"Our system sucks. Our system can be sublime." - Gordon Bonnyman

Chris and Alison sit down to speak with Gordon Bonnyman, co-founder of the Tennessee Justice Center.  Mr. Bonnyman has practiced poverty law for 48 years.  His work has spanned so many areas of the law we could not begin to cover them all - he's litigated nursing home regulations, prison conditions, hospital pricing abuses, confinement of children with disabilities, due process for Medicaid recipients, and many others.  He has lectured and consulted on health law and policy and testified at congressional hearings on health and civil rights.  He discussed his work and the importance of storytelling with us. 

You can listen to Mr. Bonnyman argue Alexander v. Choate before the US Supreme court here.  

Transcript

Bonnyman_Transcript.mp3

Alison DeBelder [00:00:04] This is trauma injustice. This is a podcast about the ways that people confront and manage trauma in the justice system. These conversations touched on seriously troubling topics. This podcast is not appropriate for children. People with their own traumatic histories should be aware that we discuss violent crimes, exploitation, sexual trauma, child abuse and incarceration. 

Alison DeBelder [00:00:28] I'm Chris Moser 

Alison DeBelder [00:00:30] And I'm Alison DeBelder. Our guest today is Gordon Bonnyman. He's been practicing poverty law for 48 years with a focus on improving access to health care for the poor and uninsured. The first 23 years of his career were spent as an attorney for the Legal Aid Society of Middle Tennessee. He co-founded the Tennessee Justice Center and served as executive director from 1996 to 2014. After that, he returned to full time practice as a staff attorney at TJ c. during sabbaticals. He has lived in the Middle East and Eastern Europe, doing work for human rights organizations. His work spans many areas of the law. He's handled cases involving nursing home regulations, prison conditions, hospital prison abuses, home health care, confinement of children with disabilities, due process for Medicaid recipients and many others. He has lectured and consulted on health law and policy. He has testified at congressional hearings on health and civil rights. He has served on numerous national and state health care boards and commissions. He has published a great number of articles. He has been given many awards and prizes, including from the ADA, the National Center for Law and Economic Justice, the Tennessee Bar Association, the American Bar Association and others. And trust me, there's so much more that I can say about his resumé and his work. But frankly, we only have so much time and I have enough questions to keep us talking for six hours or so. So welcome, Mr. Bonnyman. Is it OK if I stop there with the resume? 

Gordon Bonnyman [00:02:12] Sure. And please call me Gordon. 

Alison DeBelder [00:02:15] Thank you, Gordon. Frankly, I just know the headline that Gordon Bonnyman was involved in litigation that restructured and reformed the prisons in Tennessee. But that's really all I know is that headline, and I was wondering if you could tell me about that work and what it led to. 

Gordon Bonnyman [00:02:35] Well, it was an amazing experience, my friend Ashley Wiltshire, who is my boss at Legal Aid, has just gotten through writing a book that will come out, hopefully from Vanderbilt University press about the first 30 years of the Legal Aid society here as sort of a complement to a couple of books that have been written about the national legal services movement. And so I think the interests of the press was in in sort of let's take this down to the level where it was happening. And he was asking the staff who was there during that 23 years. I was there asking all of us to check his records, his recollections, and he spent tons of time looking through court documents and newspaper clippings to validate our memories, which in my case was good because my memories were often at odds with the printed record. And I don't know what it was, but generally my recollections were that, hey, I was brilliant and b I always won. And somehow so that that never got reflected in the documents that Ashley consulted. 

Alison DeBelder [00:03:42] I've had that problem myself before. 

