Nebraska high court again rules father’s consent necessary for adoption

March 8, 2014 § Leave a comment

Nebraska high court again rules father’s consent necessary for adoption

23 hours ago  •  By MARGERY A. BECK / The Associated Press

For a second time, the Nebraska Supreme Court has ruled that a father who was intentionally misled about the birth of his child can stop the baby’s adoption.

In a ruling Friday, the state’s high court said the consent of the father, listed in court documents as Jeremiah J., is required by state law for the child to be put up for adoption. Further, the high court said the child’s mother, identified as Dakota D., failed to prove Jeremiah met any of the exceptions for consent because she did not show he had abandoned her or the child or that he would be an unfit parent.

Jeremiah learned in June 2011 that Dakota, his ex-girlfriend, was pregnant. Five months later, he was contacted by an adoption agency caseworker who told him he had been identified as the baby’s father and that Dakota planned to put the baby, due Feb. 18, 2012, up for adoption, according to court documents. Jeremiah told the caseworker he did not want that, then tried many times to reach Dakota, but she did not return his calls, records say.

The child was born Feb. 9, but Jeremiah was not told of the birth. He contacted Dakota on Feb. 13, but she did not tell him the baby had been born. Jeremiah also repeatedly called the hospital and caseworker to try to learn of the birth, but they refused to tell him, citing privacy policies. The adoption was put on hold after Jeremiah filed his appeal.

Dakota later testified in court that she did not tell Jeremiah of the child’s birth because she did not want him to know about it during the five days he had to object to the adoption.

A Hall County court ruled in the mother’s favor, saying Jeremiah could have hired an attorney sooner, but the Nebraska Supreme Court reversed that ruling last year, noting the mother’s deception. The lower court then ruled in Jeremiah’s favor, and Dakota appealed, arguing he is not a fit parent because he has an unstable work history, has used drugs and has a criminal record, among other things.

She also argued that Jeremiah neglected the child after she was born, and did not provide financial support for her or the child.

But the state’s high court rejected those arguments Friday, saying Jeremiah’s criminal record consisted of misdemeanor convictions as a teen. The court also noted that Jeremiah has denied any drug use, and that he has a stable job paying more than $12 an hour.

“And in any event, low income or an unstable job history does not alone establish parental unfitness,” Nebraska Supreme Court Justice Michael McCormack wrote for the court.

The high court also rejected arguments that Jeremiah did not provide financial support.

“Dakota clearly does not want to have Jeremiah in the life of the child, and she chose to not provide Jeremiah with a fair opportunity to offer financial support,” McCormack wrote.

Jeremiah’s attorney, Mark Porto of Grand Island, said the next step will be to file a paternity action in an effort to establish custody and visitation issues.

“He’s thrilled that he’ll be able to be a part of his daughter’s life,” Porto said.

An attorney for Dakota did not immediately return a message left Friday.

Weller children file lawsuit against state DSHS look for scrib link great pleading to educate for future ….

March 8, 2014 § Leave a comment

Weller children file lawsuit against state DSHS

Attorney says agency was told of peril many times before acting

By Paris Achen, Columbian courts reporter

Published: March 7, 2014, 1:50 PM

Updated: March 7, 2014, 7:28 PM

  • Buy this photoSandra and Jeffrey Weller enter Judge Barbara Johnson’s courtroom for sentencing in Clark County Superior Court March 20, 2013. The Wellers were convicted of imprisoning, starving and beating their adopted twins. Sandra received a sentence of 20 years, and Jeffrey received 21 years. (Steven Lane/The Columbian)

Five children who were abused by their parents in Vancouver have filed a multimillion-dollar lawsuit against the state, alleging that the Department of Social and Health Services failed to adequately respond to dozens of complaints about their welfare over an eight-year period.

Jeffrey and Sandra Weller of Vancouver each were sentenced March 20, 2013, to two decades in prison for imprisoning, starving and beating their adopted twins. A Clark County jury found Sandra Weller guilty of nine separate counts related to the twins’ abuse; Jeffrey Weller was found guilty of 13, related to both the twins’ abuse and assaults against the couple’s biological children.

