Jewish World Review Dec. 14, 2004/ 2 Teves, 5765

Wesley Pruden

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Consumer Reports

In a blue state, a little relief

http://www.NewsAndOpinion.com | LOS ANGELES — If it's still a fact that all trends originate here and spread eastward across America, transforming the culture, the politics and even the law in red states and blue, there's good news from a Los Angeles courtroom.


U.S. District Court Judge Edward Rafeedie risked being seen as the meanest man in town when he threw out a lawsuit filed by a man in a wheelchair who accused a Chinese restaurant of restricting his mobility by incorrectly installing "grab bars" in the men's room, making it difficult to lift himself on to the toilet seat.


The federal Disabilities Act was meant to make all Americans equal, or as close to it as law could make them, even on the throne.


So Jarek Molski, 34, who lost his mobility in a motorcycle accident six years ago, has used the Disabilities Act aggressively, asserting his rights. In fact, Mr. Molski has filed 400 such lawsuits, against restaurants, wineries, bowling alleys, banks and just about any place he thought infringed his right to use the facilities. He has made a living at it.


Life, as John F. Kennedy famously said, is unfair, and sometimes it's tough. On certain days in the life of Mr. Molski, such as May 20, 2003, life got brutal. Three times on that day, Mr. Molski had to use the toilet in a California restaurant, and three times he hurt himself doing it. But the trouble was not confined to the difficulties of answering nature's most urgent demand. The parking was inadequate and the food counters were too high.


After each meal, Judge Rafeedie said, summing up the allegations in the three separate lawsuits, "Molski attempted to use the restroom, but because the toilet's grab bars were improperly installed, he injured his shoulder in the process of transferring himself from his wheelchair to the toilet. Thereafter, he was unable to wash his hands because of the lavatory's design."


Judge Rafeedie agreed that Mr. Molski might have had a "credible" case in each instance, standing alone, but three identical injuries in three different restaurants in one day "undermined" the validity of his claims.

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"It would be highly unusual ? to say the least ? for anyone to sustain two injuries, let alone three, in a single day, each of which necessitated a separate federal lawsuit," the judge said. "But in [Mr.] Molski's case, May 20, 2003, was simply business as usual."


The 398th, 399th and 400th lawsuits of Mr. Molski's unusual legal career were three coincidences too many. Judge Rafeedie decreed Mr. Molski to be a "vexatious litigant," trying to "harass and intimidate business owners," and now Mr. Molski can't file any more lawsuits under the Disabilities Act unless he gets permission from a judge.


But that was still not all. Judge Rafeedie, who was appointed to the bench by President Reagan, ordered the San Francisco lawyer who represented Mr. Molski in several of his many lawsuits to appear before him to say why he and his law firm should not be sanctioned for aiding and abetting "abusive litigation practices."


The ruling has, not to put too fine a point on it, got the attention of a lot of California lawyers, not all of whom make their living chasing ambulances or encouraging anyone with a grievance real or imagined to "sue somebody." But anyone in business, small, large or medium-sized, knows about "vexatious litigants." An innocent remark or a casual glance can get an employer in trouble; sometimes doing nothing can be a cause of action. W.C. Fields thought he was being uncharacteristically kind with his advice to "wink your eye at an ugly girl." Such a wink today only risks stirring up "vexatious litigation."


Pamela Karlan, a law professor at Stanford University, told the Los Angeles Times that the Rafeedie ruling makes "perfect sense" because "you don't want to create a backlash against the disabilities law by allowing litigants to abuse it."


Others cite Mr. Molski as a force for good. "Why do you think this plaintiff was able to obtain so many quick settlements?" asks another law professor. "Because even today ... violations of the statute are widespread."


Such "settlements" are often the court-approved equivalent of paying "protection," a scam perfected years ago by the mafia. Mr. Molski's lawyers, sanctioned or not, vow now to seek help (relief, you might say) from the U.S. 9th Circuit Court of Appeals, which has been a source of goofy interpretations of the law for decades ? the last, best hope of blue-state law.

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JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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