McKenna’s Suits Against the Republican Party and BIAW

October 7, 2008

Yesterday’s entry about the lawsuit against the Republican Party drew a comment that warrants notice. James Tierney of Columbia Law School’s National State Attorney General Program saluted Rob McKenna’s decision to bring the lawsuit against the Republican Party. I perhaps did not call attention to my recognition of this decision as a commendable action. Earlier I praised McKenna for suing the B.I.A.W., a major Republican contributor.

Mr. Tierney says that it was appropriate for the Attorney General’s office to bring the action instead of having an independent law firm pursue it. This is certainly something beyond my expertise, but the decision does at least raise a question of a conflict of interest. Given the wide ranging responsibility of the Attorney General’s Office, I am sure that this comes up with some frequency and that it has been adequately resolved in terms of professional responsibility.

My question is that given the appearance of what might commonly, not professionally, be viewed as a conflict of interest, the A.G.’s decision not to pursue immediate action, as is sought in the lawsuit by the two former state supreme court justices, is politically questionable. The citizen suit makes it appear that the A.G.’s office might be going lightly on the case by not seeking immediate remedies.

I should emphasize that there probably is a perfectly sound basis for not seeking the relief sought in the citizen’s suit. In fact the citizen’s suit asks the court for emergency permission to gather evidence so the matter can be decided shortly. The A.G.’s office may very well have determined that there was no such evidence or that the search for such evidence was inappropriate in light of the immanence of the election.

Much of this speculation, however, might have been avoided by hiring outside counsel to pursue the lawsuit. There is certainly nothing impermissible about the Attorney General’s office handling the case, but in the emotional charged context of this election, it may have been prudent to avoid the faintest question about the role of politics in the decisions regarding the litigation.

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Washington Republicans in Legal Quagmire

October 6, 2008

The plot thickens. Last week I discussed the Public Disclosure Commission’s decision that the Washington State Republican Party was illegally financing attack ads against Christine Gregoire. The P.I. last week reported that there was evidence that Dino Rossi was complicit in this endeavor. The finding about the Republican Party was handed by the Public Disclosure Commission to the Republican State Attorney General for enforcement procedures. At the end of the week nothing had been done, at least as far a I could tell.

I also reported earlier last month that the Attorney General had refused requests that he recuse himself, and had filed a lawsuit against B.I.A.W., the notorious Republican attack machine, for violating campaign financing laws. I provided a copy of the Attorney General’s complaint which by its terms would not even require a hearing until long after the election.

Apparently a couple of citizens had had enough of political games involving illegal campaign practices. These two citizens happened to be retired state Supreme Court justices, Utter and Ireland. They filed a lawsuit against the B.I.A.W. that required immediate action instead of waiting until after the election.

The lawsuit calls for an immediate temporary restraining order prohibiting B.I.A.W. from further campaign activity and mandates court hearings in a couple of weeks. The complaint alleges that, counting all the illegal campaign funds, the B.I.A.W. has already exceeded lawful financing limits.

The lawsuit filed today is an extraordinary move, apparently necessitated by the Attorney General’s refusal to take any immediate action. The suit is actually filed by citizens on the Attorney General’s behalf, something that is rarely done and ordinarily would not be done unless the Attorney General refused to, or could not, perform a duty of his office, i.e. the enforcement of campaign financing laws.

But the story does not end there. Today the Attorney General announced that on Friday he had sued the Republican Party for campaign violations. The complaint, which was rather brief, by its terms sought no pre-election relief with the trial set in 2010.

This whole series of events reflects poorly on the Attorney General’s Office and if it turns out that the citizen suit is meritorious, the Attorney General’s Office will look very bad indeed. The fact of the suit suggests a lack of confidence in Republican Rob McKenna’s nonpartisanship.


Illegal Money for Republicans in Washington

September 17, 2008

Dino Rossi’s (the Washington Republican candidate for governor)  attack dog the B.I.A.W. suffered a setback at the hands of the Washington’s Public Disclosure Commission. According to reports B.I.A.W.’s cash machine, BIAW Member Services, illegally funneled $500,000 into attacks on Gregoire.

