It was Wednesday and I knew that I had to be at the state Capitol before 9:00 am.  At about that time, I was supposed to give a half hour presentation to the House Human Services Committee about my organization, Disability Rights Oregon.  I also had the task of bringing three boxes of materials to place on a table in the Capitol Galleria where folks could look at them. These were booklets about special education law, guardianship law, rules governing seclusion and restraint of school children and a stack of our brochures.  It was, you see, an event entitled: Developmental Disabilities Celebration - A Decade of Accomplishments.

I got to Salem with plenty of time to spare.  But rather than unpack the boxes, I decided to head into the Capitol to do some last minute preparation.  I sat at the back of the hearing room while State Epidemiologist Mel Kohn gave a PowerPoint presentation about the state's smoking cessation program.  While sitting there, I decided to talk about the ambitious goal of disability rights to reconfigure the world so that everyone can participate in it.  I chose three phrases as vehicles for this idea:  1.  "Nothing about me without me."  2.  "Want, get, keep."  and 3.  "Opportunity, Access and Choice."  The half hour flew by.

Then, I needed to get back to the car, take out the dolly, and wheel the three boxes of materials into the Capitol.  As I did this, I reflected on this aspect of my employment: moving boxes while dressed in a business suit to deliver information to a crowd of developmentally disabled individuals in a state capitol.  I don't recall seeing that in the job announcement back in 1986.

While I was setting out the booklets, a guy who advocates at the legislature for seniors and people with traumatic brain injury asked if I would meet with him to chat.  I agreed because someone was able to watch my table and the speeches and awards that always accompany events like this would not happen until noon.  So I went down to the lunch room to talk to Bill.

We started with small talk and were just about to launch into the topic at hand when over to our table comes Ralph, a union lobbyist.  Ralph is a very outgoing guy with one of those short social distances.  He put his face about six inches from mine and said: "Did you know Bill was an All-American college baseball player?"  The next twenty minutes were given over to teasing out of a very modest Bill that he was indeed an All-American in 1957 at USC, hitting over .360 for his senior year and playing with and for some of the greats of the college game.  Ralph said: "I love this.  You can take all this lobbying stuff and chuck it.  I just love this stuff."  Turns out Ralph had a brother who was a pretty good ball player in his day.  Modest, too.  Just like Bill.

Bill and I finally got down to our conversation about various disability groups working together toward common goals, and then I went off to the noon event.  The big accomplishments noted in the title of this event were that Fairview Training Center has been closed for 10 years and Oregon is now the only state that does not have a developmental disability facility or send its citizen to out-of-state facilities.  James Toews and Marylee Fay from the Department of Human Services were among those honored.  All awards are richly deserved.  A former resident of Fairview spoke as did a state legislator and the head of DHS, Bruce Goldberg.

This event happened in a basement hearing room at the Capitol. There are no windows.  Lighting is all florescent.  For this event, there were not enough chairs and so some folks sat on tables or stood.  There were no refreshments.  The majority of attendees were individuals with developmental disabilities, family members and providers.  The things we celebrated have made a profound difference in the lives of people who have suffered great hardships.  Many people have contributed to these achievements and many of them have demonstrated remarkable skill, patience and dedication to the task.

As I stood and watched, I thought back to Bill and his achievements on the baseball field.  I thought about his modesty.  I thought about the people in a basement room who have brought so much heart, brain and energy to their modest but compelling task. To quote Ralph: I just love this stuff.

I was at the Maranatha Church in NE Portland last night to see Jesse Jackson and hear what he had to say about the recent killing of Aaron Campbell. I walked in wearing a business suit, snagged the last name tag, and headed to the front area that was reserved for “community leaders.”

As a representative of DRO, I watched the press conference in a side room and then had a front pew seat for the speeches. Sitting next to me was the family of Mr. Campbell. Behind me was a standing room only audience.

Security was light.  The mood was a combination of reverence, excitement and solidarity.  The music was great.  The church leaders provided gentle and amused direction for those who parked their cars in the wrong place or might be tempted to bring in some food.  It felt like a welcoming community.

Meanwhile, I didn’t forget about the politics and I know that Jesse didn’t either.  There were no elected officials in the audience.  Today’s papers made it clear why: Jesse’s most controversial-sounding words were captured in the headlines.  This was no mistake.  The press and Jackson know the rules of the game.  Attention needs to be gotten and this is how you get it. 

In the church though, the topic was not controversy.  It was community. Reverend Jackson was surrounded on the stage by his fellow senior ministers.  They clearly enjoyed and appreciated each other.  Jackson seemed remarkably cool and serene during most of the proceedings.  That is until an elderly preacher followed Jackson’s speech with an explosion of passionate rhetoric that electrified the crowd and put an animated smile on Jesse’s face.

When Jackson spoke to the press and to the crowd, his first words were to offer comfort and support to the Campbell family. He then spoke about the killing and also about the general condition of black Oregonians. He held a recently issued report, The State of Black Oregon, which documents, in Jackson’s words, that African American Oregonians are “free but not equal.”  The statistics in the report bear him out.

Jesse spoke about the killing mainly in the context of respect and dignity.  He didn’t speak about whether the shooting was justified but dwelled on reports that the body was left on the ground, in handcuffs for a half hour while dogs sniffed it.  He spoke to the desire of every person in the audience to be treated like a human being.

I heard Jackson extol the virtues of compassion, peace, strength in adversity and perseverance.  He did not agitate.  He supported a grieving community and to suggested positive action for change.  He asked individuals to demand justice and an “even playing field,” and also urged people to take responsibility for themselves and their community.

Jackson suggested a path for action: the community, he said, should demand at the officer who killed Mr. Campbell be kept off the job until the police internal investigation was complete. This is hardly the stuff of a firebrand zealot.

But check out the response from Portland Police Sgt. Scott Westerman, president of the Portland Police Association.  He said: "… for the Rev. Jesse Jackson to come in last night and to divide the community again and to vilify the officer is a disgrace. I think Rev. Jackson is either ill-informed or has an alternate agenda."

