State Sen. Berkey may sue to keep her seat

EVERETT — State Sen. Jean Berkey, D-Everett, inched closer Tuesday to a full-fledged legal fight to keep her seat and prevent anyone from sitting in it next year.

Berkey lost the August primary but contends her defeat resulted from illegal actions by a Seattle political consultant, and she wants those results tossed out.

Last month, she asked Attorney General Rob McKenna to investigate whether Moxie Media and a political action committee it created violated election laws by not disclosing who paid for last-minute mailers Berkey contends misled voters and cost her the election.

On Tuesday, her lawyers sent a letter to McKenna formally notifying him they will pursue civil action if he doesn’t begin action by the end of the month.

“The goal is to bring those people into court and then have the judge set aside the election and have a special election,” Berkey explained.

And she’s prepared to ask leaders of the state Senate to not seat anyone until the legal battle is resolved.

“It’s dicey but it needs to be done.” Berkey said.

McKenna could not be reached for comment Tuesday.

Democrat Nick Harper of Everett and conservative Rod Rieger of Marysville secured the top two spots in the Aug. 17 primary and are dueling for the 38th District seat that serves Everett, Tulalip and Marysville. Berkey, who wound up 122 votes behind Rieger, is the only incumbent lawmaker beaten in August’s primary.

In that election, Moxie Media directed a $300,000 campaign aimed at ousting Berkey and boosting first-time candidate Harper. That effort was funded by statewide labor unions representing public employees, teachers and health care workers.

But in the final weekend, the consultant produced two mailers urging voters to support Rieger, who mounted no visible campaign. Berkey contends those pieces swayed enough voters his way to push her into third place.

Moxie Media, run by Lisa MacLean, produced both for the Cut Taxes political action committee, which reported receiving no money to pay for them. Following the election — and after Berkey filed a complaint with the state Public Disclosure Commission to reveal the financier — MacLean announced her company paid for the mailers.

State election law prohibits identity of donors from being concealed and Moxie Media’s actions appear to do just that, said Berkey’s attorney Phil Talmadge.

When Talmadge asked McKenna and Snohomish County Prosecutor Mark Roe to investigate in September, both deferred to the commission to determine any possible wrongdoing.

As of Tuesday, the Public Disclosure Commission had taken no action. Its next meeting is Oct. 28.

“It’s beyond Berkey, Rieger or Harper. It’s really about following the law and conducting ethical campaigns,” Berkey said. “This freewheeling of fiction and innuendo must stop.”

Reporter Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com.

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