Saturday, December 17, 2005

Molski's Back

A couple of Jarek Molski-related items (you remember Molski from my earlier postings for example here and here):

1. On Thursday, Judge Rafeedie of the U.S. District Court for the Central District of California dismissed another of Molski's suits for lack of standing. The case was Molski v. Kahn Winery, 2005 WL 3436792 (C.D. Cal., Dec. 15, 2005), and the court held that there was no real prospect that Molski would return to the winery he sued, which was 104 miles from his house. I've talked about my ambivalence about Molski before -- there seem to be real credibility problems with some of his allegations, but he wouldn't be able to do what he does if so many businesses weren't still violating the ADA 15 years after it came on the books.

Still, without commenting on the bottom line of Judge Rafeedie's decision this week, I was quite troubled by this passage from the opinion: "
The ADA is intended to achieve the prompt remediation of architectural and other barriers that impede access to places of public accommodation by the disabled community. By tacking on state law claims for Unruh damages to his federal ADA complaints, Molski reveals his true motive: to extort a cash settlement. Rather than further the prompt remedial purposes of the ADA, these Unruh state law claims for money damages lengthen the time it takes to settle disputes, add additional issues to a case, and increase the litigation costs of both parties to a dispute. As a result, access--Moslki's alleged purpose in bringing these claims--is greatly delayed and rarely achieved."

That passage misunderstands a couple of important realities of ADA public accommodations litigation. Money damages are often the only way ADA plaintiffs -- even those who want nothing but access -- can get skilled lawyers to take their cases. A prevailing plaintiff can recover attorney's fees in a purely injunctive case, but under the Supreme Court's case law the fee award cannot take account of the contingency of losing. So the plaintiff's lawyer, if he wins, gets paid the same hourly rate as the defendant's lawyer gets paid win or lose. If the plaintiff loses, the plaintiff's lawyer gets nothing. Without the availability of money damages from which the plaintiff's lawyer can take a contingent fee, it's pretty easy to see that the better lawyers, on average, will be defending rather than prosecuting these cases.

Moreover, without the availability of money damages, it's often very hard to have standing to bring a case seeking access. Under the Supreme Court's doctrine, a person who seeks purely injunctive relief lacks standing and therefore cannot bring a suit unless s/he can show that s/he will be subject to the same harm at the hands of the same defendant in the future. So even if I go to a restaurant and can't get in because they are flagrantly violating the ADA, I can't bring a successful ADA suit unless I can show that I'm going to go to that restaurant in the future.

Money damages are therefore often the only way that unlawful denials of access can be challenged. Whatever we might say about the ethics of particular lawyers who seek them (and this one seemed to warn defendants not to fix the problem while the litigation was pending!), we shouldn't say that damages themselves are the problem.

2. Looks like Molski himself just got sued. See this article, which begins:

The owners of a Morro Bay restaurant have countersued disability access litigant Jarek Molski, accusing him of charges similar to those he's leveled at hundreds of businesses around the state.

Molski sued the owners of The Galley in June 2004, claiming he suffered "emotional distress, mental anguish ... humiliation, embarrassment, anger, chagrin, disappointment, and worry" after allegedly hurting himself at the restaurant in 2003.

In his suit, Molski demanded a little more than $1.6 million in damages, or $4,000 a day from the date the alleged injury occurred.

In this week's countersuit, owners Rodger Anderson, his brothers Jefferson and Harold, and their sister Amalia Mason allege that Molski's lawsuit caused them "mental distress, mental anguish, embarrassment, humiliation, and loss of reputation."

They are asking for at least $3,000 in specific damages and an unspecified amount of general damages.

The Anderson family's suit hinges on why Molski chose to pursue the restaurant.

His original suit against The Galley was filed in federal court. In March, that suit was dismissed. In August, Molski refiled his suit in San Luis Obispo Superior Court.

At the time of both suits, The Galley was undergoing retrofit work that would make it compliant with disability access laws.

In the countersuit, The Galley owners say Molski knew about the remodel, and because he filed a new suit in county court, his only purpose was to extort money, not fix access problems.


Blogger Amy Robertson said...

Couple of additional thoughts on the very troubling passage you quoted. First of all, with only injunctive ADA claims, if the defendant makes the requested changes - even after years of litigation - the plaintiff is not entitled to his fees. This is a strong disincentive for private attorneys to take simple cases: the defendant can force you to defend motions, hire experts, and spend hundreds of hours, only to capitulate at the last minute and forfeit all fees.

In addition - and more important, I think - the people of the state of California have seen fit to create a damages remedy for violations of the state's civil right laws, including those barring disability discrimination. It is very strange for a federal judge to call this into question, especially using pejorative language like "extort." The practice of joining state and federal claims based on the same facts is also very common and, again, generally does not give rise to judicial comment. That these extremely common legal phenomena - state damages claims litigated together with federal claims - are now cause for judicial hyperventilating testifies both to abiding fact that disability rights are viewed differently from other civil rights, and to the extreme harm that thoughtless litigants like Jarek Molski are doing to our laws.

- Amy Robertson

5:02 PM  

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