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For Our Children:
An Indictment of Health Care Law and a Parent's Call for a State Constitutional Amendment Prohibiting Involuntary Arbitration
By Christopher E. Angelo, Attorney at Law
1721 North Sepulveda Boulevard
Manhattan Beach, California 90266
Tel. 310.939.0099; Fax 310.939.0023
adlaw@verizon.net
The Indictment
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Only after it is too late,
i.e., after our children have been diagnosed with a "disability," do
we parents learn that the recent elimination of preexisting consumer and
constitutional rights has left us virtually powerless in our ability to stop
the unjust denial of our children's medical benefits by our health care plans.
For instance, those of us
that have health care plans financed partially or completely by an employer,
have learned that Congress, the United States Supreme Court and the California
Supreme Court have taken away our children's and our Founders' constitutional
right (Bill of Rights, Seventh Amendment) to sue unfair health care plans for
common law punishment damages, thereby limiting our redress of grievances to
the hiring of an hourly fee attorney who is only allowed to ask for the very
same policy benefits that should have been paid in the first place, without
litigation. See, Employee Retirement Income Security Act of 1974 (ERISA)
(29 U.S.C. §1001, et seq.); Pilot Life Insurance Company v. Dedeaux
(1987) 481 U.S. 41, 107 S.Ct. 1549; and Commercial Life Insurance Company v.
Superior Court (1988) 47 Cal.3d 473, 253 Cal.Rptr. 682. As for those
California Supreme Court Justices that wrote the majority opinion in Commercial
Life, four of them (Panelli, Lucas, Arguelles, and Eagleson) thereafter
retired to become private arbitrators, and another (Kaufman) retired and began
working for the insurance industry-subjects to be addressed later in this
article.
Consequently,
employer-financed health care plans know that they can unfairly deny our
children's medical claims without risking any additional liability. These
health care plans also know that for the same reason the vast majority of
Americans cannot afford health care without participation by their health
insurers, they cannot afford hourly fee attorneys or, in the alternative, would
prefer to spend discretionary income on those medical needs that are
affordable.
Given the fact that our
Founders created and guaranteed juries and judges to act as part of a
"checks and balances" against the abusive exercise of arbitrary power
by an economically powerful aristocracy as well as by the other two branches of
government, some of us have asked: (1) why would judges enforce ERISA's
elimination of our own children's right to sue and deter unfair health care
plans; and (2) by enforcing this federal law that denies our children access to
civil juries, aren't judges afraid that the absence of this deterrent could
someday encourage a health care plan to injure their own families through the
unjust denial of medically necessary benefits? Upon asking these
questions, we learn that this ERISA law, drafted and lobbied by the health
insurance and managed care industry, expressly eliminated all children's common
law rights to sue except the children of: (1) state judges,
legislators and other state or local government employees; (2) church employees
[29 U.S.C. 1002(32); 29 U.S.C. 1003(b)]; (3) self-employed persons [Kennedy
v. Allied Mut. Ins. Co. (9th Cir. 1991) 952 F.2d 262]; (4) partners in
partnership owned businesses since they are not deemed "employees"
[29 C.F.R. §2510.3-3©]; and (5) employees who voluntarily purchase their own
coverage without any contribution, endorsement, administrative involvement or
compensation being owed by or to the employer [29 C.F.R. §2510.3-1(j)]. In
short, judges are not potentially injuring their own families when denying the
right to sue as to the rest of us. As to church employees, what happened
to the theoretical "high wall" between church and state? Is it a
democracy, or an aristocracy, that allows government to live by more generous
rules than those enforced by it against the rest of us?
This unequal citizenship
must change, particularly in a democracy that preaches equality of
treatment. We must insist that the families of judges and church employees
be condemned or "protected" to the same degree currently being
experienced by the rest of us!
We, the parents of special
needs children, have also learned, again after the fact, that our health care
plans even have a provision that forbids court involvement of any kind-this
provision is known as the "arbitration clause." Except for a
limited number of government employee and church employee health care plans,
all other plans state that any dispute between a member and his or her plan
must be decided by either one or three arbitrators, who are usually retired
judges, attorneys and/or businessmen-not a cross section of society, and
certainly not our peers.
