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News & ArtsThursday, February 9, 2012
2012 / Olympia Rob McKenna, Crappy Lawyer
Posted by Goldy on Thu, Feb 9, 2012 at 3:10 PM
Back in September, when Rob McKenna asked the Washington State Supreme Court to reconsider its 7-2 decision against him in Goldmark v. McKenna, I called our state attorney general a "poor loser" who "doesn't stand a snowball's chance in hell" of winning his appeal.
Yesterday the court denied his motion for reconsideration.
This whole kerfuffle has been baffling from the start, with McKenna seemingly determined to stake his reputation as a lawyer on a case he could not possibly win. Whatever the merits of the underlying case (a dispute over whether a PUD can use eminent domain to take state trust lands), McKenna's claim that the attorney general has discretion to unilaterally deny state officers and agencies access to the courts, is totally indefensible.
Such discretion would essentially allow the AG to set policy for other state officers, a 7-2 majority of justices recognized, a danger that "should be obvious in a partisan political system such as ours."
It didn't take a legal scholar to see that McKenna was on the wrong side of the law. But then, nobody ever said our attorney general was much of a lawyer.
2
Cue the unregistered "lawyer" who tells Goldy that only attorneys can possibly know anything about the law.
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This has been comical since the beginning. However, how many years has it been since this all started? Having this whole issue bogged down in the courts only serves McKenna's purpose of hamstringing Goldmark. That's dirty politics.
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What about Goldmark's purpose of hamstringing Okanogan PUD? Goldy, fair is fair. Let's see that brilliant legal analysis of yours applied the same way to Commissioner Goldmark's arguments in the underlying case. Either the good Commissioner is wrong and you look more balanced or you get call McKenna out for publicly assailing Goldmark's case on the merits as justification for denying the Commissioner legal counsel for the the appeal.
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OK, N in Seattle, here's the unregistered non-lawyer's reply: You always do a motion for reconsideration. It doesn't mean you think they're actually going to change their minds. You're simply pursuing the case as far as you can. It doesn't matter that -- in this case -- McKenna was wrong to begin with and is a jerk. He was and he is.
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@3, it hasn't hurt DNR's appeal - they got other lawyers. DNR's saying it's wrong for the AG to have forced them to.
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@3 and @7, good bet that Commissioner Goldmark didn't mind another 18 months of delay for the PUD's project on top of winning against McKenna either.
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A PUD does not a good steward of public lands make, TTT. The distinction here is compelling government interest of which McKenna doesn't openly refute or accept. He simply went against, and refused to defend, the decision of an elected public official. This puts your argument very short on substance.
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@7, that doesn't change the duty McKenna had to the DNR office. The AG office is NOT an independent entity that can refuse or accept defense of any particular department. Or so the story goes. I can't remember if Goldy addressed that and I'll admit that I know of no precedent in decided state court decisions. It may be that we are treading new ground? But the state constitution does appear to address this although it seems under the assumption that defending state interests it would be paramount. It makes me wonder why the AG is an elected office in the first place if the AG can exercise partisanship over state interests. Go figure!
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Bean, I'm not re-arguing the case on McKenna's duty to Goldmark (although the lack of merit in the underlying case and how that affects the attorney-client relationship should have been examined by the Supreme Court). Goldy has been beating on McKenna for bad legal argument, being overtly political in his decision making, waste of public dollars, being a sore loser, etc. I'm just looking for that same analysis and standard to be applied to Goldmark's legal arguments and his decision to incur public cost on both sides of the underlying case by filing the appeal.
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Actually, let me correct myself somewhat. McKenna very publicly rejected Goldmark's legal position, calling the arguments on appeal "meritless." http://www.kuow.org/program.php?id=20598
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ttt I don't really understand what you are trying to say?
you think that PUDs should be allowed to condemn public trust lands for the (private) benefit of PUD members? or are you saying that mckenna should only defend state elected officials when he agrees with them?
obviously, the SCOW didn't agree with Mckenna's hack-ish contention that the appeal was meritless.
you think that PUDs should be allowed to condemn public trust lands for the (private) benefit of PUD members? or are you saying that mckenna should only defend state elected officials when he agrees with them?
obviously, the SCOW didn't agree with Mckenna's hack-ish contention that the appeal was meritless.
