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Supreme Court orders Rob McKenna to represent state lands commissioner

Post by Jordan Schrader / The News Tribune on Sep. 1, 2011 at 10:49 am |
September 1, 2011 10:55 am

Washington’s attorney general has the power to act on his own — but sometimes he has to act whether he wants to or not.

That seems to be the gist of two state Supreme Court decisions today. A unanimous decision finds that the attorney general has broad authority that allows him to join in the lawsuit against so-called Obamacare. But seven justices say he doesn’t have a choice in providing legal representation to state officials.

Republican Attorney General Rob McKenna must represent Democratic Lands Commission Peter Goldmark in a case involving the condemnation of state land, the justices decided.

Justice Charles Johnson writes that state law

expressly requires the attorney general to represent the commissioner in any court when so requested by the commissioner. This duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation. … If the attorney general could refuse to represent the commissioner, 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

Justice Debra Stephens and departing Justice Richard Sanders dissented, saying the opinion clashes with the one they issued in the health care case.

While the attorney general’s role to provide legal counsel is   mandated by statute, it fundamentally involves discretion and legal judgment entrusted to an independently elected official.

Specifically, state law says:

The attorney general shall also represent the state and all officials, departments, boards, commissions and agencies of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings

McKenna had argued that while the law compelled him to represent a state agency, it didn’t mean he has to fight every case as far as it could possibly go in court. He said he could consider other duties, such as what a ruling against the seizing of land might mean for other state agencies he represents.

(In Goldmark’s case, a judge ruled against the state saying that the Public Utility District No. 1 of Okanogan County can condemn state land in the Methow Valley to build a power line. Goldmark wants to appeal.)

Goldmark issued a statement calling it a “historic decision.”

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.

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