is no attorney-client privilege anymore. In this case, one of those clients, Sen. Padden, has very publicly disclosed the substance, words, and phrases used by their attorney, Noah Purcell. When is attorney-client privilege waived? “The privilege may be waived if the confidential communications are disclosed to third parties.” (https://en.wikipedia.org/wiki/Attorney%E2%80%93client_privilege, “When the privilege may not apply”, third one down). At this point, there’s no reason why Rep. Goodman, Sen. Pedersen, and other participants can’t be asked to respond to questions about that conference call. Those “confidential communications” are no longer covered under attorney-client privilege.
The AG’s advice was to not proceed. The AG’s advice was that it was unconstitutional. The AG’s advice was that it was “too cute by half.”
This is not a close call. When then King County Councilmember Bob Ferguson saw the King County Council changing a qualified initiative before the voters had the chance to vote on it in 2004 he opined: “I think we’re swimming in shark-infested waters. I would advise against it.” (Source: The Seattle Times, July 20, 2004, Reporter: Keith Ervin)”
The Council ignored him last time and got sued and lost. Here, the Legislature has again ignored the AG’s advice, and got sued again.
Here is a link to the Complaint: https://www.documentcloud.org/documents/4406900-Eyman-Lawsuit-I-940.html
It’s also worth noting that Eyman v Wyman simply follows in the footsteps of this Olympian editorial: http://www.theolympian.com/opinion/editorials/article204020019.html#storylink=cpy
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