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.
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.