How the Corporate Republican Courts Turned From ‘Tort Reform’ to ‘Sovereign Immunity’ for Hospitals and Destroyed Americans’ Sixth Amendment Jury Rights
Watch this video interview with Mark Kennedy
by Glynn Wilson
How did Karl “Turd Blossom” Rove, the adopted son of a gay man with pierced balls and a drunk, drug addict mother, become such a powerful and destructive force in American politics?
In the South we have a long history of asking people where they’re from, about their family. We have a need to know something about their mama. Yet as an American demographic, white Southern males over 50 have been listening to the politicians handled by Karl Rove and his ilk for three decades now. How did this happen?
While Karl Rove’s personal story may be a sad and tragic one, it may also explain why he became such a vicious, mean political animal. But that does not mean we have to listen to him.
Was it not clear enough in 2008 that Rove’s crowning political achievement, fooling the American establishment and the people into electing one of the worst presidents in U.S. history twice, George W. Bush, that his brand of Machiavellian, scorched-earth politics is bad for American democracy and the global economy?
Now, according to all the available evidence, including the reporting in Craig Unger’s book Boss Rove: Inside Karl Rove’s Secret Kingdom of Power, Rove sits on the largest political war chest in human history. He has usurped the National Republican Party’s fund raising authority. He’s using millions of dollars from billionaire donors to try to help Massachusetts Mormon Mitt Romney unseat President Barack Obama from the White House, and he’s now allowed to do it in a totally unaccountable way due to the conservative majority on the U.S. Supreme Court’s controversial ruling in Citizens United vs. the Federal Election Commission.
How is it possible that no one in the American news media been able to bury this horrendous political animal and stop him from destroying what’s left of this experiment in government of, by and for “the people?”
If Rove’s client Mitt Romney wins the presidential election of 2012, chances are we will end up in another world war, perhaps a nuclear war, and a global depression, according to a variety of experts. But even the president of the United States can’t seem to effectively make that case with only two weeks to go before the Nov. 6 elections.
So we will make the case here.
While Craig Unger was hobnobbing with the political brass in Dallas, Texas, and knows the Bush family political landscape where Rove got his first start in big time politics, and his book is highly recommended for anyone wanting to know the factual big picture of what happened, I know the other state where Karl Rove really cut his political consulting teeth, Alabama. When Rove was invited by Bill Canary of the Business Council of Alabama to come help Republicans take over the state Supreme Court starting in 1994, I had already worked as a political reporter for newspapers in South Alabama and North Alabama and covered the final term in office of George C. Wallace, one of the brilliant politicians who mastered the art of dirty tricks Rove would study and steal tactics from — especially using racism as a political weapon.
In 1994, however, I was not in a position to cover what became a Conservative Revolution in Alabama politics while House Speaker Newt Gingrich took over Congress and implemented his so-called “Contract With America.” I had my nose in books and academic research papers studying how the news media effects public opinion in a Master’s degree program at the University of Alabama, in the College of Communications and the Political Science department. In the very early days of the Internet and Web browsers, I was spending much of my time in Gorgus Library reading books and journals in paper form and making hundreds of copies of documents, which I still have in metal file cabinets all underlined from my extensive readings.
By 1995, I finished my Master’s thesis, earned my degree and left the state to teach in Georgia, then to work on a Ph.D. in Tennessee. By the year 2000, the year the U.S. Supreme Court handed George W. Bush the keys to the White House in the wake of the hanging chad controversy in Florida, I had moved to News Orleans to teach and conduct research at Loyola University New Orleans. By 2002, I was writing for The Dallas Morning News, however, and then the Christian Science Monitor and the New York Times.
In 2004, when Taylor Bright did one of the few stories on what Karl Rove was up to in Alabama for the now defunct Birmingham Post-Herald, and Joshua Green was working on his piece for Atlantic Monthly on Karl Rove in a Corner, I did my own investigation and told the definitive story on George W. Bush’s lost year in 1972. Bush was hiding out from a drug charge in Houston by working on the Senate campaign of Republican Red Blount in Montgomery, Alabama, while Karl Rove was stealing his first election — as president of the College Republicans.
I moved to Washington, D.C. in 2004 to get news work in the nation’s capital, and maybe find a way to help stop Bush from being re-elected to a second term. I already had a sense that the Bush-Rove style of politics was bad for America, but nobody would listen then. Nobody seemed to care until in early 2008, we found out that the country had already been in a Great Recession since the winter of 2007.
All of a sudden the political landscape was ripe for a Harvard educated black guy like Barack Obama, a one-term U.S. Senator from Chicago.
Since moving back to my home state, however, I finally got the opportunity to interview Mark Kennedy earlier this year on what really happened to him in 1994.