Westerman’s response sums up the problem in this city. What I saw last night was a community coming together with the guidance of respected leaders to grieve and formulate a peaceful and constructive plan of action. What our official police spokesman saw was an outside agitator.

Westerman says that the community should leave the shooter alone and, instead, ask for change in police policies. Westerman’s belated call for policy changes may have merit, but it is buried under yet another insult to the black community. The people I was with last night know who they are and know what their experience is.  They also know who is on their side.

Good morning!  It’s 8:30 am and we’re back in the House Human Services Committee.

We’ve already heard consideration of bills affecting the sharing of mental health and physical health records among providers and a proposed traumatic brain injury commission.  Now, James Toews and Richard Harris from the state Department of Human Services are testifying about the financial cost of implementing HB 3618.  This bill would provide workers compensation coverage to personal support workers who serve individuals with developmental disabilities (DD) and with mental illness (MI).  Representative Freeman is leading the charge by Republicans who are concerned about the cost of enacting the bill.

 Toews testifies that this bill would add about 8,000 new workers to WC coverage who serve about 10,000 individuals.  Democratic lawmakers ask if home care is less expensive than institutional care. (Yes) They also ask why this group of workers isn’t covered by the Home Care Commission that provides WC to home care workers for seniors and people with physical disabilities.  Toews responds that the DD brokerage system was put together as a result of the Staley law suit settlement which occurred after enactment of the state ballot measure that created the Home Care Commission.   The duties of workers who are mandated by Staley have different duties than traditional home care workers.

 Rep. Olson is concerned about public access to the names of registered home care workers.  Toews says that names are controlled by existing public records law which means that most names must be released to the public.  Olson asks if the state does a criminal records check on anyone who asks for worker names.  Toews says no.  Olson asks if the state feels vulnerable as a result.  Toews says it is a matter of general concern.  Rep. Dembrow says that the question of problems with Oregon’s public records law is a matter that goes beyond this bill.  He asks Toews if he is aware of a person being victimized as a result of having his or her name released.  Toews is unaware of such an instance.

 Rep. Olson asks how this bill will interact with HB 2442 from last session.  This bill beefed up Oregon’s protective services laws and requires exclusion of workers with certain offenses on their criminal record.  Toews says more people will be excluded under the combined effects of these bills.

 Doug Riggs from Oregon Alliance of Children’s Programs testifies.  His providers will suffer a cost impact from this bill and they are already suffering financially.  He says the legislature must increase reimbursement for his programs (present funding only covers 60% of cost) if they are to survive.  OACP does not oppose the bill’s intent but does not want to absorb additional unfunded requirements.  Rep. Tomei says this is a matter for the Ways and Means Committee.  Rep. Freeman says that while the Human Services Committee is a policy committee and not a fiscal committee, it should still be concerned about costs.

 Next up is a representative from SAIF, the workers compensation provider who is asked about costs of providing coverage to the new population.  Representative Maurer takes the lead in questioning about how costs can be controlled.  Maurer notes that the state budget is $182 million in the hole according to an upcoming state revenue report.  He is concerned about “creating a monster” that will cost the state more than anticipated.  Maurer notes the difficulty of assessing claims that occur in family homes when family members are providing services.  How, he asks, does SAIF determine when an injury happens on the job or off the job?

 Questions continue about who bears the additional costs.  Toews notes that provider agencies will not bear the fiscal risk of worker comp claims.  Rep. Freeman asks if a disabled child could end up with less services if costs are taken out of money available for those services.  The answer is yes.

 The committee adjourns for ten minutes to review the bill’s fiscal impact statement.  I go plug my meter.  When I come back, the committee approves the bill on a party-line vote.  The bill will now go to the Ways and Means Committee which will determine if the state can afford to pay for it.

I'm sitting in the House Human Services Committee where the committee just heard testimony on a bill that I can't easily explain but have worked on for the last month.  If House Bill 3618 is passed, people who are hired by folks with developmental disabilities or mental illness to provide assistance in the home or community would be registered with the Home Care Commission, receive workers compensation coverage and be allowed to vote to unionize.

My job in the hearing was to explain the latest set of amendments to the bill.  I tried to make is as simple as possible but legislative eyes were glazing over.  The upshot seemed to be that the Democrats like it and the Republicans don't.  It looks like the biggest issue will be the cost of providing workers compensation coverage to the workers.

The committee is now hearing a bill that would set up the Traumatic Brain Injury Strategic Partnership Advisory Council.  Senator Morrisette and Sherry Stock from the Brain Injury Association of Oregon are leading the testimony.  Additional testimony from General Mike Caldwell of the Oregon Military Department centers on the epidemic of brain injury that has been experienced by service members coming back from Iraq and Afghanistan.  General Caldwell notes that early identification and treatment is essential.  He adds that the military has ignored the problem of TBI until recently.  Things are now changing but the number of affected veterans has overwhelmed VA services.

HB 3692 creates information and referral services and an advisory committee that reaches across all departments of state government.  Sherry notes that 80% of homeless individuals have TBI, particularly homeless veterans.  Inmates in Oregon prisons are also affected in large numbers.  About half of those with TBI acquire their injury through auto accidents.  This is why the Advisory Council would be funded from fees charged on traffic violations.

The legislature is back in action, meeting for its second "supplemental session."  Oregon, as we know, has a biennial legislature: it officially meets every two years.  Legislative leaders feel that the state would be better served if we have annual sessions.  To test this belief, a short, 2008 session was conducted to handle matters that needed immediate action.  Most folks thought it was successful.  We are now in the middle of the second trial run.

My initial hit is:  so far, not so good.  If either Ballot Measure 66 or 67 had failed, this session would have been dedicated to cutting school and human services budgets.  Having dodged that bullet, much of the effort is directed to providing relief to those badly hurt by the continuing recession and to pushing through legislation that does not appear to need immediate action, has not had thorough stakeholder participation in its development and are products of insider interests. 

