July 05

The Board’s Work

by Lindsay Thompson

Bellevue, June 2-3, 2005

This time at bat the governors combined their meeting with the Access to Justice/Bar Leaders annual conferences. Thursday, June 2, was an afternoon session devoted to a consideration of Initiative 330. That’s the ballot measure to reform the legal system floated by the Washington State Medical Association. A gaggle of guests presented their views. The Board of Governors took up whether to do anything about the initiative.

The guests were of the Usual Suspects in tort reform, so I’m only going to summarize what they all said. Mostly it was recitations of talking points everyone has heard before and will certainly hear again as summer wanes, for we were promised big-budget ad campaigns in the media by all sides.

Thomas J. Curry, CEO of the medical association, started off. He said there is a man serving in the legislature whose name is “The Trial Lawyers’ Legislator of the Year.” This character apparently chairs a committee, and is a bit of a scamp. TTLLY was mean to the doctors and wouldn’t let any of their bills get out of his committee. WSTLA, not content to leave the fun to TTLLY, wasted boatloads of time in meetings with the doctors, and got all stroppy with their non-negotiable demands.

So, Mr. Curry concluded, the doctors had to go the initiative route, and when they said they were going to do it, the president of WSTLA threatened the president of the doctors with a WSTLA initiative. When the doctor manfully stood his ground, the trial lawyer showed a womanly display of retribution and filed WSTLA’s initiative out of pure spite.

The rest of Mr. Curry’s presentation cited studies supporting his position and slagging WSTLA’s initiative (“the three strikes provision in I-336 is an attempt to extort bigger settlements”). Mr. Curry thinks WSBA doesn’t have a dog in this fight and urged the BOG to remain neutral.

John Connelly is president-elect of WSTLA, and he spoke next. He predicted “a tremendous risk of the public being duped by a coming barrage of ads talking about greedy trial lawyers.” The doctors’ initiative brings in draconian restrictions; contains provisions that are unconstitutional on their faces; and gangs up on women, the elderly, and children, Connelly declared. He went through the WSBA’s legislative guidelines, which were adopted to help the BOG decide what measures to support, and concluded that supporting I-330 would violate those guidelines. He was particularly concerned that every time anyone in Washington seeks medical treatment, they’d have to sign a paper waiving their right to jury trial and admitting that the waiver isn’t a contract of adhesion. He exhorted the governors to “oppose 330 in the strongest terms.”

Mike Kreidler, the state insurance commissioner, came next, but said he wasn’t there as insurance commissioner. He explained how in his business and political career he has weathered three up-and-down cycles in the costs and availability of insurance in Washington. The insurance market is improving today and will continue to do so. For most doctors, insurance is more available and affordable; the company that insures about three-quarters of Washington doctors has offered a rate reduction and is making record profits. New carriers are entering the market. The last 10 years, according to a study Kreidler’s office did, shows no unusual spikes in insurance premiums over the last decade, just a steady increase tracking the rate of medical inflation.

Kreidler told the Board I-330 will punish malpractice victims, shield hospitals, result in arbitrarily reduced damage awards, and tilt the litigation playing field by limiting attorney fees on one side but not the other.

“If my position on I-330 sounds harsh,” Kreidler concluded, “It is not because I support 336 either.” He called for real reform through the legislative process.

Jeff Frank is the president of the Washington Defense Trial Lawyers. He and their liaison to the BOG, Jim Macpherson, urged the Board not to get involved. “Opposing 330 will put the Bar Association on the spear point of all the attacks partisans on both sides will surely launch,” Macpherson said. “You should sit this one out and let others do their advocacy.” Mr. Frank said he wasn’t there to argue the merits of either initiative, or to tell the Board what to do. “It’s not about whether you can do something,” he argued, “but whether you should.” The WSBA will get beaten up by members for taking sides; by the public for trying to feather the profession’s nest; and the results will be generally nasty, brutish, and long-lasting.

Barbara Flye is the former executive director of the consumer group Washington Citizen Action and newly named head of a “No on 330” campaign. She said 330 is anti-consumer and thought the WSBA should take no position on 330 or 336.

That ended the set-piece part of the debate. After a break, President Ron Ward (looking chipper and well after a nasty bout with gallbladder surgery) called for a Q&A session. Despite the fact the presenters all ranged back and forth over 330 and 336, the president ruled a motion by Governor Joni Kerr — to support neither — out of order on grounds 336 hadn’t been vetted, and commenters invited, as was occurring this time on 330.

