Article by Erik Smith. Published on Friday, September 02, 2011 EST.

One Ruling Affirms Independence of Attorney General – Another is a Threat to 520 Bridge Project

Attorney General Rob McKenna

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, Sept. 2.—Lawsuits for everyone, the state Supreme Court seemed to say Thursday as it affirmed Attorney General Rob McKenna’s right to join a national lawsuit against federal health care reform, but said he must represent Lands Commissioner Peter Goldmark in what the state’s top legal officer considers a dubious and dangerous environmental case.

            The pair of rulings appeared to settle a political argument that has raged for a year over McKenna’s power, and has given Democrats and political activists plenty of fodder as he launches a campaign for governor next year. They claimed he overstepped his bounds when he joined the state of Florida in the health care case. The city of Seattle took it a step further and sued. The court ruling Thursday said they’re wrong.

            Yet at the same time, the court’s ruling in the Goldmark case established that McKenna’s discretion isn’t absolute. In that case, the Department of Natural Resources hopes to prevent the Okanogan County Public Utility District from building a power line across public land. The argument is on skaky legal ground, McKenna maintains, and if Goldmark were to win at the appeals level, it could set a dangerous precedent that would harm other state agencies. One possible outcome: The city of Seattle might gain the power to block the state’s plans for a new Highway 520 bridge across Lake Washington.

            The two rulings, taken together, offer a sharp definition of how Washington’s top attorney is supposed to defend the state’s legal interests. They don’t turn the world on its head or establish a groundbreaking legal precedent. But the real significance no doubt will be in the political arena, where McKenna’s political opponents have been using the cases to argue that he has gone too far.

            A Slap to Seattle

            McKenna’s decision to join the health care case triggered a storm of protest last year from Democrats and activist groups. They said McKenna was pandering to far-right tea-party interests – a charge that seems a bit overblown, given that every state in the country with a Republican governor or an independently elected attorney general joined the case as well, 26 of them in all. The suit challenges the “individual mandate” in the federal health care law that requires every citizen to purchase health insurance from private companies. That case is now making its way through federal court and ultimately will be decided at the Supreme Court level.

            In this state, Democrats denounced McKenna, activists staged demonstrations, and the city of Seattle, where Democratic interests dominate local politics, took McKenna to court. The lawsuit, filed by Seattle city attorney Pete Holmes, maintained that McKenna had no right to join the case unless he was representing a state agency or the governor’s office. McKenna maintained that as an independently elected official, he’s not an ordinary lawyer – and he has the right to decide things for himself.

            In its 9-0 ruling, the Supreme Court said there was no question about that. It said the constitution doesn’t give the attorney general the right to initiate lawsuits, but state law does. One passage declares: “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.” That language might not spell it out directly, but the court said clear legal precedents establish that the attorney general has the right to decide whether an issue is a matter of public concern.

            The federal health care reform law “is unquestionably a matter of public concern in which the state has an interest,” the court said. It added that the governor might have the ability to block a lawsuit filed by the attorney general. But in this case, Gov. Christine Gregoire has not chosen to do so – and in fact, when Gregoire was attorney general, she was a staunch defender of the office’s independence herself.

            The ruling concludes, “The people of the state of Washington have, by statute, vested the attorney general with broad authority, and Attorney General McKenna’s decision to enjoin the enforcement of the [federal health care reform act] falls within that broad authority.”

            Goldmark Another Matter

            The Goldmark case posed the same question in a different way. Does the attorney general have the discretion to block a lawsuit from the lands commissioner when he thinks there is good reason to do so? On that one, the court said no. But the decision may not set a precedent for other state agencies, and may apply only to the Department of Natural Resources.