While these arbitrators will
never see our children again, they know that these same insurance companies
will only continue to stipulate and pay for their services on future unrelated
disputes as long as they rule in such a fashion that continues to
"please" these insurers.
Insurance companies are the
biggest institutional shareholders in non-insurance big business corporations,
entitling the former to appoint members to the latter's Board of
Directors. Arbitrators are very aware of, and very impressed by, this fact
whenever rendering their decisions because of the hope and expectation of
repeat business from both. It is not coincidental that as corporate
power becomes more concentrated and inter-related, there has been a
corresponding increase in the use of arbitration clauses and, therefore,
private arbitrators who have established a pattern of bias in favor of
repeat-business "customers." As reported by the Los Angeles
Times in an article entitled "Private Judges Arbitrate More
Consumer Suits":
"It's almost impossible these days to open a checking
account, get automobile insurance, buy stock, obtain health care or even take
an ocean cruise without being asked-or compelled-to surrender one of America's
most basic constitutional rights [i.e., access to courts and juries].
Through tiny paragraphs of legalese that many people never see
or read, Americans are forfeiting their rights to a day in court if they
believe that some provider has done them wrong.
Instead of having their disputes settled in a courtroom by [free
taxpayer supported] judges subject to public votes of confidence, more and more
people are discovering that fine print 'arbitration clauses' are obliging them
to argue their cases before rented judges in private offices [at the cost of up
to $7,500 per day].
The booming industry this movement has spawned is deeply rooted
in Orange County, home of the nation's largest for-profit vendor of private
justice, JAMS/Endispute, Inc., whose 350 arbitrators, most of them retired
judges, resolve more than 20,000 cases a year in 30 offices
nationwide. Superior Court judges in California, by comparison, dispose of
roughly 77,000 similar cases each year.
Arbitration clauses have shown up with monthly bank and credit
card statements from Bank of America, on the service agreement of long-distance
giant MCI and on the basic enrollment form of major HMOs....
Often they are easy to overlook. Someone in the market for
automobile insurance, for example, would have to flip to page 25 of some
Allstate policies to read: 'no legal action can be brought against us under
this coverage' and any 'arbitration award will be binding.' In other
words, it can't be appealed.
* * *
In many ways, arbitration is turning the legal world upside down.
Secrecy now cloaks legal disputes once heard by a branch of
government that has traditionally been open. Disputes that might have
established important legal precedent now leave no trace in court.
Hearing transcripts and arbitration records that could prove
helpful to other would-be litigants are rarely kept and seldom available to the
public. Consumers are routinely denied the rights they would have in court
to know the names of other people caught in their situations....
The secrecy also hides awards won as a result of shoddy medical
care or mismanagement of a client's money, for example. That prevents
other potential victims from hearing warnings found in public court judgments.
* * *
Critics such as Jamie Court, Director of Consumers for Quality
Care, a Santa Monica-based health care watchdog group, now believe that
'binding arbitration has closed the courthouse door-the last place the average
citizen can go to take on a powerful corporation.'
* * *
Statistics on the average wait for an arbitration hearing don't
exist. But it took Geneva Potter of Mission Hills nearly two years to even
get to [an arbitration] hearing.... Potter was eventually awarded
$4,492-from which she paid her attorney fees, the doctor who treated her and
her share of the arbitration costs [such as arbitrator fees]. That left
her with a little more than $1,000 [in comparison, superior court cases
routinely take less than two years to obtain a trial, plus the trial judge is
free, i.e., taxpayer supported].
A spokesman for the insurance company that sold Potter her
policy said it was prohibited by the Federal Privacy Act 'from discussing
matters involving individual policyholders.'" (Los Angeles Times,
Times staff reporter Michael G. Wagner, March 8, 1998, pages A-3, A-28 and
A-30.)
As noted by the Los
Angeles Times, "arbitration has its legal roots in the Federal
Arbitration Act of 1925, part of whose intent was to help businesses engaged in
inter-state commerce resolve disputes. Court rulings have expanded the
law's scope and meaning." Los Angeles Times, March 8, 1998,
page A-28.
