At first glance it seems odd that an attorney general so lavishly praised by doe-eyed editorialists for allegedly championing open government would take the lead in removing one of our most powerful tools for assuring government accountability. But when you think about it, it all kinda makes sense.
In a guest column in yesterday’s Seattle Times, Washington State Attorney General Rob McKenna proposes that one way to close our state’s multi-billion dollar budget gap would be to make it harder for citizens to sue the state, but in a single paragraph McKenna not only lays out the crux of his argument, he also lets slip his true motivation:
Washington is in a class by itself — wide open to lawsuits with huge payouts. Suits demanding outrageous sums have become commonplace over the past few decades. Payouts have grown from $241,000 in the 1963-65 budget to more than $100 million during the last — and trial attorneys collect $30 million of that before sending the rest to those who have suffered.
It’s those damn trial attorneys who are bankrupting our government! If we could only get rid of them, and the public employee unions, our budgets would shrink, our taxes would fall, and Washington State would become a veritable paradise! … At least, according to Rob McKenna.
And what do trial attorneys and organized labor have in common? They both predominantly fund Democrats, of course, and in fact together comprise one of the largest chunks of the Democratic funding machine.
In other words, McKenna’s advocacy for shielding state government from citizen lawsuits is largely partisan:
Why are our state laws so much more permissive than every other state’s liability rules? The uncomfortable truth is that personal-injury lawyers are among the wealthiest and most powerful interest groups, and they vigorously oppose attempts to end Washington’s outlier status.
According to the Liability Reform Coalition, political-action committees run by trial attorneys contributed more than $1.4 million in the 2008 statewide election cycle. Trial lawyers chipped in millions more in individual contributions. That helps explain why during nearly every legislative session, legislators vote on bills that would actually increase, not reduce, taxpayers’ liability; 2010 was no exception.
Hear that? A PAC run by trial attorneys spent more than $1.4 million during the 2008 cycle. Heaven forfend!
Um… but… the Building Industry Association of Washington and its associated organizations spent, what… $13 million that year, in the gubernatorial race alone? I don’t hear McKenna complaining about that, and yet year after year the BIAW successfully blocks legislation that would permit homeowners from suing builders for shoddy construction.
(Sigh.)
Despite McKenna’s unsupported claims, Washington is not “in a class by itself,” nor are our state laws “more permissive than every other state’s liability laws.” Yeah, maybe we do pay out “eight times more than Tennessee, five times more than Arizona,” I dunno… but would we really want to be just like Tennessee or Arizona? And while Washington’s government does not claim “sovereign immunity” as McKenna advocates, unlike many other states, Washington does not allow for punitive damages in claims against the state.
Oops. I guess McKenna forgot to share that with his readers.
And his selective citation of facts doesn’t stop there, for McKenna stoops to perhaps the lowest form of political persuasion, the out of context anecdote:
The state is sued even when it follows all the rules. For example, a woman is convicted of forging a $13 check. She’s released after serving her sentence and carefully supervised by the Department of Corrections. But when she causes a fatal car accident, the state is sued and ultimately forced to settle the case for $300,000. While our hearts go out to the family who lost their loved one, the check forger caused the accident. State employees followed proper procedures. Yet lawsuits like these persist.
First of all, that’s just one successful lawsuit out of many, most of which do clearly address acts of negligence or malfeasance on the part of the state. And second of all, McKenna intentionally misrepresents the facts in even this particular case. Yes, the woman in question had merely been convicted of forging a $13 check, but she had a long criminal record including drug charges, missed court appearances and at least four DUI arrests:
Enoch-Jevne had received suspended sentences for four of her DUI convictions. In May of 1999, she was arrested on drug charges in Grant County. A judge revoked a previous sentence and ordered that she be held through December of that year. Instead, city and county officials failed to review court records and released Enoch-Jevne in October.
Upon her early release Enoch-Jevne failed to report to her state corrections officer as required, and even though the state had classified her as a danger to the public, and knew that she was violating the terms of her supervision, it made no effort to arrest her. Two months later, at a time when, by a judge’s order, she should have been locked up at the King County Regional Justice Center, she killed a man in a collision in which, yes, she was once again suspected of being under the influence of alcohol.
Was government negligence partially to blame for this tragedy? Maybe, maybe not. But it’s clearly not the absurdly abusive case that McKenna makes it out to be.
Of course there are abusive lawsuits, and I’m not expert enough to argue that there aren’t reasonable reforms to be made that might shield against the worst of these abuses. But to grant the state blanket immunity against most of these suits as a money-saving gimmick is not only unfair to the legitimate victims, it is unserious and shortsighted. For it is through lawsuits like these that the worst abuses of government mismanagement, malfeasance and negligence are revealed, and ultimately reformed. McKenna can tout his support of sunshine laws all he wants, but the courts have always provided the public its most effective tool in keeping our government accountable to the public.
