C. JOHNSON, J.
¶ 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.
¶ 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.
¶ 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:
(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.
¶ 9 Alternatively, the attorney general argues, if the statute confers a mandatory
¶ 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 to commence actions or institute proceedings on behalf of the state in the attorney general." State ex rel. Rosbach v. Pratt, 68 Wn. 157, 158, 122 P. 987 (1912); Berge v. Gorton, 88 Wn.2d 756, 761, 567 P.2d 187 (1977); see also Boe v. Gorton, 88 Wn.2d 773, 775, 567 P.2d 197 (1977) (citing Berge, 88 Wash.2d at 761, 567 P.2d 187). Discretionary power in such instances makes sense because the state has no voice with which to request action from the attorney general other than its election of the official who will represent its interests. But none of the cited cases address an instance where a statute, such as RCW 43.12.075, directs the attorney general to represent the commissioner upon the commissioner's request. Each involved a third party seeking to compel the attorney general to institute an action, and none of those third parties could cite to a statute requiring the attorney general's representation as the commissioner can do with RCW 43.12.075. Moreover, "shall" when used in a statute, is presumptively imperative and creates a mandatory duty unless a contrary legislative intent is shown. Phil. II v. Gregoire, 128 Wn.2d 707, 713, 911 P.2d 389 (1996); State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994). No contrary legislative intent has been offered by the attorney general, so we conclude that the attorney general has a statutory duty to provide the commissioner with legal representation.
¶ 12 This court has original jurisdiction in mandamus with respect to all state officers. Const. art. IV, § 4. Mandamus is an extraordinary remedy that we grant only if the mandatory act sought to be compelled is not discretionary. SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 598-99, 229 P.3d 774 (2010). Having found that a mandatory statutory duty exists, we turn to whether there is yet some discretion to be found in carrying out that duty. If the attorney general has discretion on whether to represent the commissioner on appeal, no writ can issue.
¶ 13 Unlike most states, we have determined our attorney general lacks common-law power that would allow him the discretion he seeks here. We have previously decided the attorney general's power is determined by the constitution and statutes. State ex rel. Attorney Gen. v. Seattle Gas & Elec. Co., 28 Wn. 488, 68 P. 946, 70 P. 114 (1902). In Seattle Gas, the issue was whether the attorney general could bring an action
¶ 14 At oral argument, the attorney general sought to buttress his position by citing to Rosbach, 68 Wn. 157, 122 P. 987. According to the argument, the holding of Rosbach gives the attorney general absolute discretion regarding the institution and maintenance of suits. In that case, we examined a statute with language somewhat similar to RCW 43.12.075. That statute required the attorney general to represent the industrial insurance commission when requested. A separate section stated that any default payments owed the commission "`shall be collected by action at law in the name of the state as plaintiff.'" Rosbach, 68 Wash. at 158, 122 P. 987 (quoting Laws of 1911, ch. 74, § 8). An individual sought to compel both the commission and the attorney general to bring such an action, and we held that the commencement of such actions "are matters resting wholly within the discretion of the commission and the attorney general, a discretion which cannot be controlled by mandamus." Rosbach, 68 Wash. at 158, 122 P. 987. We further stated this had always been the case regarding statutes "vesting the power to commence actions or institute proceedings on behalf of the state in the attorney general." Rosbach, 68 Wash. at 158, 122 P. 987. In his arguments before us now, the attorney general fails to recognize that the issue in Rosbach was whether an individual could compel such actions. We were not discussing a request to do so by the industrial insurance commission, but by a third party. Given the statutory duties, this holding makes sense. Those duties are expressly owed to the commissioner and not to individuals. This case does not support the argument that the attorney general has discretion to refuse to represent those identified by statute when requested to do so.
¶ 15 The attorney general also argues that our decision in State v. Gattavara, 182 Wn. 325, 47 P.2d 18 (1935), supports his discretionary ability to refuse to represent the commissioner on appeal. There, we considered whether private attorneys hired by the Department of Labor and Industries had the power to institute actions to collect default payments, and held that the statute vested that authority with the attorney general. We assumed without discussion that the attorney general should exercise his judgment regarding the wisdom of the actions, but we were not faced with a request to institute such actions by the Department. In fact, the attorney general appeared as amicus curiae and was supportive of the private attorneys' actions. Again, this was not a case of a state officer requesting the attorney general to take such action. It merely concerned who had the statutory authority to institute the actions.