It developed in the discussion that people were thinking in terms of several potential courses of action: taking a position for the initiative; taking a position against it; and a more Dadaist option of taking a position not to take a position, which was explained as being different from being for or against.

There were questions to the speakers about whether the initiative would shield insurance companies from liability (well, at least HMOs and health care contractors); or pharmaceutical companies (no, but yes, they are giving money to the initiative campaign); whether defense attorney fees would be regulated (no, “defense attorney fees are driven by plaintiffs’ attorney fees”).

Governor Mark Johnson cross-examined Mr. Curry at some length over issues like how you can make sure plaintiffs get more money by capping damage awards (“it’s a matter of balance,” Curry replied, a bit teeth-clenchedly).

Governor Kerr complained the program was being turned into a forum for WSTLA to tout its position and urged opposition to both. If we oppose 330 we’ll be seen as impliedly supporting 336, she said.

Governor Eron Berg asked, somewhat rhetorically, how the two sides could have let things get to such a sorry, zero-sum state. The Medical Association and WSTLA each blamed the other for being intransigent. Both claimed they had gone the extra mile, which made it look like they had passed each other somewhere along the way and ended up two miles apart.

A consensus emerged that however much the two initiatives may resemble steaming piles of verbiage, the WSBA’s core values — defense of the jury system and the courts, and separation of powers, for example — are at hazard under 330, so some kind of position was called for to educate the public. Others pointed out the initiative would reduce statutes of limitations and awards on meritorious cases as well as bad ones. After some rear-guard action by Governor Kerr to get a vote on both measures, the BOG voted unanimously to take a position on 330. After some further discussion, they voted 12-0-1 to oppose 330, Governor Kerr abstaining

Governor Berg produced a memo he and Governor Lonnie Davis did on 336, finding that for the most part the things it wants to do are outside the ambit of General Rule 12, the court rule that defines the sorts of things the Association can and can’t take positions on. Doug Ende, sitting in for WSBA General Counsel Bob Welden, told the Board the two measures are substantially different in a GR 12 analysis. The Board decided to put off action on 336 until they have an opinion from general counsel, probably at their July meeting.

So in the end the Board voted 9-4 to oppose Initiative 330. With a little time left on the clock, they approved appointments to WSBA’s Legislative Committee for the coming year, and recessed at 4.30 p.m.

Friday the Board reconvened at 9 a.m. and took up election of a new president for the year 2006-07 and a governor to fill one of the at-large seats. WSBA’s presidency rotates around the state — eastern Washington, western Washington outside King County, and King County. ‘Ought Six is a King County year, so from thence came two candidates: Ken Davidson, of Kirkland, and Ellen Conedera Dial, of Seattle.

The election presented more than usual interest to political junkies. On the one hand, Davidson is a bar leader’s bar leader: active for years in the East King County Bar Association, holding its presidency and starting a successful indigent legal defense program; active in the WSBA as a governor, treasurer, and member or chair of important committees; and a leader in efforts to rationalize drug sentencing laws. He was seeking to end the anomaly that in King County years, nobody has ever been elected from outside Seattle.

Ellen Dial was seeking to end the anomalies that only one WSBA president has been elected who didn’t serve on the BOG first, and that only two women have ever been president. Her c.v. offered two decades’ service in the WSBA’s committees and sections, service as chair of its Legislative Committee, and the successful landing of the massive rewrite of the Rules of Professional Conduct.

Each made a presentation to the Board and answered questions, then got packed outside. The Board then took an initial lap around the decision but ran into time problems: there were four candidates for the at-large seat who’d been promised their interviews would be done by lunch. The Board decided to pick up the presidential vote after lunch and hear the at-large candidates, but it makes more sense to deal with each in turn here.

Davidson’s supporters used the Bob Dole Argument: he’s worked hard, he knows everything, and it’s his turn. Oh, and Dial hasn’t been on the Board, where The Mysteries of Governance lie, to be revealed only to duly elected votives. Dial supporters argued there is no one true path to being president, and talked up her long and successful record of service.

Some argued WSBA needs to get to where electing women presidents is a norm, not an abnormality, but others countered that argument was just a gussied-up version of the Bob Dole Argument.

The afternoon, and the debate, dragged on. People got tired, and a bit testy. Discussion turned to things like speaking styles and who’d fare better advocating for the WSBA at The Seattle Times editorial board. It began to remind me of a high school student council debate over picking homecoming royalty.

