Lockyer Seeks to Avoid High Court Battle

California Atty. Gen. Bill Lockyer, in an about-face, is trying to drop a pending Supreme Court case that could void much of the federal law that protects disabled people from discrimination by public agencies, schools and colleges.

The unusual move comes a month before the justices are set to hear arguments in the case.

Last fall, Lockyer’s office appealed to the high court and urged the justices to rule that the state is shielded from most discrimination claims brought under the Americans With Disabilities Act.

California’s sovereign immunity should trump any such claims, Lockyer’s appeal argued. He was acting on behalf of the Medical Board of California, which had been sued by a doctor who was denied a license to practice medicine because of his history of depression.

In November, the Supreme Court voted to take up California’s appeal and to rule broadly on the question of whether states are shielded from disability discrimination claims. Oral arguments are set to be heard March 25.

This week, however, Lockyer is advising the medical board to back out of 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,” Lockyer said in a letter to the medical board. “I believe that it would be truly unfortunate to have the entirety of the [Americans With Disabilities Act’s] remedial scheme against state discrimination decided in the context of this case’s limited focus.”

The 18-member board will meet Friday evening to consider the issue.

Candis Cohen, a spokeswoman for the medical board, said the panel will hear public comments on the matter and meet behind closed doors to consider the issue.

“We can’t speculate on how the board might come down,” she said.

It would be highly unusual for the party that appealed an issue to the Supreme Court to drop the case, particularly after all the legal briefs have been filed.

On occasion, a dispute ends when the two parties arrange a settlement. But Lockyer’s letter advises the medical board to withdraw from the case that it took to Washington.

USC professor Erwin Chemerinsky, who was appointed to represent the doctor who sued the state, said he was surprised at the latest twist in the case.

“I have made several offers to settle the case. And each time, they have come back and said no settlement,” he said.

His client, Dr. Michael Hason, conceded that he had a history of depression. State medical examiners said his mental condition warranted denying him a license to practice medicine in California.

When he sued, a judge in Los Angeles threw out the suit. But the U.S. 9th Circuit Court of Appeals revived it and said Hason’s claim, if true, could show that he was discriminated against because of a past mental illness.

At that point, Lockyer’s office appealed the case of California Medical Board vs. Hason to the Supreme Court.

Disability-rights advocates nationwide have turned their attention to the case, fearing another setback at the hands of the conservative high court.

“There is substantial pressure on [Lockyer’s office] coming from the disability community,” Chemerinsky said.

Two years ago, the justices said disabled employees of state agencies cannot sue the state under the Americans With Disabilities Act.

In that 5-4 ruling, Chief Justice William H. Rehnquist said the doctrine of state sovereign immunity shielded an Alabama state hospital from being sued by a nursing supervisor who was demoted after being treated for breast cancer.

Lockyer’s appeal, citing that decision, called for taking the next step, a ruling that would shield the state from claims by disabled people who said they had been discriminated against in various public services, including those provided by libraries, schools and other state agencies.