¶ 16 We have, however, repeated on a few occasions that the attorney general's paramount duty is to protect the interests of the people of the state. Reiter v. Wallgren, 28 Wn.2d 872, 880, 184 P.2d 571 (1947) (taxpayer must make demand on attorney general to bring suit before taxpayer has standing); State ex rel. Dunbar v. State Bd. of Equalization, 140 Wn. 433, 440, 249 P. 996 (1926) (attorney general may bring action to compel other state officers to comply with law). The attorney general argues these cases would allow him to act in the public interest when the public interest is antagonistic to state officers. The cited cases merely recognize that it may become necessary to institute proceedings against a state officer. But here the attorney general would have us place his own concept of the "public interest" above the duty to represent state
¶ 17 The attorney general correctly argues we have previously held he does not need express statutory authorization for every act. Even without a statute specifically authorizing the attorney general's enforcement of charitable trusts, in State v. Taylor, we held that the attorney general, "as representative of the public and particularly of those individuals who may be specially benefited," could maintain the action given his constitutional and statutory authority. State v. Taylor, 58 Wn.2d 252, 261, 362 P.2d 247 (1961). In another case we recognized the sum total of constitutional and statutory provisions regarding the attorney general was sufficient, even in the absence of an express grant, to confer upon the attorney general authority to file an amicus curiae brief. Young Americans for Freedom v. Gorton, 91 Wn.2d 204, 207-08, 588 P.2d 195 (1978) (YAF). These cases may support the attorney general's authority to bring such actions in other instances, but again, do not provide the attorney general with a clear grant of discretion necessary to overcome the statutory duty to represent state officers, specifically to the commissioner under RCW 43.12.075, and generally under RCW 43.10.040.
¶ 18 Additionally, the attorney general argues his ability to refuse to pursue an appeal comes from his constitutional role as the state's chief legal officer. The attorney general is independently elected and serves as a check on other government officers and entities. If limited to a traditional attorney-client relationship with those officers, the attorney general's role as that check disappears. This structural argument points to the divided executive branch for evidence that our founders intended to have each office act as a check upon the others. See Gattavara, 182 Wash. at 332-33, 47 P.2d 18. We have already recognized the attorney general's ability to bring suit against state officers when necessary. Reiter, 28 Wash.2d at 879, 184 P.2d 571. But there is nothing inherent in this structure that permits the attorney general to refuse to represent state officers when statutorily required to do so. It simply means that he may also institute proceedings against state officers in other situations.
¶ 19 The PUD, amicus here, additionally argues that because Washington subscribes to the entity model of representation, the attorney general has a corresponding ethical duty to the state as a whole. We have already recognized the attorney general's broader role:
Reiter, 28 Wash.2d at 879, 184 P.2d 571. In that case, we assumed the appointment of a SAAG for one of the parties sufficient to protect the state as a whole. However, both sides of an issue cannot be adequately presented where one side lacks legal representation. Moreover, we rely on an adversarial system with the judicial branch in its proper role to determine the merits of such disputes. Nothing about our current model conflicts with the attorney general's ethical obligations.
¶ 20 Both parties cite to a number of foreign cases in support of their arguments, but none are particularly applicable or persuasive given varying constitutions, statutory authority, structural history, and precedent. See Manchin v. Browning, 170 W.Va. 779, 785, 296 S.E.2d 909 (1982) (finding no common-law power based on attorney general's prior status as judicial officer, therefore the attorney general must defer to officer's decision regarding merits of litigation). But see State ex rel. McGraw v. Burton, 212 W.Va. 23, 36, 569 S.E.2d 99 (2002) (narrowing holding in Manchin by granting the attorney general wide oversight in all litigation including requiring meaningful consideration of effects of legal policy and positions); People ex rel. Deukmejian v. Brown, 29 Cal.3d 150, 155, 624 P.2d 1206, 172 Cal.Rptr. 478 (1981) (attorney general may not take a position adverse to state officer without written consent (29 Cal.3d at 154-55, 172 Cal.Rptr. 478, 624 P.2d 1206); no common-law authority when in conflict with constitutional or statutory provisions (29 Cal.3d at 157, 172 Cal.Rptr. 478, 624 P.2d 1206)). The Ninth Circuit, citing to Berge and Boe mentioned above, stated whether to bring an action was solely within the attorney general's discretion, but the real issue there was procedural—whether the attorney general could bring an interlocutory appeal of a contempt order. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 747 F.2d 1303, 1305 (1984) (finding congruence of interest between state and attorney general given attorney-client relationship). Nor do we rely on the Ninth Circuit to determine state law issues. Nothing about these cases, or the others cited in the parties' briefs, is helpful in providing the grant of discretion the attorney general would need to deny the commissioner's request.