The P.I.’s report has the growling, barking, sputtering, red-faced, dissembling response of the BIAW spokesman. Read the response carefully. There is absolutely no intelligible explanation for the event in question, just knee jerk conspiracy rantings and ravings. These guys are dangerous in that rationality is just not in their frame of reference.

The most interesting step comes next: the matter is referred to Rob McKenna, the Attorney General, and beneficiary of this groups slobbering assaults on decency. Mr. McKenna is to decide whether the State will proceed against the BIAW subsidiary. Talk about being asked to bite the paw that feeds you.


The Washington Primaries

August 25, 2008

I’ll write more later but first a couple of quick comments on the primary results. Sam Reed, the Secretary of State was the pronounced favorite, which I thought was encouraging. Mr. Reed is the traditional sort of Republican, the Dan Evans sort of politician who subordinates party interest to public interest.

He is competent, ethical and trustworthy. He does not bow to the extremists who have taken over the state Republican party, people who seem to profess winning at any cost.

Our local Republican Party of course suffers from a disregard of the Constitution in its zeal to win, advocating the disregard of the 14th Amendment in its just adopted platform. It has been lock step with the Bush Administration in its position on FISA and the Administration’s disregard of the the 4th Amendment. The party sanctions the hate-politics of its attack dog the B.I.A.W. Sam Reed is cut out of better cloth.

The Attorney General’s race between the incumbent and John Ladenburg could not present more divergent styles. Our current Attorney General campaigns on tort reform using misleading statistics, then argues against this in politically popular cases such a Exxon Valdez, when political pressure mounted for a distressed property law here, he proposed legislation, then argued to the real estate special interests that the legislature was to blame for being overly protective.

Our Attorney General seems to be trying to appeal to everyone, while maintaining his corporate base and receiving substantial corporate donations.

His deficiencies as Attorney General are compensated for by adroit political maneuvering. He has launched, as of a few months ago, an email campaign, publicizing the “successes” of his office. This seems to me to be a highly questionable use of public funds.

John Ladenburg on the other hand is an adept administrator with a commendable track record as Executive of Pierce County. His rather low key style has served to resolve problems and issues that the incumbent uses to factionalize the electorate and drive people apart.


Rob McKenna; I think I figured it out (Part 2)

June 26, 2008

I puzzled overnight how Rob McKenna could within a very short period of time issue apparently wildly contradictory statements. He says the courts are out of control with damages and the legislature needs to step in and impose limits. He also argues that courts should be able to disregard legislative limits on damages and he supports enormous punitive damages.

My problem in trying to figure this out was that I presumed that there was an over arching doctrine that somehow melded these two opposing positions.

No, the answer lies in the reason for espousing them. Tort reform, however unsupported by actual evidence, is a Republican campaign cornerstone. As a Republican candidate for Attorney General, Rob McKenna embraced the issue. The issue still has currency and Mr. McKenna uses the issue to gain publicity.

The Exxon Valdez case is internationally known and public sentiment lies almost entirely on the side of the victims of this environmental disaster. Mr. McKenna claims to have inserted himself into this case to rally other states into participating as advocates of the victims.

He took the politically popular position of advocating for exactly the opposite result from the one he had campaigned on. Governor Gregoire’s signature, high profile case was the suit against the tobacco companies. The tide of approval for this effort washed her up on the shores of the governor’s office. The Exxon Valdez case has the same sort of <i>cache</i> as the tobacco cases and could perhaps advance McKenna’s career in the same way.

McKenna, trying to have it both ways, publicly continued to speak out for tort reform while while using his office to seek the opposite result in the Exxon Valdez case.

He is trying to appear to be a big business tort reformer (the only real benefactors of this position are insurance companies and big businesses) and at the same time appear to be a hero to tort victims. The the notoriety of the Exxon Valdez case promised enough political advantage to compensate for whatever losses their might be from his big business base.

That’s the only coherent answer I could find. The principle that one derives from this is that Rob McKenna will say and do anything to advance his career.


Washington’s Attorney General Takes Both Sides of Tort Reform Issues (Part 1)

June 26, 2008

Washington State’s Attorney General Rob McKenna recently campaigned for tort reform, claiming that the legislature needed to step in and reduce the awards that were being entered against the state. He indicated that the courts were out of control and the legislaure needed to do something about it:

“But the courts have moved so far away from what the Legislature intended back in the early 1960s that the law removing sovereign immunity is no longer recognizable, and at the same time the Legislature has failed to act at a policy level where the limits ought to be.”

