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Archive for January, 2011|Monthly archive page

Sunshine law in jeopardy

In Sunshine Laws on January 22, 2011 at 10:53 am

By Karen Koehler

The Public Records Act requires the government to produce documents when requested by citizens and the press.  It is called the Sunshine Act because without it, government can hide in the dark.

There is a built in  incentive for the government to follow the law.  If it doesn’t, it must pay a penalty and attorneys fees for the person who has to sue to get the records.  This usually works quite well.

The legislature is considering changing the law. If passed, HB 1044 will create a new  agency called the “Office of Public Records.”  This agency would have the right to decide whether the government should provide documents.

Our government doesn’t need to erect more barriers by creating more bureaucracy.  Removing current financial incentives is a bad idea.


Keeping police misconduct in check

In Governmental Immunity, Police misconduct on January 21, 2011 at 6:33 pm

By Karen Koehler

This is the tale of two inquests.

No. 1.  Police  body slammed a young man into a wall in Belltown.  He is now permanently brain injured and cannot care for himself.  The police were not in uniform.  They thought he was a suspect.  They were wrong.  An inquest was held – sort of a mini trial – to see if their actions were justified.  Almost all inquests uphold the actions of the police.  Their actions were upheld.

No. 2.  An Indian woodcarver was shot and killed. The young police officer thought the man posed a threat because he did not put down his knife.  At inquest

four jurors felt the officer was wrong. One felt he was right.  Three were undecided.

In the first example, the police had no risk of being criminally prosecuted.  In the second, the policeman may be prosecuted but only if the government so chooses.

The families of people injured and killed by police in cases like these,  currently have the right to bring civil lawsuits.  Regardless of whether the government pursues criminal charges.     Civil lawsuits prevent government secrecy or “protection of their own.”  Police departments have to open their files and records.  They have to go to court and justify their practices.   At the end of the day – a jury of twelve decides whether government should be held responsible.   The police are not allowed to be above the law.

McKenna Runs For Governor

In Facts About Washington State Tort Damages, Governmental Immunity, Rob McKenna on January 12, 2011 at 3:42 pm

By Paul W. Whelan

On Friday, January 7th on KUOW, our WA State Attorney General, Rob McKenna, delivered his ethically and factually challenged explanation of his proposed legislative changes regarding government liability.

His pitch to cap or limit government responsibility is particularly dangerous because we live in an era of enormous budget problems, where essential services such as health care and education are in jeopardy.  Like most conservative pitch men, McKenna avoids the factual nuances that are absolutely critical to understand the issues.  He claims that the State should only pay its “fair share” of the responsibility of the harm it causes.

Significantly, what McKenna fails to mention is that the major settlements he complains about were approved by his own office.  Secondly, he does not bother to explain the fact that in order to have an allocation of fault among co-defendants, Plaintiffs must be absolutely fault free.  Only then can the trier of fact (like a judge or jury) proportion damages between co-defendants, each of which must be found to be held responsible for the liability-causing event.  In other words, the judge or jury must find that, ‘but for’ the defendant’s actions, the plaintiff was injured.

Mr. McKenna also fails to note that his proposed legislation would cover much more than State misconduct.  It affects the liability of County run hospitals, public utility districts, cities, towns, and any other political sub division in the State.  He also never mentions the fact that wherever the State or political subdivision thereof is the only defendant in a case, that entity itself could and usually does bring additional defendants into the case to diminish its responsibility.

Remember: This is the same attorney general who is attempting to undermine federal health care law by attacking the universal mandatory coverage provisions adopted by congress.

Clearly, Rob McKenna intends to run for governor in the next election and hopes to stir up a conservative Tea Party base by raising issues and concepts opposed by most thoughtful Washingtonians.

What is open government?