Gordon Bonnyman [00:03:44] You know, there's nothing more painful than reading a transcript of yourself. In my experience, in any event, actually went back and documented, and the thing that we both realized was that there was a window of opportunity that was created when Legal Aid was was established with this new version of it as a social change agent. And that coincided with a moment in the Supreme Court and in the federal judiciary generally and in even. In fact, in places like Tennessee, changes in the state judiciary where the state judiciary discovered our state constitution and started actually enforcing it. There was just a window of progressive judicial activity, which I realize now, in hindsight, was a complete aberration. I mean, the courts are, by their nature in the law, by its nature, is an institution for maintaining the status quo and resisting change. And I think the current Supreme Court, the current federal judiciary, or just sort of reversion to the norm. But we were there starting as young lawyers in a very different era. And, you know, we didn't know any better. We didn't know how lucky we had it. You know, so many of the cases that our my colleagues won, often they won, but I would claim credit for it. I look back now and realize how those cases couldn't be brought. I mean, title six civil rights cases, private enforcement now off limits, federal enforcement of Eighth Amendment standards off limits and not just because of legal services, but because of court stripping or because of really bad Supreme Court decisions. You know, people who are aware of what the Supreme Court did, for example to the Voting Rights Act, may not be aware that that's just emblematic of what's happened across the board. So it was extremely exciting and in for a 25 year period after the founding of legal services, really. And I'm sure this is true across the country. But in Tennessee, we could see that literally the advocacy. Some of it was legislative, some of it was administrative, some of it was in the courts and some of it was in. The media really touched every aspect of the law and of the social compact. I mean, everything from domestic violence in new sensibilities about gender discrimination to the treatment of inmates of state institutions to welfare programs, to consumer protection, to housing on and on and on. I had an experience in the early 70s where an elderly woman came, a white woman and her young adult granddaughter came to my office and sat down and said the colored people have gotten their rights and I want mama to get her rights. And then she told this incredible story of this woman. This would have been in the 70s, who 50 years before, in the 1920s in Nashville, in a working class community. This is young widow. She had three stair step preschool aged kids. I guess the oldest was six whole Towery boys. She was a widow. Her husband died in an industrial accident, and she had to leave her six year old in charge of the two little brothers. One day she came home from work at a factory and the two loyalists were gone, and the older boy said a lady came and took them away. She then, of course, was frantic and somehow finally figured out that they had been taken away by a woman from the Tennessee children's home, which was a state chartered institution. It was located in Memphis. She got from Nashville to Memphis, which would have been very difficult in that era for someone in her situation. She got to the institution, she went to the fence, she could see the children on the playground and she was shooed away like occu dog. They told her if she didn't leave, she would be arrested. And so now, 50 years later, one of these children had been told by his adoptive mother on her deathbed the story that he was adopted and when and where he was adopted. He had somehow managed, although all the adoption records of that era were sealed, he had somehow managed to find his way back to her. And so now they wanted to find the missing littlest brother. And so that's what brought them to my office. You know, I thought, Well, this is incredible. And by coincidence, I had a dental appointment the next week. There is such a thing as karma, and in the waiting room was a reader's digest, which at that time was widely read magazine. It had a feature called $10000 First Person Award for somebody who had a story about some unprecedented experience. I just was trying to occupy myself, waiting to have my teeth filled, and I looked at this and it said I was sold by the Tennessee Children's Home. And I read it in and sure enough, the whole Tennessee children's home thing. It was a baby selling deal. No, for 35 years, it was only finally done in in the early 50s. At that point, I then went to the state archives and found out. Indeed, it was. It was state chartered. There was a woman who got very wealthy running the thing, and the M.O. was to do exactly what had happened to my clients. Wander in low income white areas and steal blond little boys primarily and then treat them as orphans and put them out through very quietly where they would be sold. So having found that, I found what the state attorney general disparaged as a writ of desperation, which was an apt description where I just told the story and then tried to come up with some kind of strange, you know, argument for why the adoption records should be opened the state. They couldn't get it dismissed. And so then they said, Well, we will let it got a lot of press, which is part of the idea. And it turned out that a retired social worker in a little town in West Tennessee reached out and she had worked for the county welfare department and was part of this. Unwittingly, she didn't understand that these children were being trafficked. She just did home visits. She had proudly kept a scrapbook of all the children that she had participated in placing. And, you know, whenever they were in the local press, she would put them in the inner scrapbook. And this youngest boy of my client, she had sent the Attorney General's Office a photograph of a grave marker in this little town and a clipping that reported that he had in World War Two, been in the Coast Guard, an ammunition ship that was torpedoed in the Guadalcanal Straits. With the loss of all hands. In his bereaved adoptive parents had put up this marker in the local cemetery, even though there was no body ever recovered. The AG said it will provide this to you if you will dismiss your case. Of course, I had no choice since that was the terms on which I could get relief for my client. And so having been born three years after the end of World War Two, I played the role of army chaplain or Navy chaplain and went to my client's apartment in a public housing complex in Tennessee in Nashville and shared that story with her. And of course, she worked with the same freshness and bitterness as if we'd all wound back the clock 50 years. And I tell that story because I think that is such a testament to what the civil rights movement had done. You know, the colored people got their rights and I want my to have her rights. But it also tells you what the plight the status of poor people was before Legal Aid and before the civil rights movement, particularly in the south, where if you were told to get away or you'd be arrested, you. You had no choice. You had no power. You had no sense that there was anything you could do about that. And so when I think about Legal Aid and what it did, what it meant as a social movement, I think about sort of the change and of course, only as part of a whole bunch of other social changes. But in some profound ways sort of changed the ways in which poor people could think of themselves in their place. 

Alison DeBelder [00:12:26] And it also speaks to the unimaginable cruelty and the suffering that can be imposed by systems unfeeling bureaucracy, 

Gordon Bonnyman [00:12:40] unaccountable, totally unaccountable, 

Alison DeBelder [00:12:43] populated, probably mostly by well-intentioned people. 

