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March 13, 2003 Confidential Intra-Office Communication To: All Chief Assistant Attorneys General Special Assistant AttorneysGeneral Senior Assistant Attorneys General Deputy Attorneys General Senior Legal Analysts Legal Analysts cc: Steve Coony, Linda Brughelli Subject: Medical Board of California v. Hason Attached is a memo regarding our office’s handling of the Hason case in the Supreme Court of the United States for those of you who are interested. I decided to put my thoughts down for you all after reading and considering the comments of others about our handling of the matter. I apologize for its length, but I was unable to significantly pare it back and still address all the significant issues. Thanks, Peter
CONFIDENTIAL INTRA-OFFICE COMMUNICATION
The events that occurred in the handling of Medical Board of California v. Hason have been the subject of a lot of discussion both inside and outside of the office. I have heard various accounts of what people perceive to have transpired in the handling of the Hason case and in the operation of our solicitor general functions. Because it is a controversial matter of widespread interest, I want to share my own perspective with you. If there is blame to be laid, I accept it. But more than that, I want to share the lessons and enduring principles that I think we can take from this episode. In September, I participated in a meeting to determine whether the Attorney General’s Office, on behalf of the Medical Board, should petition the Supreme Court of the United States for a ruling that states are immune from suits in federal court under Title II of the Americans With Disabilities Act (ADA). The meeting involved representatives of the Civil and Public Rights Divisions, including the lawyers assigned to the case. Among other things, we discussed the outcry and dissatisfaction that filing the petition would cause among members of the disabled community and their advocates. We were informed that the Medical Board wanted to proceed with a petition to the Supreme Court and, in the circumstances, we felt that the decision whether or not to proceed was the Board’s to make. The Board is our client, and the position they wanted us to assert was well-founded in the Court’s precedent and likely to prevail. In fact, it is the law in all the circuits that have recently considered the question except the Ninth. I spoke at length with the Attorney General about the case and, notwithstanding his personal preference that we not file the petition, he approved filing in deference to our duty to represent the position adopted by our client, the Medical Board. The petition was filed and matters remained relatively quiet until the Court agreed to hear the case. Once the Court granted certiorari, our office, the Governor’s Office, the Department of Consumer Affairs, the Medical Board, and many others in the executive branch were heavily lobbied by the disability community and their advocates. Some were arguing for the state to withdraw the case. Others were arguing for the state to tailor its argument to the narrowest possible challenge to the ADA. Upon consultation with the Attorney General, we decided that we should craft a brief that focused on the fact that Congress did not have before it a record of discrimination by states against disabled persons in licensing matters when it enacted the ADA. In so doing, we would maintain the position that Congress lacked a general record of discrimination by states when it enacted the ADA, while inviting the Court to limit its ruling to a more narrow finding that Congress had no basis upon which to abrogate state sovereign immunity with respect to state medical licensure activities. Solicitor General Manny Medeiros was charged with ensuring that the Hason brief would advocate this narrow ground. As matters progressed, the assigned deputies argued strongly that narrowing our argument in this fashion would not allow for an effective presentation of the case. Manny discussed this with them and their supervisors on several occasions. They wrote memos to me on the subject, and we convened meetings among division chiefs, senior assistants and the solicitor general to assess their position. We all considered the matter very carefully. The collective judgment of our executive staff was to go forward with the narrowly tailored argument. Manny Medeiros was charged with the task of editing the draft brief to reflect the position this office had settled on. When presented with the brief, the assigned deputies decided they did not wish to sign it in that form. So, the case was reassigned to Manny. All the while, disability interests were expressing their concern and their dissatisfaction with the position reflected in the state’s petition for certiorari. Just before our brief on the merits was filed, a meeting on the Hason case was convened at the request of the Department of Consumer Affairs. I attended the meeting with a delegation from our office who had expertise in the ADA, as well as officials from the Medical Board and from several other state agencies. Two things became clear in that meeting. There was a direction from our executive-branch clients to further narrow the argument presented in our draft opening brief, with a couple