And that’s what we would lose should McKenna prevail.
Not disputing your take (it’s right on as usual), but here’s a true story to ponder in the mix:
Public records suits (absolutely necessary to transparency) are a part of the payout.
I have a friend who was awarded $250k in a settlement with Mason County last year. He represented himself with some minimal legal assistance (reviews of paperwork).
The suit wasn’t abusive — it involved determined footdragging and intentional record misplacing on the part of the county on behalf of Tim Sheldon (also a Kounty Kommisar, I know, I know…) and others. My friend also endured blatant intimidation by the Sherrif’s department and the code enforcers (who rarely enforce anything — but that’s a whole other tale).
The county was successful in protecting the Senator-Kommissar and was reimbursed by the State’s insurance pool.
My friend got a payout, but a corrupt pol escaped justice and the rest of us paid for it.
Great post, Goldy.
I always enjoy tort reform as a political topic. Free marketeers demand that governments don’t regulate, and suggest that if something bad happened (like fraud, toxic releases, polluted food), we would retain the right to sue, if we had enough money. Then they immediately demand tort reform to stop all the lawsuits. Because they can have it both ways. Aren’t we really just rehashing years of the same tired old rhetoric?
Whoa, that’s pretty blatant electioneering. Not to mention tasteless and cheap. Shouldn’t the Times have to declare that space as a political ad to the Regurgican party?
Nice job, Goldy.
Now that Bobby Mac’s pal, McCollum, down in Florida doesn’t have the possibility of being the Governor of Florida to distract him, shouldn’t Bobby Mac get busy with McCollum on their lawsuit to throw out the Affordable Care Act?
After 5 months it would seem we are in a perilous position of falling in to irrevocable soshuleesim if Bobby Mac and Billy Mc don’t get cracking.
McKenna is deliberately MISrepresenting the case and not providing adequate background – just to make his weak points. THAT is deliberately amnufacturing a bogus argument – something an attorney general should NOT be doing.
McKenna should be ashamed his blatant misrepresentation of the facts and blatant partisanship.
With all the media being owned by corporatists and no competition between newspapers for readers…how does McKenna get held to account for this bullshit, AND the Goldmark fiasco?
The concept of sovereign immunity, which prohibits suits against the government for acts for which private actors can be sued, arises from the old notion of the Divine Right of Kings. Back in the day, the sovereign bore no responsibility for harming citizens because, of course, “the King can do no wrong.” That quaint notion long ago was rejected by our state. I guess Robbie Mac would take us back to a world where our state need not be held accountable for its wrongdoing. And, here I thought Republicans were all about personal responsibility . . .
The “Tort Reform” people are accostomed to the practice of misrepresenting the facts of the case, so it seemingly seems like an outragious result.
If the facts were as they were advertised, then no jury would have awarded the claim. Remember that when you hear such claims.
Also, watch out for the slip-phrase “…was awarded a settlement…”. Nobody is ever awarded a settlement. They are awarded a verdict by the jury. A settlment is something to which both sides agreed, after considering their likelikhood of success at trial. If the case was as outragious as claimed, then why did the insurance company agree to pay?
But I will admit to some concerns about unlimited liability on behalf of our government for criminal acts of others. Just because someone is in the criminal justice system doesn’t mean that the government should become a guarantor of their behavior. Decisions made within the criminal justice system includes a delicate balance between cost, predictions of future behavior, and societal values regarding the level of control we want to impose (err on the side of incarceration, or home release?). I’m not really sure where we should draw the line.
But as to the cost issue, note that the Eyman-types who insist on cutting revenues without regard to needed services are just passing on the cost to the victims, who in turn are turning back to government to reimburse them through negligence lawsuits. It actually costs the state more in the process.
McKenna’s piece makes it sound like the state just hands out six-figure settlements to anyone who might ask. The reality is that the state litigates very aggressively, often litigating at high expense long after exposure should have been recognized and settlement sought. The piece is a dissembling whine that thoroughly misrepresents the subject. McKenna lines up a bunch of lies and exaggerations in support of a bullshit thesis, and does it all in alarmist fashion. I guess that’s what makes him a Republican.
By the way, McKenna’s article wasn’t the only one. I saw at least two other “original” articles in other parts of the country which said the same thing. At first I thought it was an AP wire service picking up the article and other papers choosing to publish it, but then I realized it was articles by different people, crafted toward their particular location.
Ironically, they both said that their location had the most liberal liability laws in the nation.