Gordon Bonnyman [00:12:48] Actually, the woman who was the heavy in this piece to lead this institution for thirty five years and was lionized as this humanitarian taking care of orphans, I'm sure she rationalized it as well. They were just going to grow up poor and I placed them in middle class homes. I did a lot of independent work cases early in my career, and I certainly saw a lot of that where children are removed, largely for reasons of poverty. 

Alison DeBelder [00:13:13] I like to go back for a minute on the theft of the children. How far away were these places that they were taken? Were they taken off the street and were there any criminal charges that ever came from your discovery? 

Gordon Bonnyman [00:13:29] The children's home itself was in Memphis, which is about two hundred and ten miles from Nashville. Tennessee is a long, skinny state. When this finally broke in the early 50s and the place was closed down, I think the woman who led it was charged by that time. She was old, and I don't know that she ever suffered any meaningful consequences, but certainly she was publicly shamed and it was treated appropriately as the scandal that it was. But I think it operated statewide. So I mean, it was just impressive to me that my client, with no money in her class position, was able to somehow find out and get to Memphis, only to be turned away at the fence. 

Alison DeBelder [00:14:11] Obviously, this is before Roe did that facility bring in pregnant women and they left without their children? Do you know anything about that dynamic? 

Gordon Bonnyman [00:14:23] I don't know, but I don't think so. I think their business model was taking little kids who were cute and very young, too young to protest or whatever. 

Alison DeBelder [00:14:34] How many do you think were taken? 

Gordon Bonnyman [00:14:37] Oh, there were hundreds over the years. I mean, this went on for decades. Wow. You know, there is this story in the early 50s and then it just went away and it was just a local story. And then, you know, it really resurfaced with that Reader's Digest article I came across. And then, you know, I filed that case. It got a lot of headlines. I think there's been a made for TV movie. There have been books written about it. It's well-documented now, I think. 

Alison DeBelder [00:15:02] Gordon, could you share the role and importance that you believe storytelling has in your work and perhaps as a way to introduce it? I also wanted to know if you would be willing to tell our listeners about Cathy and Scottie Horvath. 

Gordon Bonnyman [00:15:28] There is a great judge, Judge Justice. You know, it's enough to make you be a Calvinist and believe in predestination with a name like that. 

Alison DeBelder [00:15:36] Isn't that the truth? 