The children’s Seattle attorney, David Moody, filed the lawsuit on behalf of the children Friday in Clark Superior Court.

One of the children’s teachers alone warned the DSHS a dozen times about possible abuse of the children and urged that they be removed from the Weller home, Moody said.

“He has documents he kept,” Moody said Friday. “He has voice-mail messages. There are a number of educators from the local school district who voiced serious warnings to DSHS over a period of years.”

“Those concerns were ignored every time,” he said.

The lawsuit follows a $54 million tort claim the children filed Dec. 18 with the DSHS. Tort claims give public agencies a 60-day notice of a lawsuit and allows them an opportunity to settle a case before litigation.

In this case, the children received no response, Moody said.

John Wiley, a DSHS spokesman, said the agency often does respond to and resolve tort claims prior to litigation.

“However, this case is complex, involving numerous plaintiffs alleging negligence based on activities that occurred over a number of years. As such, it requires more than the statutory 60 days to analyze and investigate the merits of the plaintiffs’ claim,” Wiley said. “It would not be in the taxpayers’ best interest to quickly make a settlement offer on a $54 million claim without a reasonable and diligent investigation into that claim by the state.”

Wiley said the agency has no other comment on the lawsuit at this time.

“We’ll let the court decide the merits of the case,” he said. “We don’t comment on the merits of the case.”

The lawsuit also alleges that the DSHS failed to obtain Sandra Weller’s Child Protective Services history in California, where she adopted the twins with her ex-husband. There were seven referrals about Sandra Weller’s possibly abusing and neglecting the twins and some other foster children who were in her care between 1998 and 2002, the lawsuit states. At one point, the state of California revoked her foster care license and took the twins into protective custody, according to the lawsuit.

Some of the complaints that Washington caseworkers allegedly ignored included allegations of threats against one of the twins’ lives and withholding food as punishment, according to the lawsuit.

For example, in April 2004, the DSHS received a complaint that Sandra Weller had told the 8-year-old female twin that, “If I had a knife right now, you would be gone,” according to the lawsuit. A month later, the agency received another complaint that the twins were “so stressed they are literally pulling their hair out,” the lawsuit states.

In September 2004, there was a complaint that the Wellers locked food cabinets in the house and locked the children in their room, which had an alarm on the door, the lawsuit says.

DSHS social workers visited the Weller home in October 2004. On Nov. 1, 2004, the social worker concluded that the allegations of negligent treatment or maltreatment were “unfounded,” according to the lawsuit.

The DSHS finally removed the children from the Weller home Oct. 7, 2011, after one of the twins left a note about their abuse at her therapist’s office.

“Please, help,” the twin wrote. “Behind the laundry room door is a big wooden stick covered in blood. They use it on me and (my brother) … If you leave without us, we’ll all ran (sic) away.”

The twins were substantially underweight and malnourished when they were taken into state custody, according to testimony at the Wellers’ trial.

They also testified at trial that Jeffrey Weller, often at the instruction of Sandra, regularly beat them with a 42-inch-long piece of scrap lumber. Police investigators found it stained with blood.

Moody, the children’s attorney, specializes in civil litigation against the DSHS related to the abuse of children or vulnerable adults. He said he won the largest jury verdict award against the DSHS — $17.8 million — in February 2000 in a vulnerable adult abuse case in Pierce County in which he demonstrated that the DSHS was negligent by inadequately investigating abuse allegations.

