Array

In a September 7, 2010 opinion, the U.S. Court of Appeals for the Ninth Circuit upheld a long-standing federal regulation under the Americans with Disabilities Act that holds government entities responsible for making their programs, services and activities accessible to persons with disabilities, even when the government contracts with other entities to provide the services.  Michael Bien argued the appeal on behalf of the class of persons with disabilities.

The decision arises from a long-standing class action lawsuit regarding California’s programs for state prisoners and parolees with disabilities. State officials had contended that when it subcontracted some programs to county jails, the State was relieved from any responsibility for ensuring program access for persons with disabilities. The Court said in effect that the State could not wash its hands of its responsibilities simply by subcontracting.   

One of the reasons that this is a significant decision is that the State was challenging the scope of the ADA — specifically regulations promulgated under Title II of the Act that deal with public entities.  The Justice Department was concerned enough about this challenge to file their own brief supporting the plaintiffs’ position and also participated in oral arguments.  The Court emphatically rejected the State’s arguments, which is an important legal finding for those who seek to enforce the ADA against government entities.

In a September 8, 2010 article in the San Francisco Daily Journal, RBG’s Michael Bien, lead attorney for the plaintiffs in the action, said, “The state took the extreme position that the court has no power over this situation.  The state said, ‘Go sue the county.’ But the court said the state does have to take responsibility here.”  Bien went on to say in the article, “It will not necessarily cost much for state prison officials to ensure that counties comply with the disabilities act. A state law already mandates such compliance.”  The San Francisco Chronicle also covered the decision in an article entitled, “U.S. Court Sets New Hearing on Disabled Inmates.”

Sanford Jay Rosen Represented Prominent Law Professors As Friends of the Court in Critical Public Interest Decision

On July 26, 2010, the California Supreme Court rejected an attempt by lead paint defendants to strip municipalities of high quality counsel.  The high court rejected the paint manufacturer’s argument that municipal governments could not enter into contingent fee arrangements in public interest cases.  RBG partner Sanford Jay Rosen filed an amicus curiae brief in the case on behalf of a group of nine nationally-recognized legal ethics professors led by UC Irvine Dean Erwin Chemerinsky in the case.  In July 2009, when the briefs were filed, the Daily Journal quoted Rosen: “It is neither necessary nor appropriate under California law for public entities to be barred from hiring contingent-fee lawyers in such cases – especially in these turbulent economic and environmentally hazardous times.”  The case at the Supreme Court is County of Santa Clara v. Superior Court (Atlantic Richfield), S163681.

Rosen, Bien & Galvan congratulates partners Sanford Jay Rosen, Michael W. Bien and Ernest Galvan, recognized by their peers in 2010 Super Lawyers® for their work in general civil litigation, appeals and civil rights. Rosen, Bien & Galvan, LLP also congratulates associate attorneys Mark Feeser and Elizabeth Eng for recognition on the Rising Stars list. 

The firm’s 2010 Super Lawyer profile provides a photo and additional information.

For their exemplary work in the California prison overcrowding trial, eight lawyers from Rosen, Bien & Galvan are in the running for the Public Justice 2010 Trial Lawyer of the Year Award which will be announced at the Public Justice Foundation’s annual gala and awards dinner on July 13 in Vancouver, B.C.

The U.S. Supreme Court said on Monday, June 14, 2010 that it will review whether California must bring its prison population under control to end years of life-threatening failures in medical and mental health care.  The case will be argued in the court’s next term that begins in October. The case is Schwarzenegger v. Plata, 09-1233.

Michael Bien of Rosen, Bien & Galvan and Donald Specter of Prison Law Office are co-lead counsel for plaintiffs who had successfully proved at trial in 2009 that reducing prison overcrowding in California was the only way to improve the state’s unconstitutional prison health care system.  The trial team also proved that the prison population could be brought under control in ways that improve public safety and reduce California’s extremely high recidivism rates. Specter commented in an AP report that “”The court didn’t do anything that Governor Schwarzenegger hadn’t tried to do through the Legislature. We don’t really know why he’s appealing, since he recognized that crowding is destroying the prison system and creating a sinkhole for taxpayers.”

In August 2009, a special federal three-judge panel ordered the state to develop a plan to reduce the state prison population by up to 40,000 prisoners within two years. Even with that reduction, the state prisons would still be at more than 137% capacity.  In January 2010, the three-judge panel approved the Schwarzenegger Administration’s plan to get the prison population under control, but the court postponed implementation of the plan, pending the Supreme Court appeal.

Rosen, Bien & Galvan has added former solicitor general and King & Spalding partner Paul Clement to the legal team on the Coleman case to argue the case before the Supreme Court, representing the class of prisoners suing California over inadequate mental health care.

According to a report in The Recorder on June 15, 2010: “We’re very happy to have him on board,” said Ernest Galvan of Rosen, Bien & Galvan.  The San Francisco firm has directed the mental health portion of the prison litigation for 20 years and decided to bring Clement on board for the U.S. Supreme Court action.”

In an opinion issued on June 9, 2010, the United States Court of Appeals for the Ninth Circuit affirmed that a federal trial court can order post-judgment monitoring to ensure compliance with a settlement and judgment that removed barriers between publishers and readers in state institutions.

The opinion stems from a case brought by Prison Legal News (“PLN”), a publisher of magazines and books.  PLN took legal action after learning that California prisons were placing arbitrary restrictions on access to books, magazines and newspapers, and that these restrictions were embodied in unconstitutional written regulations and policies.  Through its counsel, Sanford Jay Rosen, PLN contacted California authorities before filing suit.  After a year of negotiation, PLN prevailed, and California agreed to modify unconstitutional regulations and policies, and replace them with new policies that allowed prisoners free access to written materials, within reasonable limits needed for prison security.  The settlement included damages for PLN’s past lack of access to readers, and continued federal court supervision.