Other than actions being taken to provide economic relief, much of this session seems to be given over to paying off political debts and moving pet projects of powerful interests.  Legislators seem to be willing to look the other way in this rush to judgment while a large number of bills with emergency clauses (this means they become law immediately upon enactment rather than waiting the usual six month period) get pushed through.  Some say: "If there's a problem, we'll fix it in 2011."

I remember that the original argument in favor of annual sessions was that the legislature needed more time to carefully deliberate about important policy matters and proposed legislation.  This 2010 session is proving just the opposite.  I'm seeing less deliberation and more insider dealing. 

Yard-signs.  Endless commercials.  Door-to-door-canvassers.  Yes, it is election time again in Oregon.  Tomorrow, January 26th, is election day to vote on Ballot Measures 66 and 67.  If you have not yet turned in your ballot do not mail it, because it will not arrive in time to be counted.  But it is NOT too late to vote.

If you are among the thousands of Oregonians who cannot fill out a paper ballot independently, there are several options available to you. 

Every county now provides your ballot in large print (18 point font), upon request.  Or, if you'd like to use your computer to fill out your ballot, you can get your ballot via e-mail or on a CD.  The ballots are compatible with accessibility equipment, like screen readers.  Of course, you will still need to print out your ballot and return it in the official secrecy and signature envelopes provided to you by the county. 

If you do not have a computer, you can go to your county elections office and use an accessible computer station to fill out your ballot.  These computers can enlarge the text, read the text (at different speeds and volumes) and have a variety of devices to use, including:

• a custom keypad with large buttons
  
• a set of switches
  
• a large roller ball, and
  
• a joystick.
  

The computers have a scanner so that after you print out your ballot you can verify that it is marked correctly before you turn it in.

Every county has elections staff that have received training in providing assistance to voters with disabilities.  It is best to go as early in the election cycle as possible because the last few days before an election are typically busy and there may be a longer wait.

Also, if you are someone who has difficulty understanding the ballot measures (who doesn't?), there is an Easy Voting Guide (EVG) that DRO helps create.  The EVG is non-partisan and simply puts the election information into more accessible language. The EVG is available in large print or audio (CD or mp3 on-line). You can get an EVG by checking out DRO's Voting Access page or by calling Julie Anderson at 1-800-880-1931.

In April, 2001, a Portland police officer shot and killed José Santos Victor MejÍa Poot.  Mr. Mejia Poot was a patient on a psychiatric ward at the time of the shooting.  Disability Rights Oregon investigated and found that the private psychiatric facility where Mr. Mejia Poot was held did not have adequate structural or staffing safeguards and that Multnomah County had continued to use the facility even though it was aware of these deficiencies.  Interestingly enough, it turned out that the patient did not have a mental illness.  He was experiencing seizures.

I bring this up because the Mejia Poot family hired a lawyer to sue various parties to this tragedy.  One suit involved the police.  That case was settled and, as part of the settlement, the Portland police agreed to buy a new device for its officers: taser guns.  The police said that they would limit use of the tasers to situations in which deadly force was the only alternative.

So it is ironic that the taser, which was introduced to Portland as a way to avoid the gunning down of mentally ill people, has now become the option of choice for police who merely want to take a mentally ill person into custody.  For Portland police, the taser is no longer a substitute for deadly force, but a preemptive maneuver to disable a person whom they see as irrational.

Let's check the stats: In the July 2009 follow up report on the use of force by Portland police, issued by the Force Task Force to Chief Rosie Sizer, data show that when officers use non-lethal force, tasers are the favored intervention for people with mental illness.  When choosing among physical control, blunt impact, pepper spray or taser, police used the taser 52% of the time for citizens with mental illness.  For all groups (those with weapons, who are assaultive, intoxicated or mentally ill), tasers were used in 225 situations in which no resistance was indicated or the person failed to comply with an order.  When people were physically resistant or aggressive, tasers were used 1,116 times. 

As the quotation goes, there are lies, damn lies and statistics.  So the question remains, do police use tasers unnecessarily when dealing with people with mental disabilities?  Yesterday, the Ninth Circuit Court of Appeals decided that a police officer in California used excessive force when tasering a man who was nonthreatening and not trying to flee.  Among other things, the officer argued that the taser was justified because the man "may have been mentally ill and thus subject to detention."

Here is how the court responded:

To the contrary: if Officer McPherson believed Bryan was mentally disturbed he should have made greater effort to take control of the situation through less intrusive means. As we have held, “[t]he problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.”  [W]e have found that even “when an emotionally disturbed individual is
‘acting out’ and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted . . . with a mentally ill individual.”  The same reasoning applies to intermediate levels of force. A mentally ill individual is in need of a doctor, not a jail cell, and in the usual case —where such an individual is neither a threat to himself nor to anyone else—the government’s interest in deploying force to detain him is not as substantial as its interest in deploying that force to apprehend a dangerous criminal. Moreover, the purpose of detaining a mentally ill individual is not to punish him, but to help him. The government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community. Thus, whether Officer McPherson believed that Bryan had committed a variety of nonviolent misdemeanors or that Bryan was mentally ill, this ... does not support the deployment of an intermediate level of force. (Click here to read the entire opinion.)

The bottom line for police in Portland and elsewhere? It's time to rethink how you're using tasers.  Shock treatment is so yesterday.

In early December, Jessie Bratcher, 27, was placed under the jurisdiction of Oregon's Psychiatric Security Review Board.  A jury in Canyon City, Oregon had found him guilty except for insanity for the murder of Ceja Medina.  According to The Oregonian newspaper, the finding was based solely on Bratcher's post traumatic stress disorder (PTSD) which had emerged following his military service in Iraq.

It just so happens that a week before the Bratcher sentencing, the United States Supreme Court unanimously found that a Korean War veteran who had been sentence to die for one of two murders he committed should be spared.  When the veteran, George Porter, was originally sentenced, his lawyer did not give the court any information about Porter's military service, childhood history or symptoms of behavioral problems associated with PTSD and brain injury.  This failure violated Porter's constitutional right to effective counsel.

