Lawsuits from Dennis Rehberg, Deb Fischer and Richard Murdock's past are being brought up again. | AP Photos GOPers accused of abusing courts

By their lawsuits, you shall know them.

That’s the bottom line to a new Democratic pitch in three red-state Senate races where tort-reform Republicans stand accused of abusing the courts for their own personal gain or political agenda.


In Nebraska, state Sen. Deb Fischer faces new questions about a bitter 1990’s ranch land dispute in which she and her husband sued their elderly neighbors, who had refused to sell and were forced then to spend about $40,000 to fend off the Fischer’s legal attack.

In Montana, the city of Billings ran up more than $20,000 in legal bills, defending the local fire department against a 2010 damage suit brought by Rep. Dennis Rehberg, a wealthy landowner. And in Indiana, state Treasurer Richard Mourdock spent close to $2 million in taxpayer funds on a high-priced New York law firm, pursuing a short-lived but doomed challenge to the Chrysler bailout in 2009.

It’s not yet a “man bites dog” story, but it’s getting close. Trial-lawyer Democrats showing up the Republicans as a litigious lot? Who knew? Is it still the Grand Old… Party… or Plaintiffs?

“It’s a pattern we’ve seen before,” Linda Lipsen, a top executive for the trial lawyer lobby, told POLITICO. “The tort reformers want to limit everyone’s options but their own. You would think candidates would be more self-aware.”

Republicans counter that Democrats are only plowing old ground in a vain effort to save failing Senate campaigns. But in these closing weeks, hundreds of thousands of dollars are being poured into television ads highlighting the lawsuits and asking independent and Republican voters to take a second look before Nov. 6.

“Suing your neighbors for their land doesn’t reflect the Nebraska values I grew up with and learned,” says Fischer’s Democratic opponent, former Sen. Bob Kerrey. Suing the local fire department — as Rehberg did — isn’t so popular in Montana, either.

The defendant, Billings, was the state’s largest city and part of Yellowstone County, a swing area and the biggest prize in a hard-fought race matching the Republican against the incumbent Democrat, Sen. Jon Tester.

“How many people in this room are from the city of Billings?” Tester asked the crowd at a debate this month in the city. “Well, thank you very much – Congressman Rehberg has sued each and every one of you.”

“The first thing you do when firefighters come and you got a grass fire and they put it out and they burn the bushes and they put their butt on the line,” Tester went on. “You don’t respond by saying thank you by filing a lawsuit with monetary damages, which is exactly what he did.”

Rehberg, who quietly dropped the lawsuit late last year, didn’t hide his annoyance.

“I’ve traveled around Montana over the course of the last two years, all 56 counties, and nobody has brought up the fire – except for you,” he snapped at Tester.

But the congressman, who has major land holdings north of Billings, has had to respond with TV spots which reset the legal fight as never about money or even firefighters — but policy.

Why a prominent federal official like himself had to take this route to get the attention of local officials is never quite explained. But in a new ad, his wife says the target was always city “bureaucrats” who pulled back the fire crews and left the Rehberg land — and other property owners — exposed on a hot July Fourth when a wildfire flared back up.

“Sen. Tester is on track to lose this election with just weeks to go, he’s flailing,” Chris Bond, a Rehberg spokesman told POLITICO. “This desperate personal attack is just the latest attempt by liberal, anti-coal Tester to distract voters from the fact that he stands with President Obama against Montana jobs.”

The Mourdock lawsuit is very different, in that he acted in his public capacity as state treasurer, not as a private individual. But Democrats argue that he was already burnishing his tea party credentials for a run for the Senate and the costly lawsuit amounted to a “heads I win, tails you lose” proposition for taxpayers.

Success risked derailing the Chrysler deal, which helped save jobs for the state. Failure left Indiana saddled with hefty legal fees, some in excess of $1,000 per hour.

“You, Mr. Mourdock, singlehandedly could have sunk Indiana’s economy and put us into a recession if you were fortunate enough — fortunate enough for you, unfortunate for us — if you had been successful in your lawsuit in regards to Chrysler,” Rep. Joe Donnelly, the Democratic candidate, said at a debate this week.

Mourdock counters that he was only seeking to protect the interests of state pension funds that had invested millions in Chrysler — and were being forced to take losses under the 2009 bankruptcy proceedings and terms dictated by Treasury’s auto task force.

The Wall Street Journal editorial page, more a friend of bond holders than bailouts, weighed in Thursday on his behalf, accusing Democrats of “revisionism” and crediting Mourdock with a principled stand on behalf of creditors. And the Mourdock campaign is up now with an ad featuring personal testimonials from a teacher and state trooper crediting the Republican with acting to protect their pensions.

That said, detailed press reports from Indiana indicate that the money manager, who oversaw the state pension fund investments in Chrysler, had agreed to take the initial deal, in fact. And to get a law firm able to move quickly, Mourdock agreed to richly pay White & Case LLP, a New York powerhouse whose own hedge-fund clients had deserted the legal fight.

“Mourdock tried to stop the Chrysler rescue that saved 100,000 Indiana jobs with a lawsuit, hiring a New York law firm, costing taxpayers over $2 million in fancy meetings, cabs and legal fees,” is the script from one Democratic TV ad.

