Goldmark v. Mckenna
| Decision Date | 01 September 2011 |
| Docket Number | No. 84704–5.,84704–5. |
| Citation | 172 Wash.2d 568,259 P.3d 1095 |
| Parties | Peter GOLDMARK, as Chief Executive Officer of the Department of Natural Resources and Commissioner of Public Lands, Petitioner,v.Robert M. McKENNA, Attorney General, Respondent. |
| Court | Washington Supreme Court |
OPINION TEXT STARTS HERE
David Alan Bricklin, Bricklin & Newman, LLP, Seattle, WA, for Petitioner.Robert M. McKenna, Attorney General's Office, Alan D. Copsey, Office of the Attorney General, Maureen A. Hart, Attorney at Law, Olympia, WA, for Respondent.
Michael D. Howe, Attorney at Law, Omak, WA, P. Stephen Dijulio, Adrian Urquhart Winder, Michael S. Schechter, Foster Pepper PLLC, Seattle, WA, for amicus counsel for Public Utility District No. 1 of.C. JOHNSON, J.
[172 Wash.2d 570] ¶ 1 In this original action brought in this court, Commissioner of Public Lands Peter Goldmark seeks a writ of mandamus to compel Attorney General Robert McKenna to pursue an appeal from a trial court decision in a condemnation action. Although McKenna provided representation at the trial court, he refused to pursue the appeal based on his evaluation of the merits of the case.
¶ 2 The attorney general is a constitutionally recognized office that acts as the attorney for state officers and performs other duties “prescribed by law.” Const. art. III, § 21. The legislature has delineated what those other duties are, and RCW 43.12.075 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. We therefore grant the writ.
FACTS AND PROCEDURAL HISTORY
¶ 3 In the underlying lawsuit, Public Utility District No. 1 of Okanogan County (the PUD) filed an action seeking to condemn an easement for installation and maintenance of a power line over both public and private lands. The petition named the State of Washington and Peter Goldmark, Commissioner of Public Lands, among others, as respondents. As commissioner, Goldmark manages the Washington State Department of Natural Resources. Part of the property at issue is state common and normal school land held in trust and administered by Commissioner Goldmark. Agreed Statement of Facts (ASF) at 2.
¶ 4 The commissioner conceded public use and necessity, but moved for summary judgment, arguing the PUD had no authority to condemn the lands at issue. The state's motion was denied, and summary judgment was granted for the PUD. ASF at 3, Attach. 4. Additionally, the superior court entered findings of fact, conclusions of law, and an order on public necessity, concluding the PUD has the requisite statutory condemnation authority. ASF, Attach. 6. The commissioner wished to appeal, which he discussed with his general counsel, an assistant attorney general. Then the commissioner and the attorney general exchanged correspondence and met on at least one occasion, but the attorney general refused to file the appeal for the commissioner. ASF at 5. The attorney general also refused to appoint a special assistant attorney general (SAAG) to pursue the appeal for the commissioner. ASF at 6.
¶ 5 The commissioner contacted his present counsel and sought advice and representation. Counsel agreed to the representation and immediately informed the attorney general of his intent to bring this original action. Goldmark Decl. at 4. In the underlying case, the attorney general filed a contingent notice of appeal, which he indicates he intends to withdraw if he prevails here. That case has since been stayed pending our decision.1
ANALYSIS
¶ 6 Our state constitution directs that the attorney general “shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law.” Const. art. III, § 21. Those additional duties are statutorily prescribed. In this case, we need only focus on a handful of statutes, RCW 43.10.040, 43.12.075, and 43.10.067, to determine the attorney general has a statutory duty to provide the commissioner with legal representation. Those statutes are as follows:
43.10.040. Representation of boards, commissions and agencies. 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, and advise all officials, departments, boards, commissions, or agencies of the state in all matters involving legal or quasi legal questions, except those declared by law to be the duty of the prosecuting attorney of any county.
43.12.075. Duty of attorney general—Commissioner may represent state. It shall be the duty of the attorney general, to institute, or defend, any action or proceeding to which the state, or the commissioner or the board, is or may be a party, or in which the interests of the state are involved, in any court of this state, or any other state, or of the United States, or in any department of the United States, or before any board or tribunal, when requested so to do by the commissioner, or the board, or upon the attorney general's own initiative.
43.10.067. Employment of attorneys by others restricted. No officer, director, administrative agency, board, or commission of the state, other than the attorney general, shall employ, appoint or retain in employment any attorney for any administrative body, department, commission, agency, or tribunal or any other person to act as attorney in any legal or quasi legal capacity in the exercise of any of the powers or performance of any of the duties specified by law to be performed by the attorney general, except where it is provided by law to be the duty of the judge of any court or the prosecuting attorney of any county to employ or appoint such persons.
(emphasis added).
¶ 7 This is an issue of first impression. We have never been squarely presented with an instance of the attorney general refusing to represent a state officer on an appeal. The plain language of the statutes, however, leaves little to question. Under RCW 43.10.040 and 43.12.075, the attorney general has a statutory duty to represent the commissioner. The first section, RCW 43.10.040, states he “shall ... represent the state” and its agencies “in the courts, and ... in all legal ... proceedings.” More specifically, RCW 43.12.075 commands the attorney general to “institute, or defend, any action or proceeding ... when requested so to do by the commissioner.” No ambiguity can be found in either of these statutes, and the attorney general has not argued any. This directive requires the attorney general to provide legal representation to the commissioner.
¶ 8 Moreover, only the attorney general, or an SAAG appointed by the attorney general, may represent the commissioner in legal proceedings since RCW 43.10.067 prohibits the commissioner from hiring outside counsel. Because RCW 43.12.075 directs the attorney general to represent the commissioner pursuant to RCW 43.10.067, the commissioner may not “employ, appoint or retain ... any attorney ... to act as attorney in any legal or quasi legal capacity in the ... performance of any of the duties specified by law to be performed by the attorney general.” RCW 43.10.067. 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.2 Such intent cannot be found in the relevant statutes. Instead, it appears 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.
¶ 9 Alternatively, the attorney general argues, if the statute confers a mandatory duty, then he has satisfied that duty in the action at the trial court level. This argument is not persuasive. RCW 43.10.040 states the attorney general shall represent officials in “all legal or quasi legal matters, hearings, or proceedings.” Moreover, RCW 43.12.075 specifically states the attorney general shall represent the commissioner “in any court of this state, or any other state, or of the United States.” Rather than separate the various stages of litigation, we read these provisions as written: every phase of the litigation, whether trial court or appellate level, is an aspect of one proceeding, and therefore of one continuing duty.
¶ 10 The attorney general further argues that the clause “or upon the attorney general's own initiative” in RCW 43.12.075 gives him the discretion to affirmatively act over the commissioner's objection, and so must also give him the authority to decline representation, even where requested by the commissioner. We disagree. That statute states that “it shall be the duty of the attorney general, to institute, or defend, any action or proceeding,” and no other statute relieving the attorney general of this responsibility is cited. RCW 43.12.075. The commissioner, more reasonably, replies that this phrase, “upon the attorney general's own initiative,” applies only to those instances where neither he nor the Department of Natural Resources is made a party, but the interests of the state are involved. RCW 43.12.075. We agree with the commissioner's interpretation of the statute.
¶ 11 Finally, the attorney general contends this court has found discretion, despite the word “shall” in a statute, and he therefore has discretion to decide whether and how to respond to a request of representation by the commissioner. In each of the cases cited, however, the statutes at issue were found to confer discretionary authority precisely because each vested the “power...
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