How Karl Rove Ran Mark Kennedy Off the Supreme Court
Watch this video interview with Mark Kennedy
Kennedy, the son-in-law of George Wallace himself, was the first state Supreme Court Justice targeted by Karl Rove, who came to work for a University of Alabama Law School professor named Harold See at the behest of the Business Council of Alabama. It was and is still run by Bill Canary who had worked as a political operative for George H.W. Bush. We haven’t seen much of Canary since he was named prominently in all the stories about the political prosecution of former Alabama Governor Don Siegelman.
Kennedy actually beat Rove and his candidate in that first race, barely, but he was so shaken by the dirty campaign tactics that he decided not to seek another term and face Rove again in 1998. He retired, but finally agreed in 2010 to get back into politics as head of the Alabama Democratic Party.
I caught up with him at an AFL-CIO convention in Prattville last fall and got him to tell me the story of what Karl Rove did to him. You can see the interview in the video above.
Before being elected to the state Supreme Court, Kennedy served as a juvenile judge and family-court judge, where he saw the negative plight of abused children who ended up in the justice system. In light of his experiences, he helped start the Children’s Trust Fund of Alabama and later the Corporate Foundation for Children and served as president of the National Committee to Prevent Child Abuse and Neglect. Kennedy’s campaign commercials showed his volunteer work, and included pictures of him holding hands with children he had helped.
Rove took those innocent pictures and, in the early days of the Internet, got Republican operatives at the University of Alabama Law School and the secretive, conservative Federalist Society to e-mail around an attack ad claiming Kennedy was a gay pedophile. It was not unlike the “whispering campaign” he used in Texas to get Bush elected over Ann Richards, who he accused of being a lesbian in similar fashion.
“Karl Rove is a expert at turning what you believe to be your strongest suit into being your worst nightmare, kind of like the Swiftboat ads,” Kennedy said. “He accused me of being a pedophile.”
Rove also exaggerated the issue of large jury awards and turned “tort reform” into a campaign issue, accusing judges like Kennedy of being “too liberal” and guilty of “jackpot justice.” With those misleading tactics, he managed to take over the Texas and Alabama appellate court systems by getting pro-big business Republicans elected. Over time the Alabama Supreme Court and the Court of Civil Appeals became a “no win zone” for any average Alabamian seeking justice for a grievance against any corporate entity that wronged them. Big insurance companies loved this, so they chipped in millions to Rove’s campaigns after that and still support him to this day in a big way.
While it is clear that even if there was an imbalance in the court system in favor of juries granting too much to defendants in trials in those days, the pendulum has swung way too far back in the other direction, and nobody in the mainstream media is telling that story.
So in the process of investigating this, to show how imbalanced the courts have become, we caught up with a Montgomery woman named Jo Ann Shiver. She is also interviewed in the video.
How the Supreme Court Came Up With ‘Sovereign Immunity’ for Hospitals
Shiver’s mother was killed by a deadly staph infection she caught in a Baptist hospital that was ignored and even covered up by the hospital staff.
Her sister filed a lawsuit against the Montgomery hospital and actually managed to win a jury verdict in the lower court. But the case was thrown out by the state Supreme Court, by the judges Rove and his brand of dirty politics were instrumental in electing to the bench.
Ms. Shiver said she has no doubt politics played a role in the case. “Follow the money,” she said.
You could research the court dockets in this state and find hundreds of cases like this where justice was clearly not done. But this one is so strange it deserves special attention.
In this case, not only did the justices throw out the jury verdict and the award for damages. They actually set a precedent that unless reversed soon will result in thousands of unnecessary deaths by unaccountable doctors and hospitals. Here again, the University of Alabama plays a critical role in this part of the saga.
The Montgomery hospital had entered into a management agreement with the university on paper to handle some of the accounting due to some financial problems they were having, and as a result, the Supreme Court ruled that the hospital was a legal entity of the state and could not be sued under an old English Common Law tenant known as “Sovereign Immunity.” You could not sue the King in a Monarchy, and under certain circumstances, you can’t sue the state even today.
But somehow I doubt that even those who wrote the language for the English law would have envisioned a day when sovereign immunity would cover a private, for profit hospital owned by a church.
The court vacated a $3.2 million jury verdict in favor of the family of Lauree Durden Ellison. She died Nov. 8, 2005, after a stay at Baptist Medical Center East in Montgomery. She developed a staph infection from the hospital, but the church-state hospital administrators refused further treatment and denied liability or responsibility.
“They said she slipped through the cracks,” Ms. Shiver said, nearly tearing up.
I have searched high and low for an independent legal expert who could address this situation with insight. But so far, apparently the precedent is so strange that no one knows anything about it. It truly is one of those times when you have to throw up your hands and say, “only in Alabama.”
