Attorney General Rob McKenna of Washington discusses the need to roll back a combination of legislation and judicially created doctrine that leaves the state uniquely exposed to liability lawsuits. “Calls to attorneys general offices in other states reveal we pay much more than states with similar-sized populations: eight times more than Tennessee, five times more than Arizona and at least three times more than Massachusetts. These disparities date back at least 15 years.” [Seattle Times; my 2005 take]
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 financially liable for many crimes committed against its citizens, specifically when perpetrated by parolees or persons under the supervision of social welfare agencies. (Walter Olson, “Lawsuit Reform in Washington”, Wall Street Journal, Dec. 24). For one such cause celebre, see Ted’s Sept. 19 post on the case of Joyce v. Washington Department of Corrections, in which the state was sued after a parolee ran a red light and killed a Tacoma woman. For more on freshman Washington AG Rob McKenna’s plans to curtail the state’s liability, see Andrew Garber, “McKenna eyes liability limits”, Seattle Times, Nov. 27. (More discussion: Jan. 4).
Also of interest to readers in Washington state: I’ll be in Seattle Friday, Jan. 6 as the luncheon speaker at the Washington Liability Reform Coalition’s annual meeting. Contact WALRC for more information about that event.
“The family of a man shot and killed by his neighbor in Skagit County can proceed to trial on claims that the county’s emergency communications center mishandled its response to his panicked 911 call, Washington’s Supreme Court ruled.” According to his family, a 911 operator told William Munich that help was on the way but did not code the call as an emergency; a sheriff’s deputy showed up 18 minutes later, by which time Munich had been shot by the irate neighbor. “I am concerned the majority’s decision will put unwarranted pressure on every statement made by 911 operators, straining communications that depend on the free flow of information,” wrote dissenting Justice James Johnson. [KOMO; Munich (Gayle) v. Skagit Emergency Communications Center, holding, dissent (wrong link fixed now); background on Washington’s unusual approach to sovereign immunity]
P.S. Another Washington sovereign liability case of interest: Robb v. City of Seattle, “Whether the city of Seattle may be liable in an action for wrongful death brought by the survivor of a murder victim based on the failure of police to confiscate ammunition while detaining the murderer for questioning just before the murder occurred.” [Temple of Justice]
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).
- A win for class action objector Ted Frank as Seventh Circuit allows him to challenge what he described as “objector blackmail” payments to other intervenors [Amanda Bronstad, National Law Journal, Pearson v. NBTY]
- City of Seattle pays $13 million to settle suit alleging negligent probation supervision of drunk driver [Jessica Lee, Seattle Times, Brian Flores, KCPQ, my 2005 take on Washington’s unique rules on sovereign immunity and more]
- “Family sues Dum Dum lollipop maker over son’s alleged choking incident” [Alexandria Hein, Fox News]
- Thanks to New York’s Scaffold Law, co-op and condo boards “can be held liable for millions of dollars in damages – even if the injured worker was drunk or failed to use safety equipment.” [Habitat mag] “Coverage for East Side Access [infrastructure project] has surpassed half a billion dollars” [Will Bredderman, Crain’s New York]
- As Brett Kavanaugh’s SeaWorld dissent shows, he’s a judge who takes assumption of risk seriously [ABA Journal, SeaWorld v. Perez]
- Twiqbal pleading standards continue to do good, this time in New York state courts [Drug & Device Law]
From John Ross’s Short Circuit newsletter for the Institute for Justice, Mar. 10: “Allegation: EPA agents lead armed raid of Casper, Wyo. laboratory based on false accusation from former employee, an 18 year old, that the lab falsified water-quality records. Five years later, case dismissed against former lab owners without charges. They sue the EPA. District court: It’s too late to sue; the two-year statute of limitations started running when you lost the lab. Tenth Circuit: Actually, you couldn’t have even sued then because sovereign immunity.” [Garling v. EPA]
The Washington Post’s editorialists agree with former U.N. Ambassador John Bolton and former attorney general Michael Mukasey: President Obama is right to plan a veto of a bill passed in the House by a voice vote enabling lawsuits by victims of terror attacks against sovereign countries such as Saudi Arabia over conduct that allegedly contributed to the attacks. Delegating foreign and counter-terror policy to trial lawyers not only wrenches away delicate questions of negotiation and sanctions-imposition from the executive branch to which our Constitutional scheme confides them, but also invites foreign legal systems to begin opening up avenues for lawsuits against the government of the United States. There’s a reason comity and sovereign immunity have stood for centuries as pillars of international law. News coverage: Karoun Demirjian, Washington Post and more.
