Bobby Mac at bat

Tuesday, June 29, 2010

BOBBY MAC AT BAT: Attorney General Rob McKenna scored an important victory last week for the state’s open government laws.

The United States Supreme Court agreed with AG McKenna and Secretary of State Sam Reed, who argued in April that the names of people who signed petitions in an attempt to overturn a new gay rights law in Washington may be made public. In an 8-1 ruling, with Justice Clarence Thomas dissenting, the court dismissed claims by foes of the law that disclosing their names would violate their First Amendment rights of expression.

Protect Marriage Washington asked justices to shield the names of the 138,000 people who signed R-71 petitions in hopes of overturning the “everything but marriage” same-sex domestic partner law. In November Washington voters upheld the new statute. The group claims fears of harassment or threats if the names are revealed.

The justices were unpersuaded.

“I doubt whether signing a petition that has the effect of suspending a law fits within ‘the freedom of speech’ at all,” Justice Antonin Scalia frowned. Scalia went on to detail the history of public voting in America, which did not switch to a secret ballot until 1880. Even then, he notes, “new paper ballots did not make voting anonymous.”

Western Washington University political scientist Todd Donovan, who helped prepare a brief in support of the state’s defense of open records law, was unable to verify “a single individual who claimed to have been harassed or intimidated as a result of such disclosure of his or her signature.” The Protect Marriage petitioners were themselves unable to cite evidence of this ever happening, a lack of grounds that displeased the SCOTUS majority.

“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” Scalia cautioned. “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously… and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Justices did note that the petitioners may return to a lower court to try to get a specific exemption on specific grounds. The group—which has lost every step along the way and now finds itself quibbling at the extreme outlands of their original concerns—indicated they would.

“We’re pleased,” McKenna concluded, “the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government—and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.”

The decision marks the third time McKenna has argued before the nation’s high court, and the third time he’s been successful.

The AG—once considered moderate by many—may soon find himself again in front of that court, this time in the company of the top law dogs of more than a dozen states challenging the Affordable Care Act passed by Congress earlier this year.

In March, McKenna joined other states in alleging the new national health-care law “infringes upon the constitutional rights of individuals by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty.” The number of conservative attorneys general officially engaged in the suit has risen to 16; only four, however, are Republican AGs representing their states over the objections of their Democratic governors. Washington—with a strong majority of Democrats also in the legislature—is an especially rare case.

Fighting against what she believes is a politically motivated attack against a representative majority, Chris Gergoire last week joined the governors of Pennsylvania, Colorado, and Michigan in requesting permission from a federal court to file briefs in support of the Obama administration’s motion to dismiss the lawsuit. The four governors argued they should be allowed to weigh in, to let the court know how the health-care law would benefit their states.

A federal judge promptly denied the request of these governors, finding their input isn’t appropriate at this stage. The judge did allow that the governors “might have positions and arguments that may be helpful to the court” if the case proceeds toward a trial—a drama highly prized by McKenna:

“The requirement that every individual obtain qualified health care coverage or pay a penalty is an unprecedented expansion of the federal government’s powers that deserves scrutiny by our courts,” the AG declared defiantly in response to the governors’ challenge.

The AG—who’s made no secret of his desire to claim the governor’s mansion in 2012—has irked another Democrat CEO with his expansive interpretations of the powers of the attorney general’s office, this one Public Lands Commissioner Peter Goldmark.

As we detailed last week, McKenna refused to appoint an attorney in his office at the request of Goldmark, who needs representation to defend state lands against an attempt to acquire those lands by a public utility district in the eastern portion of the state. Goldmark filed a complaint with the Washington State Supreme Court last week, asking the court to compel the AGO—the state’s official law firm—to represent the state Dept. of Natural Resources. Goldmark retained Seattle land use attorney David Bricklin, pro bono, to draft his petition.

“Apparently, the Attorney General believes he has the discretion to ignore the request of the Commissioner of Public Lands based on his view of what will serve the public interest,” Bricklin observed. But, Bricklin argues, “the Attorney General lacks the authority to make policy decisions to decide, unilaterally, what is in the ‘public interest.’”

Taken in their extreme, Bricklin’s arguments could call for McKenna to be censured, even disbarred, for his failure to abide by his profession’s rules of conduct, which require lawyers to support their clients’ decisions to settle a matter: A powerful gamble by a powerful operative seeking even more and greater power—the Bobby Mac Attack.