Taking Cancer To Court
February 1, 2009 Mark Hrywna
Opening a wider front in its battle on cancer, the American Cancer Society (ACS) and its Cancer Action Network have launched the Judicial Advocacy Initiative (JAI), a move to affect public policy through the legal system. With the help of pro bono representation, the organizations will monitor court cases they might be able to affect by filing amicus curiae (friend of the court) briefs. Amicus briefs generally are filed by entities that are considered authorities on certain topics as a way to educate and inform the courts.
The JAI seeks to influence court decisions by “providing high-quality, timely information to judges when the decisions will impact the rights of cancer survivors.” Priority issues will be access to healthcare and preventing workplace discrimination against cancer survivors and will focus on the Appellate and U.S. Supreme Court levels.
ACS has filed amicus briefs primarily in cases involving tobacco control, with some involving employment discrimination. Since a 2000 U.S. Supreme Court case about cancer survivor discrimination (Garrett v. University of Alabama Board of Trustees) in which ACS was asked to file an amicus brief, the organization has filed approximately 30 briefs, according to Mary Rouvelas, ACS’s associate counsel.
In the Garrett case, Milton Ash and Patricia Garrett both were disabled under the definition of the Americans with Disabilities Act (ADA). Ash was a security guard with severe asthma in the Department of Youth Services and Garrett was a nurse at the University of Alabama who had been diagnosed with breast cancer requiring radiation and chemotherapy treatments. Both alleged that they had been discriminated against at their jobs. Ash’s request to be reassigned to duties that would alleviate his asthma was denied while Garrett was transferred due to her absences for treatment. Garrett sued for damages under the ADA but lost at trial before a reversal by the U.S. Court of Appeals for the 11th Circuit. The appeals court found that Congress could require money damages from states if they violated the 14th Amendment, guaranteeing citizens equal protection under the law.
The two suits were consolidated by the U.S. Supreme Court because of their shared underlying issue: whether the state could be liable for monetary damages under the 10th Amendment (states’ rights). There also was the issue of whether Congress could abolish the state’s immunity under the 14th Amendment.
In a 5-4 decision, the U.S. Supreme Court reversed and ruled that the ADA did not constitutionally abolish the states’ sovereign immunity and suits in federal court by state employees to recover money damages under ADA are barred by the 11th Amendment.
The Garrett case was the first disabilities case in which ACS filed a brief, and though it was not on the winning side, Rouvelas said the organization realized it should be doing this work.
The key to the new initiative is pro bono representation by three firms: Kilpatrick Stockton, McKenna Long & Aldridge, and K&L Gates. The firms will monitor cases and review what might be appropriate for ACS to file briefs.
Will O’Brien is a partner in McKenna Long & Aldridge, which started its relationship with ACS via the 2000 Garrett case. The idea was to broaden the work ACS was doing. “It’s a more organized way to expand into the judicial branch,” he said and do what was done in the Garrett case in a more organized and effective way.
As with the legislative process, JAI is a long-term effort, O’Brien said, not necessarily with a clear victory in each matter but a sustained educational effort for the courts. ACS started looking into the program about a year and a half ago, surveying organizations that have been involved in this work to see how it’s done and why, Rouvelas said. “We realized this is a place where we should be engaging as well,” she said.
The AARP had created the AARP Foundation exclusively to do this kind of work but it represents individuals, which is where the ACS model will differ.ACS will aim for cases in the Appellate Division or U.S. Supreme Court that it cares about from a public policy standpoint, and would allow a greater reach than representing just one person, Rouvelas said. “This sort of role of amicus is a pretty well recognized role, and a good place for us to be putting some energy,” she said.
ACS also will aim to team up with other nonprofits that have experience in filing amicus briefs and align from a program standpoint, such as the American Lung Association (ALA), Rouvelas said. “The courts are likely to have more respect with several organizations on an issue than just one. It’s one area where collaborative partnerships are critical,” she said.
“Having briefs filed in cases of public policy is very effective if the source of the brief is a respective source and the argument is cogent and well placed,” said Errol Copilevitz of Kansas City-based law firm Copilevitz and Canter. An advantage of filing an amicus brief is the ability to argue a much broader issue, he said.
Copilevitz recalled a 2003 U.S. Supreme Court case involving telemarketing in which Associate Justice Stephen Breyer pointed to an amicus brief filed by a host of charities. Public policy, such as fundraising or workplace issues, is “very fertile ground for an amicus brief if the source is respected,” he said.
Cynthia Rowland, an attorney with Coblentz, Patch, Duffy & Bass in San Francisco, said amicus briefs are most effective when the writer is an accomplished appellate attorney respected by the court, and when promoted by an organization with a vested interest, like ACS. “Some of the most effective briefs are those that bring together unlikely coalitions of nonprofits on a particular issue,” she said. The courts are more likely to take notice of a brief that brings together different perspectives while promoting the same legal analysis, Rowland said, rather than a single viewpoint.
Mark Levy of Kilpatrick Stockton has argued before the U.S. Supreme Court almost two dozen times. “In some ways, the hardest part of Supreme Court practice is getting through the courthouse door,” he said, “convincing them your case is among the most important cases to come through their court.” Last year the U.S. Supreme Court was petitioned to hear 9,000 cases and decided to hear 67 cases, less than 1 percent.
Though it’s hard to measure the success of amicus briefs, Levy said statistics pretty clearly indicate that briefs help in supporting petitions to be heard before the U.S. Supreme Court. The best practical examples he cited are from the business community, where chambers of commerce, product advisory counsels and similar trade organizations filed briefs in helping to get petitions granted in business-related cases.
Joining together organizations in a brief can help manage the sheer number of briefs filed in a case and maximize the impact, Levy said. “It also gives a particular brief more emphasis and credibility because it comes from several organizations speaking together,” he said. NPT