According to the justices:  "Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did."  If the jury had been told about Porter's past, the court says, it might have opted for a life sentence because of "the intense stress and mental and emotional toll that combat took on Porter."  The justices cite testimony from the Senate Committee on Veterans Affairs that 23% of Iraq and Afghanistan war veterans seeking treatment at VA medical facilities have a preliminary diagnosis of PTSD.  They also suggest that evidence of a significant brain abnormality might exempt Porter from capital punishment akin to the exemption for people with "mental retardation."

In Oregon (and around the country) juries are generally skeptical of the insanity defense.  Similarly, district attorneys fight to keep the option of the death penalty for aggravated murder prosecutions.  It's interesting to see how this calculus is affected when the defendant represents values that are held in high regard by a community.  In the case of Bratcher, was the jury more inclined to recognize his insanity defense because he was a veteran and deeply religious?  For Porter, was the Supreme Court more open to considering mitigating factors of childhood abuse because he had exhibited remarkable bravery in battle fifty years ago?

The insanity defense is more than a legal maneuver.  It is an expression of public morality.   It isn't surprising that community values that go beyond mere psychological evaluations and expert opinions become key factors in jury decisions.

Yes, we ask for your support now because the tax person cometh and your gift to DRO is tax-deductible.

But much more importantly, we make the "ask" because so many more Oregonians with disabilities are hurting right now, and it is only with advocacy that they can secure their income, housing, health care and support services.  It is only with advocacy that they can remain safe from harm.

Best wishes for a new year of recovery for all,

Bob Joondeph
Executive Director

Click here for three ways to give, including making a secure on-line donation through Network for Good.

Last week, hundreds of Portland police officers protested against their Chief Rosie Sizer, Portland Commissioner Dan Saltzman (our elected official who oversees the police) and The Oregonian (our major newspaper).  The protesting officers sought sympathy and support.by positioning themselves as victims of authority. 

I had something to say then, but waited to comment.

At the police protest, some officers wore t-shirts stating: “I am Chris Humphreys.”  If you weren’t closely following the action, you might assume that Chris was an officer killed or injured in the line of duty, having bravely placed himself in danger to protect a helpless citizen.  Or you might suppose he had drawn the spotlight through hours of volunteer service, promoting understanding with skeptical minority communities or educating himself about citizens with mental and physical disabilities. 

But no. Portland police identify with Chris Humphreys  because  -- three years after helping to beat James Chasse, a frail mentally ill man, to death -- he was disciplined for poor judgment after using a bean bag shot gun at point-blank range to control a flailing 12-year-old girl. 

I had something to say then, but waited to comment.

I heard that the Portland City Attorney now claims that James Chasse was having an episode of “excited delirium” when he was beaten to death.  This “disorder"has been aggressively promoted by the Taser industry to explain why some people die after being tasered or held in prone restraint.  I guess the City Attorney thinks that after the small man with schizophrenia was chased, leapt upon and had the majority of his ribs cracked on the cement sidewalk, his continued struggle was not brought on not by fear for his life, but by a mysterious medical syndrome that justified his being kicked, punched and repeatedly Tazered by a man who is now lionized on police t-shirts.

I had something to say then, but waited to comment.

When the police amassed in front of City Hall I could not help but think of all the times in history when a country’s army or police converged under government buildings to seek the removal of elected governments.  Although this overtly political action seemed designed to portray police as victims of politics and misunderstanding, the visual image struck me as intimidating.  The paramilitary to which we give special authority to carry weapons (and, of course, to use them when necessary) were making a show of force beneath the gate of our implicitly wimpy elected officials.

As you can tell by now, I find the way that this city processes the question of how our police should act to be maddening.  Letting my fury fly would just make me a player in the very process that could produce “excited delirium” in any observer.

I waited to comment because I needed to cool down. 

Portland wants a skilled and professional police force to both protect and respect us.  As a public service paid for with tax dollars, citizens are entitled to transparency and accountability in its provision.  The process that we seem to have now of dueling accusations and scare tactics, mutually assured covering of behinds, scapegoating and the seemingly inevitable publicly-funded “stress claim” parachutes and law suit settlements resolve nothing.  If an officer has joined the police force because he or she likes the feeling of power that comes from being feared, switching to an auditor position with the IRS might be a better choice.  If a police officer is in the struggle because he or she likes the feeling of power that comes from throwing stones at authority, the blogosphere offers many opportunities.

My settled down view goes like this:

Portland needs a truth and reconciliation process for its police system.  It needs an independently appointed review body with teeth for citizen complaints.  It needs the renewed commitment of police personnel to a mission of safety, professionalism, transparency and accountability.  It also needs community attention and support for the successes, not just the controversies.

On Monday, a three judge panel of the Ninth Circuit Court of Appeals found that Portland’s local transit system, TriMet, does not have to make certain modifications for riders with disabilities.  The plaintiff, who uses TriMet’s paratransit system, LIFT, asked TriMet to accommodate her balance disorder by providing her rides only in sedans or taxis.  Her doctor had informed TriMet that riding on the LIFT bus aggravated her condition by causing her dizziness, nausea and emotional stress.

The court decision hinged on whether regulations of the US Department of Transportation (DOT) or the US Justice Department (DOJ) applied to the plaintiff’s request.  The DOJ regulations require public entities to make reasonable modifications in policies, practices, or procedures when necessary to avoid disability discrimination.  The DOT’s regulations, the court found, do not have this requirement and since they govern the operation of paratransit systems, case dismissed.

Although the court set out a lengthy and detailed analysis of administrative law to support its conclusion, I sensed something else going on in the opinion.  At one point, the court says that the plaintiff “would like an enhanced level of service that would enable her to choose whatever vehicle she would like to ride.”  In concluding, the opinion says, “We recognize the importance of paratransit systems for disabled individuals… We are mindful, however, that the ADA requires only a ‘comparable’ level of service and the DOT regulations implementing the ADA ‘do not contemplate perfect service’ for the disabled.

