In most states, attorney generals believe they are elected to protect people and hold wrongdoers accountable. But Attorney General Rob McKenna seems to disagree, according to a recent Viewpoint (TNT, 12-29) by two senior members of his staff.
Appar-ently McKenna believes “the king can do no wrong” and that negligent government agencies deserve special protections for the harm they inflict on innocent people.
It is also shocking that our Attorney General’s Office ignored the case facts involving the preventable death of Michael McGuire. This case did not involve a mere check forger who killed McGuire. The woman who killed him had four prior DUI convictions and a drug conviction, and had skipped several court appearances. The state failed to supervise and confine her as sentenced by the courts.
This person went home, got drunk again, and got behind the wheel and killed McGuire. The state failed in its most basic duty. The McGuire family lives with this failure every day.
Our state has a more recent history of success with reducing payouts that does not involve attacking the rights of citizens. Between 2000-2001, state lawsuit payouts spiked due to the horrific sexual assaults at a state-run youth group home. The attorney general at the time, Chris Gregoire, took action. She overhauled the state’s risk-management processes and required reviews of every incident that caused injury or death.
These efforts dramatically reduced injuries and deaths, but also reduced payouts by more than 67 percent. This was a true win-win. The state saved money and prevented harm to innocent citizens. These actions did not make headlines, they prevented headlines. This is how government should work.
McKenna has chosen a different course. As his representatives noted, in 2006, he championed legislation to let government completely off the hook (Senate Bill 6215). For all state and local government agencies and government contractors, there would be virtually no legal accountability to our citizens. Regardless of how egregious the negligence or severe the harm to innocent people, McKenna supports special protections for government.
At the same time, rigorous risk-management reviews proven to reduce payouts declined under his watch. Consequently, claims are creeping back up.
McKenna’s statements on liability are legally inaccurate and inflammatory. Government agencies are only responsible for their own actions or inactions. Governments are held accountable only for injuries that it has the legal responsibility and opportunity to prevent.
The attorney general’s portrayal of Washington as a lawsuit haven is inaccurate. About 46 states in the union have punitive damages. Washington does not. In 1986, the Legislature stripped our joint and several liability laws. This centuries-old common-law doctrine allowed an injured person to be fully compensated when multiple parties contributed to their injuries. Since 1986, joint and several liability is only applied in cases involving totally innocent plaintiffs. This is a standard that the National Conference of State Legislatures rates as conservative.
When Washington eliminated sovereign immunity, as did 30 other states, our judiciary immediately adopted special liability protections and immunities (discretionary immunity) that apply only to government defendants. The AG’s office certainly knows that. They raise this issue in defense of almost every lawsuit filed.
McKenna also offers a double standard on public disclosure and lawsuits. He claims to advocate for open government, but works against the rights of the citizens he was elected to protect and serve when they exercise those rights. He requires citizens seeking public accident records to forfeit their legal rights in order to obtain them. When this issue was in front of the state supreme court, Justice Tom Chambers called this a shell game.
McKenna should not abandon the prevention efforts to reduce payouts. We know they work. Our state proved it earlier this decade, but those efforts atrophied on his watch.
Rebecca Roe is a former King County senior deputy prosecutor and currently an attorney with the law firm of Schroeter, Goldmark & Bender in Seattle.
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