Since Attorney General Ken Cuccinelli might have to recuse himself in this matter, hopefully the AG will not mind if I play Attorney General for the day. True, there hasn’t been a Democratic AG elected since 1989, so he has to forgive me for being a little rusty.
So, begging his indolence, let me discuss the possibility of the VA Republican Party being liable – or more accurately opening itself up to a potential adverse multi-million-dollar legal judgment. Those filing the suit would be Lt. Governor Bill Bolling and other candidates who have been spending large sums of money in reliance on the VA GOP’s promise to use a primary, not a convention, to select the party’s 2013 statewide ticket.
Rumors that party officials might want to reverse this decision – and return to the convention process- have been strong in recent weeks, finally bubbling over into the Washington Post this morning. It now appears some newly-elected members to the GOP’s governing body will move at their upcoming June 15th meeting to have the primary replaced with a convention, or at least get the matter opened up to a future vote in time for the change to be made and properly communicated to the State Board of Elections.
So, we have two general legal questions: 1) Can the GOP, having voted already for a primary, reverse itself? and 2) Assuming they do reverse their decision, would they be liable to Mr. Bolling and others who spent large sums of money preparing for a primary they would not otherwise have spent but for justifiable reliance on the promise made to them by the GOP?
Let’s see if we can answer these questions.
Last year, using authority granted to it by the State of Virginia, the governing body of the Virginia Republican Party voted to hold a primary for Governor, Lt. Governor and Attorney General in 2013 at the time required by law. Under the Virginia Constitution, the authority to choose the method of nomination – a convention process is the other alternative – rests with the General Assembly of Virginia. However, the General Assembly many years ago decided to give this power to choose a nominating method to the governing body of the Republican Party (and other duly recognized parties).
However, as with the General Assembly’s decision to require a presidential primary this past March, the lawmakers could have like wise dedicated a primary or convention for the state’s political parties. But as I say, state law lets the parties decide.
This is important since, as a matter of law, the parties are therefore agents of the state when carrying out what is otherwise a state function. This is important to remember. The so called “black primary cases” out of Texas from the 1940s established that in terms of elective politics, political parties were not private clubs, and thus the state couldn’t get around the Constitution by saying, “Hey, we aren’t the one’s denying African-Americans the right to vote in a primary, it is the Texas Democratic Party.”
The larger point being: By giving the VA GOP the power to pick the nomination process to be used next year, the General Assembly, in layman’s terms, has made said Republican Party an agent of the state. In that regard, the state intended to convey to all citizens that the Party could be relied upon to use such power in a reasonable and honorable fashion.
Or put another way: The state, through its action, and the Party, being the party of the state’s three statewide elected officials, told Virginians that Republicans expected affected citizens to rely – and take such reasonable actions therefrom – on its actions in this legal area.
Meaning: Bill Bolling, et. al. were acting in a reasonable fashion when they spent X dollars in reliance on the fact the VA GOP had promised to hold a primary in 2013.
SO: While the VA GOP, under state law, would appear to have the power to switch back to a Convention as long as this was done within the applicable statutory requirements, this isn’t the only legal consideration they may have to mull over this coming June. For if they reverse themselves, it isn’t just a matter of whether the reversal is legal: there is the question of whether they might then become liable for multi-millions in damages to Bill Bolling and others.
To be sure, the actual legal mechanics of a lawsuit for those aggrieved by the reversal is tricky. Moreover, these suits could arise different ways. So let’s just discuss the principles generally.
Assume, for example, that donors to the Bolling campaign demand their money back on the grounds they were solicited on the basis of such contributions going to win a primary. As it turns out, there is no primary. Thus, the donors say they would not have given any funds under such circumstances.
Let’s assume the donors have a case. In defending himself, Mr. Bolling is going to say that he reasonably relied on what the GOP, and indirectly the state which granted them said power, had promised. So Bolling’s lawyers are going to make a motion to add the GOP to case, and demand that the Republican Party, and it’s officials, be held liable to cover what monies Bolling make have to return to said donors.
The concept of justifiable reliance, whether in a tort, contract, or equity situation, is actually quite basic to our laws on the civil side. It is one of the key concepts in terms of capitalism if properly understood. Thus it is at the heart of GOP philosophy, which wants less formal regulations, rules, etc. and more reliance on parties free to negotiate to protect their own self interests.
This is way the concept of justifiable reliance is key to the GOP philosophy: unless each party to a situation knows it can recover damages whenever it is injured due to justifiably relying on a promise the other side makes but breaks, things can not work in society. It would raise the cost of capital way too high as folks have to figure in the risk possibilities to arrive at a fair rate of return.
This is the reason for written stuff that says parties agree to do this or that: people need to know, they need to be able to justifiably rely.
Thus, any GOP reversal here has potential legal implications in my view.
Moreover, the VA GOP, and the individual members of their governing board, knew Mr. Bolling and others would indeed rely on their promise to hold a primary indeed I would agree the promise was made – and intentionally so – to Mr. Bolling if not legally direct then surely indirect.
Thus, to me, it wasn’t just a philosophical thing or a general decision made by the GOP folks: it was specifically intended to satisfy both Bolling and the AG for reasons of great benefit to the VA GOP along with those on the governing board of the party.
Thus, in terms of the equity in the situation, I don’t see any Judge or Jury having much sympathy for the GOP or it’s officials on this matter.
Not to mention: The case is likely to be brought in Richmond given that the VA GOP is headquartered here.
There are quite a few folks in Richmond, especially after the Tracy Thorne-Begland situation, who would love to be on the jury in a case where the GOP had to defend itself for breaking a promise.
But I digress: nor do I suggest any Richmond jury would do anything but blindfolded justice based on the facts in the civil case.
Bottom line: As a general rule, our legal system believes that where one party suffers damages from having justifiably relied on promises/actions taken by others who at the time were using their power to encourage said party to do the very things which led to said damages, then those so inducing said party to act should be held liable when said damages were reasonably foreseeable.
This surely seems to be the case here.
As I say, the precise mechanism of any such suit is tricky and beyond the scope of this article.
As someone trained in the law, I like the idea of private capitalism being able to operate freely with those representing the interests involved being able to protect themselves since that dynamic can be very creative. But to work, it must require individuals to be held accountable for promises made to induce others to spend their money.
Bottom line: Lt. Governor Bolling was justified in relying on the promise made by the VA GOP, as authorized by the state of Virginia, regarding a primary, such promise justifiably and reasonably leading to certain expenditures/actions foreseeable by the Republican Party and those acting in it’s behalf when voting for the 2013 primary.
In the paper today, Mr. Cuccinelli’s able political guy suggests that a convention process will be less costly, in terms of campaign expenses, then the primary. He is careful to say the AG is ready to win under any nominating circumstances.
But going to convention now might not prove as cheap as he thinks.
Someone would have to step up to pay for a big legal judgment against the GOP.
Indeed, the GOP Party lawyer might have to sue the individual members of the governing body for reimbursement.
Finally, as I understand it, the AG, the LG and others have already filed papers with the State Board of Elections relative to their being a primary, since the rules are different if there is going to be a convention.
This adds another level of legal complexity should the GOP reverse itself.
Like I say, maybe it is time for a Democratic Attorney General. Because at this rate, all the GOP lawyers are going to have GOP clients suing each other.
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