Proposed Methow Valley powerline sparks controversy

In separate rulings last week the Washington State Supreme Court attempted to clarify the role of the state’s attorney general.

Fresh from declaring his intention to run for governor in 2010, Rob McKenna attempted to expand his role and intrepretation of his powers as attorney general.

McKenna flexed his bona fides in 2010 by joining Republican AGs in other states to challenge the new federal Patient Protection and Affordable Care Act, arguing that its provisions were unconstitutional, forcing state residents to purchase medical insurance and overburdening state financial resources without due process. McKenna argued that he held a higher duty to protect the state’s interests than to abide by the wishes of the governor and Democratic legislature.

In City of Seattle v. McKenna, the justices unanimously rejected Seattle’s attempt to force McKenna to drop his participation in the lawsuit, finding the AG has sufficient authority to participate in the litigation.

“The people of the state of Washington have, by statute, vested the attorney general with broad authority, and Attorney General McKenna’s decision to sue to enjoin the enforcement of the (health care law) falls within that broad authority,” justices noted.

Their decision left open the possibility that the governor could step in to stop him, finding merit to the argument that her office holds superior authority when the two offices clash on state interests. Gregoire has said she will not expend resources to challenge McKenna.

In a second ruling that was practically a mirror of the first, Supreme Court justices ruled that as the state’s attorney, McKenna must represent elected state officials when requested to do so.

McKenna had refused to file an appeal on behalf of the Commissioner of Public Lands against the Okanogan Public Utility District’s attempt to wrest control of a swath of state-owned land in the Methow Valley for a new power line. McKenna said the case was weak and could expose the state in future condemnation efforts by junior taxing districts. He refused to appoint special counsel. Yet his decision stranded the commissioner without legal representation.

The proposed new power line—26 miles long by 100 feet wide—would cross 12 miles of DNR land and require construction and maintenance of 20 miles of new roads. Critics say the development would fragment wildlife habitat, degrade range lands, increase fire risk, erode soils and damage fisheries by cutting through the largest contiguous block of state-owned shrub-steppe habitat in the Methow Valley.

“This is an issue of first impression,” justices argued. “We have never been squarely presented with an instance of the attorney general refusing to represent a state officer on an appeal.” Yet, they noted, the statutory duty of the AG to do so is clear and unambiguous. Moreover, they found, statutes actively prohibit elected officials from hiring outside counsel.

“The Supreme Court ruled that Rob McKenna’s ‘duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation,’” Peter Goldmark 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.”

“Commissioner Goldmark is attempting to defend the state’s trust lands from harmful and poorly conceived development,” Dave Werntz explained. Werntz is the science and conservation director at Conservation Northwest. “We’re pleased that the commissioner will have his day in court.”

The AG was less sanguine about the 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 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.”

Others also noted the apparent inconsistency between two rulings issued on the same day. In her dissent in the Goldmark case, Justice Debra Stephens complained her colleagues were trying to have it both ways.

Reading the two cases together, she wrote, it is unclear why it is appropriate to force the attorney general to follow the commissioner’s wishes while elsewhere allowing him discretion to ignore the expressed wishes of the governor and legislature.

“While the attorney general’s role to provide legal counsel is mandated by statute,” she wrote, “it fundamentally involves discretion and legal judgment entrusted to an independently elected official. The statutory duty is for the attorney general to exercise discretion. This is no mere ministerial task,” Stephens argued.

Jason Mercier, an analyst with the Washington Policy Center, was also struck by the apparent incongruity of the decisions.

“So under these two rulings, is the Attorney General the independently elected attorney of the people, or merely the government’s attorney tasked with rubber-stamping his clients wishes?” Mercier asked. “If the first, independently electing the people’s attorney makes sense. If instead the Attorney General is nothing more than the government’s attorney, perhaps the office would be better suited as an appointed position.”

Paired, the rulings suggest the AG’s office has discretion in legal matters, but not absolute authority.

Any other reading, justices cautioned, “would instead deny the commissioner, and presumably every other public official, access to the courts based on nothing more than the elected attorney general’s judgment, with no recourse for the commissioner regardless of the merits, or importance, of the case. The dangers of such a course of action, absent an expression from either the legislature or voters that such action is intended, should be obvious in a partisan political system such as ours.”