Nebraska’s Senate race attracts less national attention and money. But if anything, this has made the lawsuit debate more contentious.

It has a little of everything, running from a 1930’s fence line to a recent bill in the Nebraska legislature affecting environmental funding. But the guts can be found in the old court records of a 1995 lawsuit that fractured the harmony between two adjacent ranches which had lived in relative peace for decades.

Kerrey, having talked with the surviving relatives of the deceased defendants, jumped in with both feet Monday, committing more than $300,000 to new ads highlighting Fischer’s role in the land fight. “Nebraskans need to hear this story,” he told local reporters in a fly-around series of press conferences. And from his own focus groups, Kerrey believes his ads — and the Fischer defense thus far — are breaking in his favor.

“People don’t buy that you only did what your lawyer told you to do,” Kerrey told POLITICO.

The new offensive comes as the Kerrey campaign released Wednesday an internal polling memo showing him within five points of Fischer. Republicans say this is only more showmanship and Fischer retains a solid double-digit lead. But her billionaire backers, the Koch brothers and Joe Ricketts, are again buying TV time in what’s become a race for wavering Nebraska Republicans.

Like in the other states, the immediate response from the GOP establishment is to dismiss the lawsuit imbroglio as a sure sign of a losing Democrat.

“Bob Kerrey is losing this race to Deb Fischer and the polls confirm that,” the Gov. Dave Heineman told reporters in Lincoln. “Bob Kerrey’s attacks are a desperate distraction by a desperate candidate.”

“Bob Kerrey’s attacks may be the way they do it in New York, but it’s not the Nebraska way.”

In explaining herself, Fischer and her supporters have sought to soften the lines, saying the suit was only brought to “clarify where the boundary was”— a routine “quiet title” action so her family could sell some of its own parcels.

“Our family needed to clarify a boundary line with a neighbor, and we sought legal clarification,” Fischer tells the camera in a new TV spot. “We then followed the legal ruling.”

“We didn’t want to go to court,” she told reporters. “Those of you who know me and our neighbors can certainly tell you, we are not fond of attorneys.”

Nonetheless, as more depositions and legal briefs surface from the Cherry County court files, she and her husband, Bruce Fischer, were clearly the aggressors in pursuing ownership of an estimated 105 acres near the Snake River.

Practicing real restate attorneys — allied with Kerrey — said it was extraordinary for so much land to be subject to a “adverse possession” claim — more typically used for easements or narrow border disputes. And if this were meant to be a quiet title action, it was scarcely quiet, going all the way to trial — only to be flatly rejected by the presiding judge.

Indeed, the defendants, Les and Elizabeth Kime, had rejected repeated proposals over the prior 10 years to sell or agree to a land swap for the parcels in question. The Fischer cow-calf operation could graze its herds there periodically and use the land as a path to access adjacent national forest lands, where the Fischers have a federal grazing permit. But never did the Kimes — both in or near their 80’s — feel they had surrendered ownership.

“I wasn’t about to trade off any of that land that had the river in it,” Les Kime said in his deposition. The retired rancher said his wife, a former school teacher who had grown up on the ranch as a child, had become upset when the Fischers suggested they would add money to the deal. “She wasn’t too happy about it,” he said. “She didn’t want to lose any of that land.”

When the lawsuit followed — claiming title outright — it added to the pressure on the elderly couple. “It was hard on them, no question about it,” their son, David Kime, told POLITICO. “They sat around my kitchen table with tears in their eyes,” said Dorothy Lord, a friend and neighbor. “It was very sad,” said Annie Kime, David’s wife, of the impact on her mother-in-law. “I think the ranch had been in her family for 100 years.”

An important co-defendant in the case was the local Snake Falls Sportsmen’s Club which shared in using the same land under a lease arrangement with the Kimes and subsequently purchased the entire ranch after their estate. Indeed, a subtext in the fight is the fact that these recreational uses — hunting and trout fishing — had gained prominence alongside ranching. And that may explain the Kimes’ desire to keep their property intact along the Snake River.

While reluctant to be drawn into the debate now, Dr. Michael Adams, a Fremont physician and officer in the club, told POLITICO that the Fischer suit was doomed from the outset. “I don’t think they had a chance in hell of succeeding,” he said. And the nine-page rule by District Court Judge William Cassel appears to bear this out.

Under Nebraska law any such claim of adverse possession required the Fischers to show that for 10 years they had met a half dozen legal tests, such as showing actual, continuous, exclusive possession of the land. Cassel’s opinion ruled against them in all but one. The Kimes’ own lawyer, Deborah Gilg, was unsparing, even sarcastic, in dissecting the Fischer’s claims.

Today, Gilg is the U.S. attorney in Omaha. Cassel was named to the Nebraska Supreme Court this year. Both of the Kimes deceased within 10 years of the suit. Fischer hopes next month to be on her way to Washington.

“It is always tough. It is always tough to do something like this,” Fischer told reporters in Lincoln. But when asked to look back, she expressed no regret for bringing the suit — nor any second thoughts about not having helped the Kimes pay their legal bills.

“The judge didn’t require that either of us pay legal fees,” Fischer said.