"Like" to ride?  I can't help but sense in the use of this word an underlying bias against the notion of disability discrimination.  I've heard many comments over the years that the ADA does not level the playing field for people with disabilities but, instead, gives them special rights and benefits.  I made up a quote that I use to illustrate this view: “We’re not discriminating.  Anyone is allowed to use those steps!”

The court approvingly quotes a DOT regulation that says the ADA “is intended simply to provide to individuals with disabilities the same mass transportation service opportunities everyone else gets, whether they be good, bad, or mediocre.”  I suppose the same thing could be said about steps.

When the judges said that the plaintiff wanted to choose whatever vehicle she likes, they may have been right, but the ADA would never require that.  The ADA would only require that she have access to a vehicle she needs. 

This little choice of words reveals, to my sensitive eye, a bias against the ADA and perhaps against those who must use public transportation.  After all, if a rider is reduced to relying upon this form of transportation, “good, bad or mediocre,” she should shut up and suffer with the rest of us.  Total exclusion thus becomes a problem of personal wealth rather than equal access to a public service.

[The case is Boose v. Tri-County Metropolitan Transportation District of Oregon]

Each year, Major League Baseball names two pitchers (one from the American League, one from the National) as the best in the game.  This year’s American League Cy Young Award went to Zack Greinke of the Kansas City Royals.  The voting for the award wasn’t close.  Greinke’s 16-8 season, combined with a major league-low 2.16 earned run average garnered him 25 of 28 first-place votes by the Baseball Writers' Association of America.

And, oh yes, Zack Greinke happens to be a consumer of mental health services.

Greinke came to professional baseball directly after high school in Orlando, Florida.  He was selected at age 19 by Kansas City in the 2002 player draft.  Working his way up quickly from the minor leagues, he made his major league debut in 2004.  He did well that year but had a rough season in 2005, losing 17 games.  He left spring training the following year and stayed away from baseball for 7 months.

During this period, he was diagnosed as having social anxiety disorder and depression for which he began treatment.  He returned to the majors in 2007 on a one-year contract.  He did well enough to return in 2008 and had a good year for the hapless Royals, going 13-10.  In 2009 he was the best in the majors, pitching 24 consecutive innings without giving up a run.

In an interview in the Kansas City Star after he returned to baseball, Greinke talked about his experience.  When his problems started, he did not attribute them to an emotional disorder.  He was just unhappy playing baseball.   "It was always, once I got away from baseball, I was fine.  I just thought that, at the baseball field, I was unhappy."

"I'd talk to my agent all the time and ask him: 'How can I tell the Royals that I don't want to pitch? That I want to try hitting?’  I thought that was why I hated baseball. I thought it was because I wanted to hit. It would be at least once a month that I'd be crying to myself while I'm going to bed with a bat in my hand, just swinging it. It's stupid. That doesn't happen anymore."

When interviewed, he still didn’t know what to make of his diagnosis.  "Depression kind of runs in my family.  But I don't know if that's what I was actually going through.  The medicine I take is an antidepressant. So [depression] must have something to do with it. That and social anxiety. But I don't think it was a serious case. I mean, I never thought about killing myself.”

Since that time, Greinke has not spoken publically about his depression or social anxiety diagnoses.  Some sportscasters have speculated whether Greinke has Asperger’s at the root of his social issues.  Zach has let his pitching speak for him.

Whatever the label, the Kansas City Royals admire Greinke’s performance on and off the field.  Dayton Moore, the Royals General Manager, stated it this way: “I can’t speak to this because I’ve never experienced it, but I can only imagine how difficult it must have been for him to recognize his condition and evaluate it honestly and do something about it,” Moore said. “He’s been able to take all of those experiences and combine them and that’s why he is where he is today.”

This morning's Oregonian announced the death of Lee Johnson.  Judge Johnson had been a state legislator, Oregon Attorney General, advisor to Governor Atiyeh, appellate court judge and Multnomah County judge.  He was in the news last year when two of his grandchildren were tragically killed by a private plane that crashed into their house in Gearhart, Oregon.  He was also the defendant in the case Grant v. Johnson  which was filed by DRO in 1989.

Back then, Judge Johnson was running the Probate Court here in Portland.  Part of his job was to consider petitions for guardianships, including so-called  "temporary guardianships."  One day, an attorney representing Kevin Grant came to court and asked Judge Johnson to sign an order that would give his mother-in-law, Frances Sherrill, the power to make all medical and other life decisions for his wife Ginger.  The lawyer asserted that Ginger lacked the "capacity to meet the essential requirements for her physical health or safety due to her suffering from psychological problems preliminarily diagnosed at Providence Medical Hospital as high anxiety and panic reaction."  

Judge Johnson agreed to this request and appointed Ms. Sherill as temporary guardian "for a period not to exceed six months or until a permanent guardianship is established."   The Judge's order authorized Ms. Sherrill to "provide, consent to or approve any and all necessary medical or other professional care, counsel, treatment or service for Virginia Marie Grant"  and "to immediately place Virginia Marie Grant in a medical care facility, if necessary."  Ms. Sherrill immediately used this authority to have Ms. Grant placed on a psychiatric ward with strict orders that she could have no visitors, send mail or use the phone.  Meanwhile, Kevin Grant emptied the couple's bank accounts and moved out of their house.

After nine days of forced captivity, Ms. Grant was permitted by a concerned nurse to call DRO.  We immediately took steps to get her released.  We also looked carefully at what had happened in Judge Johnson' s court.  Our conclusion was that the Judge, Ms. Sherrill and Mr. Grant had all acted within the bounds of Oregon law.  The law on the books did not require Ms. Grant to be given meaningful notice and a chance to object.  Ms. Grant asked us to find a way to challenge that law so that something like this would not happen again.

Because of some very arcane procedural issues, we ended up suing Judge Johnson in federal court for the sole purpose of obtaining a declaration that the Oregon law was unconstitutional.  In 1990, Judge Helen Frye ruled in our favor.  The Oregon legislature subsequently changed the law to allow for adequate notice, independent investigation and opportunity to object.