Unless the people take back
their constitutional rights to courts and juries once deemed by our Founders to
be "inalienable," the growth of anti-consumer "arbitrator
justice" will only continue, particularly in light of the continuing
growth in concentrated corporate power, brief examples of which are cited
below. This concentrated and inter-related corporate power has enabled
insurance companies to "recommend and refer" anti-consumer
arbitrators to other companies owned partially or completely by these insurers.
Insurance companies own
large shares of Disney (owner of ABC television), General Electric (owner of
NBC television) and Westinghouse Electric (owner of CBS
television). Insurance companies represent one of the largest sources of
advertising revenue for the media. In 1997, the radio industry became
victimized by this monopoly. By the latter half of 1997:
"more than a quarter of the nation's 10,000 [radio]
stations have changed hands in deals valued at 24.7 billion dollars during the
past 20 months, giving a handful of companies a lock on the airways in the
nation's big cities. After gobbling up major radio broadcasters, two
companies, Westinghouse Electric Co.'s CBS Radio and Chancellor Media
Corporation, now control roughly half the radio advertising market in New York,
Los Angeles, Chicago, San Francisco, Philadelphia and Detroit.... [¶] the
logic is that the bulked-up [radio] station groups are able to sharply increase
revenues by attracting big, new advertisers and raising rates, while at the
same time slashing costs by firing engineers and programmers and moving as many
as six once-competing-stations into a single studio. By buying up stations
nationwide, radio owners can offer big brand names one-stop shopping for
national ad campaigns.... [¶] Of course, the radio industry has
stubbornly been going after newspaper advertisers since 1922...publishers are
worried enough to gird for a fight." Wall Street Journal,
September 18, 1997, pages A-1, A-6.
In addition to controlling
non-insurance corporations through the appointment of Board Directors based
upon shares owned, as well as similarly controlling media giants, insurance
companies, such as Travelers Group, now own securities brokerage firms such as
Smith Barney, Inc. Wall Street Journal, September 24, 1997, page
C-1. As though this is not enough, insurance companies are now beginning
"to compete head-on with banks" by purchasing residential mortgage
thrift and loan institutions, thereby "uniting the three businesses of
banking, securities underwriting and insurance under one roof." Wall
Street Journal, September 24, 1997, page C-1. It has also been noted
that "in the past five years, 7 securities firms and insurance companies
have acquired existing thrifts, while 8 others have said that they would apply
for new federal thrift charters." Wall Street Journal,
September 24, 1997, page C-1.
This ever-increasing
concentration of corporate power has also resulted in an increase in federal
political contributions. As reported by one leading newspaper, "among
the biggest 544 companies, the number making federal political contributions
rose from 366 in 1992 to 403 in 1996." Los Angeles Times,
September 21, 1997, page A-22. In relation, "while corporations have
historically tilted toward Republicans, the disparity grew wider after
Democrats lost control of Congress in 1994. In the two-year period before
the 1996 elections, the 544 corporations showered 87 million dollars on
Republicans and gave just 40 million dollars to Democrats." Los
Angeles Times, September 21, 1997, page A-22. Corporations
"headquartered in New York alone accounted for 26% of all political
contributions." As noted by consumer advocate Ralph Nader, "the
function of money in politics is to nullify votes. It is basically to
give enough support to an incumbent to ignore the public interest and support
the special interests." Los Angeles Times, September 21, 1997,
page A-22.
The use of political
donations to stop public interest legislation "is a subtle form of
corruption," said former Secretary of Labor, Robert Reich. Los
Angeles Times, September 23, 1997, page A-16. As noted by New York Law
School Professor Faith Kahn, "corporations need tangible results for their
[political] contributions because, under the laws of most states, they
cannot legally spend shareholders' money without a return [and] corporations
have enormous freedom to make political contributions without answering to shareholders,
precisely because the contributions are a management tool rather than an
ideological expression...if you are not doing this to achieve influence for the
corporation, then it would be a waste." Los Angeles Times,
September 23, 1997, page A-16.