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@14, A PUD is a public utility district, a type of municipal entity that provides certain kinds of utility services to an area (in this case electric). Not exactly sure where you get "private" benefit as the PUD serves the public. Whether the PUD SHOULD be allowed to condemn trust lands is not the question; the question is only whether the PUD IS allowed to condemn an easement over trust lands.
As for Mckenna, Espato, you "obviously" didn't read the Supreme Court's decision. They did not address the merits of the underlying case or the implications of their decision on the attorney-client relationship and an attorney's ethical obligations. Check out Justice Stephens' dissent. But again, I'm not looking to get back into whether McKenna had a duty to Goldmark or not; that ship has sailed.
The question I would like Goldy to evaluate now is whether Goldmark's arguments on the real case in question have actual merit.
As for Mckenna, Espato, you "obviously" didn't read the Supreme Court's decision. They did not address the merits of the underlying case or the implications of their decision on the attorney-client relationship and an attorney's ethical obligations. Check out Justice Stephens' dissent. But again, I'm not looking to get back into whether McKenna had a duty to Goldmark or not; that ship has sailed.
The question I would like Goldy to evaluate now is whether Goldmark's arguments on the real case in question have actual merit.
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Why would you want Goldy's legal "analysis" on anything? He's one of the loudest, brassiest, most confident know-nothings there is on the topic.
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@17, I want to see if Goldy is willing to apply his standard to all elected public officials. He calls McKenna a sore loser for filing a motion for reconsideration with the odds stacked against him and generally rails against McKenna for acting like a partisan hack rather than doing his duty as an elected official. Does Goldmark have similar odds stacked against him in his appeal, and if he does, what do we call him?
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@18:
It's not whether you win or lose ... it's how you play the game. (h/t Grantland Rice)
The point here isn't the PUD case's outcome, or even its merits. It's about the responsibilities of the Attorney General of Washington (any AG). Can the AG choose not to undertake litigation sought by the state?
In Goldy's estimation, in the plain language of the constitution, and in the Supreme Court of Washington's considered opinion, the AG does not have the right to pick and choose which legal actions to carry out. He/she can certainly advise a state official that pursuing a case or an appeal is likely to fail, citing legal precedents and the perceived strengths and weaknesses of such actions. But if the state official chooses to continue with the case, the AG is compelled to represent that official.
Simply put, saying "no, I won't pursue the case" is not a permissible choice of actions for the AG.
It's not whether you win or lose ... it's how you play the game. (h/t Grantland Rice)
The point here isn't the PUD case's outcome, or even its merits. It's about the responsibilities of the Attorney General of Washington (any AG). Can the AG choose not to undertake litigation sought by the state?
In Goldy's estimation, in the plain language of the constitution, and in the Supreme Court of Washington's considered opinion, the AG does not have the right to pick and choose which legal actions to carry out. He/she can certainly advise a state official that pursuing a case or an appeal is likely to fail, citing legal precedents and the perceived strengths and weaknesses of such actions. But if the state official chooses to continue with the case, the AG is compelled to represent that official.
Simply put, saying "no, I won't pursue the case" is not a permissible choice of actions for the AG.
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@19, you miss my point. First, I'm no McKenna fan or apologist. I just think we should hold all of our state officials to the same scrutiny.
McKenna was excoriated for making bad legal argument and for the waste of public resources that came with it. We now know that Commissiner Goldmark is entitled to legal counsel in his appeal of the trial court's decision. But the decision to appeal is still a policy choice that has a significant cost to the public. The State is constantly involved in lawsuits and frequently loses, but doesn't appeal every case. Why can't we have a conversation about the choice to expend resources on an appeal, particularly an evaluation of the legal merits, to hold Goldmark's decision up to the same scrutiny McKenna has received?
McKenna was excoriated for making bad legal argument and for the waste of public resources that came with it. We now know that Commissiner Goldmark is entitled to legal counsel in his appeal of the trial court's decision. But the decision to appeal is still a policy choice that has a significant cost to the public. The State is constantly involved in lawsuits and frequently loses, but doesn't appeal every case. Why can't we have a conversation about the choice to expend resources on an appeal, particularly an evaluation of the legal merits, to hold Goldmark's decision up to the same scrutiny McKenna has received?
22
This, and related points of legal practice in the public interest, are critical - thanks for the continuing (accurate) coverage!
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