Most
of the members in our association are fiscal conservatives that support civil
rights and enforcement thereof for all. The last groups to gain civil rights
are the gay and lesbian communities and people with disabilities.
Also,
we are aware the public is tired of litigation. In 2012, about 1 million civil
lawsuits were filed and only 2078 access cases were filed. But in the United
States people take for granted the imperfect but great civil justice system.
Some of our members reside in the Philippines, where on paper, the justice
system is the same as in the U.S but only people with money can access the courts.
Indeed, the Philippines has a great Family Code and terrific civil rights laws
for people with disabilities. However, men who create children are not forced
to support them because the mother cannot afford a lawyer. Further, in the
Philippines, people invest in educational programs to encourage businesses to
comply with disability rights laws. But such programs do not work. Also, there
is no private enforcement access lawsuits allowed in the Philippines and the
government does not allocate access enforcement funds. So there is no
enforcement in the Philippines. In light of this, California civil justice
system is great.
Let
us examine the true reasons behind the passing of SB 1608 and 1186, and the
proposed SB 67. The first true reason is the belief that filing access
enforcement lawsuits for private gain is wrong - this is "ADA Abuse."
It is perceived that access enforcement lawsuits that correctly allege access
violations is still ADA Abuse. Another name for this abuse is "Predatory
Lawsuits." Predatory means a defendant is forced to settle quickly or
litigate, and implies a person is on the "hunt" for access violations.
Legislators want to stop the hunt. All the other reasons relate to these
beliefs.
The
second reason for the said bills is the personal conduct of plaintiffs. The sex
offender from Arizona comes to mind. We forget the sex offender has the right
to travel. We forget that a sex offender that has been convicted and served a
sentence has civil rights. Like it or not, a sex offender parolee in a
wheelchair has civil rights under ADA.
Another
reason for said bills is the conduct of access attorneys. Attorney conduct is
divided into negotiation tactics and ethics. As to tactics, access lawyers
demand correction of access violations within a deadline with or without a
lawsuit. Businesses complain about these pressure tactics. But pressure tactics
are an integral part of all legal systems. For example, a district attorney
gives a criminal defendant two days to accept a plea. Why should a business be immune to such
pressure?
As
to the ethical conduct of access lawyers, this conduct has nothing to do with a
business' violations of the access laws. Also, it is the responsibility of the
State Bar to discipline such misconduct. One prime example of the Bar's power
to discipline is the disbarment of access lawyer Theodore Arthur Pinnock by
nolo contende. A nolo means the underlining facts of the disbarment cannot be
used in other proceedings to prove truth. However, the State Bar performed its
function even if Mr. Pinnock is challenging the facts as to filing access
lawsuits without client consent in court. The point here is that there is no
need to reduce statutory damages to prevent any alleged lawyer misconduct.
The
true reason for the said bills is to stop ADA enforcement lawsuits and the hunt
for access violations. If Congress amends the ADA to prohibit private
enforcement and it funds massive government enforcement then the ADA lawsuits
will stop. Further, if the California Legislature amends the Unruh Civil Rights
Act and the Disabled Persons Act to eliminate the private right of action and
fund government enforcement of these acts then this will stop the hunt for
access violations. Reducing or eliminating statutory damages will not stop
access lawsuits and the hunt for access violations.
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