            In that case, Goldmark has been battling a plan by the Okanogan County Public Utility District to build a power line to the Methow Valley across public lands controlled by his agency. It is a major battle in north-central Washington, where environmental groups hope to use spotty and unreliable power supplies to prevent development in the area. Goldmark’s predecessor, Republican Doug Sutherland, favored the power line, but Democrat Goldmark, elected with strong support from green-group backers, overturned years of planning when he took office in 2009. The frustrated public utility district sued in court to take the land under eminent domain.

            State law specifically gives public utility districts that power. But the law also says McKenna’s office must represent the lands commissioner when he asks – a particular statute that doesn’t extend to other state agencies. McKenna’s office maintains that it fulfilled the duty last year, when it represented Goldmark in Superior Court and lost.

            Not so fast, the court said. The law says that only the attorney general can represent the lands commissioner. And if you look at it that way, that would give the attorney general has yea or nay power over the policies of another independently elected official.

That’s not right, the court decided in its 7-2 ruling. “If the attorney general could refuse to represent the commissioner, then the commissioner could be left without any legal representation whatsoever,” the court said. “Such refusal would place agency policy-making decisions with the attorney general, rather than the elected official, board or administrator who has been delegated that duty. Such intent cannot be found in the relevant statutes. Instead, it appears that the commissioner has the choice of one attorney to represent him, and that is the attorney general. The attorney general, however, has no choice, but has a statutory duty to represent his client, the commissioner.”

            A Dangerous Case

            McKenna said Thursday there’s a reason the attorney general is an independently elected official – someone has to decide whether litigation is in the state’s best interest. In the health care case, the court agreed. “We’re obviously very gratified with the 9-0 decision upholding my authority to defend the Constitution, and that is obviously a good result,” he said.

            But the Goldmark case is rather different, he says. Clearly that one isn’t in the state’s best interest. The legal point is questionable in the first place, he said – state law is clear about public utility district condemnation authority. So the way to win the case is to make a sweeping argument that one public agency can’t condemn land owned by another. If an appeals court upholds it, he warns it would set a dangerous precedent. For instance, the Department of Transportation routinely faces opposition when it takes land for road projects. A Goldmark victory could mean big trouble for the state as a whole.

            “That is one of the concerns we have here, and that is why the constitution of the state confines responsibility for legal matters to a single officer, as opposed to having all these agencies running around looking after their own relatively narrow parochial interests,” McKenna said. “And so what you do is you look at all the state agencies that have eminent domain authority, and among the larger of those is the Department of Transportation.”

            Although McKenna did not comment on any specific road-construction projects, a Goldmark victory could have great bearing on the state’s plans to build a new Highway 520 bridge across Lake Washington. The city of Seattle has been raising opposition to plans for additional traffic lanes, but the city doesn’t have the ability to block the project in a direct fashion. Yet the project will have to cross city-owned land at its western terminus. If Goldmark wins the power-line case at the appeals-court level, the precedent could give the city the upper hand.

            Independent Attorney Will be Appointed

            McKenna said his office will appoint an independent attorney to represent Goldmark in the power-line case as it heads to the Court of Appeals.

            Goldmark, meanwhile, called the decision a major victory. The crux of his argument is that the value of public lands would be diminished if the power line is built – a curious point, considering that the land in question is leased for grazing purposes, the utility’s power-line easement would allow grazing to continue, and no further development is contemplated. The P.U.D. would compensate the state for any trees that are removed along the route. None of the agency’s briefs cite a specific economic or environmental harm. But in a statement released Thursday, Goldmark said the court demonstrated McKenna can’t reject his argument. “I applaud the Supreme Court for striking down what would be a dangerous precedent by the attorney general to dictate policy for another statewide elected official,” he said.

            “As commissioner of public lands, I have an obligation to manage the state’s trust lands sustainably for future generations, and I will continue to fight for what I know is right. Thankfully, the Supreme Court has agreed with me. It is essential that the Office of the Commissioner of Public Lands has the ability to carry out its responsibility to the trusts, and not having counsel leaves the common-school trust defenseless. The schools supported by the trust and the citizens of Washington are the big winners today.”

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