McKenna eyes liability limits

OLYMPIA — Attorney General Rob McKenna wants to head off court cases he says could cost taxpayers millions of dollars by making the state immune from certain lawsuits.

It's a move drawing fire from trial lawyers and some Democratic lawmakers, but GOP supporters are cheering the effort. They see McKenna's willingness to tackle state liability as further evidence that he's emerging as a counterweight to long-standing Democratic control in Olympia.

The state has been slammed by lawsuits with big payoffs in recent years, including $8.8 million paid in 2001 to settle the case of Linda David, a woman abused by her husband, who had been paid by the state to take care of her.

The state has spent more than $500 million since 1987 to pay claims, settle cases and defend against lawsuits. The Legislature set aside about $150 million in its 2005-07 budget to cover the potential cost of cases.

McKenna says the state needs protection. He argues that taxpayers shouldn't be on the hook for big judgments when the state had little or nothing to do with the incident in question. He plans to have legislation introduced this coming session.

"We want to take the state away as the deep pocket for harms committed by third parties," he said. "I'm going to be speaking out on the fact that we're the most exposed state [in the nation] and there is a real cost. There's less money available for foster care, less money available for the supervision of parolees or individuals under community supervision."

Recent state payouts


Linda David, 2001 — $8.8 million settlement. Claim: The Department of Social and Health Services (DSHS) failed to remove Linda David from custody of her husband, Victor David, who held her aboard a filthy boat. She had designated Victor David to receive state payments to care for her.

Sylvia McFarland, 1998 — $6.35 million jury verdict, no appeal. Claim: The Department of Corrections negligently discharged Johnny Eggers from parole after a long history of convictions and parole violations and he killed McFarland's teenaged daughter.

Minor child, 2005 — $4 million settlement. Claim: A DSHS-licensed day-care provider threw a 23-month-old against the floor of a playpen, causing possible brain damage. Attorneys alleged DSHS had many complaints about overcrowding and other problems at the day care and many opportunities to revoke its license.

Source: Washington state Attorney General's Office

Gov. Christine Gregoire, a Democrat and former state attorney general, said she'd reserve judgment until she sees McKenna's legislation. But the governor said she has concerns about the state trying to make itself immune from certain lawsuits.

Some lawmakers predict stiff opposition.

"This would be but the first step toward rescinding the right of citizens to redress injuries inflicted by their government," said Rep. Brendan Williams, D-Olympia, an attorney and vice chairman of the House Judiciary Committee.

Nearing the end of his first year in office, McKenna has taken on several issues close to the heart of conservatives. He's kept a close watch on new state regulations to make sure they don't overstep their bounds.

He's also pushed for increasing access to government records, a top issue for the Building Industry Association of Washington, a prominent backer of GOP candidates, including McKenna.

State Republican Party Chairman Chris Vance said McKenna is providing a voice for the party in Olympia.

"The Attorney General's Office has more ability than any other office, other than governor, to drive the direction of state government," Vance said. "He's a great spokesperson for our party."

State, voters come first

McKenna gets nervous when people start talking about the Attorney General's Office and party politics in the same breath.

Voters and his state clients come first, he says, but acknowledges Republican values play a role in how he does his job.

"My political philosophy certainly affects the issues that I choose to work on and liability reform is certainly one of those," he says.

McKenna, 43, a former member of the Metropolitan King County Council, is not a flashy politician. Firebrand rhetoric isn't his style. He talks like a corporate attorney: big words and long sentences. He favors dark blue suits and white shirts. He drives a Honda Accord.

He was an Eagle Scout in his youth, and supporters describe him as methodical, intelligent, a "brainiac."

The issue of state liability is the most contentious McKenna has taken up since becoming attorney general.

Washington state waived its immunity from lawsuits in 1961, with the belief that people should be compensated when the government causes harm. Initially, waiving immunity wasn't a big deal. Lawsuits were rarer then and judgments small.

But society has become more litigious and the state more vulnerable. In 1992, for example, the state Supreme Court ruled the state and its parole officers can be held liable for negligently supervising parolees.

The bulk of the large payouts in recent years stem from cases where courts determined the state had failed to properly supervise someone, such as a parolee. Or where the Department of Social and Health Services failed to protect someone, such as a foster child from harm.

McKenna argues that a recent state Supreme Court decision has opened the door even wider.

The high court, in September, overturned a $22.4 million payout to the family of Paula Joyce, a Tacoma woman killed when her car was hit by a felon driving a stolen truck. The payout was overturned because of faulty jury instructions and the case was sent back to Pierce County Superior Court for a new trial.

However, McKenna said, the court also held that the Department of Corrections may be found liable in the type of situation that led to Joyce's death.

"In a post-Joyce world, we're going to get pummeled," he said.

In the Joyce case, the felon was a first-time offender who pleaded guilty to third-degree assault for threatening his former girlfriend during an argument.

The court put him under supervision for two years. He was often late reporting to his community corrections officer and failed to get counseling or do community service. The court imposed additional jail time, which he served.

About a month before the end of his supervision, he stole a truck and hit Joyce's car. Her attorneys argued the state was liable because the supervising officer should have done something about the felon's alleged mental-health problems, or gotten the court to put him in jail again because he still wasn't reporting on time, the Attorney General's Office said.

The Supreme Court essentially agreed with this argument.

"Prior to Joyce ... the liability we had was for high-risk offenders and failure to take action to control specific behaviors that resulted in their violent offenses. Liability was premised on the failure to prevent those violent crimes," said Glen Anderson, a senior counsel with the Attorney General's Office. "Joyce imposes liability on the department for any offender who causes any kind of injury."

Risk to state overstated?

McKenna did not release details of the legislation he plans to propose this coming session, saying it's still being drafted.

However, he said that at a minimum "the legislation would establish that the state is not liable for the actions of an individual under community supervision unless the actions of the community corrections officer were a direct cause of the injury."

The state would still be liable when it's clearly at fault, he said. For example, "where someone with a history of burglary was put in a job as night watchman with all the keys."

Janet Rice, a Seattle attorney and past president of the Washington State Trial Lawyers Association, said she sees no need for the type of immunity McKenna is proposing.

"It's clear from the Supreme Court decision that every automobile action isn't going to result in liability from the state. The state has been held liable when it's own negligence hurt other people," she said.

Rice argues juries should decide whether the state played a role in causing harm. "If there is no relationship, I think the jury can decide that. If there is a relationship, then the jury should be able to decide that."

McKenna is busy building his case for the state Legislature.

Along with another attorney at his office, McKenna wrote a recent article for the Seattle University Law Review detailing how Washington is more vulnerable to lawsuits than any other state in the country. The article says that most states have a limit on damages ranging from $50,000 per person in Nevada to $1 million per person and $5 million per incident in Nebraska. And most states also have immunity from certain types of lawsuits.

McKenna sent a copy to every state legislator. He and his staffers have also been meeting with leaders in the House and Senate to make their case.

"I'm not beholden to any interests who are opposed to moving us out of our most unenviable position as the most exposed state in the country. If I don't do it, it's not going to happen. Someone has to step up and provide statewide leadership," McKenna said.

Andrew Garber: 360-943-9882 or agarber@seattletimes.com