Suing a judge is not what one would call a good career move.  We realized that at the time but couldn't figure out another way to get at the statute.  Judge Johnson was not pleased but he was professional.  Years later when we worked together on a bill to restructure Oregon's guardianship and conservatorship laws, he never mentioned the matter to me.  I did notice at that time, however, how smart and experienced he was.  When we filed our lawsuit, he seemed like a very old guy to us.  (He was about the age I am now.)  I'll admit to a certain amount of youthful rebelliousness on my part when we decided that suing a judge was the right thing to do.  

But was it the right thing to do?  Yes.  The courts exist to assure justice for our citizens.  The state (and Judge Johnson) chose to take this case all the way to the US Court of Appeals because it didn't like the idea of a judge being sued for following an unconstitutional law.  This is an reasonable principle but not one that would keep Ginger Grant and others from being held incommunicado on a psychiatric ward by authority of court order.  Her experience demanded justice for her and for others who are denied basic constitutional protections.

I'm saddened by Judge Johnson's passing.  I only knew him in his public role where he seemed a thoughtful and accomplished professional.  I don't think we added to the tragedies he endured in his private life.  In the arena of law, I sensed that he liked a good fight.

John Allen Muhammad – the “Beltway Sniper" – was put to death by lethal injection on November 9.  Muhammad had been sentenced to death for killing Dean Myers, 53, one of the10 people he gunned down in the Washington, DC region in 2002.

The skies opened up this weekend and Portland (aka "Puddletown") is literally awash in what's made it famous. November rains are a distinctive part of the Oregon experience. They also bring together a few salient (though little-known by outlanders) ingredients of our Northwest urban experience.

When I first came to Oregon, I expected that when autumn arrived it would be time to hop in the car and head out into the forest for some leaf peeping. That is, after all, what we did back East.  But, lo, it's mostly evergreens out there. The underbrush wasn't bad, but forests of raging color there weren't. Portland itself was a different story. This town of gardeners, where just about anything placed in the ground will happily grow, provides a wide and exciting array of color, shape and texture each fall.  So we put aside our cars and walk or roll through the dazzling urban landscape.

...Somehow we have not been able to help our motorists avoid the unsolicited thrill of blasting through our scenic autumnal street-lakes. Nor have we solved the problem of leaving pedestrians (particularly those in need of curb cuts) soaked and stranded on their shores.




Photo submitted by cyfacchini to http://photo.accuweather.com

Generally, the Portland weather in September and October is pretty darn nice. It allows us to enjoy the peak foliage in the not too hot, not too cold sunshine. But as the color fades and leaves start to drop, the skies darken and Pacific rainstorms ensue. It is now that Portland becomes the land of street-lakes.

As a general matter, rain in Portland is intermittent and moderate. Like Eskimos with snow, we have lots of words to describe the types of rain we experience. Most  are some version of "showers." Often they are interrupted by "sun-breaks." When those Pacific storms start to hit the coast in November, however, we tend to get good, old-fashioned hard rain.

You would expect that Portland would be prepared for, of all things, rain. But that's not entirely the case. The city infrastructure was designed to handle those all-too-common days and weeks and months of showers. But the sewer system was overpowered by hard rain. This caused raw sewage to dump into the Willamette River on a regular basis. Because this release-valve strategy got the attention of environmental officials, we have built two enormous underground pipes to act as overflow areas during peak demand. 

But there is something else.

Most of those beautiful leaves I mentioned earlier have headed for earth by November and the rains have helped stragglers to achieve their gravitational destiny. Many land in the streets and are pulled by rain water to storm drains, which their broad, wet masses clog. Since our city planners have carefully assured that all street water will flow toward storm drains, those leaf-jammed depressions soon become lake bottoms. The shores of these newly formed bodies of water extend well into the motoring portion of the streets, curb cuts, and sometimes up to the sidewalks, corners and the entire width of streets.

Although Portland motorists should be well-schooled in the art of puddle-dodging and general rain driving, this is not always the case. Fall rains bring the summer's accumulation of oil up out of the pavement. Wet leaves are not only clogging but amazingly slippery. Water splashing up from our new street-lakes can cause brakes to malfunction. Windows fog over with heavy rain. So the normal complex Portland routine of driving while keeping an eye out for pedestrians, bike riders, speed bumps and fancifully designed lane assignments now has its level of difficulty raised to "high."

Portland is famous for city planning and I am a big fan of what has been accomplished with public transportation, urban design, land use and livability. Comparatively speaking, we're a pretty accessible town.  But somehow we have not been able to help our motorists avoid the unsolicited thrill of blasting through our scenic autumnal street-lakes. Nor have we solved the problem of leaving pedestrians (particularly those in need of curb cuts) soaked and stranded on their shores.

We've dealt with the sewage overflow.  I say now it's time to deal with the rain drains.

Let's leave the "Land of 10,000 Lakes" moniker to Minnesota. 

After months of meetings and negotiation, followed by a complaint that eventually required an additional complaint and the intervention of our senior U.S. Senator, the Civil Rights Division of the federal Department of Justice has agreed to investigate a situation involving Andrew, my 8-year old client with autism.

My involvement began in April 2008, when Andrew’s school district refused to allow him to attend school with his trained autism assistance dog, Sadie.  His parents had gone to the effort and expense of acquiring the specially trained dog from a unique program in Ohio that trains assistance dogs for children with autism, 4 Paws for Ability.  

Andrew and his mom traveled to Ohio and spent more than a week at the program to bond with Sadie and learn how she could help the boy safely interact with others in public settings.  Sadie is also specifically trained to perform tasks designed to quickly de-escalate Andrew’s particular autism-related behaviors, on command or when he becomes agitated.  When he becomes aggressive, Sadie maintains a set distance on a tether by pulling him backwards.  To calm him, she lays down on him to apply comforting pressure, and then licks his face. 

