Following up on my WSJ piece about the problems that arose for the state of Washington when it came to be exposed to lawsuits alleging that it had failed to prevent some types of crime (see Dec. 24), Mike Tardif of the Washington attorney general’s office (whose co-authored law review article I discuss in the piece) writes in as follows:
I read and enjoyed your article. You have accurately depicted the overall nature of the liability problem caused by creating liability for “governmental” functions and you have accurately summarized the gist of our law review article.
I have one comment on your point concerning why governments do not adjust their behaviors in response to liabilities for broad governmental functions. The primary reason is that what governments do in these areas is determined by the political process, i.e., the basic program, staffing levels, and funding are set by statute and budget. There is little or no ability at the administrative level to change these things in response to jury decisions in liability suits. Ironically, in a suit such as our Joyce case (the $23 million verdict), the Dept. of Corrections has no ability to raise taxes to create the funding for the parole officer positions needed to reach the level of supervision dictated by the broad liability imposed by the Court, but DOC does have the legal responsibility to put money into the risk fund to pay its settlements and judgments, thereby reducing the funds available to hire the parole officers needed to mitigate the risk.
I should also have mentioned that when my piece quoted the interesting comments of Prof. Greg Sisk of St. Thomas University School of Law on sovereign immunity as a species of separation of powers, I was actually quoting from a blog, namely the Catholic group lawblog Mirror of Justice (Oct. 19).
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In today’s WSJ: sovereign immunity in Washington
I’ve got a “Rule of Law” column in today’s Wall Street Journal on the unique problems presented to the state of Washington by the decay of longstanding doctrines of “sovereign immunity” which have left it…
I would like to embellish what Mike Tardiff said about why it is not so easy for a state agency to conform its behavior in a way to prevent harm to clients. From October 2000 to April 2005, I was the risk manager for the Washington State Department of Social and Health Services, the largest and most risky department in state government. The problem with conforming behavior is this: a court or a jury says that in the single, specific case before it, the state should have done X to prevent the harm. While X might have prevented the harm in that case, if, for instance, the state child welfare system has 12,000 children in foster care, it has to do X 12,000 times to conform its behavior to what the court said went wrong in a single case. The resources to prevent any conceivable harm are simply not available. In some cases, best practices would have required doing X in the first place, but what we have observed in Washington is a continual pushing of the envelope by our courts to find new and unpredictable causes of action, with the resultant continual drain on the state treasury.