Mr. McKenna got into office advocating tort reform for everyone, saying that judgments were getting too big.

That sounds to me like just expedient court bashing. He says lawsuits are preventing the state from taking corrective action? That sounds like baloney.

Well, what did he do when the Exxon Valdez case got to the Supreme Court and the Court was asked to review the biggest punitive damages award in American history, $5 billion? This award was being attacked on two grounds. First, Exxon said that it was excessive. The plaintiffs were awarded all their proven damages, plus $5 billion. Second the spill was a violation of the federal Clean Water Act which does not award punitive damages at all. This omission from the law was fought for by Republicans, who generally are beyond cautious with respect to environmental laws. The $5 billion punitive damages award was granted under court created doctrine that the trial judge held applied in spite of the Clean Water Act.

The arguments of Exxon are exactly the same positions that Mr. McKenna campaigned on and which he has been advocating recently.

Mr. McKenna participated in this case by helping prepare a brief on behalf of Washington and 33 other states which argued that the punitive damages award should not be reduced and that the court created doctrine that allows punitive damages ought to be respected in spite of contrary language in the Clean Water Act. This is exactly the opposite of what he is saying in public.

Lawyers are sometimes required to advance positions they do not believe in but this does not appear to be the case in this instance. Mr. McKenna is crowing about the result and how he helped preserve punitive damages under court created doctrine!

The statement he issued on June 25 says this:

“We are pleased the court upheld an award of punitive damages, since Exxon had argued that no punitive damages can be awarded in a maritime case under federal law, no matter how egregious the circumstances,” McKenna said. “We are disappointed, however, that the Court did not award the full punitive damages authorized by the Court of Appeals. The reduced award is brutally disappointing for the Washington and Alaska fishermen and their families who were counting on this money to help make them whole.”

Don’t get me wrong; I don’t disagree with this sentiment. It is just that because I agree with him, I cannot in good conscience claim to support tort reform, particularly the two points championed by Exxon and Mr. McKenna in public statements.

I have puzzled over this for some time trying to render Mr. McKenna’s divergent positions rational. The only thing I can come up with is that Mr. McKenna thinks that punitive damages are fine for injured people in other states but not for people in Washington, except for fishermen. That still does not make sense to me.


Rob McKenna Thinks We Are Idiots.

March 22, 2008

Washington State’s Attorney General Rob McKenna really should be in the Bush administration. He demonstrates a presidential grasp of what he is doing. His opinions are not rational, at least that is the conclusion you must reach if his arguments are in fact the basis of his opinions.

Generally speaking tort law has two purposes: to compensate victims and to enforce rules of conduct that are accepted as societal standards. Its purpose is in part to help mold society into behavior patterns that are predictable and reasonable. A debate about tort reform should address the realization of those goals, then perhaps weigh the cost to society against the benefit of particular laws. You would expect a reasoned argument to discuss alternatives to the law in question and their relative merit.

Unfortunately it is never done that way. Often proponents of tort reform merely attempt to excite the general prejudice against trial lawyers. This is politically expedient but does nothing to advance our interest in living in a rational society. The other common argument is to throw out a figure and say that is how much money has been awarded for something. The argument proceeds by saying this figure is way too high and concludes with: ergo we should abolish that law. This is exactly how insurance companies look at things but this approach seems to have traction with the general public. In truth this is not an argument at all and again is little more than an appeal to prejudice or sometimes sympathy for the perpetrators of tortious conduct.

Mr. McKenna believes that sovereign immunity should be re-instituted in Washington after having been abandoned in the 1960’s. His argument goes like this: The State of Washington has paid over $500 million in the last 25 years. If the State could not be sued, it would not have to pay anything and there would be no problem. End of argument. He spices this up a little by adding that the trial lawyers are always expanding the State’s liability. With that he has pretty much covered everything.

Why didn’t we think of this with drunken driving?  That costs a lot too.  This would be a good approach to cutting down crime.  Make homicides legal.  Washington has already pursued this approach with construction defects and disasters.  Why not expand the approach.  It’s working isn’t it?