As stated by former Federal
Reserve Board Chairman Paul A. Volcker, "the [savings and loan] industry
stepped up its political contributions and the crisis spiraled out of control
as Congress and government regulators allowed savings and loan associations to
launch an undisciplined binge of diversification into high risk ventures, many
of which went bust." Los Angeles Times, September 23, 1997,
page A-16.
When asking "who would
oppose putting out guidelines on saving women's lives in the workplace?",
former OSHA Administrator Joe Deer answered his own question: "The
companies that employ those women." Los Angeles Times,
September 23, 1997, page A-16.
Similarly, which companies
opposed public interest legislation intended to help our disabled
children? Answer: the insurance industry! As stated by one mother of
a deceased teenage girl, "you cannot make these people [i.e., politicians]
feel the pain I have until their own child is gone." Los Angeles
Times, September 23, 1997, page A-16.
Politicians will never
"feel the pain" of powerlessness when medically necessary care is
denied because federal ERISA law allows government and church employees to
bring tort claims before civil juries, while denying the same remedy to the
rest of us! 29 U.S.C. 1003(b).
In other words, insurance
companies, through their shareholder/advertising/financial might, have the
capability to control our laws, and our access to courts and juries. In
addition, insurers can implicitly promise repeat business to retired judges so
long as their arbitration awards remain "favorable" to
insurers.
Unlike the consumer,
insurers are sued frequently, thereby allowing them to gather voting-record
information on arbitrators for the purpose of determining when to no longer
stipulate to the services of these arbitrators. The consumer is not
entitled to obtain this information. Unlike the consumer, big business
wrongdoers, as a consequence of their power, now have the capability and
willingness to intimidate arbitrators with future boycotts of their services by
keeping "close tabs" on the records of these arbitrators.
As noted by the Los
Angeles Times following an investigation into managed care companies
retaliating against fair arbitrators:
"[Health care plan] lawyers keep close tabs on the records
of arbitrators who have sat in their cases, according to attorneys who have
worked for the health plan. 'If you don't see it the way [the corporate]
attorneys do, there's a good chance you won't be chosen again,' said a
prominent retired judge whose [arbitration] business dried up after he hit the
organization with several large awards-including one in the case of a young
girl whose cancer was missed..., 'I can't use the word blacklisted,' said
the judge, who asked not to be identified. 'But I certainly had
more numerous...cases before my pattern of voting turned that way. Now I
don't sit on very many anymore.'" ["Arbitration System Bars
Suits" Los Angeles Times, August 30, 1995, page A-12.]
This same Los Angeles Times
article noted that "even a part-time arbitrator can earn close to $200,000
in annual fees." (Id.) Consequently, every arbitrator lives with
the fear that if he or she offends the managed care industry just once, he or
she risks the loss of a great deal of income, not only from managed care plans,
but from all other interrelated companies who share common board members
capable of referring large volumes of repeat business to these arbitrators.
In relation, only one active
trial judge, Alameda County Superior Court Judge Joanne C. Parrilli, has
declared an "arbitration system fraudulent, unconscionable, and corrupt in
general." Los Angeles Times, August 30, 1995, page A-1.
Arbitrators are more
powerful than trial judges. While trial judges are required to follow the
law, arbitrators are not. The California Supreme Court has ruled that
"an arbitrator's decision cannot be reviewed [by any court] for errors of
fact or law." Moncharsh v. Heiley & Blase (1992) 3Cal.4th
1, 11, 10 Cal.Rptr. 183, 188. This means that if an arbitrator is wrong on
the facts or existing law when ruling in favor of a "repeat business"
insurance company by finding the absence of any coverage for our children's
claims, we parents are not allowed to protest this occurrence in court. The
California Supreme Court in Moncharsh held that this risk was
"acceptable" because "the parties have agreed to bear that risk
in return for a quick, inexpensive and conclusive resolution to their
dispute" (3 Cal.4th at 11, 10 Cal.Rptr.2d at 188). Firstly, we
parents have not "agreed" to arbitration given the absence of choice
to retain court/jury access. Secondly, arbitration is not inexpensive
because the average cost of forensic experts alone in arbitration is still
"$25,000 and upward" according to retired Los Angeles County Superior
Court Judge Harry T. Shafer. Los Angeles Times, August 30, 1995,
page A-12.
