Shame on the Courts
In the last week before what is expected to be a close election, supporters of a sitting Governor have legally forced the opposing candidate to stop campaigning for a period of time. The implications of this for liberty are chilling.
In one fell swoop, supporters of Christine Gregoire have both politicized the courts and pioneered new lows in political campaigning. They have also abundantly illustrated the perversion of campaign finance laws into weapons with which the powerful oppress any challengers to their position.
Supporters of governor Gregoire, specifically retired Supreme Court Justices Utter and Ireland, sued the Building Industry Association of Washington (BIAW) on October 6, 2008 – 29 days prior to the election. Utter and Ireland’s suit alleges that the BIAW engaged in illegal campaign coordination with Dino Rossi. This is permitted under campaign finance law but is illustrative of the problematic nature of those same laws.
What distinguishes this lawsuit from others, however, was that the Justices sought to take the deposition (sworn testimony) of gubernatorial candidate Dino Rossi on an expedited basis. Civil Rule 30 (the court rule regarding depositions) states that, ordinarily, the plaintiff cannot take any depositions until 30 days after service of the lawsuit on a defendant. The plaintiff needs to get special court permission to take a deposition prior to that time.
The justices filed their lawsuit on October 6th – ordinarily they would not be able to get a deposition taken until Wednesday November 5th – the day after the election. The Justices, however, were able to go into court and get an order allowing a pre-election deposition of Dino Rossi.
Rossi’s attorneys went to the court and made the sensible argument that he was in the middle of a tightly fought campaign for the highest office in this State and he should not have to be sidelined while partisans of the other side get to ask him questions under oath. The court rules specifically allow third parties to ask for protective orders to protect them from “annoyance, embarrassment, oppression, or undue burden or expense.”
Judge Kallas ruled that “[e]arly discovery allows the parties to confirm – or dispel – the allegations before the election.” Judge Kallas is ordinarily a fine judge, but is simply wrong about this. Depositions are not hearings. Even if Dino Rossi vehemently denies any coordination with the BIAW the allegations will not be “dispelled” – Governor Gregoire’s partisans will simply argue that Rossi was lying, and the lawsuit will go on. A deposition is not a hearing, there is no rebuttal case put on by the opposing party. Nobody gets to rule on the merits of the allegations. A deposition is an interrogation, plain and simple.
In addition, Judge Kallas has made the all-too-common judicial mistake of forgetting that legal procedure, especially depositions, is burdensome and sometimes inflicting this burden on the other side is the point of the litigation.
The deposition occurred this morning. Not surprisingly it was a contentious waste of time. The plaintiff’s attorney apparently felt it was relevant to the lawsuit to ask if Rossi – who is nether a party or an attorney – if he understood that “the purpose of the public disclosure law in the state was to prevent ‘groups with lots of money from having a disproportionate or controlling influence on the election of candidates?’” This wasn’t a question, it was a speech. Plainitff’s attorney took the opportunity to berate Rossi. This behavior demonstrates that the lawsuit and the deposition were an exercise in political theater.
Judge Kallas is mistaken if she thinks this deposition will resolve any issues in the lawsuit. It was inevitable that the plaintiff attorney made sure that a transcript of the deposition were given to the press immediately. Depositions transcripts usually take a couple of weeks to produce – it is considered a extraordinary rush if the deposition transcript needed to be produced in 48 hours. The plaintiff expected and prepared for this opportunity. Judge Kallas gave it to them.
In summary, by silencing the Rossi campaign for a period of time, this ruling damages democracy in Washington State. In addition it (further) politicizes the courts. Utter and Ireland have successfully forced a candidate they disagree with off the campaign trail. They have silenced a campaign and served warning on anyone else who dares to oppose the selected candidate of the establishment. This is disgraceful. I fear that we have entered into a new era of campaign tactics in Washington State – third party proxy harassment litigation.
- posted by Thomas @ 6:35 PM
