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Family in Janklow Case to Sue House

A federal judge today dismissed a Minnesota family’s wrongful death lawsuit against former Rep. Bill Janklow (R-S.D.) clearing the way for the family to pursue an administrative claim against the government.

The family of Randy Scott — who was killed in 2003 when his motorcycle collided with Janklow’s Cadillac — will instead file an administrative claim with the General Counsel of the House seeking monetary damages, the family’s lawyer said today.

The family had originally tried to sue Janklow in his personal capacity. They were denied that option, however, after a U.S. attorney and two federal judges in Minnesota concluded that the Congressman was working in his official capacity as a federal employee at the time of the crash and was therefore covered under the Federal Tort Claims Act.

As a result, the federal government, and not Janklow, will ultimately be responsible for paying any monetary award to Scott’s family.

While the specific facts of the fatal accident are still a topic of some dispute, Scott, 55, was killed on Aug. 16, 2003, when his motorcycle and Janklow’s car collided at an intersection near Trent, S.D.

Janklow was convicted nearly a year ago of felony second-degree manslaughter, and on three misdemeanors — reckless driving, speeding and running a stop sign. He served 100 days in jail and paid a fine.

Last month, lawyers representing the ex-Congressman asked the South Dakota state Supreme Court to overturn his conviction and grant him a new trial.

According to the Argus Leader newspaper in Sioux Falls, Janklow’s attorneys said their client’s prior driving record — which included a near-collision at the same location where Scott was killed — should not have been introduced during his criminal trial.

Janklow’s lawyers also said the jury in the case received improper instructions regarding Janklow’s defense that his diabetes impaired his judgment on the day of the accident and said the former Congressman “may have been negligent” but shouldn’t have been charged with second-degree manslaughter.

Scott’s family, however, seems to believe that if anything, Janklow has gotten off too lightly.

Ronald Meshbesher, the lawyer representing Scott’s family, said that his clients would have preferred taking Janklow to court rather than pursuing a claim with the government because Janklow has insurance and “would have been able to cover any damages” awarded to Scott’s family.

Because the federal statute does not allow Scott’s relatives to seek punitive damages, they will likely receive less money than they would have if they had been allowed to pursue their case through state court.

“The trouble with the Federal Tort Claims Act is that the victim does not have a choice to sue the government employee as an individual — the act makes the choice for him,” Meshbesher said.

Meshbesher said there is “no set amount” the family will seek, though it could reasonably be assumed that the Justice Department may have an important role to play in the matter.

While small administrative claims — generally those under $25,000 — tend to be handled internally by the House of Representatives, larger claims are usually kicked over to the torts branch of the Justice Department.

In any matter, many factors could come into play in determining how large, or even whether there will be a federal payout to the Scott family.

Significant facts could include everything from his age and medical records to whether Scott was driving within the speed limit.

The Justice Department would have up to six months to make a decision. Meshbesher noted that if the family and the government can’t come to a mutually agreeable settlement that the law allows the family to file a separate claim that would be heard by a federal judge.

Five circuit judges who recently heard Janklow’s appeal are expected to issue a ruling in the matter early next year.

According to the Argus Leader, Janklow’s manslaughter conviction — technically termed a “suspended imposition of sentence” — will automatically disappear once he fulfills the three-year probation, though the misdemeanors will remain.

Meshbesher said he advised his clients not to try and fight the federal judge’s ruling and instead pursue remedies under the Federal Tort Claims Act because a statute of limitations requires individuals to file a claim within two years from the date of the incident. By the time an appeal would have been heard and decided, it would have likely been too late for the family to file any sort of claim.

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