OLYMPIA, June 11.—If an election wasn’t at stake and lawyers weren’t so expensive, you might find people in good humor about the latest political lawsuit filed by Seattle attorney Knoll Lowney. In a case now before King County Superior Court, the litigious Seattle progressive alleges that Republican Attorney General Rob McKenna, candidate for governor this year, committed a staggering ethical violation when he joined the national challenge against the Obama Administration’s health care reform and deferred to others on legal strategy.
What’s funny about it? For one thing, the ethics charge is based on an argument so novel some say it might come from Mars. The whole suit hinges on a high-profile national case that was argued before the U.S. Supreme Court months ago, and almost certainly will be decided in the next few weeks – meaning that the central issue will shortly become moot. And then there’s the remedy Lowney seeks. He would force McKenna to file a new brief in the federal case. But it would likely make little difference in a suit pressed by 26 states, it would probably come too late to affect the Supreme Court’s deliberations, and it also would require the highest court in the land to waive its own rules and allow Washington to file new paperwork six months after the deadline.
No matter. Lowney says he’s pressing ahead no matter what. He wants the courts in this state to declare that McKenna behaved unethically, and he says that demand will stand even if the Supreme Court nixes health care reform. “The crux of this lawsuit is about making sure Rob McKenna stops his attack on women’s health care,” he explained to reporters two weeks ago. And while Lowney contends the case will settle important issues of legal process, the case appears designed more to amplify the argument that Republicans are waging a “war on women” – a favorite campaign theme for Democrats this election year. A hearing to dismiss the case is set for June 22, but whatever the decision, it is subject to appeal, and with any luck the process can be strung out right up through election day.
Take-no-prisoners political litigation has become standard operating procedure for Lowney, who has established himself as a leader in the field over the last six years. His cases grind for years and achieve maximum embarrassment and harassment value during election season, only to fizzle after the election is over. A week before the 2008 election, one suit forced Republican gubernatorial candidate Dino Rossi to parade before the TV cameras on his way to a deposition Lowney said was urgent. But after the election Lowney let the case slide nearly two years, until Rossi ran for U.S. Senate and Lowney filed new motions to haul Rossi back into court. Lowney’s targets, all of them on the Republican side of the aisle, say he has made a mockery of the judicial system in Washington state, using the courts to score points that are more appropriately argued in the political arena. Not that it makes a difference what anyone says. A new filing Friday in the McKenna case might be read as an attempt to ratchet up the embarrassment stakes. And it shows that once again, no matter how much outrage Lowney stirs among his adversaries, he’s figured out a way to turn the courts into a political weapon.
“He’s just the worst,” says Tom Kwieciak, who found himself on the receiving end of another Lowney attack when he worked at the Building Industry Association of Washington. “He’s got a political agenda and he is using his law degree to terrorize his opponents. You’d think the court at some point has the responsibility to protect people from people like him.”
For his part, Lowney says you can’t expect his targets to join his fan club.
New Brief Offers Fodder
In his Friday court filing, Lowney presented more than 100 pages of documents generated by a public records act request. They show that the attorney general’s office launched a communications strategy to explain its position to the general public after McKenna joined the national health care lawsuit in March 2010. The new documents don’t alter the arguments in the case a whit, and inasmuch as political activists were staging demonstrations outside McKenna’s office door at the time, it might make sense that the attorney general’s office would attempt to explain its position. Yet the documents might make a headline or two in the Seattle alternative press, and could figure in campaign ads come fall.
Lowney filed suit May 3 on behalf of 89 women alleging that McKenna had committed a breach of legal ethics by embracing a legal strategy that didn’t match his press releases. The issue is a bit esoteric, but here’s the quick version. The original health-care reform lawsuit was filed by the state of Florida and was joined by every state with a Republican governor or an independently elected Republican attorney general. It maintained that an important part of the Affordable Care Act was unconstitutional – the federal mandate that everyone obtain health insurance. The mandate basically means that most Americans will have to buy insurance from private carriers. So that’s one legal question. A bigger one is what happens if that part of the law is thrown out. Does the rest of the law have to go with it?
Back in 2010, in public forums, press releases, statements on the attorney general’s website, and interviews on radio and TV, McKenna maintained that the issue was “severable.” That is, you could dump the mandate and still have health care reform. But the U.S. Supreme Court agreed to hear the case last November and the 26 states had to decide on their approach. A majority of the plaintiffs decided to argue that the issue wasn’t severable. The attorney general’s office stuck with them and McKenna signed on to the brief. The Supreme Court heard oral arguments in March, and a decision is expected shortly.
