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When the U.S. Supreme Court swept the last vestiges of a California disability rights case off its table Monday, it left little more than a hole on the docket and some free time for the justices. But within the California Attorney General’s office, they’re still picking up the pieces. Last month Peter Siggins, Attorney General Bill Lockyer’s right-hand man, sent out what some say is an unprecedented, confidential four-page memoto every lawyer in the office explaining what happened in a case that caused no small amount of rancor, both outside and within the office. In the memo, Siggins explains why the state backed out of Medical Board of California v. Hason , defends the role of new Solicitor General Manuel Medeiros, and reminds the office that policy, and even politics, sometimes supersede legal arguments. Siggins then shoulders any blame for the fiasco. Siggins said the letter was intended to clear the air. He wanted to put down, for the record, how the state came to withdraw from Hason , No. 02-479, a month before oral arguments. On Monday, the court refused Dr. Michael Hason’s objection, in which he sought $85,000 in attorney’s fees. The state withdrew because it didn’t want to anger disability advocates by advancing its strongest legal argument — that under the 11th Amendment, states can’t be sued for violating Title II of the Americans with Disabilities Act. The Ninth Circuit U.S. Court of Appeals had said states could be sued, and that was the argument the high court was most interested in. “Some of it was a misunderstanding and some of it was what happens in a layered bureaucracy,” Siggins said in an interview. In the letter, Siggins wrote that the cert petition in Hason was filed before it was vetted by the client — meaning Gov. Gray Davis. “Certainly the governor had a very strong position,” Siggins said. The other client — the state medical board — initially wanted to pursue the appeal but later voted to dump it. “Ideally,” Siggins said, “you’d like to see that happen before you file a cert petition.” Siggins explained that to prevent future flip-flops, every state cert petition will now be run by not just Lockyer, but Davis as well. Siggins wrote that the policymakers were heavily lobbied by the disability rights community. He also describes an intense effort within the office by the deputy attorneys general originally assigned to the case to assert a strong defense under the 11th Amendment. “I well understand that as individuals, and as assigned advocates in individual cases, we may not always agree with the policy preferences of our elected officials,” Siggins wrote. “But as representatives of the state, and as deputies of the attorney general, we are all duty bound to implement them when required in the discharge of our official responsibilities.” Siggins explained that he, Medeiros, and others near the top of the AG’s food chain must consider policy more than most deputy attorneys. “As you get to the top of a bureaucracy, the impact of policy decisions becomes more and more acute,” Siggins said Tuesday. He also defended Medeiros, the state’s first solicitor general, who is being met with some resistance in the office. “Certainly no one wants to repeat the Hason experience, but in my view, the solicitor general program was not the source of any misstep or misunderstanding” Siggins wrote in the letter. It’s also evident that the letter is attempting to heal some of the scars the Hason incident left within the office. Siggins said he has gotten positive feedback. “Sometimes things do go awry, but it isn’t because we aren’t all trying to do the best we can,” he concluded in the letter. “It happens because we are all involved in a complex and difficult undertaking. Let’s not forget that about each other as we move forward to meet the challenges to come.” Meanwhile, the hiccups continue for the AG at the Supreme Court. It recently withdrew a similar ADA argument from another petition for cert . In that case the Ninth Circuit had held that two inmates’ past drug abuse must be considered by the state parole board — as a mitigating factor — because the ADA applies to the board’s decisions. On March 24, the day before Hason would have been argued, the Supreme Court denied cert in the case. Paul Gifford, former head of the AG’s prison law section, resigned around the time the arguments in the parole case cert petition were adjusted. He now works in the business and tax section, but denied that the move is related. He said his was “a personal choice.” Meanwhile, Lockyer and Medeiros may have to write a mea culpa to the justices — not over Hason , but yet another case. Nike v. Kasky , 02-575, is a corporate free speech case where Nike is now calling into question the state’s false advertising law. The state filed an amicus curiae brief alleging that Nike Inc. never notified the state that it would bring a facial challenge to a state law — a federal statutory requirement. Problem is, Nike did notify the state — and said so on page two of its cert petition. Lawyers for the state are aware of the goof, but haven’t done anything about it yet. “That particular issue has not been resolved,” AG spokesman Tom Dresslar said.

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