prenda at it again

March 8, 2014 § Leave a comment

Copyright, Child Custody and Cocaine in the County Courts

June 11, 2013 § Leave a comment

Copyright, Child Custody and Cocaine in the County Courts

Once upon a time there was  The Steele Law Firm LLC, IL SOS records show it was formed by  a 2006 University of Minnesota Law school graduate, John Lawrence Steele Jr. Esq.  Billed as a family law firm in 2008 -2011, the Chicago, IL practice, the Steele Law Firm LLC was fighting custody battles and purported pornography pirates. Yes, budding family law attorney, John Steele was devoted to saving children and the tranny porn industry! He started filing suits against 1000′s of John Does, dubbed himself the “pirate slayer” and set out to make cool millions! Despite John Steele having a fine ring to it for a porn name, perhaps the Steele Law Firm wasn’t catchy enough for copyright trolling; seems Steele decided to try on some other names: Media Copyright Group, Steele Hansmeier, Prenda, Anti-Piracy Law Group and the Chicago Family Law Group LLC.  Maybe it still wasn’t quite the right fit because in a rather complex web of “stories”, Steele claims to have retired, sold his family law firm to Peter R. Olson of the Peter Olson Law Firm and blogger extraordinaire Solo in Chicago.

Craigslist, where the finest lawyers come to but and sell law firms!

Now, according to a Solo in Chicago  blog post by Glenview,  IL native and Domestic Relations attorney, Peter R. Olson Esq. – in October 2008 he was checking out Craigslist,  looking for God knows what; and he found a law firm for sale.  By golly, it just happened to belong to his buddy, John the Pirate Slayer Steele! Despite the fact that Peter Olson had his own law firm and his Des Plaines condo was being foreclosed on and he was being sued by multiple creditors the purchase of a family law firm associated with pornography must have struck him as a solid investment.

No offense to Craigslist! Craigslist is great! Everyone knows that you can get some wonderful and affordable items on Craigslist: intimate encounters, a dorm fridge, slightly used slipcovers, re-homed lawn gnome, law firms – you know, really important stuff!  A quick look at the Cook County docket shows that Mr. Steele seems to have dropped all but one or two of his special  family clients in the summer / fall of 2011. But who needs clients when you’ve got a *found it on Craigslist* law firm to control! There is still no clarity about who actually owns the Steele Law Firm turned Chicago Family Law Group. Court documents show over a year of changing names, attorney, and firms numbers and stories with no end or truth in sight. Surely, NO ONE has ANY suspicion that they are laundering copyright money through that family law firm. No, doubt the Criminal Investigations Unit of the IRS won’t have any questions about Steele or Olson’s explanation about THAT firm. <cough*cough> Especially after that deposition about not paying any taxes! Nevis? St. Kitts? Offshore accounts? Trusts? Really? Come on guys who owns the CFLG?

So what happens when lawyers go rogue? 

Despite Steele’s claims of retirement and the Prenda was solely owned by attorney, Paul A Duffy, Steele seemed to be popping up all over the country at all sorts of court dates. As Steele showed up in court room after court room, some other things seemed to follow.  Yes, it was an outcry from many of extortion, lies, belligerent pleadings, threats in the hallway, improper service, questionable rulings in questionable places, and altered states.  Claims of identity theft, forgeries, and out and out lies.  It seems everyone affiliated with Steele stands accused of being involved with fraud. In time it seems most of the country caught on to the tricks and were no longer going to be fooled by troll games. On May 6th 2013, the Honorable Otis D Wright II issued an order for sanctions against Steele and some his minions in the form of 81k, a referral to the IRS criminal investigations unit and United States Attorney Office and the state and federal bar associations. Further, Judge Wright used words like “moral turpitude” as he described Steele, his minions and their business model. Still Cook County and St. Claire County seemed to be very willing to indulge the same behaviors that other federal court judges felt to be possibly criminal in nature.   Oh the men of Prenda fought hard to sue the internet or anyone that dared to speak out about their experiences with Prenda or Steele and they fought to do it in St. Claire County. Gosh, hate much?

Rut-Ro-Raggy! The Feds want to talk to ya!

But it seems that there is a little problem, the Feds are in St. Clair County. Moreover, it seems that a buddy of Steele, James Fogarty was dealing some coke to some judges, Cook and Christ. Christ  died of an overdose of cocaine allegedly provided to him by Fogarty. It looks that the drugs and mess don’t begin or end there or with those three people or that court system.