For McKenna to express one opinion and then participate in a different legal strategy is a breach of his duty to the people of the state, Lowney argues. “Taking legal action against your client’s interests like that is one of the most serious breaches of ethical duties that a lawyer can make,” he said at a news conference announcing the suit. “In fact, it is often reason for disbarment.”
The attorney general’s office, which is defending the case, has been left trying to explain how big multi-state cases actually work. “It is very typical when you sign on to a multi-state [lawsuit] that there may be pieces of it with which you disagree, or that maybe you think might be handled differently,” said Dan Sytman, spokesman for the attorney general’s office. “But the reason for working as a group is that there are efficiencies; there is power in numbers. It’s a balancing act, and I think we would have been hammered if we had filed our own lawsuit with state resources. We would still be in this controversy, but the talking points on the other side would be different.”
So Much for the Merits
In the legal trade there are many who think Lowney’s argument is about as silly as the suit that sought damages from Major League Baseball because the World’s Series doesn’t include Japan. Of course Washington’s top elected legal official gets to decide the state’s legal strategy, they say. And then there is the matter of process. The suit ignores the fact that ethics complaints are handled by the state Bar Association, rather than the courts. The complaint is based on the Washington bar’s rules of professional conduct – but the rules themselves state that they’re not supposed to be used as the basis for lawsuits. They say an allegation of a violation “should not itself give rise to a cause of action, nor should it create any presumption in such cases that a legal duty has been breached.”
Former U.S. Attorney Mike McKay is backing McKenna in this year’s race, but he says that has nothing to do with his contempt for the tactic. “The lawsuit itself is political,” he says. “It is frivolous and utterly worthless. It is not a lawsuit brought by lawyers on behalf of aggrieved parties. It is frankly galling to me that the state would have to pay to defend against an allegation which is clearly politically motivated. The idea is to call a press conference and get publicity, but I can guarantee you this case is not going to be a success in the courts. It will be a success politically because they are able to make these points. And then, months from now, the case will be dismissed, but through no fault of the media it won’t be a front-page story. It will be a back-page story.”
Actually, Lowney’s argument has already been bounced. King County Superior Court Judge Sharon Armstrong said no to Lowney after he argued for a preliminary injunction May 25. The issues were the same as those that will be raised in the final judgment. Armstrong not only rejected Lowney’s argument, she seemed to tip her hand about her final ruling. She said press releases are one thing and legal strategy is another, and she wasn’t about to second-guess the A.G. “The court finds that Rob McKenna’s statements in press releases and on the Office [of] Attorney General website are political statements by an elected official. Whether the statements that he supports severability in the ACA litigation are accurate, correctly reflect Mr. McKenna’s personal beliefs, or are made for reasons of political expediency, are issues to be addressed in the political realm.”
The official purpose of Lowney’s Friday brief was to urge Armstrong to reconsider her decision.
A Different Kind of Trial
The court’s view isn’t the important thing. It’s how the argument plays with the general public. This season’s Democratic campaign theme is the war on women — they’re charging that Republicans aim to cancel abortion rights and gut programs for women’s health. Which means this suit is perfectly pitched. Even though the Affordable Care Act applies to both men and women, Lowney’s suit ignores men and argues only that health services for women will be impacted. The complaint reads in places less like a legal brief than a press release. It argues that the national health care lawsuit “would place women’s lives at risk, jeopardize their right to contraception, and force Washington women to pay tens of millions of dollars for contraception and preventive care that they may receive for free under the ACA. Other women would be denied health care under ‘lifetime caps’ that are prohibited by the ACA.”
Lowney’s legal argument goes on to state, “Thirteen male attorneys general lack moral standing to decide the fate of women’s health care.”
At the news conference announcing the lawsuit, Lowney was flanked by women with heart-rending stories about how insurance-coverage caps might leave them without care and might even send them to the grave. Asked if perhaps there might be a political motivation for the lawsuit, cancer victim Melissa Mackey declared, “All I can say is that you know I didn’t get cancer for political reasons, and I just haven’t done 20 months of treatment for a governor’s race. I want to be treated fairly. I want to be taken care of, and that is what I deserve. I don’t care who is governor or attorney general. I just want that person to care about the people of this state and that is what I think is the issue here.”
