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I found "Make Them Go Away" invaluable in forming our arguments to convince Governor Gray Davis, Attorney General Bill Lockyer and the Medical Board of California to stop the Medical Board of California v Hason appeal to the U.S. Supreme Court.
-- HolLynn D'Lil

Supreme Court calls off oral arguments in Hason; settlement still at issue

SACRAMENTO, Mar 7, 2003 -- On Monday, the state of California filed a formal motion with the U.S. Supreme Court to withdraw the case Medical Board of California v Hason. The Court was slated to hear oral arguments Mar. 25. Today it announced it was cancelling those. However, the case remains unsettled. Hason's attorney Erwin Chemerinsky has filed an objection "to Petitioner's motion to dismiss." The formal objection, he writes, "is limited to the amount of damages and costs in this Court."

"On March 3, 2003, the Medical Board of California filed a motion to dismiss its petition for certiorari," he wrote to the Supreme Court yesterday in a formal objection. "Its one-sentence motion offered no reasons; evidently the members of the Medical Board and their lawyers changed their mind about review in this Court. Nothing new has occurred since the petition for certiorari was filed that would explain why the Medical Board . . . now wants the case dismissed. If it wanted to withdraw its petition, it is inexplicable why it did not do so before the briefs were written." Read document.

Chemerinsky's objection focuses on the fact that the Medical Board refuses to settle the case. "Cases often settle prior to oral argument," he writes in his petition to the Court. But, he continues, "the Medical Board rejected many offers that Dr. Hason made for a settlement." Chemerinsky writes that he "cannot identify any prior incident where a petitioner simply changed its mind and unilaterally withdrew its petition just three weeks before oral argument was scheduled." He contends that the Board's withdrawal is merely for "strategic reasons."

The problem, in short, say those close to the case, is that the state continues to balk at settling the case -- something Chemerinsky wants for his client.

VA disabilities group blasts Gov. for supporting earlier CA appeal. Read story

While the state did follow through with its commitment to withdraw the case, "we would have preferred for settlement to have been the first step," says Francie Moeller, chair of the CA Disabilities Caucus and the key behind-the-scenes player in the months-long effort to get the case removed from the Supreme Court docket.

The current state of affairs, she says, "opens a can of worms and hurts the disabled community."

'Unprecedented' move:
Crip activists get CA to drop Supreme Court appeal

SACRAMENTO, Mar 1, 2003 -- A threat to the Americans with Disabilities Act has been averted by skilled activism from the California disability community. On Friday night, the Medical Board of California voted 14-1 to withdraw its "petition for certiori" to the Supreme Court and ask it not to proceed with Medical Board of California v Hason The Court was scheduled to hear the case March 25. Disability activists, who had been pressing public officials to drop the case, are claiming victory for removing the most serious threat to the ADA from the high court since the Garrett decision two years ago. On Thurs., Gov. Gray Davis wrote to the board asking it to withdraw the appeal, calling the ADA "a cornerstone of our nation's civil rights protections." Read letter.

"The disability community in California has made history," says organizer HolLynn D'Lil, one of the those who worked to get the board to change its mind. Disability activists turned out in force at all 4 meeting sites where the medical board was meeting to vote on the issue. The sites were hooked to each other by teleconference.

"At the Sacramento site there were representatives from People First, NorCal Center on Deafness, Californians for Disability Rights, The California Democratic Party Disability Caucus, Coalition of Disability Access Professionals, The California Council of the Blind, The California Federation of the Blind, Gray Panthers, Independent Living Services of California and others," says D'Lil. Testimony from disability activists was " incredible," she continues. "In the small, filled-to-capacity room in Sacramento, we hardly breathed as we listened in awe to our brothers and sisters across the state. It was our proudest moment."

The greater public interest of the State of California would be furthered by a withdrawal. . .
-- CA Atty. Gen. Bill Lockyer
Read letter HTML | PDF

Activists began mobilizing to get the state to drop the case months ago, pressuring public officials. In a letter sent Feb. 21 to the director of the state medical board, Calif. Atty Gen. Bill Lockyer urges the group to withdraw the case. "It is my belief as Attorney General that the greater public interest of the State of California would be furthered by a withdrawal of the petition for certiorari in this matter," he wrote. Read letter.

Disability advocates nationwide were worried about the effect of a Supreme Court ruling in this TItle 2 ADA case. The Supreme Court agreed to take the case in order to rule on the constitutionality of Title 2 of the ADA. Title 2 relates to public services. In a letter that same day to the board, Calif. Health and Human services Agency Sec. Grantland Johnson and Calif. Rehab Dept. Director Dr. Catherine Campisi wrote that "the pending appeal threatens the protections afforded by Title 2," and that it "would undermine the progress the nation has made in disability public policy."

The move by the state to withdraw its appeal is highly unusual, say court experts, and say the state will still have to move for dismissal of the case in order for it not to proceed at the Supreme Court level.

In a meeting with advocates earlier this month, Lockyer, say sources, seemed surprised that the appeal had gone forward, suggesting that he had not been aware of the case when a petition for its hearing had been sent from his office to the Supreme Court.

Going forward with the suit "will undermine the progress the nation has made in disability public policy . . . "
-- Letter from Grantland Johnson, Secretary, Calif. Health and Human services Agency and Catherine Campisi, M.D., Director of the Calif. Dept. of Rehabilitation
Read letter HTML | PDF


Even if the U.S. Supreme Court now agrees to drop the case, that does not mean that Title 2 of the ADA is safe -- for it is almost certain the Court will then pick another case to review that will allow them to rule on the constitutionality of the ADA. California activists, empowered by this victory, say they will keep that from happening. "We will fight to save the ADA state by state," says HolLyn D'Lil, "We will fight to stop every appeal, in every state." "The best way to strenghten the ADA is to strengthen the disability rights movement," agrees Ira Burnim, attorney with the Bazelon Center for Mental Health Law in Washington, DC, who has been coordinating the Hason appeal.

"The ability to change one's mind is a sign of greatness," D'Lil said in an email last night to advocates. "Governor Gray Davis and Attorney General Bill Lockyer have demonstrated beyond a doubt the quality of their leadership in that they are able to listen to the people and act to protect the interest of the people.

"What we were able to do shows not only the effectiveness of our solidarity, but gives heart to people with disabilities in other states who are facing the same battle as their states are also filing petitions with the U.S. Supreme Court to have Title II of the ADA declared unconstitutional," says D'Lil. "That our leaders were able to become so quickly educated and so forcefully confronted is due to the work of the California Disability Community. They would not have taken the actions they took without the work and integrity of our community.

"We will fight to save the ADA state by state," says HolLyn D'Lil, "We will fight to stop every appeal, in every state."

Read State drops disability case from S.F. Chronicle

For more on the efforts behind CA activists' fight, read CA advocates protest state anti-ADA stance at inauguration

Read our earlier story on the Hason case.

More background on the case from the Bazelon Center

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