Gordon Bonnyman [00:15:37] He was the district judge in Texas who died about 10 or 15 years ago, and he was there during the civil rights movement. He issued all sorts of desegregation orders. He dealt with the terrible conditions in the prisons, and he was, as you would expect, extraordinarily unpopular with the powers that were in Texas. But also a hero to those of us doing this kind of work, and he spoke on two occasions to statewide meetings of the Legal Aid legal services programs in Texas, and one of them was Call Brothers under a saddle dear friend. My colleague in the prison litigation gave me a version of that excerpts that it's framed on my office wall. His basic thing was the most important job that legal service is. Legal Aid does is tell the stories of the injustice visited upon their clients, by the laws, by the cultural arrangements, by the economic forces, and to be a witness to that. You know, as middle-class privileged people and professionals who have a forum, which is what those of us who do this line of work have, it's our responsibility to make heard the voices of the people who like my client, whose children were stolen or treated as non persons. And if they're treated at all, it's with stereotypes. He said, that's your job, you should keep telling those stories because as lawyers, you know how to compile and analyze and present in a compelling way the relentlessly powerful facts of your client stories. I truly believe that that's right. And I think stories are more important now than they ever have been because we're so tribal, we are so ideologically divided. And yet I found that people do connect with stories. I mean, and that's the way our brains are wired. We can remember narrative when we can't remember just individual factoids. And so you know whether your cave people around a fire telling stories and passing on wisdom through narration or you are telling parables in 1st century Jerusalem or you're Judge Justice speaking to Legal Aid audience, I think that we just are made as humans to learn through stories. As an example of that, we had a client, a nurse named Kathy Horvath lived in the foothills of the Smoky Mountains in East Tennessee and had a child, Scottie, with special health care needs that involved spastic muscle movements and very severe respiratory function. It was a progressive illness, and he was dying and he kept having multiple hospitalizations. He was, as I recall, seven or eight Cathy. After he was born, she went back to nursing school so that she could take care of him, but he needed 24 seven care. We represented her in trying to get services and medical equipment for Scotty from TennCare, which is Tennessee's Medicaid program for the poor. It's administered by managed care organizations, which of course have a financial incentive to say no to services, and he had gotten to the point where he needed constant oxygen. But he couldn't use the cannula because he would flail around and dislodge it because of the spasticity. He needed a particular kind of bed that would be sort of like a tent. There would be ambient oxygen piped in and he could get what he needed that way. He was in the Children's Hospital in East Tennessee with another crisis, and the IMCO said it wasn't medically necessary. At one point, he's about to be discharged back home. He doesn't have this equipment. She is pleading with the representative for an MCO and the pulmonologist. The pediatric pulmonologist comes in the room and realize what's going on is hand me the phone. He started talking, the MCO person said, You don't understand if he doesn't get this equipment, it's going to be on you because he has to have this in order to be able to breathe. And the person just said, no, it's not medically necessary. And it was denied in a couple of days later, he was discharged and he went home with Kathy. Kathy tried to stay up through the night and hold the cannula in his nose, but at some point she dozed off her hand, slipped away and when she woke up, he had died. What we knew was that we've been trying to get this equipment, there is an appeal pending. And he had died during the tendency to pull the crucial piece we didn't know was she'd fallen asleep in her hands that way. TJc was involved in a 15 year case, I don't know if somehow my cases all seem to go on forever. You know, there's a sort of a Dickens quality to them. But anyway, we were trying to get the federal court to order relief that would require the state to adopt all sorts of safeguards to comply with what's known as the early and periodic screening, diagnosis and treatment, or MDT mandate in Medicaid, which was inartful name only lawyers could have come up with EPSRC. But what it really amounts to is this broad mandate that medicate children should be getting whatever care they need to thrive, not just to survive, but to thrive. And so we brought a class action and battle forever. And of course, it is totally at odds with the financial incentives in managed care. We got some dramatic relief. We then ended up trying to enforce that relief, and it went on and on forever. But in one of those iterations, we were trying to persuade the judge of the problem with the AMCOS and the financial incentives that they operated under, where they get paid a fixed rate and then they can't increase the revenues. So the only way to grow the profits is to reduce the cost. And I mean, actually, they're perverse incentives in the fee for service system, which rewards providers for doing more, whether it's appropriate or not. So I'm kind of agnostic. I think capital arrangements in the health care system are just flawed, regardless of which way you go. And I don't condemn managed care totally out of hand, but there have to be safeguards in the state who is not policing that. So we have a wonderful paralegal, Jane Beasley, who had dealt extensively with Kathy during this whole saga. Scotty's death was a trauma for all of us because we were really involved in the case. So like a year or two after his death, we're coming to trial and Jane calls Kathy and says, I know that I'm asking you to do something really, really hard. But I wonder if you would come testify. She said, yes, she got up like at 4:00 in the morning to drive four or five hours to be here at nine o'clock for the hearing in two or three of us had vetted her at various points in terms of the testimony. We knew she would be really compelling and she got on the stand and she told the story and retained her composure when really almost nobody else in the courtroom could maintain their composure, including the the court reporter who was trying to take notes through the tears. And she got to the point where we knew she was about to describe his death, and at that point she wrote down and the judge said, Do you want to take a recess? We did. We went outside and we were talking to her. And that was when she told us for the first time that she had killed Scotty by falling asleep. You know, letting your hand slip away and of course. You know, it's just such a terrible, false take of what had happened. But that was what she had been living with, was this notion that she was responsible for his death. After a bit, she composed herself and we said, you do not have to go back in there. You do not have to go back in there. No, I'm doing this for Scotty. And so she went back in, she told the story. And any dries in the house at that point seems to be dry and, you know, we we got a great order. Well, a couple of years later, our Legislature was taking another whack at cutting TennCare. And we asked her to come back and once again, she said, I'll come back, I'm doing it for Scotty. And when she came of the legislative hearing, she said she had visited his grave that morning before she left for the day before and promised him that she was coming for him. And so she came over, and it was the typical legislative hearing where everything was cooked before the hearing. These are people out in the gallery. They didn't want to let them test fast, so they had a bunch of lobbyists for the AMCOS and whoever else, just filibuster. And then finally, they got to the end of the hearing a lot of time, and they said, Oops, we're out of time. Well, thank you for coming. Sorry and the chair gavel the hearing to a close. We had several moms who were there to testify, and of course, they were all terrified. They were terrified to testify, but they, like her, were willing to come because they didn't want their families to go through what their families had gone through. You could almost hear an audible sigh of relief that although they had come for nothing, at least they wouldn't have to stand up there and go through the terrifying experience of testifying to a group of old white guys who were obviously hostile. After the hearing broke up, Cathy, she went up to the dais and the chair was gathering his papers, and she reached out her right hand to shake his hand and he kind of reflexively stuck out his hand to shake her hand and she introduced herself. And I remember this is kind of amazing. She she cupped his hand with both hands. She put her left hand on top of his hand, so she was holding his hand both hands, and she started telling her story to him. She didn't get that far into it. She just described her son's condition and why it was so important in that the other mothers there had come and it was important for her to hear. There was a report, a close by. He watched this and I think not so much, perhaps because the legislators actual empathy, but because he knew he was being watched. He called everybody back together and they testified and whatever the particular bad thing that they were getting ready to do didn't happen. So that's the power of stories. And I just have such tremendous respect for our clients who are willing to do things like that. It's so important that we have somebody on our staff who is a full time curator of a story bank, and we often think, you know, people could sit through our case reviews where we go through the weekly intake and hear these stories so much that divides us ideologically, politically, racially, whatever would just melt away. There would be a few people with hearts of stone that wouldn't be moved, but most people could identify with those stories in a way that they couldn't with any amount of political argument. We take that very seriously the storytelling. 