As the discussion went on, and on, it segued into a sort of panel confession on Oprah. Governors, explaining their analyses of the candidates’ merits, started taking up sides. People who’d arrived planning to vote one way announced they’d changed their minds. Among those keeping tallies around the sidelines, brows furrowed. The vote was getting very close. Three governors, apparently deciding a secret ballot meant not telling how they’d vote, didn’t. Ballots were marked; no one appeared to be a felon, or dead; and Ellen Dial was declared the winner. She’ll start as president-elect in October.

In the middle of the hustings, lunch. The Board dined with the Access to Justice Board and heard its annual report. ATJ Vice Chair Dwight Williams urged the two boards to instutionalize regular meetings, because the relationship has gotten like a couple who’ve been married a long time and they don’t go on dates any more. You had to be there. (Note to BOG: it would be lovely if, sometime, lunch could just be lunch.)

Double-timed back to their meeting room, the Board took up deliberation on that at-large seat. The interviews were delightful: four candidates applied. All were bright, engaging, and brought remarkably various experience and backgrounds to the discussion.

The choice was among Sarah L. Lee, who’s an Allstate Insurance lawyer in Tacoma; Eric de los Santos, who’s general counsel to Labor Ready, a Tacoma-based firm; Hortensia Castillo, who was a lawyer in Mexico before going through WSBA’s law clerk program, passing the bar, and opening a practice in Arlington with her husband (“He didn’t want me to apply for this,” she told the Board. “I told him it was my decision.”), and Veronica Alicea-Galvan, a Seattle administrative law judge for the state.

As governors began the Oprah round, de los Santos seemed to take a bit of a lead but then the bid faltered as one governor conveyed intelligence from some minority bar groups that though he is Filipino, he really hadn’t done his time in the trenches and apparently, too, being a member of a sketch comedy group will lead to claims one lacks gravitas.

“Oh, give it a rest,” came at least one rejoinder from the sidelines. After some more discussion the Board elected de los Santos.

Appointments, more appointments . . . one to the Statute Law Committee; three to the ABA House of Delegates. Then the Board took up a batch of proposed amendments to the Rules of Appellate Procedure — mostly proposed by appellate judges to make things flow better — and voted to send them on to the Supreme Court for consideration.

Jim Macpherson brought up a report from his President and Governor Selection Task Force. It’s charged to come up with ways to rationalize WSBA’s election system.

In Board of Governors elections, members are chosen from federal congressional districts, except in Seattle, where the district was divided into three parts in 1998 to more equally distribute members among seats. In the Fifth and Sixth districts, the presence of a big population center (Spokane and Tacoma) has led to members from those burgs holding a permanent lock on BOG seats. The Second, Third, and Fourth districts have rotation agreements of varying degrees of formality.

The task force recommends institutionalizing rotations in WSBA’s Bylaws, including a provision that every nine years only a non-Spokane resident could run in the Fifth. They continue to talk about ways to encourage more people to run, one of which is to make sitting governors chair a committee to recruit at least two candidates to run for each BOG seat, which would, if nothing else, ensure that the BOG would be the first nonprofit board in America to adopt cloning.

The task force wants the BOG to act on the ideas in September. In the meantime, they will be put up on the website and made available to members in other ways to invite more comment.

After that, the co-chairs of the WSBA Diversity Committee, Leona Colegrove and Joaquin Hernandez, gave a report to the Board on WSBA diversity programs and mainly complained that the WSBA diversity advocate, Joslyn Donlin, doesn’t have the sort of staff support and budget similar programs in other state bars, created more than a year ago, have. A snark-bomb comment lobbed at one WSBA leader was so inappropriate even I won’t report it.

By now I was looking for a calendar rather than a clock, and things took a turn for the surreal as a rock band took up rehearsing in the two-thirds of the ballroom the BOG wasn’t using. First you’d think it was the Muzak being turned up; then the music would swell and eventually drown out gubernatorial discussion. At one point Governor Randy Gordon stood and started singing the remainder of his remarks to the pending tune. It turned out the band for the Access to Justice Conference skit had to rehearse and the Board was supposed to have been long since adjourned. The last number was Queen’s “We Are the Champions.” Lacking a lighter or a penlight, I settled for holding my hands in the air and swaying back and forth in time to the tune, hoping to jump-start my circulation. But happily, the Young Lawyers Division trustees arrived to give their annual report. With characteristic good humor and efficiency they presented reports, both concise and informative, in a quarter hour. Sometime they really should get more time.

The president gaveled the meeting to an end and before I could say, “I’m outta here,” hotel personnel, behind schedule finishing the ballroom for the ATJ skit, were disassembling the table at which I was writing, and strapping me and my chair to a dolly to be hauled away. Collecting myself on a loading dock, I found my car and went home. Next gig’s in July.