California Legislature

A deputy legislature was born fully adult in the waning hours of the California legislature’s session this month. Voters can neither elect nor diselect this lawmaking body. It is composed of the manufacturers, insurance industry, physicians, counties, municipalities and tobacco industry on one side and the California Trial Lawyers Association (CTLA) on the other side.

What made these warring antagonists into a deputy legislature was (1) their agreement behind closed doors to weaken victim’s rights to sue in court, (2) their written “non­aggression” pact for five years, and (3) the willingness of the leaders of the Assembly and Senate to rubber-stamp their deal into passage with lightning speed just before the midnight hour.
It all started when the defendants’ lobby filed an initiative with the State Attorney General to place on the ballot next June a series of measures that would make it more difficult for injured and sick people to seek justice against the perpetrators of their harms — such as manufacturers of dangerously defective products. To fight this initiative would have cost the Trial Lawyers, who represent victims in court, millions of dollars. Cutting a deal would avoid both the expenditure and the possibility of a cleverly manipulated corporate campaign victory.

The two sides met repeatedly during the last weeks of the legislature. Long meetings and huddles and negotiations filled each day.

The first deal came with California’s local governments. Here is a sample: Innocent victims injured by a fleeing vehicle pursued by police cannot sue either the officers or the local government if the latter has adopted adequate guidelines for such hot pursuits. The chasing police driver doesn’t have to comply with these guidelines; they just have to be on paper.

Hundreds of people are injured or killed as a result of police hot pursuits, many of which are reckless police chases of teenagers or others who panic because of some minor infraction and take off down the highway. There are very, very few situations which justify high speed chases down busy streets and highways where vehicular missiles become lethal instruments.

Never mind. The lawyers and local governments cut the deal and in return the local governments agreed not to participate in the defendants’ coalition backing the June referendum.

Guess what happened next? Yep, the manufacturers, tobacco and physician lobbyists demanded their cut from the trial lawyers. In return for a five year peace agreement against any initiatives or legislative lobbying by either side against one another on the subject of personal injury law and rights, the trial lawyers agreed to immunize the tobacco and alcohol companies from any lawsuits by harmed consumers of these “inherently unsafe products.”

They also agreed to an amendment making the standard for winning punitive damages against willful and reckless wrongdoers more difficult for the injured to prove. Trial lawyers received a higher contingent fee in medical malpractice cases — fees were cut back sharply 12 years ago by the legislature. In turn the physicians received some technical concessions as well as a five year “no-fighting” treaty with the attorneys wither at the ballot box or in the legislature.

Speaker Willie Brown and Senate leader Dave Roberti quickly passed the deputy legislature’s agreement into law. There were no public hearings so that consumer, environmental and patient groups and individuals could testify. There was only a perfunctory debate on the Assembly and Senate floor featuring objections by the few stalwart legislators objecting to this last minute ramrodding.

Most astonishing was the written agreement by the contesting interest groups where they agreed to take a five year vacation from struggling against each other. This concordat will make it very difficult for any ordinary citizens movement to change the laws by urging their legislators to act. There will be no insurance reform pushed by CTLA and no expansion of rights for terribly harmed people so as to deter future carelessness or worse by companies, hospitals and physicians.

It is all a big relief for Messrs. Brown and Roberti who respectively hailed their deputy legislature’s agreement as “historic” and the “hallmark of the session.” With all the rest of the people shut out, I guess it was a “hallmark,” more specifically, a hallmark of shame wrapped as an ominous precedent against Californian democracy.