¶ 21 The attorney general points out that many aspects of litigation are discretionary, and therefore issuing one initial writ will be insufficient. See Rosbach, 68 Wash. at 159, 122 P. 987 (court would not oversee pleadings, evidence, objections, and arguments so writ insufficient to compel discretionary litigation). The commissioner is satisfied that if a writ issues compelling the attorney general to remove the "contingency" status from the appeal, the attorney general's ethical duties will ensure competent and diligent representation. See RPC 1.1, 1.3. We have previously held, in Blue Sky Advocates v. State, 107 Wn.2d 112, 727 P.2d 644 (1986), that the attorney general has some discretion in determining how to carry out the representation. Blue Sky Advocates, 107 Wash.2d at 119, 727 P.2d 644 (Attorney general has discretion in exercise of duties as counsel for the environment.). The discretion that exists is within the method of representation, typical of any attorney-client relationship, allowing the attorney control, in concert with the client's authority, over such things as whom to depose and what arguments to make. But this strategical discretion within the representation does not control the question of whether such representation must be provided in the first instance.
¶ 22 None of the case law cited confers on the attorney general the discretion he seeks to refuse to pursue an appeal despite his client's directive that he do so. Nor does the attorney general's constitutional role counsel otherwise. Given the mandatory language of the statute and the prohibition of hiring outside counsel, no discretion is involved, and representation is required. Therefore, we grant the writ.
¶ 23 The commissioner seeks attorney's fees under RCW 4.84.185.
¶ 24 Under the statutes, the responsibility is clear. Because we find no discretion within this duty, we issue the writ and direct the attorney general to provide the commissioner with legal representation.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, GERRY L. ALEXANDER, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, Justices, and ANNE L. ELLINGTON, Justice Pro Tem.
Concurrence by ALEXANDER, J.
ALEXANDER, J. (concurring).
¶ 25 I am of the view that the attorney general has a mandatory duty, in almost every instance, to pursue an appeal at the request of an elected state official such as the commissioner of public lands. The attorney general should, however, have discretion to decline such representation if the appeal is frivolous. I say that because our attorney general is a member of the Washington State Bar Association and, as such, he is an officer of the courts of this state, a separate branch of government.
¶ 26 The oath that all Washington attorneys must take provides that in civil cases a lawyer shall not "counsel, or maintain any suit, or proceeding, which shall appear to me to be unjust, or any defense except as I believe to be honestly debatable under the law." APR 5(e). In addition, RPC 3.1 says that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous." We have stated that an appeal is frivolous if "the appeal presents no debatable issues upon which reasonable minds might differ, and that the appeal is so devoid of merit that there is no possibility of reversal." Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010) (citing Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005)); see RAP 18.9(a).
¶ 27 Here, the commissioner of public lands sought to have the attorney general undertake an appeal of a judgment of the superior court that aggrieved the commissioner and the department of natural resources. Because in rejecting the request the attorney general has not asserted that such an appeal would be frivolous, he should have acceded to the request. I, therefore, concur in the result the majority reaches.
STEPHENS J. (dissenting).