Alison DeBelder [00:27:04] In the story bank that you keep and the person who is in charge of curating it. Are those just so that you have appropriate sources on hand when the press contacts you? Or is it stories that you're actively pushing out as part of your advocacy? 

Gordon Bonnyman [00:27:21] Both our stories have been on the front page of the New York Times more than once in the Wall Street Journal, L.A. Times Network News. And you know, once you get known as a source, then people make their way to you. And usually when there's a media request, it's, you know, like, I need a story. And by the way, my deadline is five o'clock. And so we would always thrash around and try to remember, and in my case, with not much of a memory that didn't get us very far. And finally, at some point my colleague, now my boss Michelle, said, We need to take this seriously and we need to set up a process for capturing these stories so that we aren't just dependent upon Jane Beazley's memory or whatever. You know, it's a constant process because people's stories change once they're used in the media doesn't want to use something that another outlet is covered. New challenges arise. So it's just the constant thing. And we we have young people who are doing intakes and doing a lot of the frontline contact with the clients under the supervision of lawyers. And we talk to them about collecting stories. Because one thing we found is that they're the right people to ask because they have the relationship. And so the curator doesn't talk to those folks until they've already given the clearance to the actual case handler who's serving the client. And there's always embarrassment and resistance to asking and we just say, you know, if you ask it the right way, you will make clear there's no pressure. And what you're offering, folks, is agency over their own lives. And you're offering them an opportunity to be heard and taken seriously in a world that doesn't often afford them that opportunity. You know, and many people say no, but for the people that do so often, they will say that was empowering. 

Alison DeBelder [00:29:18] Have you or Michelle published on the process that has evolved at tJc? So if our listeners want to learn more about how to bring this method into their organization, is there a resource that we can share with people about how to? 

Gordon Bonnyman [00:29:35] I don't think so, but there are story banking resources out there. Community Catalyst, which is an organization in Boston that advocates for health reform, I think has story banking resources. Frankly, I'd be embarrassed to advertise our process as, you know, some sort of example or because we continue to struggle with it. You know, when we get a request, we say, Oh, why can we not immediately lay our hands on the right story? We're getting better at it, but there are resources on that. Unfortunately, we don't have it, but we're always happy to talk to people if they if they want to just give us a call. 

Alison DeBelder [00:30:15] I was wondering if you could talk about what tools have been essential to you continuing to show up. I talked to a couple of people who are familiar with your work and they said, how does he keep going? How does he keep showing up in this really difficult kind of work? How do you keep showing up and how do you manage the challenges that are essential in the work that you do? 

Gordon Bonnyman [00:30:43] Well, first, you know, my advice is to be lucky, be married to the right person and be born to the right people and to get all the breaks in life. That's for starters. Unfortunately, in so many of my clients have failed to follow that advice. 

Alison DeBelder [00:31:00] I have a long suffering husband. We have a nine year old, and that is what he tells him all the time. It's on repeat. In our house is the birth lottery and all the lotteries that we have won. If anybody starts to think that they're doing something because they're clever. 