We parents of special needs
children have also learned, after the fact, that unlike court litigation, we
are no longer allowed to recover our arbitration costs, such as expert costs,
against our children's health care plan once we prevail in perfecting medical
benefits coverage. Austin v. Allstate Insurance Company (1993) 16
Cal.App.4th 1812, 21 Cal.Rptr.2d 56. To make matters worse, "arbitration
rulings are private, and unlike trial and appeals court rulings, they do not
establish legal precedent...and are never published"; furthermore, when
parents do win on behalf of their children, arbitration awards "generally
run from 20% to 50% less than jury awards in comparable cases, according to
lawyers on both sides of the issue." Los Angeles Times,
"Arbitration System Bars Suits," August 30, 1995, page A-12.
While the California Supreme
Court has ruled that "arbitrators are not bound to award [based] on
principles of dry law, but may decide on principles of equity and good
conscience," it has refused to extend the same "nullification"
power to truly impartial civil juries. Moncharsh v. Heiley & Blase
(1992) 3 Cal.4th 1, 11, 10 Cal.Rptr.2d 183, 188; Ballard v. Uribe (1986)
41 Cal.3d 564, 598-600, 224 Cal.Rptr. 664, 687-688.
Why should private judges,
earning $200,000 pear year part time, be considered less corruptible
than juries that have no financial interest whatsoever in the outcome of any
dispute? As will be demonstrated below, our Founders considered private
arbitrators to be more susceptible to corruption.
As noted by one of our
Founders more than 200 years ago, the objection to the proposed United States
Constitution, "which has met with most success" is "the want of
a constitutional provision for the trial by jury in civil causes," which
right is "the very palladium of free government" and is "a
valuable check upon corruption-it greatly multiplies the impediments to its
success." Alexander Hamilton, The Federalist Papers, No. 83,
Ed. Rossiter, Mentor Books, pages 495, 499, 501. Because of this
objection, the United States Constitution was immediately amended to include
the Seventh Amendment right to a civil jury trial to assess and determine all
facts and damages.
Founder Richard Henry Lee
summarized the Framers' rationale leading to the Seventh Amendment's civil jury
guarantee as follows:
"The impartial administration of justice, which secures
both our persons and our properties, is the great end of civil
society. But if that be entirely entrusted to the magistracy, a select
body of men, and those generally selected by the prince [politically
appointed], or such as enjoy the highest offices of the state, these decisions
in spite of their own natural integrity, will have frequently an involuntary
bias towards those of their own rank and dignity. It is not to be
expected from human nature, that the few should always be attentive to the good
of the many. The learned Judge [Blackstone] further says, that every
tribunal [other than the civil jury] selected for the decision of facts,
is a step towards establishing aristocracy; the most oppressive of all
governments." Richard Henry Lee to Governor Edmund D. Randolph,
October 16, 1787, Federalist and Anti-Federalists: The Debate Over the
Ratification of the Constitution, edited by Kaminski and Leffler, Madison
House, page 154.
In expressing his objection
over the absence of a civil jury guarantee in the original United States
Constitution, ultimately leading to the Seventh Amendment, Federalist Thomas
Jefferson, in correspondence to James Madison, wrote:
"I will now add what I do not like [about the proposed U.S.
Constitution]. First, the omission of a Bill of Rights providing...trials
by jury in all matters of fact...[I]t was a hard conclusion to say
because there has been no uniformity among the states as to the [civil] cases
triable by jury, because some have been so incautious as to abandon this mode
of trial [in equity, probate and admiralty cases only], therefore the more
prudent states shall be reduced to the same level of calamity. It would
have been much more just and wise to have concluded the other way that as most
of the states had judiciously preserved this palladium, those who had wandered
should be brought back to it, and to have established general right instead of
general wrong." Thomas Jefferson to James Madison, December 20, 1787,
The Documentary History of the Ratification of the Constitution, Eds.
Kaminski & Saladino, Madison House, Volume VIII, page 250.