It looks like another orchestrated campaign in progress by the right wing, probably financed by the insurance companies who are contributing to selected political campaigns. It’s being sold as an alternative to raising taxes or cutting budgets.
rhp @ 12
You wouldn’t happen to recall the publications in which you saw the same pap, would you?
My goodness gracious, I can’t imagine that those fine upstanding patriots at the US Chamber of Commerce* would ever write a template of biased quarter-truths (they aren’t nearly credible enough to be called half-truths) that could be tailored for local use by their compliant minions and water-carriers.
They don’t yet seem to understand that teh google makes it easy to identify such astroturf.
* That’s just a supposition. It could have been any of the hundreds of far-right front organizations.
# 13: I’m looking for them. The problem is, yesterday I was looking a quite a few publications in a search for industry articles on a particular subject, and just happened to stumble across them. I didn’t bookmark them at the time.
Well, here’s one I saw, but it’s just a letter to the editor, not one of the more organized ones to which I was referring.
Frivolous Lawsuits
Good post, but one other item must be noted. What McKenna does not want to also admit is that the state is never ever, ever judged in a court of law based on the actions of some third party, but only based on their own actions or inactions. Period. So, RHP, your concern would be well stated if there was any truth to the lies put out by our AG.He wants us to think that happens. He is a liar. And isn;t it interseting that the best case he comes up woith to make this point actually makes the point that fgovernment should be accountable to families like this when they are responsible for the death of a loved one?
In this case, it looks like the state had every opportunty and legal obligation to keep this repeat drunk driver off the road.They failed miserably. Thus they “settled” because they knew damn well the jury could really hit them hard.
Its also intersting to note that the state has unlimited resources in these cases and citizens have- well, only their attorney and the willingness to take the case on based on the facts, and knowing they don’t get a dime for all their time and even out of pocket costs if they lose.Funny how conservatives love the free market as long as its, a) socialized its risk to the public; and, b) not a plaintiff’s lawyer, who is actually one of the ultimate free marketers putting their skill and time into a case against the best funded opponents- government or the insurance industry.
This AG wants to promote info from the Liabilty Reform Group? That is the insurance industry, pharmaceuticals, timber, toxic polluters: all the people who are perpetrators of harm who don’t want to be accountable to the rest of us. What a shill.
@17, nice post, Tom. Isn’t McKenna acting as a ‘trial lawyer’ by jumping on the anti-insurance bandwagon?
And what about the legions of lawyers corporations keep on retainder to crush legitimate suits brought by legitimately harmed individuals by corporate illegal activities; Exxon, BP, Shell, Massy, et al. Or, how about the biggest trial lawyer scam of the century; Bush’s team (including John Roberts) halting the tabulation of votes by a state?
WSDOT stonewalled installation of the cement barrier in the median of I-5 north of Marysville, until the family of one of the deceased victims of a cross-over, head-on collision won a lawsuit against the State. Within weeks of that suit, Governor Gregoire ordered a study, which was done with breathtaking speed. And the barrier is now in place. Though the State would deny it, that barrier is the direct result of the State losing that suit, fearing more suits. As a surviving victim of another of those head-ons, I have no sympathy for the idea of the poor, victimized State being taken advantage of by slimy citizens. Quite the contrary. The array of legal power against us in our suit was stunning in its enormity. King Washington State needs no immunity from accountability. They are accountable to us. Period. And under the US Constitution, we are entitled to a redress of grievances…as long as we can keep the right, as Franklin said. It’s time for King Bobby to retire his self-placed crown.
This is McKenna’s idea of “carefully supervised”
I think someone should issue a Public Disclosure Request to McKenna’s office asking for all drafts of the article along with all input from any source, including drafts or text suggested by the CofC or the BIAW.
What irony!
Why do you ‘spose the state would find itself losing such suits, if indeed they were so utterly without merit as Bobby claims?
It’s absolutely true. A few of these suits are without merit. And our state loses too many of them. But that’s not due to a failure in the law.
It’s due to a failure in the lawyering.
This prolonged whine from Bobby reads just like an unskilled pre-teen failing at a sport and complaining about the referees or the equipment. Throughout our state, every single day, suits just like the one Bobby points too are skillfully and successfully defended by public and private insurance pools and their teams of lawyers.
Sounds to me like we need a new AG.
22
What? Don’t you know what Robbie Mac’s real job is? It’s not to competently represent the citizens of this state. It’s not even to represent state agencies that he is statutorily-mandated to represent (e.g., DNR). No, Robbie Mac’s job is to generate publicity for himself (e.g., the suit against the federal government with regard to the healthcare legislation) so that he is in a position to run for governor in 2012. I thought everybody knew that’s what we pay him to do.