Of course there is more to it. Mackey is the lead plaintiff in the original group of 90. Washington State Wire googled the rest. Only four appear to be aggrieved parties in the health care case. In addition to Mackey, there is teacher Sue Black, who introduced President Obama at a Seattle appearance with a similar story about cancer and insurance caps. There is Karah Pino, a holistic healer who also spoke at the news conference about lingering nerve damage she suffered in an automobile crash. And there is Jaydra Cope of Spokane, who appeared at a state Senate hearing this year to testify that her brother died because he didn’t have insurance and didn’t see a doctor in time for treatment of an undiagnosed heart ailment.
As for the rest – it all seems to be about politics. Although Washington State Wire was unable to identify 15 names, the rest of the plaintiffs appear to be a regular who’s-who of women active in the state’s “progressive” circles. Many are professionals. At least 39 of them hold staff or board positions at organizations that range from FUSE Washington to Climate Solutions and the Peace and Justice Action League of Spokane. An astounding 21 of the plaintiffs are in the fund-raising business. Others make their livings by providing consulting and legal services to non-profit organizations. A few are prominent volunteers.
Notable names on the list include former Spokane Mayor Mary Verner and Seattle communications consultant Kim Fuqua, who made the news recently in connection with King County Executive Dow Constantine. There’s also Kendra Obom, the Democratic-party tracker who made the news last month when she peppered McKenna with questions about an abortion-related insurance bill that failed to pass this year’s Democrat-controlled Legislature. The frustrated attorney general finally told Obom to “get a job” – a point that activists have taken as a major victory.
There also is an interesting omission from the list of plaintiffs in the latest version of the complaint. The original version also named Lowney’s wife, Barb Flye, who is a prominent adviser on health care policy issues to Democratic Insurance Commissioner Mike Kreidler and who frequently testifies at legislative hearings regarding health care reform. Her participation in the lawsuit against McKenna was widely noted by political insiders at the time the suit was filed. Flye’s name was dropped when an amended version of the complaint was filed May 15.
As if to underscore the partisan nature of the case, Kreidler issued a press release welcoming Lowney’s lawsuit against McKenna. On the day the case was filed, he said, “If the court challenge by Mr. McKenna and his conservative colleagues unravels the entire health care reform law, it will be a travesty.”
To Be Expected
The case is really par for the course for Lowney, say old courtroom foes. Lowney has made a specialty of litigation with a high-politics bent. His first high-profile case was in 2006, in which he ultimately persuaded the state Supreme Court to overturn Initiative 747, a property-tax rollback measure that had been championed by initiative promoter Tim Eyman. Later cases followed a different pattern. Litigation tied opponents in knots, and the ultimate disposition wasn’t as important as the drain of courtroom battles and legal fees. A suit against Republican Senate candidate Mike McGavick during the 2006 Senate campaign ended in dismissal after the election. Next came an infinitely complicated multi-year battle with BIAW, once a major Republican campaign contributor. That put Rossi in the cross-hairs with charges of independent-campaign collusion, though Rossi was ultimately cleared. But the organization was forced to settle a tangentially related campaign-violation case with the state for $242,000. It was a tangled bit of litigation, but the upshot was that Lowney sued for $98 million at one point and got nothing in the end. The most important effect? BIAW spent millions to defend itself. The case isn’t over yet — a handful of skirmishes remain.
“I think all of us who have been locked in cases with Knoll and who pay attention to politics anticipated that sometime before this election Rob McKenna would be getting something from Knoll,” said attorney Rob Maguire, who represented BIAW in the case. “You couldn’t know what form it would take; I didn’t expect it to be health care. But when I saw it I wasn’t surprised that Knoll had come up with some sort of a theory to generate some headlines and create some adverse publicity to suggest that there is some sort of a character problem for McKenna.”
Surprise, no. But still it doesn’t sit well with the McKenna camp. Says campaign manager Randy Pepple, “It’s sad that Mr. Lowney preys upon the real medical concerns of some of his plaintiffs to string them along in a lawsuit which he knows is without merit. Of course, listing his wife and other partisan activists as plaintiffs in the lawsuit just demonstrates how politically motivated it really is.
“These multiple legal filings are unfortunately all too typical for Mr. Lowney. He jams the courts with dubious complaints, using the legal system as a political weapon. Mr. Lowney should be ashamed at wasting the court’s time, and delaying justice for people who have real cases that are being delayed by his partisan stunts.
“If there is justice for the people of Washington, the media and other political observers will finally decide to stop paying attention to Mr. Lowney, and his financial backers will stop throwing good money after bad.”