Harkey’s lawsuit unites capitol foes

Few Capitol battles are as heated as the ongoing feud between the trial lawyers and advocates for tort reform. Yet, the two groups have found themselves on the same side of one litigation controversy. Both sides are critical of Orange County Assemblywoman Diane Harkey’s defamation lawsuit against a fellow Republican lawmaker.

In late August, Harkey filed a civil lawsuit against state Sen. Mark Wyland, R-San Diego, in Orange County Superior Court for defamation, presenting her in a false light and intentional infliction of emotional distress. The dispute centers on comments Wyland made at a summer Tea Party event, in which he allegedly referred to a failed investment company managed by Harkey’s husband, Dan. Both Wyland and Harkey are candidates for the Board of Equalization.

Harkey is seeking $10 million in damages after Wyland’s comments caused her to obtain medical treatment for “severe and grievous mental and emotional suffering, fright, anguish, shock, nervousness, and anxiety.” Harkey has refused to respond to CalWatchdog.com’s repeated requests for more information about the claimed medical treatment.

Tort reform advocates “disappointed” by litigation

Harkey’s multi-million dollar claim for emotional suffering has “disappointed” advocates for tort reform.

“Assemblymember Diane Harkey has been a strong ally in the fight against lawsuit abuse,” said Tom Scott, executive director of California Citizens Against Lawsuit Abuse. “We are disappointed that she felt this dispute needed to be settled through litigation, and we hope for a speedy resolution that avoids using scarce resources from our state's already overburdened courts.”

That statement put CALA on the same side as their mortal foes, the consumer attorneys (often called “trial lawyers”). Brian S. Kabateck, president of the Consumer Attorneys of California, offered a strong rebuke of Harkey’s lawsuit and accused the lawmaker of having a hypocritical stance on legal reform.

“Some people dislike the legal system until they need it,” Kabatech told CalWatchDog.com. “Diane Harkey’s recent propulsion from so-called ‘tort reform advocate’ to major litigant, filing a lawsuit some would term facially frivolous, highlights the hypocrisy in her position.”
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He added, “Reminds me of the old saying that, 'People who live in glass houses shouldn’t throw stones.'”

Potential violation of CA GOP rules

Harkey’s attack on Wyland could result in problems of her own. The California Republican Party could potentially rebuke Harkey at its upcoming fall convention. Under the party’s bylaws, delegates are obligated to “first exhaust their administrative remedies” before pursuing litigation against another delegate. Both Harkey and Wyland are delegates to the California Republican Party.

Section 3.09 of the CRP bylaws state:

“(B) All delegates or Committee-chartered organizations with any dispute or conflict subject to this section must first exhaust their administrative remedies pursuant to subsection 3.09(C) and if still unsatisfied, then subject such conflict or disputes to binding arbitration pursuant to subsection 3.09(D). This section constitutes the sole source of legal or equitable relief for all disputes subject to this section.”

Stephen Frank, who served for eight years as the parliamentarian for the California Republican Party, said that the rarely-used provision of the bylaws could be applied to the Harkey lawsuit.

“Technically, yes, two delegates cannot sue each other — even though it had nothing to do with the CRP,” said Frank, who helped write the anti-lawsuit section of the party’s bylaws.

Frank, who emphasized that he has not read the lawsuit and has no position on the dispute, said that Harkey’s potential violation of the party’s rules could result in a censure or even removal as a party delegate. A delegate must file a complaint, which is referred to the party’s Rules Committee. The committee considers whether to take action before referring it to the full convention for a vote.

Messy intra-party feuds

In his long history of Republican political activism, Frank can only recall one instance in which a CRP delegate has been rebuked for filing a lawsuit against a fellow party member. The provision was originally drafted to address a feud between rival young Republican clubs.

“It was messy and made the party look bad,” Frank said of the dispute. “The intent [of the provision] was to stop those suits from going public, and instead try to handle disputes internally.”

Already, the consumer attorneys have seized on the lawsuit to impugn the entire tort reform movement. The movement is a favorite talking point for Republican candidates.

“Using her office to routinely slam lawyers who represent truly injured and powerless victims, all the while planning to file her own lawsuit, makes a mockery of the entire tort reform movement,” Kabateck said.