In Facts About Washington State Tort Damages, Governmental Immunity on January 7, 2011 at 5:14 am

By Mimy Bailey

Open government is a state of transparency where citizens have access to information, which allows the public to scrutinize, oversee, and participate in government business.  Open government is a concept that is fundamental in a democracy.  Government functions for the people, so it makes sense that it is not allowed to operate behind closed doors.  By making government open, it is accountable to the people it serves.

In Washington, the Public Records Act is a set of statutes that outlines the types of documents available to the public.  Under the Act (See RCW 42.56.010), a “public record” is any writing containing information relating to the conduct, performance, or function of the government.

Offices of state and local government have procedures for the public to request documents.  To request documents, visit the website of the specific government department and find out more information.  Helpful search phrases are “public disclosure” and “public records.”

To learn more about open government in Washington State, visit The Washington Coalition for Open Government’s website.

McKenna’s exaggeration: 1 percent fault

In Rob McKenna on January 7, 2011 at 1:19 am

By Karen Koehler

Before 1986, Washington had unrestricted “joint and several liability.”  This meant if two or more defendants caused the injury, they were each on the hook for paying the total loss (but there was never double recovery).

After tort reform was enacted that year, the rule changed drastically.  Now there is no joint and several liability unless an injured person is 100% innocent – unless they are zero percent at fault.  The reason the legislature kept this exception is because our society does not want a completely innocent person to have to bear the financial hardships of being injured due to someone else’s fault.

In an editorial to the Times, Rob McKenna Attorney General makes it seem like this exception is the norm:

“Perhaps most outrageous, current law requires that — even in situations where a court finds the state only 1 percent at fault for an injury — it can hold the state 100 percent responsible for monetary damages.”

The only thing outrageous about this quote, is that a high elected official is skewing what the law really says.

In 1961 governmental immunity gets the ax

In Governmental Immunity on January 6, 2011 at 3:15 am

American citizens finally got tired of letting the “King” be above the law.  They wanted their government to be accountable just like everyone else.  In 1961, the Washington legislature agreed that governement should be able to be sued: 

“All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.”

 Revised Code of Washington 4.96.010(1)

The dark age of governmental immunity

In Governmental Immunity on January 6, 2011 at 3:07 am

By Karen Koehler

“The King can do no wrong!”

The King was perfect and holy.  He lived in a world above common people.  The law could not touch him.  The King bowed to no one.  And he couldn’t be sued. Even if he did terrible things.

He is “sovereign and independent” within his own dominions and “owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him, for all jurisdiction implies superiority of power.” … The law supposes it impossible that the King himself can act unlawfully or improperly. It cannot distrust him whom it has invested with the supreme power; and visits on his advisors and ministers the punishment due to the illegal measures of government. Hence the legal apothegm that the King can do no wrong.”  How it came to be applied in the United States of America, where the prerogative is unknown, is one of the mysteries of legal evolution.   Text taken from 34 Yale Law Journal 1 (1924).

This old royal concept snuck its way into American law.  Because no one questioned it.  But as the years passed, people decided it wasn’t fair or right.  In a democratic society, nothing and no one should be above the law.

Get The Facts Right

In Facts About Washington State Tort Damages, Gendler Injured Cyclist Case, Governmental Immunity, Rob McKenna on January 5, 2011 at 12:50 am

By Catherine Fleming

A flurry of articles have surfaced in the local press about Attorney General Rob McKenna’s push to cap damages to victims of those injured due to government negligence.  These articles have incorrectly focused on large payouts to the injured citizens.

Editors and reporters have failed to note that the WSDOT representative for the Gendler case (injured cyclist awarded $8 million) stated that the amount awarded was well justified.

They also are eager to portray opponents of McKenna as “greedy trial lawyers.”  However, this misses the point entirely: Attorneys who represent seriously injured clients are focused on getting an appropriate amount of money that will pay for exorbitant medical bills, 24/7 medical assistance, lost wages, etc.

This blog and the soon-to-be website,, will provide all of the relevant facts — not just those that conveniently fit McKenna’s agenda.