That, in essence, was the opinion of the state Supreme Court which recently handed McKenna a 7-2 defeat.
In the case, justices ruled that McKenna must represent state Lands Commissioner Peter Goldmark, an elected Democrat, in his appeal of a case involving the condemnation of state land. Among other duties, McKenna is the lawyer for state agencies.
“If the attorney general could refuse to represent the commissioner,” Justice Charles Johnson wrote, “then the commissioner could be left without any legal representation whatsoever. 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.”
In a separate opinion issued the same day, justices essentially said that the attorney general doesn’t need a client to get involved in a case, but when he does have clients – in this case Lands Commissioner Goldmark – McKenna’s office cannot shirk its responsibility to represent that client.
In the Goldmark case, the justices said they had never before been confronted with an attorney general’s refusal to defend a state official.
Clients don’t usually disagree when his office tells them they can’t win and ought to throw in the towel, McKenna said: “I can’t think of a single instance where this has happened.”
The Attorney General’s Office represented Goldmark in a lawsuit filed by the Public Utility District No. 1 of Okanogan County seeking to condemn an easement to install and maintain a power line through public and private lands in the Methow Valley.
The PUD won at the lower court level, but Goldmark wanted to appeal. McKenna’s office denied the request – angering Goldmark and forcing the Supreme Court showdown.
Goldmark praised the high court’s 7-2 decision. “In today’s historic decision the Supreme Court ruled that Rob McKenna’s duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation,” Goldmark said. “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.
“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.”
McKenna tried to put the best possible spin on the adverse ruling.
“It’s important to note that disagreements between the Attorney General’s Office and its clients over legal strategy are exceedingly rare and that the court today relied on a specific statute governing the commissioner’s authority to direct legal action,” McKenna said. “We continue to study this decision and are concerned about the apparent inconsistencies between prior Supreme Court precedent and today’s ruling in City of Seattle, rulings which recognize the Attorney General has broad discretion to direct legal action in the best interest of the state as a whole.”
Now McKenna’s office plans to appoint a lawyer from outside the agency to represent Goldmark in the PUD case – a move likely aimed at making sure the lawyer isn’t influenced by the attorney general’s conclusions about the case.
The 7-2 decision is sound. As the state’s attorney, McKenna has an obligation to represent his clients, even if he thinks the case is on shaky ground. It’s not as if the PUD case was a frivolous lawsuit, which the attorney general could rightfully decline to pursue. This was a substantive issue that merited the full weight and authority of the attorney general’s representation.
