January 10, 2006

CA Activists to Battle Business Community Over Access

EDITOR'S UPDATE: the initiative was withdrawn in Feb. 2006. See http://www.raggededgemagazine.com/departments/news/000808.html.

California access advocates are preparing for battle once again. This time they'll be fighting "that vagary of California self-governance called the 'initiative,'" as Californians for Disability Rights president Laura Williams puts it.

The initiative, being readied to put before voters, is now deceptively named "The Opportunity to Repair Act of 2006." In fact, say advocates, it's the latest plan backed by California's business community to remove the teeth from California access laws.

California is one of few states that currently allows people who have been harmed by the denial of access to file suits for monetary damages for discrimination. The state's business community has tried for years to get rid of this damages provision. But bills before the state legislature have so far failed. The new initiative -- which activists call an end-run around legislators -- is the latest attempt to remove the damages provisions from California's access law.

The current initiative, if passed, would also remove the ability of attorneys to receive payment for their legal fees in access suits.

An "initiative," according to the website of the California secretary of state, "allows a citizen the option to bypass the Legislature and go straight to the public in an effort to place an issue of interest on the ballot for voter approval or rejection." Once paperwork from the attorney general's office is in order, the initiative's backers "circulate" the initiative publicly for 150 days -- generally with lots of media attention -- while they work to get the requisite number of signatures ("just under 400,000 valid signatures," says Williams) from voters to enable it to be placed on the ballot.

An initiative is much worse than a bill in the state assembly, "where seasoned legislators can keep hysteria out of the picture," says Williams. "Much worse."

The history of California politics is full of such initiatives -- some of the more well-known are Proposition 13, which limited property taxes and started a nationwide trend, and Proposition 209, which ended affirmative action programs in California's higher-education institutions.

Whether the proposition will continue to be called the "The Opportunity to Repair Act of 2006" is anyone's guess. Getting it re-named so that it's not "deceptive" seems to be the immediate strategy of California's disability community. Activists are urging attorney general Bill Lockyer to re-name it so that its purpose as an anti-access measure becomes clear.

Julian, CA's business community is currently fighting access suits. Read more.

"The attorney general should entitle this "A Bill to Eliminate Civil Rights Protections for Persons With Disabilities," says attorney Paul Rein in an email to advocates (Rein is the attorney who sued Clint Eastwood for access violations at his Mission Ranch resort). Sources say the initiative is not only deceptive but possibly illegal -- for it combines two unrelated issues -- "residential construction defects" and "commercial building accessibility violations". An initiative, say activists, is by law supposed to be confined to a single issue.

The person whose name is on the submittal papers is Robert Rivinius, but some sources believe California legislator Tim Leslie is behind it. (Editor's note of 2/2/06: Laura Williams, in her comment below, assures us that Assemblyman Leslie is not behind this initiative but is "carrying AB1847 -- Small Business Tax Credit for barrier removal.") The Sacramento law firm of Nielsen, Merksamer, Parrinello, Mueller & Naylor is listed on the Initiative's filing papers.

Some wording from the initiative gives a flavor of the measure:

Unnecessary litigation to correct ... commercial building accessibility violations has cost ... small businesses significant money. In many cases, the only winners are the trial lawyers who make off with millions of dollars in fees and settlements. (b) The problem is that trial lawyers do not encourage resolution of these disputes by first offering the ... small business owners in the case of accessibility violations, an opportunity to repair the problem without litigation. Often times in accessibility violation situations, the lawyers don't even have a client who has been harmed, yet they force businesses into settlements where the lawyers get most of the money. (c) The result is that the trial lawyers prosper ...by filing frivolous and unnecessary lawsuits over minor problems that could be corrected without resorting to litigation... (Read the proposed The Opportunity to Repair Act of 2006)

The measure outlines a "long and complicated process" for any disabled person who wants to correct an access violation -- the effect of which, says Rein's memo, is to force a disabled person to forego use of an attorney, since the measure would outlaw payment of attorney fees or damages.

"The disabled person would have to determine the corrections, negotiate with the owner, attend and argue their case in a hearing, and pay for this without any hope of recovery of attorney fees, damages or costs," writes Rein in a memo. "This is really the point of this initiative: to eliminate any lawyers representing disabled persons in civil rights lawsuits."

Defendants would avoid "all liability for fees or damages" so long as they fixed the problem. With no way of getting payment for services, "attorneys could no longer afford to handle civil rights cases for disabled persons in California court."

For some history: See Business strikes back: California firms press state bills to stop access lawsuits

If the initiative passed, businesses would not be required to fix any access problems other than ones a disabled person had actually noticed -- and there would be no time limit on how long they took to correct those problems, according to activists.

Williams says that if the initiative is allowed to go forward, she anticipates an increased frenzy of "mass media bullshit" to "persuade the voting public that 'something should be done about those bad lawyers raping the ADA.'"

California's business community "has declared open war on disability civil rights in California," says Williams, and "this is the front line."

Biased media coverage and "misleading ads" can influence voters on an initiative, Williams says. "This initiative does not really even mention disability rights," she adds, saying that the initiative's framers refer to access problems as mere "construction defects," and have obfuscated the issue further by grouping them with new home defects. 

Activists also believe the initiative violates civil rights under equal protection clauses in federal and state law, says Williams. "We will be pressuring the attorney general to reject this initiative as illegal."

Posted on January 10, 2006