Bloomberg News and fightcopyrighttrolls.com both touched on the Steele  – Forgarty connection or at least what they knew about at the time. But is there more to that story? Read the news of the impact that cocaine had in the St. Clair court cases, is it any different in Will County or Cook County?

There were a lot of questionable rulings and the cocaine / dealer connection now explains much of how those rulings came to be in St. Clair Co. but what about the other counties?

Great! We’ve got judges on drugs making rulings for their dealer and Steele is sending dealers to do his dirty work.

How can the average litigant stand a chance of receiving any sort of justice when they are up against attorneys that are allowed to practice despite the overwhelming evidence of their abuse and misuse of the legal process. Seriously, what sort of world do we live in where it’s okay for a lawyer to send a drug dealer to someones home to “serve them” legal papers. Papers which are now really under-fire because a tsunami of evidence has surfaced to show that the “pirate slayer” is really the honeypot pusher. Could it get anymore disgusting?

How can anyone get a shot at justice when the judge is indebted to their dealer; to keep them supplied with cocaine and heroine and to keep their drug problem a secret?   It’s an environment where blackmail and extortion flourish and the innocent suffer the worst consequences. St. Clair news has already reported on how rulings were made in favor of the dealer. If you look at Cook County and Will County, is any different? When judges and lawyers get caught up in child porn, trafficking, drugs and dirty money – it’s clear that rulings are made based on vices, not the law.

What about the children in family court? Is this why so many rulings appear to defy both man and God’s law? If it’s not because of a vice, why are so many people crying out with nearly identical stories about their children being sent to live with their abuser? How does the court justify cutting off all contact with the protective parent? Now that the court has embarrassed “Parental  Alienation”, how come they always seem to accuse the non-alienating parent of alienation?  What is seen frequently is that the alienating parent pretends to be the “friendly parent” and accuses the other parent of PAS. The court then places the child with the REAL PA parent on the grounds that that parent will foster a relationship with the child and the other parent and then the REAL PA parent joins the court in cutting  off all contact with the other parent akin to a termination of parental rights. Why isn’t THAT parental alienation?  Why are children so frequently turned over to abusers despite the overwhelming evidence?  There are cases where the parent is clearly involved in drugs, child pornography, sexual abuse, and other harmful behaviors and the judges punish the parent that offers the court proof. It almost seems like the more evidence the protective parent has, the worse the ruling. The parents with no evidence of abuse and false allegations win.  The parents with pictures of the other parent watching child porn on the computer and witnesses of physical abuse lose. Good parents are disposable. Unlike coke and porn, good people and good parents just don’t seem to have much value anymore.

Looking at the fall out in St. Clair, the news lists some rulings that were not made because of the law or the merits of the case, the rulings were made based on vices and personal issues. This has to be eradicated. The very purpose of the legal system is to enforce the law for the betterment of society.  When lawyers are allowed to use forged  documents, extortion and break the law   – justice is denied. Evil prevails. When judges are beholden to their dealers, the law becomes useless. The best pleading or the most skilled lawyer won’t help the case, because it’s decided on a drug deal, not the law. We might as just cancel court and send the judges home, because noting good comes of this situation.

It’s great that the FBI is investigating St. Clair, but they need to come take a look at why Judge Pornlito was allowed to sit on the bench in Will County watching porn on the county computer on the tax payer dollars while making decisions about the futures of children and families. They need to look at why the Cook County Judge(s) in the Lucy Vega case doesn’t want to see the evidence of the father allegedly watching child porn. They need to look at why so many complaints about Due Process and abusive and erratic behavior are posted on the Robing Room about Judge Raul Vega in room 3001 at the Daley Center. They need to look at why Child Representative Jerry S. Goldberg used someone with a history of domestic violence to provide “professional supervision” between alleged abusers and their children. How about the DOJ coming in to take a look at the blatant ADA violations?

It wouldn’t take a big fancy sting. It just takes sitting in a few court rooms for a few days and taking a look at the records. (The complete record)

A check on the ARDC web site shows that John Steele, Peter Olson, and Paul Duffy are still free to practice law today. The judges of Will and Cook County go unchecked.

