January, 2006
It seems like the New Year took everyone by surprise. Everywhere I go I hear people talking about how difficult it's been to get up to speed since the holiday season ended. I know that has definitely been the case for me. It seemed like I barely got meetings in my calendar before I was expected to start attending them.
I recently returned from a marathon meeting in Sacramento with all of the disability advocates from Independent Living Centers around the State. We had been planning this meeting for months, and I know they were all surprised about the amount of work that lies ahead of us.
One big surprise was the Opportunity to Repair Act of 2006, a proposed ballot initiative submitted to the California Attorney General to be placed on the November 2006 ballot by the California Building Industry Association and the California Restaurant Association.
The proposed initiative which is currently awaiting approval by the Attorney General, would require that people notify the owner of a business or building owner before filing a lawsuit for an access violation or construction defect. The owner would then be given 120 business days to fix the problem. The measure will not qualify for the ballot without approval and signature gathering following procedures set forth by the Secretary of State.
Proponents say that the initiative will reduce frivolous lawsuits and people with legitimate lawsuits can get a quicker resolution to their claims. Opponents say that the measure has nothing to do with so-called frivolous lawsuits, but is instead an attempt to rob individuals of their civil rights.
They argue that nearly 16 years after the passage of the Americans with Disabilities Act (ADA) building owners will become exempt from having to compensate individuals for their discriminatory practices. The initiative, if passed, would remove the ability of attorneys to be reimbursed for attorney's fees and damages. Furthermore, they contend that the 120-day waiting period amounts to more like 200 days, and by the time someone actually follows all the procedures set forth in the language, actual repairs can be delayed by over 13 months.
Notably, the initiative would apply to all residential homeowners, not just people with disabilities and access violations. They too would have to wait and follow very complex procedures before taking action against the builder of their home for a construction defect. Supporters argue that the measure will protect California residents from trial lawyers who have made millions of dollars from unnecessary litigation, and they are preserving the right of citizens to have their day in court. Not so, say others who view the proposal as tapping into the overwhelming anti-lawyer sentiment present in our society. What better way to mobilize voters than to say that you want to keep rich lawyers from getting richer?
No matter how you come down on this issue, don't be surprised when you hear a lot more about it. The passage of this initiative has major ramifications for California and the Nation. Other states are watching us closely to see how this all plays out. Stay tuned.