Goldmark v. McKenna
172 Wash. 2d 568
Wash.2011Background
- PUD No. 1 sought to condemn easement for a power line over state and private lands; land included state common and normal school lands under Goldmark's administration.
- Commissioner conceded public use and necessity but challenged PUD's authority to condemn the lands.
- Superior Court granted summary judgment for PUD; found PUD had condemnation authority; commissioner sought appeal, but AG refused to file or appoint SAAG.
- AG provided trial court representation but declined appellate representation; matter ripe for mandamus to compel appeal.
- Petitioner seeks writ of mandamus; underlying case stayed pending decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AG has a mandatory duty to represent the commissioner on appeal | Goldmark: statutes require AG to represent the commissioner upon request. | McKenna: AG may have discretion in litigation decisions; no nondiscretionary duty to appeal. | Writ granted; AG must provide representation; no discretion to refuse. |
| Whether RCW 43.12.075 and related statutes create a nondiscretionary duty to pursue an appeal | Statutes direct representation in any court; covers appellate stage as part of proceeding. | Statutory language does not strip discretion in litigation strategy or whether to appeal. | Statutes create mandatory duty to represent throughout proceedings, including appeal. |
| Whether AG can refuse to represent when constitutional or ethical considerations apply | Public interest requires representation; refusal undermines statutory duty. | AG has ethical discretion within representation; may withhold if arguments are frivolous or conflict. | No, no authority to refuse under these statutes; mandatory duty to represent. |
| Whether mandamus can compel the AG to file an appeal when action is discretionary in other contexts | Mandamus appropriate to compel nondiscretionary duty; AG should file. | Mandamus improperly extends control over discretionary litigation decisions. | Mandamus appropriate because duty is mandatory and nondiscretionary here. |
Key Cases Cited
- Rosbach v. Pratt, 68 Wash. 157 (1912) (authority to commence actions rests with commission and AG, not mandamus.)
- Berge v. Gorton, 88 Wash.2d 756 (1977) (discretion in initiating actions; 'shall' imposes duty to exercise discretion.)
- Boe v. Gorton, 88 Wash.2d 773 (1977) (reinforces discretion in attorney general's actions.)
- Young Americans for Freedom v. Gorton, 91 Wash.2d 204 (1978) (AG may exercise broad discretion in duties.)
- Blue Sky Advocates v. State, 107 Wash.2d 112 (1986) (discretion in representation; abuse of discretion review.)
- Seattle Gas & Electric Co. v. City of Seattle, 28 Wash. 488 (1902) (officer powers are delegated; not common law power for AG.)
- State ex rel. Reiter v. Wallgren, 28 Wash.2d 872 (1947) (attorney general duties and public interest; checks and balances.)
- City of Seattle v. McKenna, 259 P.3d 1087 (2011) ( AG authority broad; case cited as contemporaneous companion recognizing discretion.)
- Young Americans for Freedom v. Gorton, 91 Wash.2d 204 (1978) (attorney general authority to file amicus; breadth of duties.)