Almost immediately, Sadie allowed Andrew to safely and happily participate in many normal community activities that had been difficult or impossible for him on his own.  His mom is now able to bring him with her to stores, restaurants, and other public places that had been impossible before Sadie.  Also, Sadie’s friendliness fosters positive interactions with other children, something typically difficult for a child with autism. 

Although Sadie clearly benefits both Andrew and the people around him, the school district refused to allow Andrew to bring Sadie to school.  That decision also cut Sadie out of Andrew’s life for about 6 hours every weekday, something that Sadie’s trainers believe reduces her effectiveness in other settings.

The school justified its decision with a number of objections.  One was that under state law, only students who are blind or severely physically disabled are entitled to have assistance animals at school.  Another was that allowing Andrew to bring Sadie to school with him would lead to an unending string of requests for other “therapy animals” from other students, and that the ensuing menagerie would cause allergic reactions and other potential harm that would prove disruptive and potentially lead to lawsuits.

Media reports of other instances in which similarly trained autism assistance dogs had been permitted to accompany students to school with minimal problems and excellent results failed to persuade school district administrators.  They also rejected a number of proposals by Andrew’s parents that included finding out if there were objections by other parents or children, implementing a “test” period to see if concerns were justified, kenneling Sadie during some classes, and professionally grooming Sadie once a week to minimize allergy problems.

The school district’s lawyer argued that the dispute was about special education and therefore could only be about whether my client was receiving adequate special education services.  

The district refused to consider that Andrew has an independent right to attend school with the support he needs and prefers – the same right that a paraplegic has when choosing between using a walker or a wheelchair to navigate in a public place that is supported with public dollars. According to the district, Disability Rights Oregon needed to challenge the rather good special education services that Andrew receives and then, after presumably losing at a due process hearing, go to federal court.

The recent acceptance of our case for investigation by the U.S. DOJ Civil Rights Division is a stark rejection of that legal theory.  Perhaps more importantly, DOJ’s involvement in our case is likely to make the district rethink its position that the protections of special education laws automatically strip students of other rights that protect people with disabilities.  I am hopeful that Andrew will attend school with Sadie by his side by the beginning of the next school year.

(The names used are to protect the privacy of client and family.)

David Denichenko is the resident at Oregon State Hospital who recently filed a lawsuit against the hospital for failing to supervise a female employee who had sex with his roommate.  He asked OSH to pay him damages for failing to prevent these liaisons and failing to provide him with counseling after they were discovered.  Mr. Denichenko brought his action in small claims court.  He did not have a lawyer.

On October 23, the Salem Statesman-Journal reported that the case was "tossed on technicality."  A state assistant attorney general had asked the court to dismiss the case because it was not filed within the 180 day time limit set by state law.  The judge agreed.  As reported in the Statesman-Journal: "The time clock began running Dec. 24, when Butler [the employee] was placed on leave, and expired June 22.  Denichenko filed his claim weeks after the deadline."

Why is a person who is held in a state mental hospital required to adhere to such a technicality in order to seek justice? It all begins a few centuries ago in England.  Back when the King or Queen was (at least in theory) all-powerful, a citizen was not allowed to seek legal redress against the sovereign without his or her permission.  Despite the fact that American colonists fought to free themselves of royalty, our jurists chose to adopt this concept of "sovereign immunity" and to interpret the U.S. Constitution as embracing the concept.  And so, even though our Supreme Court has announced from time to time that no person is above the law (see its ruling in the Bill Clinton case), governments are permitted to be.

Oregon, like other states, has set ground rules for when and how it, and local governments, can be sued.  One of those rules is that a person who wants to sue state or local government must notify the government of the claim within 180 days of their loss or injury.  This can be done by sending the government a "tort claim notice" in writing that sets out the details of circumstances underlying the claim.  The time period is extended to one year if it involves a wrongful death.  The time limits can be extended in special circumstances such as when the person is a minor or incapacitated or when the government has actual knowledge of the claim.

Both government and regular citizens have the protection of a "statute of limitations" that requires claimants to take care of business in a reasonable period of time.  Governments, however, require additional and earlier notice of a claim.  Is that requirement fair when applied to a person in a state mental hospital?  Could the hospital be unaware that a resident, who is under constant care and supervision of a professional treatment team, believes that he has been emotionally harmed by its staff? 

However you may answer those questions, it's clear that the sovereign has won this round.  According to the Statesman article, Mr. Denichenko acknowledged the cleverness of his adversary, the government:  "The biggest lesson I learned is, they're very good at this stuff."

As a lawyer, I must attend 45 hours of “continuing legal education” every three years.  This requirement is administered by the Oregon State Bar.  It divides Oregon's legal community into three groups so that, each  year, about about one third of my colleagues get a slight look of distraction in their eyes because it is their “reporting year.”  This may be an exaggeration on my part; many lawyers are methodical people who regularly attend seminars over their three year reporting period.  But every autumn, some, like me, embark upon a couple of months (for some, weeks; for others, days) of cramming in order to satisfy our licensing requirement.  And yes, this is my reporting year.

So I’ve been doing some freshening up in my primary practice areas of health law, disability law, elder law and nonprofit law.  Part of the fun of doing this is when a presenter talks about new legislation in their field that I had a hand in moving through the legislature.  It’s a good reminder that most laws are created by a small number of people hashing things out in the Capitol in an effort to solve a problem.  How a new law will actually work in the real world is hard to fully predict.  Sometimes it will be the lawyers and judges in the room who are charged with implementing things that seemed to make sense by us advocates and lobbyists.  Sometimes they are not happy about it.

A couple of examples came up today in a seminar on guardianship.  The 2009 legislature passed Senate Bill 16 that allows advance directives for health care to be used to admit a person to a psychiatric ward for treatment of behavior caused by dementia.  Lawmakers also passed House Bill 2137 that allows the Department of Human Services to seek a guardianship for any person it believes needs a guardian to protect her from abuse.  DHS is also permitted to release otherwise confidential information to the court when it seeks a guardianship.

