by Marty Hayes, J.D.
As I write this column, it has been exactly two years since the Network received a cease-and-desist letter from the Washington State Office of Insurance (OIC) Commissioner Mike Kreidler ordering us to quit conducting the “business of insurance” in Washington State.
At that time, we either could have ignored the order because we were not conducting the business of insurance in Washington State, or we could comply and appeal the order. Out of an abundance of caution, we chose to do the latter, and stopped selling new memberships in WA. We immediately appealed the order.
Two years of legal wrangling have passed. First, we needed to fight the order by appealing to the OIC itself. That was a joke, because it was the OIC that decided we were selling insurance in the first place, but in order to get our argument in front of a real judge, not a “presiding officer” who gets her paychecks signed by the insurance commissioner, we had to go through this process.
That took the better part of the first year, and when it was finally adjudicated, we were able to file a request for a judicial review in superior court. At that point, Washington’s anti-gun Office of the Attorney General took over the legal representation for the Insurance Commissioner.
Ever since it has been “slow-rolled” through the court process, with many additional hearings and delays. It has now been two years, and soon we will have finally been able to make our case to the court in Lewis County, where we filed the action.
Our petition is available to the public through the Lewis County Superior Court, so our attorney Spencer Freeman and I felt it would be appropriate to share that document with our members. I provided a link to it in our April email notice to members and in case you missed that email, it is https://armedcitizensnetwork.org/members/resources. Please note that member log in will be required to access the PDFs.
We have also on our website’s member-only Resources web page provided links to the documents discussed in our written brief to the court: the original cease-and-desist letter, and the final decisions by the presiding officer Julia Eisentrout. These are also public documents, so we’re not disclosing confidential information. If you’re a member having trouble with log in, please call or email and we will get log in working for you.
How did we get to this point? We went through two previous law firms, one local here in Lewis County who dealt with the OIC investigation, another in Seattle advised us on the case as they had been involved with the OIC in many other matters, finally I located a Tacoma, WA attorney, Spencer Freeman, who had challenged the OIC before and won against them. The biggest issue has been that Spencer is a sole practitioner and many times he was tied up on other matters.
So, to augment his fine work, I put on my “Junior Attorney” badge (that’s the badge you get when you complete law school but do not take the bar), and for the past two years I have been working on our legal case behind the scenes, doing legal research and working on our legal argument. Having spent all this time, I can distill our legal argument into layman’s terms which I think would be useful for Network members. Our argument basically hinges on these four points.
First, here is the definition of insurance in WA State. “Insurance is a contract whereby one undertakes to indemnify another, or pay a specified benefit upon a determinable contingency.” Let’s study those elements.
- Contract–In order to meet the definition of insurance, there must be a contract for insurance. Case law indicates a contract is formed when both parties come to a “meeting of the minds” after which consideration (membership dues) is paid, that consideration is accepted, and the terms of the contract are fulfilled. In regular insurance, that would be the signed policy with all that tiny, fine print, but membership in the Network has no policy. We argue that with no policy, no contract, we could not be selling insurance.
- Indemnification–Insurance policies (which we don’t have) state that a person would be indemnified (paid money to cover a loss) if some pre-determined event occurred. The original NRA Carry Guard was this type of policy: they promised to pay you back for all your legal fees if you were acquitted. We do not promise to pay anyone back, for anything, thus no indemnification.
- Pay a Specified Amount–We removed all references to paying dollar amounts (like the self-defense insurance companies still do) before we were served with the cease-and-desist order. That change to our website coincided with the Legal Defense Fund having grown to over two-million dollars and now, with the Fund sitting at over three million, there is simply no reason to set an artificial dollar amount on how much money we would pay for your legal defense. Like the fact there is no indemnification, there is also no specified amount.
- Determinable Contingency–If we did actually have a contract which promised to either indemnify you or pay you a specified amount, then that would be subject to the occurrence of a determinable contingency. As you will read, if you go through the document I linked, you will find that we argue that self defense has no contingency aspect to it. A contingency hinges on chance, something over which you have no control. An act of self defense is an intentional act, not a contingent act. You would not be indemnified for the cost of your home if you purposefully burned it down, because that would be an intentional act. Deciding to act in self-defense is also an intentional act. One does not have to respond to a provocation.
I could go on and on, but if you want to read more, read the brief. I thought it might be helpful to outline a part of our argument and put it in non-attorney language, for those who do not speak legalese.
The hearing in Lewis County (WA) Superior Court is set for May 13, 2022 and will be open to the public. If any member wants to attend the hearing, either in person or by Zoom, he or she will be allowed to do so.
When that date gets nearer, I will explain in further detail how that will work. I will have more for you next month.
To read more of this month's journal, please click here.