Insurance Help for Autism: Articles: 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: Print Version

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

      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.

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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.

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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.'

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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....

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[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.

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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.

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Today, we see records where referees have charged $400 or $500 per hour and more.

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[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.

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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.

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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.

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[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."