Saltwater incursion and wetlands loss associated with industrial use of coastal Louisiana have worsened the exposure of populated areas to flooding, according to official reports and scientific studies. Now a flood protection board representing much of the New Orleans area is suing energy companies demanding a contribution of “billions” of dollars, though its spokesman acknowledges that government actions were also responsible for weakening the natural environmental buffer. John Schwartz quotes me in his New York Times report today, though without the chance to study the suit’s contentions it was hard for me to make any more than the most preliminary observations.
P.S. More details emerge in an expanded version of the story as well as in a Thursday Washington Post report. The agency is suing “about 100” energy companies. Canal construction and other actions taken by the U.S. Army Corps of Engineers were important contributors to the environmental losses, but principles of sovereign immunity restrict suits against the Corps. Republican Louisiana Gov. Bobby Jindal said “that the levee agency had usurped his authority and that the suit would enrich trial lawyers” and demanded that the Southeast Louisiana Flood Protection Authority “cancel contracts with the four law firms that had agreed to handle the case on a contingency basis.”
- Dan Mitchell rounds up many of the significant state ballot measures [Cato] California official voter guide is 144 pages long; “As usual, almost all of the proposals being put before voters are bad.” [Josh Barro, Bloomberg; coverage of Prop 37 on genetic labeling here, here, etc.]
- And as some readers will recall, I am hoping voters in Maine, Washington and my own state of Maryland vote to extend civil marriage to same-sex couples, and that voters in Minnesota reject a constitutional amendment to the opposite effect.
- Digging into the Obama-Romney dispute over use-it-or-lose-it oil leases [Daniel Fisher, Forbes]
- “The myth of auto bailout jobs” [Andrew M. Grossman, DC Examiner] On Jeeps, Romney takes a leaf from the Obama tactical playbook, and Obama not pleased [Tim Carney, Examiner]
- New Cato e-book “The Libertarian Vote: Swing Voters, Tea Parties, and the Fiscally Conservative, Socially Liberal Center” by David Boaz, David Kirby, and Emily Ekins, doing well on Amazon Kindle listings. And: which way should a libertarian vote for President this time? [Richard Epstein]
- “Survey of State Supreme Court Races and Retention Elections” [Carrie Severino, NRO, Ashby Jones/WSJ; earlier on Michigan here and here, on Florida here, here, and here]
- Government officials pressure private billboard owner to take down “Voter Fraud Is a Felony” sign [Hans Bader]
- Peaceful transfer of power to opposition party is gold standard of democracy [Steve Chapman]
- “As churches get political, IRS stays quiet” [Reuters, earlier]
- “Editorial: Inslee’s criticism of McKenna points up need for tort reform” [Seattle Times; my take on Washington state’s curious waiver of sovereign immunity a while back]
So argued former State Department legal adviser John Bellinger III in the WSJ last week, with special reference to the overreaching, extraterritorial Alien Tort Statute. But it’s not as if the efforts to turn the U.S. into the courtroom for the world are slackening at all:
- As Curtis Bradley and Jack Goldsmith note in the Washington Post, a federal court recently allowed to proceed a lawsuit seeking to blame the evils of South African apartheid on Western multinationals, even despite strong opposition to the suit from both the U.S. government’s executive branch and today’s duly elected multiracial South African government. Unfortunately, the State Department’s up-to-now-staunch opposition to this and similar lawsuits is imperiled by the installment of Harold Koh as legal adviser at Foggy Bottom: “Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”
- If asked what should happen to frozen Cuban-government assets under U.S. control, reasonable possibility #1 might be “hold them against the eventual day when a non-tyrannical regime emerges there, it will need help.” Reasonable possibility #2 might be “divide the assets among Castro’s many victims in some deliberate and step-by-step way, knowing that their injuries are so numerous and severe that even very deserving victims will get only small payments”. The answer you’d think makes no sense at all is “encourage first-come-first-served tort lawsuits, so that the first couple of cases to maneuver their way through the legal process get handsome compensation, while no money is left for either #1 or #2”. So naturally, the latter is what our legal system is doing, previously in $188 million and $253 million verdicts involving single incidents or families, and now in a new case in which the family of Gustavo Villoldo has been awarded $1.179 billion. One of the plaintiff’s lawyers in the case actually boasts that the new award may obstruct a warming of relations between the U.S. and a post-Castro successor regime: “with the opening of relations between the U.S. and Cuba to come, there are debts to society to be paid before that happens” (more on Che Guevara, via).
- On the brighter side, the Obama administration has joined its Bush predecessors in correctly drawing a line against litigation by some September 11 victims and insurance companies: under the Foreign Sovereign Immunity Act, the courts are no place to pursue theories trying to link the rulers of Saudi Arabia to the terrorist attacks.
(cross-posted from Point of Law)