Negative political ad picked on wrong father and son

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OLYMPIA — Love — and politics — means never having to say you’re sorry.

For the most part, anyway. Which is why a recent settlement of a defamation suit against the sponsor of a 2008 negative TV ad is so surprising.

Evergreen Progress and its founder Rick Desimone not only agreed to apologize to Dick and David Ducharme, a father and son named in an ad attacking then-candidate Dino Rossi, they paid an undisclosed amount of money to the pair and agreed to hire a company to monitor and correct Internet references to the attack.

That apology must remain on a website (evergreenducharme.com) for three years.

“The Evergreen Progress ad, media materials and information posted on the Internet were false,” says the statement in part. “We regret that the advertisement was misleading and falsely implicated innocent third parties, including Dick, David and their families. We extend our deepest apologies to the good people who were harmed by our media campaign.”

In the fall of 2008, David Ducharme was working as a contract lobbyist in Olympia and his father Dick, who retired as a lobbyist in 2000, was living on a sheep ranch near Dayton. In early October, an ad began running on TV and on a website called Don’t Know Dino that began with pictures of the Ducharmes.

The narrator says: “These real estate lobbyists helped this powerful state Senator buy this apartment building.

“Then helped Rossi buy a bank. Making Dino a wealthier man.

“Now Rossi’s big developer friends are using ‘illegally solicited’ money and ‘deceitful tactics’ to promote his campaign.

“Even the Republican Attorney General is prosecuting Republican Rossi’s developer friends for their illegal activities.”

In the midst of that election campaign, especially Rossi’s 2008 rematch with Gov. Chris Gregoire, the ad didn’t stand out. Attacks were flying from various sponsors, most from groups supposedly independent from the candidates themselves. Evergreen Progress alone spent more than $4.5 million.

But there were some problems with the ad. David Ducharme never lobbied for the real estate industry or for developers. While Dick had represented the Building Industry Association of Washington, he had retired eight years earlier.

And while the father and son had been investors with Rossi in a Federal Way apartment building and were, like Rossi, investors in a small Bellevue bank startup, they had nothing to do with the builders’ group in 2008 and therefore nothing to do with a then-ongoing investigation into the group for campaign finance improprieties.

Once he saw the ad, David hired former Democratic state senator and state Supreme Court justice, Phil Talmadge, and his law partner Tom Fitzpatrick. The lawyers contacted Evergreen Progress, told them the ad was false and defamatory and demanded it be taken off the air.

“David is a working lobbyist. Dick is the president of a bank,” Talmadge said last month. “They’re essentially accused of being crooks.”

Evergreen Progress, on advice from attorneys at Davis Wright Tremaine, refused.

“Every statement made in Evergreen Progress’s advertisement about Mr. David Ducharme is accurate and well documented,” wrote attorney Michele Radosevich.

So Talmadge filed suit on David’s behalf and contacted the TV and cable stations. Several looked at the ads and stopped running them. Within weeks, Desimone settled the lawsuit, agreeing to cancel the ads and not mention David again.

Dick Ducharme was not a party to that settlement, however, and said he told his son, “as soon as you cash your check, let me know.”

He then asked Talmadge and Fitzpatrick to sue Evergreen Progress and Desimone on his behalf.

It figured to be difficult to make a case for defamation in the context of a rough-and-tumble political campaign.

And it would be expensive. Evergreen Progress was backed by some deep pockets including the National Democratic Governors Association and most of the state’s big unions.

“So you’re suing on principle?” Fitzpatrick asked.

“Yes,” Ducharme recalls answering.

“The worst kind of client,” the lawyer joked.

The case was filed in Columbia County, where Ducharme lives when he isn’t helping restructure the Bellevue bank referenced in the ad.

Evergreen Progress’s lawyers, led by Bruce Johnson, fought hard, first trying to win dismissal and then trying to block the release of documents by Desimone and his consultants.

The discovery material the lawyers were able to get showed that Desimone and his consultants had doubts about being able to establish a link between the Ducharmes and the BIAW investigation.

Even before the ad ran, Desimone asked a consultant to review a web page script.

“... Neither the Ducharmes nor Rossi are being investigated by the AG,” the consultant wrote.

Quipped another consultant who was running the Internet campaign: “You mean this stuff has to be true?” (Evergreen Progress also provided a narrative on the claims made in the ad to friendly political bloggers.)

Talmadge said the case finally moved toward settlement a year ago after a third Ducharme victory at the Court of Appeals on the discovery issues and after they added Desimone’s Washington, D.C., employer – lobbying firm McBee Strategic – to the suit.

David Ducharme also joined his father’s suit when he discovered that Evergreen Progress had not removed the offending ad from the Don’t Know Dino website.

The final issues were resolved via mediation and then binding arbitration late last year, both before retired King County Superior Court Judge Larry Jordan. The results, including the rare apology for an over-the-line campaign accusation, have not been made public until now.

Desimone, who now has his own consulting business, said neither side admitted liability and that he does not acknowledge that the ads were inaccurate.

“There is a difference of opinion about the ads,” Desimone said.

But what about the apology on the website, the one that says the ads were false, misleading, not factually correct?

“I did not write that statement but I was interested in settling the suit,” Desimone said. “When you agree to arbitration, there’s not a lot you can do about it.

“In the end, Chris Gregoire was elected governor, and I’m happy about that.”

McBee, through its general counsel Jennifer Noland, declined to comment on the litigation or the settlement.

It took three years and a fair amount of money, since recovered, but Dick Ducharme thinks it was worth it.

“I told David we had a lot of sleepless nights over this,” Dick Ducharme said. “This old bastard is going to make sure they have some too.

“The picked on the wrong old man.”

Peter Callaghan can be reached at peter.callaghan@thenewstribune.com

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