Toxic Politics

District Attorney Tony Rackauckas weighed his own political future against the safety of Orange County's drinking water and decided to save his own skin

Those troubling incidents and more than a dozen others like them prompted the ultimate insult to the man who usually works closely with grand juries. In August 2001, the Orange County grand jury quietly asked state Attorney General Bill Lockyer to help them investigate Rackauckas.

Photo by Jack Gould

That date is critical. At the time, only three sources were aware of the grand jury's startling move against Rackauckas: the grand jury, of course; Lockyer; and Rackauckas and his inner circle of advisers. What happened next is the stuff of a dark Hollywood script: incredibly, the DA weighed his own political future against the safety of the county's drinking water—and decided to save his own skin.

Republicans and the businessmen who fund them hate two things: taxes and trial lawyers. Trial lawyers represent consumers and environmentalists in their battles with corporations. And trial lawyers are one of the largest groups of contributors to the Democratic Party and its liberal candidates. In the 2000 election, for example, Federal Election Commission records show that trial lawyers contributed $50 million more to Democrats than to Republicans.

The same circle of local Republican corporate executives who fund Newport Beach Representative Christopher Cox—the leader of hostile, annual congressional ambushes on trial lawyers and their ability to represent people against corporations—also helped enlist and fund Rackauckas as their candidate for DA in 1998. They knew he shared their conservative political philosophy and loathing of trial lawyers. In the mid-1980s, he helped lead the successful statewide recall of California Supreme Court Chief Justice Rose Bird for what he called her "pro-criminal" rulings.

A decade later, Rackauckas hadn't retreated. After his victory in the DA race, Rackauckas said one of his goals was to further restrict the procedural abilities of trial lawyers. "As a political activist," The Orange County Register's John McDonald wrote on the day Rackauckas was sworn in, "he was zealous, pushing relentlessly to toss liberal judges off the bench and abolish laws favoring the accused."

In Rackauckas' eyes, trial lawyers were the enemy—until August 2001, when the DA suddenly found he needed their behind-the-scenes political influence with their longtime ally: Attorney General Lockyer, a Democrat.

By the summer of 2001, members of Rackauckas' small but feisty environmental unit, which was handling the ARCO case, were frustrated by what they saw as the oil companies' strong-arm tactics. In more than a dozen negotiations, oil-industry lawyers routinely rejected the settlement proposals of Lyman and deputy district attorney Matt Kaplan.

Meanwhile, MTBE contamination was spreading. Sources say Lyman and Kaplan determined they needed help. They circulated a memo within the DA's office seeking additional prosecutors for the case, but it soon became apparent the DA would need outside legal expertise to battle the huge international law firms representing the unrepentant oil companies.

The chance to win a three-year, $7.4 million contract to provide legal services in a high-profile environmental case attracted the interest of some of California's most powerful legal firms. After weeks of interviews, the staff selected Los Angeles-based Liner, Yankelevitz, Sunshine & Regenstreif. Liner had assembled what one prosecutor would later call "a phenomenal team" to challenge ARCO. That team—formed by Liner attorney Randall Sunshine—included specialized lawyers from three other prominent firms and an acclaimed former Department of Justice counsel who won one of the largest environmental oil-pollution cases in U.S. history. Rackauckas concurred with his staff on the selection.

But on Aug. 24, 2001, inside the DA's Santa Ana headquarters, Rackauckas met with oil company representatives. One observer said that after the DA received "quite solicitous" comments from ARCO attorneys, he stunned his staff. Though he'd paid scant attention to the case up to this point and knew few factual details and even less of environmental law, Rackauckas told the gathering he wanted to settle the case quickly. He blurted out a specific dollar figure that would settle the case; the oil company lawyers were delighted. A DA source told the Weekly, "It was a ridiculous amount."

If oil company executives celebrated their good fortune, they made a mistake when they didn't finalize the deal on the spot. Four days later, on Aug. 28, Rackauckas appeared before the county's Board of Supervisors and asked them to approve the deal to hire Liner.

But the ARCO litigation would take another strange turn. By the time the oil companies got around to accepting Rackauckas' generous offer, the DA had changed his mind. Suddenly, there was no rush to settle the case.

Todd Spitzer, the former Third District supervisor who was recently elected to the state Assembly, is many things to many people. To Newport Beach businessmen who wanted an international airport at the former El Toro Marine Corps Air Station, he's a devious thug. To anti-airport South County communities, he's a godsend. To public contractors and bureaucrats who wanted to cut corners and avoid questions, he's a pain in the ass.

And to Rackauckas in 2001, Spitzer was an ally, an outspoken Republican who carefully advised the DA on how to handle his growing list of critics and negative publicity. For example, it was Spitzer who helped steer Rackauckas to a brilliant (if insincere) pre-2002 election endorsement of the anti-airport Great Park initiative. The supervisor—a former deputy DA—wasn't so much motivated by a fondness for Rackauckas as he was hostile to Wally Wade, the man who had lost to Rackauckas in 1998 and who had re-emerged as Rackauckas' rival in the March 2002 election. Spitzer associated Wade with what he believed were the excesses of Mike Capizzi, Rackauckas' predecessor in the DA's office.

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