Gordon Bonnyman [00:31:20] Yeah, actually, I have a particular version of that, which is you're looking at the original quote, a baby right here because I went to an Ivy League school that I was admitted to when there were no women. There were only a handful of African-Americans. There are almost no people from Asian American or from abroad. They had only shared the Jewish quota a few years before, and there were some supposition that maybe it still lingered. And my father had gone to this school and my uncle. So, you know, when people talk about affirmative action, I just say, Hey, whoa, you know, you're getting kind of personal here. I have been the beneficiary of it. And, you know, be careful there. Anyway, that's not the main way I win the lottery. The main way I won the lottery was I was raised in a family that showered me with love. And, you know, there was so much redundancy. I mean, I see and you all see it even more in defense work. So many clients who have no significant adult who cares about them as a child. In an earlier incarnation, I was a pilot. You know, systems on aircrafts, there's just so much redundancy. So if one systems fails, you've got plenty of others. I had so much redundancy in my life. I have two parents and aunts and uncles and grandparents and teachers and so forth and so on. It just I got all my work and everybody else as well. So that's the first piece of advice I would say about keeping on, keeping on. And second is, you know, have a wonderful marriage, which has endured in spite of some significant things I've done, primarily having to do with my work that just were very painful for my wife. You know, I listen to some of the earlier podcasts and the common denominator saying that most of the defense lawyers you, you all interviewed were pretty tough and said they didn't believe in therapy. And I'm just here to say I thought I was pretty tough, too. And after about 35 years of practice, there is a crisis and my spouse had to go to therapy and to learn so much about myself. And it was really valuable. And I just really urge people to have an open mind about that. And and of course, again, rule one, be lucky. We had a really great therapist and not every therapist is great. So I tell young people, you know, you can do good work in not constructive work environment and you're not going to be happy. So I'm lucky to have done work that's been very satisfying to me and fulfilling, but I couldn't have done it if I hadn't been working with people that I loved and I knew had my back. William Sloane Coffin was a minister who was very involved in the civil rights and anti-nuclear movements who died, I guess, about 10 or 15 years ago, and I knew him slightly and admired him greatly, and he used to say, you know, we don't lack for miracles, we lack for the eyes to see them. I just get to witness miracles all the time. I mean, Kathy Horvath. That's a miracle. That is a miracle. And we need to cultivate our ability to see those miracles and to celebrate them when they happen and to work with people who have eyes to see them as well. You know, I can remember an interview that I did, it was a brand new lawyer. And I was again, I was so privileged and had been so sheltered from the realities of so many people and certainly my clients lives in. A young African-American woman came in and was talking about trying to escape her violent husband. I mean, I can still remember this is 45 years ago. She described her particular store that she had run into to escape him and him chasing her down the aisles, saying he was going to kill her and somehow she had escaped. And it was like, I just couldn't believe that, you know, she had the courage to try to get away from him. You know, it's like I was just sitting there in the presence of somebody with with this courage that I couldn't begin to to understand. You know, he had been he had hit one of her kids, and that was it. She was out of there. And so I just, you know, over 48 years, I've just witnessed one miracle after another like that of being with people who just they're flawed, like the rest of us. But hey, show me the power of love. They show me the power of courage. I think that's really, really important in terms of keeping me going to just, you know, keep coming back to it so I can see more of that. 

Alison DeBelder [00:36:11] There's a case that I want to ask you about, and I have been fretting about whether or not I can find an acceptable way to ask the question. So I'm just going to ask it. 

Gordon Bonnyman [00:36:24] That's a scary wind up. 

Alison DeBelder [00:36:25] I want to ask you about a case that you lost and about what that experience was like and how you manage a big loss. Frankly, the case is Alexander V. Choate. The listeners can go and listen to your oral argument before the U.S. Supreme Court. 

Gordon Bonnyman [00:36:45] Please don't. 

Alison DeBelder [00:36:46] I did. And the fact that it didn't go your way is all the worse for having listened to your compelling argument. This is a case that I believe correct me if I'm wrong on any of this, the US Supreme Court decided in 1985, Thurgood Marshall wrote the opinion, and this was a disparate impact case that involved Section 504 of the Rehabilitation Act of 1973 and that outlaws broadly discrimination by entities that receive federal funding. Right. They're not allowed to discriminate. In this case, the court held that Tennessee's reduction in the number of annual inpatient hospital days covered by Medicaid did not constitute discrimination against disabled people, even though they're more likely to need longer hospital stay. As I understand it, once a person accrues a certain number of days that they've spent in the hospital over a year, that's it. They don't get anymore. And because of things like, for example, folks who are quadriplegic tend to get pneumonia more often than other folks. So they tend to spend more time in the hospital than folks, you know, that aren't quadriplegic. As an example, I highlighted part of what you said in argument, and that brings us to the nature of handicapped discrimination and the reason why 5.4, if it is not construed to reach discriminatory impact, absent intent is simply going to be meaningless. We do not have a history of people burning crosses on the lawns of the handicapped or painting swastikas on the sides of rehabilitation centers. And that really struck me because that's exactly what disparate impact is all about, right, it's really difficult to get at and it's difficult to have a story too attached to it. You're talking about math a lot of the time. I guess I'd start with who were your clients in that case? 