After cooperating briefly, the state argued that PLN could not be compensated for the attorneys fees and costs needed to ensure compliance with the judgment.  The Ninth Circuit rejected this argument, in a ruling that affirms the court’s discretion to make orders necessary to ensure that its judgments are complied with.  “This is an important First Amendment victory.  It is critical for the health of our society, and political system, that publishers have access to readers in all places and situations, including in state institutions,” said Ernest Galvan, who argued the case in the Ninth Circuit.  Sanford Jay Rosen, Kenneth Walczak, Blake Thompson, and Galvan briefed the case.   The Ninth Circuit also ordered that the trial court should receive evidence on whether continued federal court involvement is necessary to ensure the First Amendment rights protected by the judgment.

PLN has taken the lead in protecting the First Amendment rights of publishers to reach institutionalized readers, and has prevailed in free speech cases around the nation.  Rosen Bien & Galvan has been proud to work with PLN in several of these cases.  More information is available on PLN’s website, including an interactive map of PLN’s free speech victories.

Prison Legal News, a non-profit monthly publication that reports on criminal justice-related issues, announced on June 7, 2010 that it had settled a censorship suit against Corrections Corp. of America (CCA), the nation’s largest for-profit private prison company.  The case is Prison Legal News v. Corrections Corp. of America, U.S. District Court for the District of Arizona, Case No. 2:09-cv-01831-PHX-ROS. PLN was represented by RBG’s Ernest Galvan, Sandy Rosen and Blake Thompson and Daniel Pochoda, Legal Director of the ACLU of Arizona.

“It is always unfortunate when corrections officials ignore the First Amendment by prohibiting publishers from sending books to prisoners,” stated PLN editor Paul Wright. “This settlement will ensure that CCA employees respect our rights, and that prisoners and their family members can order books from PLN and other publishers. As the nation’s largest private prison company, CCA should have known better than to censor our books and violate our rights.”

PLN had filed the lawsuit in September 2009, claiming that CCA’s Saguaro Correctional Center only allowed prisoners to order books from Amazon or Barnes & Nobles under the facility’s mail policy in effect at the time.  PLN argued that its inability to send books to prisoners at the CCA prison violated its rights under both the First Amendment and the Arizona Constitution.  CCA changed its mail policy at Saguaro soon after PLN filed suit and agreed to settle the case in May 2010. As part of the settlement, PLN will not be placed on a prohibited vendor list, nor will PLN be subject to a blanket ban by CCA staff. Further, prisoners at Saguaro will be permitted to receive books and publications ordered by their family members or other third parties,

The settlement will be enforceable by the U.S. District Court for a period of 18 months ending on December 5, 2011. CCA also agreed to pay a lump sum to PLN in damages, attorney’s fees and costs.

(Excerpted from ACLU of Arizona press release of June 7, 2010)

PLN has taken the lead in protecting the First Amendment rights of publishers to reach institutionalized readers, and has prevailed in free speech cases around the nation.  Rosen Bien & Galvan, has been proud to work with PLN in several of these cases.  More information is available on PLN’s website, including an interactive map of PLN’s free speech victories.

A lawsuit filed May 6, 2010 in federal court in San Jose alleged that the June 22^nd special election to fill the California State Senate seat vacated by recently-appointed Lieutenant Governor Abel Maldonado would violate the federal Voting Rights Act because any change in election procedures in Monterey County requires U.S. Justice Department approval.  Seattle University School of Law professor Joaquin Avila, former general counsel for the Mexican American Legal Defense and Educational Fund, and Rosen, Bien & Galvan have filed the suit on behalf of three Latino registered voters in the district.

A San Jose Mercury News article quoted RBG’s Michael Bien:  “There simply isn’t enough time in the schedule,” said attorney Michael Bien with San Francisco-based Rosen, Bien & Galvan LLP, which submitted today’s suit. “The idea is that if you’re a district required to go through this pre-clearance, there’s supposed to be time to engage the community.” An article in The Recorder quoted RBG’s Gay Grunfeld:  “This is going to have an adverse affect” on voter access, said Rosen, Bien & Galvan partner Gay Crosthwait Grunfeld.”  The Sacramento Bee and San Francisco Chronicle also covered the story.

Case update:  At a May 20th hearing of a special three-judge panel, the U.S. Justice Department announced that it had approved the special election.  A San Francisco Chronicle article on May 21 reported: “The three voters who filed suit withdrew their request to the court to stop the election but hope to persuade the Justice Department to reconsider its approval and halt the June 22 vote, said their attorney, Michael Bien.”

An article in the May 4, 2010 edition of the AARP Bulletin includes a description of the role that RBG’s Sandy Rosen played in the aftermath of the Kent State shootings on May 4, 1970.  According to AARP, “The ACLU attorney who won a $600,000 settlement for the victims from the state of Ohio said they were his most memorable clients, and the trial and settlement the most intensely moving experience of his career.”  Sandy was also quoted extensively in a Cleveland Plain Dealer article on May 5 about the legal and historical implications of new evidence that has emerged that indicates an order to fire might have been given by Ohio National Guard officers.

A class action was filed in federal court on April 7, 2010 alleging that McAfee, the Internet security company, gives customers’ credit card information to an advertiser that uses deceptive pop-ups on McAfee’s website to trick people into subscribing to its service.  RBG’s Gay Grunfeld and Shirley Huey filed the case as local counsel in conjunction with plaintiffs’ counsel Andrew Friedman and Victoria Nugent of Cohen Milstein Sellers & Toll in New York and Washington, D.C. and Matthew Metz of Metz Law Group in Seattle.  The Courthouse News Service reported on the case here.