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Originally published November 2, 2012 at 4:31 PM | Page modified November 2, 2012 at 4:30 PM

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Op-ed: Rob McKenna should have done more to reduce state lawsuit payouts

Under Rob McKenna’s tenure as attorney general, tort payouts have gone up because he has not pursued risk-management efforts to reduce payouts, writes guest columnist Rebecca Roe.

Special to The Times

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THE facts of cases and the state of the law in Washington have been grossly misrepresented on Attorney General Rob McKenna’s work on state tort claims. Let’s set the record straight.

Under McKenna’s tenure as attorney general, tort payouts have gone up in large part because he has not pursued risk-management efforts to reduce them.

The Seattle Times published an editorial Monday saying Washington has paid millions to people who sue the state because Democrats blocked reforms to state law. The argument relied on faulty logic.

First, the case cited. It’s disturbing that McKenna, a Republican running for governor in the Nov. 6 election against Democrat Jay Inslee, distorted the facts involving the preventable death of Michael McGuire, who was struck and killed by a woman driver with a warrant for her arrest. The real facts are available in court records and in Susan McGuire’s testimony to our legislators.

This case did not involve a mere check forger who killed Michael. The woman driver had four prior driving under the influence (DUI) convictions, a drug conviction and skipped several court appearances. The state employee responsible for supervising her declared the woman presented “a threat to the community.” The state failed to supervise and confine her as directed by a judge. This person was free because of that failure, got drunk again, and got behind the wheel and killed McGuire.

The editorial said it’s not McKenna’s fault tort payouts have gone up in his regime, and it’s unfair to attack him because we need to limit citizens’ rights to hold the state accountable. That’s not the right solution.

Our state has a history of success reducing payouts that does not involve attacking the rights of citizens. Between 2000 and 2001, state payouts spiked due to horrific sexual assaults at a state-run youth home. Chris Gregoire, then attorney general, took action. She overhauled the state’s risk-management processes and required reviews of every bad incident.

These efforts not only dramatically reduced injuries and deaths, but also reduced payouts by 70 percent. This was a win-win. The state saved money and prevented harm to innocent citizens. These actions didn’t make headlines, they prevented headlines. This is how government should work.

McKenna chose a different course. In 2006, he championed legislation to let government off the hook with Senate Bill 6215. For state and local government agencies and contractors, there would be virtually no legal accountability to our citizens, regardless of how egregious the negligence or severe the harm to innocent people.

At the same time, rigorous risk-management reviews proved to reduce payouts declined under his administration, when it was his office’s duty to inform state agencies of their risk-management responsibilities.

The state is never judged for any action or failure but its own, and it cannot be at fault and have to pay damages unless the state is the cause of the injury or death. That’s basic tort law. There has never been a case since the 1986 act where the state was allocated 1 percent of damages and had to pay it all. That is simply wrong in the editorial.

The editorial also attacked the increase in payouts for egregious failures by the Department of Social and Health Services. Many of these horrors inflicted on innocent children were totally preventable by the state. These innocent children have the chance to piece their lives back together; it should not be taken away. As an advocate throughout my career for the most vulnerable in our communities, I strongly disagree.

If good risk management had been the order of the day, Michael McGuire would have come home, and these stories of innocent children brutalized in state care would not have been written. The lessons learned from lawsuits have reduced these tragedies. Let’s focus on that principle rather than victimizing innocent families like the McGuire’s a second time.

Rebecca Roe is president of Washington State Association for Justice, a former senior deputy prosecutor for King County and an attorney with the law firm of Schroeter, Goldmark & Bender in Seattle.

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