Gordon Bonnyman [00:38:50] My clients were people who had exhausted the quota of days in the hospital and who had chronic illnesses and were effectively uninsured for the balance of the year. The sequel to that, by the way, was a was a young woman in the church I attended who had chronic asthma and who exhausted her days and after that decision, actually died without treatment in the hospital during an asthmatic attack. That's who we were representing. I like to brag. It's unbecoming, but I can't help it. I like to brag that I have a distinction in the civil rights bar that no other person living or dead can claim. And that is that I'm the only person. I haven't done the research, but I'm confident this is correct. The only person in the history of the world, maybe the cosmos, who is representing civil rights plaintiffs and persuaded Justice Thurgood Marshall to author a unanimous decision in favor of the defendants and against the civil rights plaintiffs. So it requires a special kind of advocacy to achieve that result. Anyway, we had we had one in the Court of Appeals in the state petition for Cert, so we knew we were going to lose when the court granted Cert. The good news is that Justice Marshall, by grabbing the opinion and writing it, upheld the idea that it was an impact standard, but said that we failed as matter of proof to demonstrate impact. You know, I was grateful that he did that. A friend, a good friend, clipped the front page article in The Washington Post when the decision came down that says civil rights part Hale's decision and my friend Andy clipped it out, scrawled across a sticky note and sent it to me. It said, Great work Gordon. And maybe next time you can get them to cut the number of days even further. Wow. Oh, I mean, this is a case where the surgery was a success and the patient died. And incidentally, now there is a new case that the current Supreme Court has just granted where they're revisiting that issue called CVS V. Somebody, and it's going to be back before the court with an attack on impact under five or four in the ADA. That decision was particularly after the person, my church that I mean, that was, you know, behind these decisions are real, real people 

Alison DeBelder [00:41:18] to Alison's point about the disparate impact and the lack of a suspect classification because, you know, chronic asthma, if you have the money, you can stay alive and you can stay in the hospital. I'm assuming that a Supreme Court would never make homelessness. A suspect classification would continue to limit how disabled people have any protections. So what do you do when you know that it's all about the money and the inability to live because you don't have the money? 

Gordon Bonnyman [00:41:59] I remember Anatole France said something to the effect of the law in its majesty prohibits the wealthy as well as the poor from sleeping under bridges. We are all officers of the courts. We are stewards of a legal system that values the lives of those who are privileged much differently than it values the lives of our clients. I mean, radically differently. Our code of professional responsibilities requires us to not disparage the legal system, requires us to speak respectfully of the courts and the legal process. You know, I think you're touching on a curse on a difficult kind of question for those of us who are in this line of work, right? Knowing what we know right about how far short the legal system falls, the ideals that it espouses on the law is, is a set of, you know, rules of the game in terms of how we live with one another and who has the power and who doesn't. Those arrangements are so discriminatory. Maybe not in a strictly legal sense, but in a practical sense against our clients. You know, should we just go out and scream on the corner? You know, it's this is we're hypocrites where this is grossly unfair. Or do we keep trying to make the system be what it claims to be? 

Alison DeBelder [00:43:27] Maybe some version of both, because as you were speaking, I was thinking about Bryan Stevenson, who constantly gets brought up in various ways. And what a amazing attorney. Look at how much he's done. Look at how many people he's gotten off a death row. And then one day he realized, Well, you know what? This isn't really the way to change the narrative. I'm going to make a museum. Not that he doesn't still practice law. 

Gordon Bonnyman [00:43:58] This is certainly true, obviously of criminal defense, but it's also true, I'd say, a civil legal representation that the courts are going to be there where where the we are not the law is going to be there where the we choose to opt out or not, we have the privilege of opting out. I'm ancient. I can retire. You know, that's a privilege that my clients don't have. They're caught in the toils either of the legal process, strictly speaking, or just have laws that stacked consumer transactions, housing on and on and on in favor of moving income and resources and opportunities and longevity from low income people and middle class people to higher income people. That's the way it works. So we can either walk away and, you know, have a good lives ourselves and just say, you know, I've done my bit. But that's not something our clients have the option of doing. When you see somebody like Kathy Horvath who just keeps coming back at a cost, I cannot begin to imagine, I think, well, who am I to complain about a hard day? At some point when we keep coming back, we are accrediting the system. We are saying at some level that we expect it to work. We think it works. I mean, in prison work, you know, I learned people live up or down to expectations. You know, when prisons were run where they were expected everybody to be brutal and devil take the hindmost dog eat dog by God. That's what you got. And if you treated inmates convicts that you expected them to be better than that and that you thought they had value and you thought they had worse, you wanted them to access that and develop that, a lot of people would respond. I mean, that was one of the most gratifying thing about about the prison work I did was just seeing it go both ways. I mean, seeing them take a system in a prison and do things that just turned it into, you know, violent cesspool. And then, you know, with the right set of circumstances and court interventions turning back the other way and then encountering people in the checkout line at the grocery store on the street, who would say, you know, I was in prison and I want you to know that this is what that all meant to me. You know, I think we have to take that approach to the courts and to the legal system. We have expectations. You know, we're lawyers, so we're able to hold inconsistent facts in our thoughts and our mind at one time. And we actually believe that the system is capable of equal justice under law. And we believe that there are people in the system that want it to be that. And at the same time, we know so painfully that it falls so far short of that, if we ever give up the aspiration and just say as we could based on the facts, you know, it's all hypocrisy that we carve equal justice under law. On the lintel at the Supreme Court building is the most outrageous con. One could do that. There's facts in the record to support that. On the other hand, if we ever do that, then we're missing another truth. And we are well and truly done at that point. You know, I'm glad you raised Bryan Stevenson. You talk about storyteller and using stories to move people. I mean, he is just brilliant at that. He does such a good job of telling both sides of the truth, which is our system sucks. Our system can be sublime. 