¶ 28 This case boils down to a dispute over litigation tactics between two independently elected state officers. The question is whether the Washington Supreme Court should referee such a dispute. The majority believes we should, on the premise that the attorney general is no more than retained counsel for the commissioner of public lands, owing a mandatory, nondiscretionary duty to follow the commissioner's wishes. I respectfully
¶ 29 The office of attorney general is established under article III, section 21 of the Washington Constitution. That provision states that "[t]he 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. As an independently elected officer, the attorney general does not serve at the will of other executive officers. Rather, he answers to the people. The attorney general's independence under our constitutional scheme reflects a conscious decision by the framers of the Washington Constitution to counter the accumulation of executive power in any single official. See State v. Gattavara, 182 Wn. 325, 332-33, 47 P.2d 18 (1935). This unique constitutional role as "the legal adviser of the state officers" is complemented by statutes prescribing the attorney general's duties in particular circumstances. See, e.g., RCW 43.10.030(2) (stating that the attorney general "shall . . . [i]nstitute and prosecute all actions and proceedings . . . which may be necessary in the execution of the duties of any state officer"), .040 (stating that the attorney general "shall also represent the state. . . in the courts . . . in all legal or quasi legal matters").
¶ 30 The majority declares that this case may be resolved by looking only to "a handful of statutes." Majority at 1097. Specifically, the majority finds dispositive that RCW 43.12.075 uses the word "shall" in describing the attorney general's role vis-a-vis the commissioner of public lands. But this interpretation of RCW 43.12.075 ignores our long-held recognition that the attorney general may exercise broad discretion as the state official charged with directing the course of litigation. Blue Sky Advocates v. State, 107 Wn.2d 112, 118-19, 727 P.2d 644 (1986); Boe v. Gorton, 88 Wn.2d 773, 776, 567 P.2d 197 (1977); Berge v. Gorton, 88 Wn.2d 756, 761, 567 P.2d 187 (1977). It defies common sense to suggest that RCW 43.12.075 eliminates the attorney general's discretion to decide whether to pursue an appeal. How can the attorney general adequately fill his constitutional role as "legal adviser of the state officers" yet be utterly powerless to guide litigation?
¶ 31 A long line of cases starting with State ex rel. Rosbach v. Pratt, 68 Wn. 157, 122 P. 987 (1912), confirms that the attorney general does, and must, have discretion. Pratt involved a mandamus action to compel the attorney general to recover unpaid fees from a company under the industrial insurance act. The statute defining the attorney general's responsibilities, which is nearly identical to RCW 43.12.075, stated, "`The attorney general shall be the legal adviser of the department, and shall represent it in all proceedings, whenever so requested by any of the commissioners [of the Industrial Insurance Commission].'" Id. at 158, 122 P. 987 (quoting Laws of 1911, ch. 74, § 20). We explained that we could find no "requirement [in the statute] of absolute duty on the part of the commission or attorney general to bring actions against each and every delinquent employer." Id. Focusing specifically on the language of the statute, we said that "[a]uthority to commence such actions is conferred, but not compelled." Id. We held that "commencement of actions at law to enforce the payment of delinquent assessments, against whom and when they shall be brought, are matters resting wholly within the discretion of the commission and the Attorney General, a discretion which cannot be controlled by mandamus." Id.
¶ 33 In addition to misreading this line of precedent, the majority wrongly interprets RCW 43.12.075 as establishing a traditional attorney-client relationship between the attorney general and the commissioner. Majority at 1107 n.5, 1102-03. Yet both Washington's Rules of Professional Conduct and the Model Rules of Professional Conduct recognize that the attorney general's unique responsibilities alter the traditional attorney-client framework:
RPC scope [18] (emphasis added); Model Rules of Prof'l Conduct scope [18] (2011) (emphasis added). As discussed above, under Washington's constitutional and statutory framework, it is the attorney general and not some other state official who is charged with directing the course of litigation. Though the Rules defer to the attorney general's unique responsibility to represent the public interest, the majority eliminates any such deference by casting the attorney general in the role of any other private-sector lawyer.
¶ 34 Mandamus is an "extraordinary remedy" and we "have placed strict limits on the circumstances under which we will issue the writ to public officers." SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 598-99, 229 P.3d 774 (2010); Walker v. Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994) (noting that "mandamus is an extraordinary writ"). Mandamus is available only to compel a state officer to undertake a mandatory, nondiscretionary duty. SEIU Healthcare, 168 Wash.2d at 599, 229 P.3d 774. A duty is nondiscretionary or ministerial when "`the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.'" Id. (internal quotation marks omitted) (quoting State ex rel. Clark v. City of Seattle, 137 Wn. 455, 461, 242 P. 966 (1926)). Thus, while a duty may be mandatory, it is not subject to mandamus unless the duty is also nondiscretionary or ministerial—that is, there is a complete absence of discretion in the officer's performance of the duty. Id.; Brown v. Owen, 165 Wn.2d 706, 725, 206 P.3d 310 (2009) ("Where we find a mandatory duty, we must further determine whether that duty is ministerial or discretionary in nature.").