“Nobody knows the consequences of that opinion. It goes where no one has gone before,” Mark White, a former president of the Alabama Bar Association, told a Tuscaloosa newspaper reporter last year in one of the few news stories on the case to get reported in Alabama. No national news organization has touched the story.
Then-Chief Justice Sue Bell Cobb, the one Democrat on the court at the time who dissented in the case, said although Baptist Health retains an interest in its assets that are managed by the UAB health care authority, the court’s decision means the hospital is no longer “legally responsible for the harm that may be caused by its negligence.”
“Shouldn’t a hospital be responsible if they cut the wrong leg off?” Ms. Shiver asks. “It gives them license to be negligent.”
William Powell, an attorney for a friend-of-the-court group, said sovereign immunity is a powerful legal-protection device.
“You can only sue the king if the king lets you,” he said.
The Alabama Association for Justice and the Alabama AFL-CIO have asked the court to grant a rehearing in the case, but so far, the high court has been non-responsive.
Morris Lilienthal, a trial lawyer in North Alabama who has reviewed the Ellison case, said the decision overreaches in a major way.
“It’s going to have dramatic effects on the law in Alabama,” he said.
The effect, in essence, is that all the health systems in Alabama, which already have “unbelievable, overreaching” protections under the Alabama Medical Liability Act, “may just be totally immune” from negligence or wrongful death claims from now on, Lilienthal said. “The doctors and staff there now have compete immunity from any accident.”
The Law as a Check on Greed
The law is supposed to be a leveler for and a check on “corporations out just for greed and money” and has made the world a safer place, he said. Even doctors should admit if they operate on the wrong limb of someone or leave medical instruments in a person and cause harm, for example, they should be held to a certain standard and be held accountable.
The Ellison case sets up a scenario where they are no longer held to a standard and are immune from any accountability. “It’s certainly not fair,” he said.
Tom Edwards, who ran for a state Supreme Court slot in 2010 as a Democrat and lost, said the Ellison case is a “clear example of how our Supreme Court will go out of its way to protect big business.”
When asked if he thought Rove’s takeover of the courts ended up creating a big corporation protection bureau and destroyed constitutional jury rights, making it impossible for average folks to get justice in the court system, he said: “That’s exactly what happened.”
“They do it very systematically,” he said. “The decision uses strained logic to set a legal precedent that grants state sovereign immunity to a private, profit-making operation competing in the private sector. It was a way for them to go out of their way to protect the medical industry.”
Another one of Rove’s tactics is to get his clients to rail against “activist liberal judges” who “legislate from the bench” to protect minorities and such.
But no one ever seems seems to talk about “activist conservative judges” who legislate from the bench to protect big corporations.
The Ellison case, Edwards said, is an example of “an activist court of an extreme nature. They write new laws from the bench every Friday, and they protect big corporations over the citizens of Alabama.”
Of course many doctors, hospitals, their PACs and their insurance carriers give millions of dollars in campaign contributions every year, mostly to Republicans.
Now ask yourself if your vote matters. If a hospital killed your mother, would you not want to sue somebody? Apparently you can’t do that anymore in Alabama.
For average working folks to vote Republican is “absolutely against their economic interest,” according to union officials such as Al Henley of the Alabama AFL-CIO and Auburn History Professor Wayne Flynt.
In addition, Lienthall added, most states have a tort claims act on the books where state entities can be held liable. But not in Alabama, he said, which is still operating under an outdated constitution written in 1901, updated in election years by constitutional amendments placed on the ballot at election time — and by judges. Those judges are elected as partisans who must raise millions in campaign contributions to get elected to jobs that qualify them for state retirement benefits — subsidized by the taxpayers, citizens who no longer possess full citizenship since they have no right to sue for damages or render judgements against corporations from the jury box.
Legal experts agree that where legislatures and courts intercede on these rights they violate the Sixth Amendment to the U.S. Constitution.
Yet again, Karl Rove and his clients are getting away with trampling on the constitution — seemingly without challenge. Only on the Web Press.
Why is it that the people who are getting screwed the worst keep voting for them?
“You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time,” Lincoln said.
Unless you can convince them all to get their news from talk radio and Fox.
Karl Rove at a book signing in Birmingham with William “Bill” Pryor who President George W. Bush appointed to the U.S. Eleventh Circuit Court of Appeals in Atlanta as a political payoff for beginning the prosecution of former Alabama Governor Don Siegelman. Rove denied even knowing Pryor in a hearing before the House Judiciary Committee, even though he ran his campaign for Attorney General of Alabama in 1998. When Pryor greeted Rove at this event at Brookwood Mall, he said, “Hey bud,” and they hugged.
Ms. Shiver has written a letter to the University of Alabama Board of Trustees asking about a conflict of interest and an ethics problem with the hospital arrangement, but she has never received a response. You can read her letter below.
© 2012 – 2013, Glynn Wilson. All rights reserved.