Because England expanded the
jurisdiction of non-jury civil courts for the purpose of eliminating the
colonists' common law jury rights in civil cases, our Declaration of
Independence, drafted by Thomas Jefferson, expressly justified revolution, in
part, "for depriving us in many cases of the benefits of trial by
jury...and altering fundamentally the forms of our government...and
declaring themselves invested with power to legislate for us in all cases
whatsoever." Reid, Constitutional History of the American
Revolution: The Authority of Law, The University of Wisconsin Press, page
124; Thomas Jefferson: Writings, The Library of America, page 21.
To deny, in favor of a
"prince" (i.e., arbitrator), any citizen his right to factual
determinations by a civil jury of his peers in a common law action for
damages represents what our Founders considered to be an intolerable act of
tyranny since it submits to the ruler, not one's peers, the power to determine
whether the few have wronged the many. In James Madison's letters to
Thomas Jefferson (dated May 1 and April 23, 1796), he noted that "the
insurance companies were at work in influencing individuals...and sounding the
toxin of foreign war and domestic convulsions"; "insurance companies
here and in New York stop business in order to reduce prices and alarm the
public." Smith, The Republic of Letters: The Correspondence
Between Thomas Jefferson and James Madison, Vol. II, pages 937, 934, Norton
& Co. SOME THINGS NEVER CHANGE!
When discussing the
democratic "virtue" associated with the American civil jury, our
Framers celebrated the 1764 civil punitive damage case of Forsey v.
Cunningham as symbolizing the civil jury's inalienable right to punish wrongdoers:
"The attempt of Governor Cadwallader Colden, of New York,
before the revolution to re-examine the facts and re-consider the damages [as
determined by our juries], in the case of Forsey against Cunningham,
produced about the year 1764 a flame of patriotic and successful opposition
that will not be easily forgotten." Centinel II, October 24, 1787, The
Documentary History of the Ratification of the Constitution, Eds. Kaminski
& Saladino, Madison House, Volume XIII, page 463, footnote 4; Klein,
"Prelude to Revolution in New York: Jury Trials and Judicial Tenure",
William & Mary Quarterly, Third Series, Vol XVII (1960), pgs. 439-462;
Uncus, November 9, 1787, The Documentary History of the Ratification of the
Constitution, Eds. Kaminski & Saladino, Madison House, Vol. XIV, page
80, footnote 2.
The civil jury trial right
was proposed by more states than any other human right including, but not
limited to, religious freeman, free speech, free press, assembly and petition,
right to bear arms, prohibition against quartering soldiers, prohibition
against unreasonable searches and seizures, prohibition against double
jeopardy, prohibition against self-incrimination, due process, criminal jury
trial, speedy public trial, and right to counsel. Schwartz, The Great
Rights of Mankind: A History of the American Bill of Rights, Madison House,
expanded edition (1992), pgs. 157-158.
Our Founders' concern about
the corruptibility of our justice system should ring as loud today as it did
then. When commenting on the 1996 guilty bribery plea of former San Diego
Superior Court Judge Michael Greer, retired San Diego Appellate Court Justice
Ed Butler acknowledged:
"Any time a Judge, retired or sitting, pleads guilty to
bribery, it adds to the erosion of confidence in the judiciary by the
public-all of which strikes at the heart of the democratic system because it's
the court system to which we turn to resolve our conflicts, to govern our
lives." Los Angeles Times, March 12, 1996, page A-15.
Similarly, in an article
entitled "Financial Firms Boost Funding to Capital Hill", the
nation's leading business newspaper acknowledged:
"The nation's financial-service firms stepped up their
contributions last year to congressional leaders who are spearheading an
overhaul of federal securities law and regulation.
Five senior U.S. Senators and Congressmen with oversight of key
committees covering Wall Street received a total of $829,726 in campaign
contributions from financial-service firms in 1995...that's nearly double the average
of $420,786 the five legislators received in each of the prior two years....
* * *
[T]he hot money from political-action committees seems to be
shifting loyalty: financial service firms are funneling more money to
Republicans amid their 1994 sweep of Congress.
* * *
It's not uncommon for big business to fill the coffers of
important lawmakers." Wall Street Journal, March 12, 1996,
pgs. C1-C2.
In short, our health care
justice system is "intended as a stacked deck, and the unwary get caught
in it." Retired Los Angeles County Superior Court Judge Harry T.