On the advance directive bill, a speaker commented that many users of this document would be shocked to learn that they could be slapped into a psych ward because they had signed something they thought was about end of life decisions.  On the guardianship bill, a speaker said that some judges and court clerks had complained about provisions requiring files to be sealed to maintain privacy.

Maybe they have good points, maybe not.  (I agree with the first critique and am not surprised by the second - any bill that requires someone to do something that they didn't have to do before is likely to annoy them.)  Whatever the merits, these seminars help to publicly raise issues that can be sorted out in legislative sessions to come.  In the case of the advance directive, there is already a work group slated to study how to proceed. 

Some critics of government think that legislatures meet too often and only make mischief.  I'm of the view that citizens should be in constant conversation about our mutually-agreed rules.  There should be ample opportunity to adjust, fine-tune and correct as we go.  In doing so, we have our best shot at self-government, rather than having rules that are ignored or unjustly enforced.  And even, I suppose, if I have to listen up as I scrape together my 45 continuing legal education credits by December 31.

What is the value of getting a bunch of people into a room?  As technology and fuel cost expand, there has been increased emphasis on saving travel costs through increased use of conference calls, web casts, and video conferencing.  I’ve found myself at a number of gatherings in the past week (in fact, I’m in a meeting as I write this) and each has been valuable.  How come?

Last Tuesday, DRO Board President Michael Bailey and I hopped into my car, picked up Ollie Cantos (national disability advocate) and Elizabeth Arledge (DRO Communications/Development Director) and drove to Oregon State Hospital (OSH) for an evening meeting.  DRO has an advisory council for our program that serves folks with mental illness (PAIMI).  It meets every two months.  Once each year, it convenes at OSH and conducts a forum in which residents line up to use a microphone to share what’s on their minds.  We were in my car were driving down to listen up.

The elected chair of our PAIMI Advisory Council (PAC) is a resident of the OSH Forensics Program. One PAC member is a former resident.  A majority of PAC members are individuals with mental illness.  In the past year, the PAC has also conducted meetings at the Portland campus of OSH and at Blue Mountain Recovery Center in Pendleton.  We at DRO (and OSH residents, I noticed) understand that this is a group that knows what it’s talking about.

You might think that sitting in the shabby OSH gym for two hours listening to people’s problems would be a bummer.  I found it energizing.  We heard about people’s anxiety about changes in how the hospital is run and about the new hospital that’s being built.  We heard frustration about the criminal justice system and the Psychiatric Security Review Board.  Many people felt that they didn’t understand what they were getting into when they chose the insanity defense. Some praised staff, others were critical.  Some OSH policies were questioned.  In sum, it was an informative, constructive discussion.

The next night, I attended the fall social event of the Multnomah Bar Association.  It was a reception in a large room at the University Club in Portland.  The venue was packed with lawyers in suits, chatting and drinking and munching hors d'ouevres.  It provided me with a chance to talk with some folks about what DRO is doing, the importance of health care reform for people with disabilities, and just let some people know that we exist.  I was putting a face to our mission: disability rights.

I couldn’t help but compare my consecutive nights in large rooms with voluntarily medicated participants.  The contrast between the social advantages of the groups could have hardly been more extreme.  But both events were about communication and community.  Everyone who participated had a chance to learn about each other, discover alliances, identify opportunities and share challenges.  In each case, I couldn't imagine an electronic alternative being as effective as face time.

Creating Oregon's advance directive for health care in1989 was one of the first issues I worked on in the Oregon legislature.  My role was to assure protection of people with disabilities and mental illness in "surrogate decision-making."  The bill finally passed after many, many hearings, some contentious and emotional. 

Talking about death in public, I learned, is not an easy thing.

Four years later, Disability Rights Oregon (then Oregon Advocacy Center) played a central role in drafting a bill to create an advance directive for psychiatric care.  This bill did not touch upon end-of-life decision-making, yet fears still ran high among many consumers of mental health services that an advance directive would be used to force them into treatment and institutionalization.  Many, many safeguards were put into place to allay those fears.

Since then, I've followed discussions and studies about advance directives.  In Oregon, psychiatric advance directives are hardly ever used because doctors won't accept them.  Nationally, doctors accept health care directives less than half the time.  Studies show that white, middle and upper-middle class people are far more likely to use advance directives.  One explanation is that minority and low-income individuals are less likely to trust doctors to treat them fairly and are more likely (particularly immigrants) to believe in miracle cures.

I'm sure you know where this is leading: to the present health insurance reform debate.  I'm not going to talk about the "death panel" thing.  What more can one say?  I'm more interested in the trust thing.  Why are so many people convinced that expanding health coverage through government action is a scary proposition?  Many of these folks must have had the experience of being turned down for coverage or payment by their private insurer.  Most must have had a friend or family member denied.  Why are they not upset about that?

Perhaps one answer hearkens back to those studies of advance directive usage.  Remember that minorities and low-income folks are less trusting of professionals who they feel may devalue them.  But what if the tables were turned?  What if the main proponent for changing how health decisions are funded is an African-American with a Harvard education?  Private insurance companies, in contrast, seem to have no ethnic identities or motives other than making money.  Does health insurance reform seem like just one more threat to people who are used to being in the majority but whose complacency is being eroded by increased national diversity?

People with disabilities have always been concerned that their lives are devalued by medical personnel.  The evidence to support this fear is plentiful.  In an earlier posting, I discussed the work of philosopher Peter Singer and his proposal to treat a quadriplegic's life as half as valuable as an able-bodied person's life.  (Consider the similarity with the US Constitution that originally designated slaves as 3/5 of a human being.)  The demand of any minority population is not to be judged according to standards that dismiss its equal value.  Perhaps the demand of a majority population is to retain its perceived  advantage.

Advance directives are specifically designed to give people more personal choice in how decisions are made about their health care.  But many people who came to the legislature back in the day thought that directives would do just the opposite.  In the health insurance debate, some people feel that having more choices of coverage will eventually take away their choices.  In both cases, some feel that being given a choice means that one's choice may be coerced.  They may feel that it is better to leave these decisions to some other realm.  But that is also a choice.