Janklow Suit May Cost U.S.

Posted September 24, 2003 at 6:27pm

Taxpayers may end up paying the bill for a potential wrongful death claim against Rep. Bill Janklow, the South Dakota Republican who is facing criminal charges after a car crash last month left a Minnesota motorcyclist dead.

Janklow, who will be arraigned in South Dakota on Friday on a charge of second-degree manslaughter, may be shielded from liability in any possible civil suit under a 1946 federal law enacted after an Army plane flew into the Empire State Building. Under the Federal Tort Claims Act, the federal government covers liability claims for negligent and wrongful acts committed by employees or officials — including judges, lawmakers, Congressional staff and agency bureaucrats — who are acting within the scope of their official duties.

The critical question, so far legally unresolved in Janklow’s case, is whether the first-term lawmaker was acting within the scope of his official duties or employment. If it is determined that he was, then the FTCA would apply, legal experts said.

“If the FTCA applies, then the individual can’t be sued and has no financial responsibility at all. It is the government’s responsibility, not the individual’s responsibility,” said Jeffrey Axelrad, former director of the Justice Department’s Federal Tort Claims Branch.

The family of Randy Scott, the 55-year-old motorcyclist who was killed Aug. 16 after Janklow sped through a stop sign going 71 miles per hour, has not given any public indication of whether they intend to pursue a civil claim for the collision. On Tuesday, The Associated Press identified a Luverne, Minn., attorney, Terry Bajgrt, who was acting as a spokesman for the family. Bajgrt did not return phone messages seeking comment on potential civil claims.

If the Scott estate files a civil lawsuit against Janklow, the South Dakota Republican could request the Justice Department to substitute the United States for himself in the litigation, Axelrad said. The estate could also file an administrative claim directly under the FTCA within two years. That claim would be filed directly with the House of Representatives, he said.

No claim has yet been received in the House, people familiar with the matter said. The office of the House General Counsel, which would handle the legal work, declined to comment on the matter.

The liability question hinges on whether Janklow was acting within the scope of his employment, Axelrad said. That determination is initially made by the Justice Department and is guided by the facts of the specific case and the law of the state where the tort took place.

The FTCA would not cover a lawmaker attending a campaign event who was involved in an automobile accident. “It wouldn’t be viewed as if they were an employee for purposes of the FTCA,” Axelrad said.

If Janklow is deemed to be an employee, then the question is whether he was acting within the scope of his employment, and that answer is guided by South Dakota law.

South Dakota broadly defines scope of employment as “any activity that an employee performs or incidental to any activity to be performed regardless of the time and place of performance and regardless of whether the action in question could have … subjected a public entity to liability and regardless of whether the activity is construed or defined as ministerial, discretionary or proprietary.”

In 1987, the state Supreme Court noted that “Generally, if an act is connected either directly or indirectly with the business of the employer, that act is conducted within the scope of employment.”

Janklow was driving to his home after attending a ceremony honoring Korean War veterans. Senate Minority Leader Tom Daschle (D-S.D.) also attended the event. Janklow’s chief of staff, Chris Braendlin, was a passenger in Janklow’s car.

The car was owned by Marc Tobias, a lawyer and friend of Janklow’s who told The Associated Press that he regularly loaned Janklow the Cadillac for trips around the state. It is unclear whether Janklow was violating the House gift rules by using the car, but it could be an issue if the matter eventually reaches the House Committee on Standards of Official Conduct.

The decision on whether Janklow would be covered by the FTCA would be made by officials at the Justice Department, most likely by the U.S. attorney for South Dakota. But the case may also be handled by Washington, D.C.-based Justice officials and the ultimate responsibility — by statute — rests with Attorney General John Ashcroft (Janklow and Ashcroft served together as governors briefly in the 1980s).

If a suit is filed in court, Janklow can formally request the Justice Department to certify that he is covered by the FTCA. If the certification is made and the United States is substituted as the defendant, the plaintiff would then have the opportunity to challenge that certification in court. So, ultimately, if there was a disagreement, the court would make the decision, Axelrad said.

If the Scott estate ultimately succeeds in court with its claim, the money that would be paid out would come from the Federal Judgment Fund, which is financed with an annual Congressional appropriation that allows hundreds of millions of dollars in claims to be settled each year. As part of the process, the Justice Department could also seek to bring in payments from any private insurance policies that covered the car.

The FTCA was enacted in 1946 in the wake of a July 28, 1945, crash of an Army plane into the 78th floor of the Empire State Building. The impact and fireball killed 14 people and injured dozens while causing a state of panic in Manhattan during the final months of World War II.

“It became very visible, in more than one sense, that there was no remedy provided by law for anyone who was injured,” Axelrad said. The government, under the theory of sovereign immunity, can’t be sued unless it waives its immunity.

Prior to the enactment of the FTCA, the only way for people to find a remedy was to go to Congress and seek relief through a private bill. “Of course, people who had more clout got more consideration and it was a very imperfect, to put it mildly, system,” Axelrad said.