Shafer, Los Angeles Times, August 30, 1995, page A-12. This is a
nice way of saying that "privatized arbitrator justice" is a
prescription for unfair and corrupt denial of our children's claims for medical
benefits. Referring to the unfairness of this trend toward privatized
justice, one, and only one, California Court of Appeal recently observed:
"We have seen...an exponentially growing number of
available retired judges, and a dramatic increase in hourly rates and total
billings, leaving those of us who remain in the public system to address the
problems inherent in the creation of a second, separate judicial system.
* * *
Today, we see records where referees have charged $400 or $500
per hour and more.
* * *
[O]ur courts are experiencing the wholesale departure of judges
from the public system to the greener pastures of private judging, where they
can and do earn more money, receive more help, obtain better accommodations,
and work as many or as few hours as they choose.
* * *
We are aware that many lawyers believe some referees favor
larger firms because they will be repeat customers, try to compromise to avoid
angering either set of lawyers and losing a source of repeat business,
improperly threaten adverse rulings if obviously excessive fees are questioned,
and so on. We could go on, but we think this list suffices.
* * *
To say that the judicial system is suffering from the
competition among and the conduct by some private judges and mediators is to
state the obvious.
* * *
[O]ur concern is that we are too fast approaching the time when
the law, in its majestic equality, will forbid the poor [or the middle class]
from using not only a private system restricted to the wealthy, but also the
public system theoretically available to all." [McMillan v. Superior
Court (1996) 57 Cal.Rptr.2d 674, 680-681, footnotes 11-12, by Justices
Miriam Vogel, Ortega and Masterson.]
This "reality
check" McMillan opinion may no longer be cited as legal authority
by consumer attorneys because the California Supreme Court has ruled in 1997
that this judicial opinion must be de-published.
Why are we paying taxes for
a civil justice system when, on top of these taxes, our judges are unavailable
because health care plans deny us coverage unless we sign arbitration
clauses? In a case brought by this author against the State for its
approval of insurer contract language that involuntarily forces arbitration
upon us, the California Court of Appeal held against the consumer as follows:
"Plaintiffs repeatedly assert that a 'constitutional right
to choose' between arbitration and jury trial lies at the heart of their
complaint. We find no authority in the federal or state constitutions to
support this claim in the context of a group [health care] plan offered by an
employer." [Viola, et al. v. State of California, Department of
Managed Health Care (2005) 133 Cal.App.4th 299, 310.]
We pay taxes for the courts
to resolve this dispute, not for the courts to lazily "pass the buck"
to an even more expensive private arbitrator or mediator! Sitting judges
have doubled the cost of civil litigation within the last 10 years by referring
out judicial disputes to private retired judges to arbitrate or mediate. When
these same sitting judges retire themselves, they usually become private
arbitrators or mediators, earning more than they did while sitting on the
bench. How was this allowed to occur? The answer is simple. From
the 1700's to the 1920's, the judiciary relied upon our constitutional civil
jury guarantee as the reason why almost all disputes must be resolved by the
very cheap civil jury system (each juror receiving less than $10 per day
currently). From the 1920's onward, judges have taken upon themselves
dispute determinations that were previously left only to the civil
jury. This "grabbing" of power, at the expense of the affordable
civil jury system, has empowered these judges to, in turn, assign these
disputes to privately paid referees, arbitrators and mediators. This trend
can only be reversed by returning to the powerful civil jury system originally
envisioned by our Framers. This cannot be done through the judiciary,
given its own special interest in making more money once retiring by presently
expanding its power at the expense of our constitutional civil jury rights.
Lawyers-turned-legislators
and lawyers-turned-judges frequently justify the taking of dispute resolution
powers from civil juries on the grounds that their expensive legal education
makes them aristocratically more capable in determining right from wrong when
compared to the lay majority of American citizens. This
"attitude" persists despite the fact that Article III of our United
States Constitution expressly provides that any citizen, regardless of his or
her education or training, constitutionally qualifies to serve as a federal
judge. Furthermore, Article III, Section 1, of the California Constitution
states that the "United States Constitution is the supreme law of the
land." For this reason, many of our most famous judges during the
first 100 years of nationhood never attended law school and, being from a
cross-section of society, were staunch advocates of the jury
system. Despite the California Constitution's adoption of the United States
Constitution as the "supreme law of the land," this has not prevented
our state representatives from requiring membership in the California State Bar
before qualifying for a judicial appointment (California Constitution, Article
VI, Section 15). It is not coincidental that the judiciary began grabbing
power away from the civil jury after it had become monopolized by the legal
corporate profession.
