News Briefs
Irmo Marini, PhD, CRC
ADA Lawsuits Stifled in California
US District Court Judge Edward Rafeedie of California recently issued a ruling that may negatively impact lawsuits filed in California under the Americans With Disabilities Act (ADA). Judge Rafeedie ordered Jarek Molski, a wheelchair user, to ask permission before he files any further ADA lawsuits.
The decision stems from Molski having alleged three identical violations at three separate restaurants during the month of May 2003. Molski typically asks for $4,000 in damages for each day the business remains inaccessible. California law allows for such damages under the ADA. Molski’s lawyer, Thomas Frankovich, and wheelchair user Patrick Connally, director of Disabled Rights Enforcement Education Services (DREES), were also ordered to appear before Rafeedie to explain why DREES had filed dozens of ADA lawsuits. Rafeedie called the lawsuits “vexatious” (i.e., malicious without good cause) and, according to Frankovich, the judge cared little about investigating any of the businesses that were not compliant with the 14-year-old ADA. “What this judge is saying is he doesn’t care what the law says, and based on the sheer numbers of lawsuits alone, I’m not going to allow you to prosecute,” he said. Frankovich has represented DREES and Molski in other ADA lawsuits and has persistently argued that the law is of little use if it cannot be enforced.
Molski has filed over 400 ADA lawsuits against California businesses until his recent loss in federal court with Rafeedie. Since the ADA has never had an enforcement policy implemented, Molski has apparently taken it upon himself to enforce the law. Critics of his actions cite how, in many cases, Molski sues businesses without ever having gone into them. The impact of Rafeedie’s decision regarding other such lawsuits remains to be seen. Many observers, however, believe the judge has severely restricted future ADA lawsuits in California.
States Moving on Stem Cell Research
California’s $3 billion stem cell research initiative has caught the interest of several states that are considering new policies to attract and keep top university researchers. Washington, Wisconsin, Maryland, New Jersey, and New York are considering policy changes to fund stem cell research. Governor Richard Codey of New Jersey is attempting to establish a consortium with Pennsylvania and Delaware to offset the West Coast spending and to keep scientists on the East Coast.
Representative Jim Langevin (D-RI) is lobbying the federal government from within to keep pace with the aggressive agendas of individual states on stem cell research. Langevin, paralyzed at 16 years old from a gun accident, is hopeful that, during his second term, President Bush will recognize the need and demand for stem cell research and become more flexible in his policies. California Governor Arnold Schwarzenegger strongly supports stem cell research and has plenty of backing from Silicon Valley venture capitalists such as Microsoft co-founders Bill Gates and Paul Allen, as well as wealthy parents of children who can benefit from the research.
Supreme Court Affirms that ADA Applies to Foreign-Flagged Cruise Ships
In a closely-watched interpretation of the Americans with Disabilities Act, the U.S. Supreme Court, in a 6-3 vote last month, reversed a Fifth Circuit Court decision holding that Title III of the ADA did not apply to foreign-flagged cruise ships without a clear statement of intent from Congress.
Writing for the majority, Justice Anthony Kennedy said, “To hold there is no Title III protection for disabled persons who seek to use the amenities of foreign cruise ships would be a harsh and unexpected interpretation of a statute designed to provide broad protection for the disabled.”
United Spinal Association filed an amicus brief (“friend of the court”) in support of the petitioners. The case, Spector, et al. v. Norwegian Cruise Line Ltd. (No. 03-1388), began as a civil suit filed in 2000 by five individuals in U.S. District Court in Houston claiming that, among other things, Norwegian Cruise Lines (NCL) charged a premium for rooms set aside for people with disabilities; restaurants, public bathrooms, swimming pools, and elevators were not uniformly accessible; and there was no provision for people with disabilities to take part in lifeboat drills. NCL moved to have the suit dismissed.
The Houston court ruled that, since the government had not yet issued specific regulations concerning barrier removal on cruise ships, the plaintiffs could not pursue their claims for structural changes in the ships. Both parties appealed to the U.S. Court of Appeals for the Fifth Circuit in New Orleans which ruled that, since Congress had not clearly stated whether the ADA applied to ships under foreign registry, the law could not be enforced and dismissed the suit against NCL.
But the Supreme Court concluded that this “clear statement” of Congressional intent operates only when a ship’s “internal affairs” are affected. By internal affairs, the court means such things as permanent and substantial structural modifications which would bring a vessel into non-compliance with the International Convention for the Safety of Life at Sea or any other international legal obligation.
“Except insofar as Title III regulates a vessel’s internal affairs––a category that is not always well defined and that may require further judicial elaboration––the statute is applicable to foreign ships in United States waters to the same extent that it is applicable to American ships in those waters,” Kennedy wrote. United Spinal’s General Counsel, James Weisman, said “The Court realized that just flying a foreign flag doesn’t give the cruise lines license to discriminate when they leave from and return to the U.S.”
Dissenting were Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Sandra Day O’Connor. Justice Scalia called the majority decision “creative statutory interpretations and piecemeal application of [the ADA’s] provisions.”
Individual With Tetraplegia Dies in Jail
Jonathon Magbie, a 27-year-old with tetraplegia, died while serving a 10-day jail sentence for the possession of marijuana in Washington, DC last September. Magbie was injured by a drunk driver at age four, and required a ventilator during evenings as well as being suctioned to clear his lungs. Prison Executive Director Philip Fornaci stated that, “I certainly would not say they killed him or any conclusion like that . . . but it certainly seems likely that he wouldn’t have died if he hadn’t gone to jail.”
When sentenced last September, Judge Judith Retchin verified that the prison system could handle Magbie’s disability. When Magbie arrived at the jail, prison officials decided he needed acute medical attention and sent him to the hospital nine hours later. The following day Magbie was transferred back to the Correctional Treatment Center where medical personnel there attempted to send him back to the hospital. Hospital officials, however, initially refused to re-admit Magbie but the prison persisted and succeeded at sending him back. Magbie’s mother, Mary Scott, apparently argued with the Correctional Treatment Center medical staff for permission to bring her son’s ventilator to the center and she was finally granted permission at around 10 a.m. September 24. In the interim, however, Magbie had again been sent back to the hospital for emergency treatment where he died of complications later that day. Scott argued that, if only medical personnel had consulted or listened to her, she could have advised them as to how to help her son.
CAREGIVER EDUCATION PROGRAMS
Family Caregiver Alliance (February 2005)
The National Center on Caregiving at Family Caregiver Alliance has made available “Caregiver Education and Support Programs: Best Practice Models.” The publication profiles five widely used caregiver education and support programs that have empirical evidence to support their effectiveness. Mather LifeWays’ Powerful Tools for Caregivers is one such program. Also described are how to select a program, monitor its implementation, and recruit participants. Download at: www.caregiver.org/caregiver/jsp/content_node.jsp?nodeid=1314
HOW THE U.S. COMPARES ON WORK AND FAMILY CAREGIVING
Project on Global Working Families (March 2005)
This report focuses on how the United States compares to other countries in the adoption of paid family leave policies and other workplace policies that would enable caregivers to respond to the health needs of older and/or disabled family members. For example, 163 countries offer guaranteed paid leave to women in connection with childbirth but the U.S. does not. The 60-page report entitled, “The Work, Family, and Equity Index: Where does the United States Stand Globally?” can be downloaded for free: tinyurl.com/3jqoj