Alison DeBelder [00:47:43] Did you have anything in particular that you wanted to talk about or address or discuss that we haven't gotten to? 

Gordon Bonnyman [00:47:52] Poor people are always going to need people with the skills of lawyers to be their advocates in whatever the circumstances. And I often think of this period that we're living in is what it must have been like for African-Americans coming out of reconstruction with the redemption in air quotes of southern governments in the whole shift in their whole repudiation of the civil rights action and the lynchings in the horrible repression and so forth. And I just think, you know, what would that have been like? To be filled with hope and then to just be utterly and of course, what we white people now are learning, which is not what I was raised on, is that, of course, the resistance carried on throughout that there were people resisting right on through. It didn't all start with Rosa Parks or Thurgood Marshall in Brown versus the board throughout. People were standing up and I just think, you know what we got to after that terrible trauma. And it went on for a couple of years as people lost their coverage, who just said, Well, you know, we got what choice do we have? We have to keep on keeping on. And what we're going to do now is we're going to bear witness, even though there was nothing much we could do. We represented probably a thousand or 2000 people in individual administrative hearings trying to hang on to their coverage. Mostly, we lost because the hearings were designed so that we would lose. But we documented that and we documented the deaths, and we just told people, well, we'll stand by you to the extent that we can. Michelle, when she took over as executive director, we knew quarters and we had to figure out some way to decorate the office, and somebody had taken a lot of photographs during those cuts. There's an occupation by our clients of the governor's office for like 90 days. There were vigils, prayer vigils outside the Capitol. It went on and on and on. It was headlines for a year and it was just all traumatic, and somebody to a news person had taken photographs of these, and she had those images blown up to about three feet by five feet on canvases and put them around the office. To me, it was telling that she was holding up our darkest moment in our grievous defeat. The images, that's what those images captured, there's another wall, by the way, that captures images of people like Kathy Horvath, our clients, because she had this brilliant insight to recognize clients as mothers of the year or fathers of the year, and recruited professional photographers to go take their photographs and we give them a photograph and a little certificate and issue a press release, their local paper. These are folks who get no recognition for anything I remember. One was a 16 year old African-American girl in little town in West Tennessee, who, when Jane called her to tell her, We want to honor her that way, she her story was that she had a baby and she was single and she was trying to get her GED in the state was doing quote welfare reform, and they said she had to drop out of the GED program to go to work, or she'd lose her $125 tomorrow. And, you know, we raised hell about that, and they changed it, and they actually extended it so that they would continue it through college. And her story, by the way, was we had a celebration of my 20th anniversary and she came back with her 20 year old son and she's now an advanced practice nurse in the Children's Hospital at Vanderbilt. When Jane called her to tell her that we want to recognize her as a mother, she broke down in tears. She said, Nobody has ever told me I was worth anything before. So we have those pictures blanketing one wall, but we have these huge images of those of that terrible time of the TennCare cuts and. You know, Michelle could have put up the clippings about the hundreds of millions of dollars that we won in the big victories. And that's the thing I'm most proud of. We stand with folks. We try to and let them know that they're not alone. Which I think is the least we can do when they are interesting us with the privilege of being with him in dark moments at a really intimate level. 

Alison DeBelder [00:52:19] Gordon, thank you for spending so much time with us. I know it's a particularly busy time, and so I am particularly grateful that you would spend it with us. Thank you. 

Gordon Bonnyman [00:52:29] Well, I'm flattered. Thank you all. It's so great to get to know you all and get introduced to the podcast because I really enjoyed the ones that have already run. 

Alison DeBelder [00:52:36] Thank you. 

Alison DeBelder [00:52:37] Thank you. 

Gordon Bonnyman [00:52:38] Thank you. 

Alison DeBelder [00:52:41] Trauma and justice is created by Chris Moser and Alison DeBelder and engineered by Chris Higgins. Thanks for listening. To help us out, please subscribe to the podcast. Leave a star rating and review for us on Apple Podcasts and share with others who might be interested. Follow us and share your feedback on Facebook, Twitter and Instagram at Trauma Injustice.