The legal profession, itself
monopolized by big business hourly fee corporate law firms, is also becoming more
important to even sitting judges in terms of campaign
contributions. According to a 1996 study by the non-profit California
Commission on Campaign Financing, "judicial candidates increasingly were
soliciting money from lawyers and litigants who appear before them," given
the fact that "the cost of running for a judgeship in Los Angeles has
skyrocketed...[more specifically] in 1976, the average judicial candidate spent
$3,000; by 1992, it had risen to $70,000." Furthermore, "judicial
candidates pay to have a campaign statement in the voter pamphlet-at a cost of
$49,000." In an opinion written by Judge Cynthia Holcomb Hall in a
lawsuit brought by the National Association for the Advancement of Colored
People (NAACP), the United States Ninth Circuit Federal Appellate Court ruled
that the $49,000 cost to publish a judicial campaign statement did not
unconstitutionally favor affluent candidates since the law does not confer
"a right on voters to have equal influence in the election process." Because
many judicial candidates cannot afford to pay $49,000 to obtain a campaign
statement in the voter pamphlet, it is interesting to note that in judicial
races "winners outspent losers 4-1-$128,000 to $32,000," according to
the Commission on Campaign Financing. As to those judicial candidates who
won, many had to "rely on family wealth as a source of campaign
financing" in addition to money solicitations from lawyers and
litigants. Los Angeles Times, December 17, 1997, page A-29 (by
Times Legal Affairs writer Henry Weinstein).
By organizing now, we
parents can take advantage of the current trend involving shift of governmental
power from Washington, D.C. to the states. As noted by Senator Tom Harkin
(D-Iowa), "with more and more power going back to the states, governors
now have a lot of power...if you are an activist and you've got some
ideas...you can do a lot...and quickly." Los Angeles Times,
December 16, 1997, page A-5. We parents already know the nature of the
problem and we should fix it at the state level. A 1998 nationwide poll of
over 2,000 adults conducted by NBC News and The Wall Street Journal
found that freedom, ambition, independence and self-reliance constitute the
most prevalent American traits. The Wall Street Journal, March
5, 1998, page A-14. Our cause does honor to these traits.
Our health care justice
system is morally bankrupt, corrupt and not worthy of our taxpayer
dollars. So what can we parents do about it?
We, the parents of special
needs children, do not have the financial lobbying strength of the health care
industry. We will never be able to compete in terms of "dollar
influence." However, our right to vote has not yet been taken away
from us and our numerical strength will always be superior. We must,
therefore, organize. We must speak with one voice, and speak loudly. We
must amend our State Constitution to prohibit involuntary arbitration of
patient disputes against health care plans. We are to blame for that
abuse which we tolerate!
Every judicial opinion or
legislative enactment that takes away, or otherwise reduces, a previously
recognized right creates another barrier between the professional minority and
the lay majority. For what reason should those that govern be fearful or
distrustful of the decisions of juries representing the lay
community? What oligarchic or totalitarian price should we be willing to
pay for such "professional" distrust and control? Should any lay
majority risk abdicating its jury rights to professional decisionmakers capable,
if so inclined, of effectuating a subtle "intellectual coup d' etat"
through written words undecipherable to the lay community, but highly effective
in eliminating rights previously enjoyed by that community? Abraham
Lincoln was right when he said in 1838 that if America is to be conquered,
"it must spring up amongst us. It cannot come from
abroad." Address, before the Young Men's Lyceum, Springfield,
Illinois, January 27, 1838. In this same address, Lincoln summarized the
Framers' ambition: "Their ambition aspired to display...a practical
demonstration of the truth of a proposition...; namely, the capability of a
people to govern themselves."
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Insurance Help for California Families 