¶ 35 The majority sidesteps the "strict limits" that have made mandamus an "extraordinary remedy" by construing the attorney
¶ 36 If we compel the attorney general to file an appeal on the grounds that it is a mandatory, nondiscretionary duty, there is no limiting principle that would allow us to avoid mandamus where state officers disagree on other steps in litigation. What if the attorney general wants to settle a lawsuit and the commissioner does not? What if the commissioner insists on pursuing a claim that the attorney general believes is unwarranted? In denying the request for mandamus in Pratt, we recognized this very problem:
68 Wash. at 159, 122 P. 987 (quoting Boyne v. Ryan, 100 Cal. 265, 267, 34 P. 707 (1893)).
¶ 37 The majority asserts that the commissioner "is satisfied" by the writ here and will rely on the attorney general thereafter to meet his ethical obligations under the Rules of Professional Conduct. Majority at 1102. But this again wrongly assumes that the attorney general serves in a capacity that is "typical of any attorney-client relationship." Majority at 1102. The Rules themselves clarify that the attorney general, by virtue of his unique constitutional and statutory role, is anything but a typical private attorney. The majority sees no risk of persistent writ requests every time the attorney general exercises discretion because it obviates that discretion. Under the majority's analysis, the attorney general's role is reduced to asking "how high" when the state officer he represents says "jump."
¶ 38 Simply stated, once we start down this path, we trivialize the writ of mandamus and vastly expand our role in resolving disagreements between independently elected officers in another branch of government. I believe this sets up an ill-advised test of the limits of our authority. It is not only unwise, but potentially destructive to the very system of checks and balances the framers of our constitution created.
¶ 39 This case was heard on the same day as a similar case, City of Seattle v. McKenna,
¶ 40 I find it impossible to reconcile the majority's analysis here with our decision in McKenna. First, the majority here reads the statutes defining the attorney general's authority, which speak in terms of what the attorney general "shall" do, as mandatory and nondiscretionary. The McKenna decision, by contrast, acknowledges that the term "shall" has been construed to impose "only a discretionary duty." Id. at ___ n.3, 259 P.3d 1087. Recognizing this inconsistency, the McKenna decision suggests that while "the term `shall' generally creates a mandatory duty, case law has established that, in the context of RCW 43.10.030, the use of `shall' creates only a discretionary duty." Id. (citation omitted). This distinction is artificial. If the attorney general truly has discretion as the chief legal officer of the State despite what RCW 43.10.030 says he "shall" do, then the attorney general must likewise have discretion in the face of similar statutes that purport to limit his discretion. Statutes cannot be read in isolation.
¶ 41 Second, while the majority here places the attorney general in a traditional attorney-client relationship with the state officers he represents, the McKenna decision rejects this framework. We say in McKenna that the attorney general has "discretionary authority to act in any court, state or federal, trial or appellate, on `a matter of public concern,' provided that there is a `cognizable common law or statutory cause of action.'" McKenna, ___ Wash.2d at ___, 259 P.3d 1087 (citations omitted) (emphasis added). Moreover, the McKenna decision rejects the argument that "where the governor and attorney general disagree, the attorney general may not proceed in the name of the State." Id. at ___, 259 P.3d 1087. This view is at odds with the majority's analysis. Reading the two cases together, it is unclear why a writ of mandamus is appropriate to force the attorney general to follow the commissioner's wishes in this litigation but is inappropriate in McKenna.
¶ 42 Consistent with our decision in McKenna, I would recognize that the attorney general's duty to represent state officers in litigation is generally not subject to a writ of mandamus. While the attorney general's role to provide legal counsel is mandated by statute, 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 subject to the extraordinary writ of mandamus.
¶ 43 I respectfully dissent.
WE CONCUR: RICHARD B. SANDERS, Justice Pro Tem.