of very specific suggestions on how to do so. It was also clear that the Medical Board would soon meet to determine whether to withdraw the case from the Supreme Court entirely. In that meeting our delegation readily accepted the specific suggestions regarding our brief, but argued persistently that the case should not be withdrawn from the Supreme Court. There was a vigorous discussion on this point. Following the meeting, the Board directed written questions to our office regarding the specific consequences of withdrawing the case. It soon became clear to me and to the Attorney General that the Board would vote to withdraw the case entirely. At that point, the Attorney General felt it appropriate to let the Board know that his personal policy preference was that the state should not challenge Title II of the ADA. The Governor and the Secretary of the Health and Human Services Agency did so as well. The Board ultimately voted to withdraw the case, and last Friday the Court ordered the matter off calendar. Now that the case is off calendar, and the events are still fresh in my mind, I feel it is appropriate to share with you these observations on how the decision came about. Further, I would like to offer my perspective on our work in the Supreme Court and on our relationship with our client agencies. First of all, more than any other court, the Supreme Court of the United States addresses issues that shape public policy and our social fabric. Our role there is, in large part, to advocate public policy positions that reflect what is best for the state and the people of California. The people elected our Attorney General and Governor. In the Hason case, the Attorney General and the Governor were the only two officials involved who carried the imprimatur of the people’s will. 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. 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. At various points along the way in the Hason case, I checked in with our colleagues in the Governor’s chain of command to advise them that we were handling the case for the Board and that we were proceeding to the Supreme Court. I was aware from the outset that proceeding in the Hason case was going to be highly controversial in some circles: a previous ADA case in the Supreme Court on similar grounds had also caused a firestorm of opposition to the state’s position. But in Hason, I assumed that our client’s policy position on the ADA would have been thoroughly vetted through their own chain of command before we were instructed to file. As it happened, however, we were instructed to file before our client’s resolve to advance the case, in the face of vociferous opposition, was well tested. In the future, I will never again take for granted that such a sensitive matter has been thoroughly vetted by our clients. Some have suggested that in Hason it would have been preferable to present to our client the two different briefs drafted by our office so the client could choose which policy position to assert. I strongly disagree. When we present to a client an argument we intend to file on their behalf in court, we should speak with one voice. We are one law office, and our voice should always be the voice of our distilled judgment of the position best to advance before the courts. To be sure, we want to carefully assess the positions we advance in all cases, and we value an open and spirited discussion of differing points of view. In the most significant and sensitive cases that debate will include the involvement of our executive staff. But in each case we must settle upon one position. Finally, the role and process of our solicitor general program remains a work in progress. The solicitor general’s job is to be the Attorney General’s emissary for our deputies doing work in the highest courts. We remain committed to trying to work out any policy, strategic or editorial concerns regarding Supreme Court cases as collaboratively and informally as possible. Still, where the Attorney General or the Governor in an appropriate circumstance provides particular direction regarding a policy position, our office’s duty is to articulate that position. In those cases, the solicitor general is charged with ensuring that the Attorney General’s directions are followed. The Attorney General and I are grateful to Manny for his work in the Hason case. He was in a very difficult position. He didn’t relish it for a moment and performed as well as anyone could wish. Certainly no one wants to repeat the Hason experience, but in my view, the solicitor general program was not the source of any mis-step or misunderstanding. Our work goes on. Not only in Hason, but every day, I am privileged to observe how we respect each other’s views, and how we strive to understand and overcome our differences as they arise. At the end of the day, we do not always agree. But when we disagree, we need never question each other’s motives, for we are all serving the same mission. As our mission statement describes, “It is our duty to serve our state and work honorably every day to fulfill California’s promise.” Sometimes things do go awry, but it isn’t because we aren’t all trying to do the best we can. 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.

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