WHERE ARE THE CHARGES?

We need more Judge Wright’s – to judge right. We need eyes on the court and people to speak out about it and not shut up until the problems are fixed. We need the FBI to look at the similarities in judgments in Will, Cook and St. Clair Co. – maybe that won’t be the only similarity they find.  The common threads might be right in front of their eyes. Really, right in front of your eyes.

Thank you for visiting today’s blog posting Willcountyprose @ https://willcountyprose.wordpress.com/

Be sure to come back and read the extra special mid week blog post.

 

Special thanks to the good guys – doing good work. I like your suit.  You do this country proud.

 

Thanks to the judges and attorneys that are doing a stellar job. Your services are deeply appreciated. 

 

Justice will out!

 

Read more about Judge Otis D. Wright II and his outstanding command of the law and justice: 

 

http://www.popehat.com/2013/05/06/does-prenda-believe-in-no-win-scenarios-because-judge-wright-just-gave-them-one/

Read more about Lucy Vega’s battle to save her son:

 

http://www.change.org/petitions/justice-for-alexander-we-the-people-ask-the-illinois-cook-county-chief-judge-not-to-place-an-innocent-child-back-in-the-hands-of-a-sex-abuser

 

Read more about Prenda and his purported porn piracy shakedown: 

 

http://en.wikipedia.org/wiki/Prenda_Law

 

Read more about the man child rep, Jerry Goldberg used to provide professional supervision between parents and children: 

 

http://murphymilanojournal.blogspot.com/2011/02/bernadette-avila-wife-of-chicago-police.html

 

http://www.chicagoreader.com/chicago/officers-in-trouble/Content?oid=873519

 

Read more about the rulings St. Clair Co, IL judges made in favor of their drug dealer:

 

http://madisonrecord.com/news/256358-traffic-charges-against-alleged-heroin-dealer-dropped-by-christ-day-before-becoming-judge-cook-approves

 

Read more about the suspected collusion between Prenda attorneys and opposing counsel in Cook co and St. Clair co.:

 

http://madisonrecord.com/news/254907-more-john-does-ask-judge-to-quash-subpoenas-in-lw-systems-suit

 

http://fightcopyrighttrolls.com/2013/04/23/lw-system-v-hubbard-from-adam-urbanczyks-signed-agreed-order-to-the-new-breed-of-demand-letters/

 

*Be sure to read the “Agreed Orders” linked in the FCT web site. Look familiar?

 

Read more about what happened to The Steele Law Firm LLC and Chicago Family Law Group LLC: 

 

http://fightcopyrighttrolls.com/2012/05/25/who-and-where-is-prenda-law-what-happened-to-john-steele/

 

Read more about how “SJD” (Sophisticated Jane Doe) and Die Troll Die successfully kicked off a movement to fight back against abuse of the legal process: 

 

http://fightcopyrighttrolls.com

 

http://dietrolldie.com

 

View the interactive timeline, map and cartoons of the evolution of IMHO fraud:

http://johnhenrydocreview.wordpress.com/

 

The timeline has some links to some documents that you might not have expected. Over 360 & growing!

Ohai DHS! Come back soon!

 

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Stealing monies form elderly to enrich their coffers from social security TITLE IV

November 20, 2013 § Leave a comment

 

Reuniting families, regaining trust through foster care

Posted: 18 Nov 2013 08:48 AM PST

This is a total sales pitch.  I am very sorry for posting this as it will probably turn your stomach, but if any of you actually want to have a clue as to where the money really goes, it’s necessary.

I am appalled at what they’re not telling you.  Opportunity Alliance is actually a private agency that provides Targeted Case Management Services for which they can bill Medicaid and government grant programs, in this case, SS Title IV as well.  They work with kids in and out of foster care so there are many opportunities for them to bill.

This particular kind of foster care is worth big bucks.  The people who are going through programs like this will be some of the highest paid foster parents in the state.  In light of the closing of Casey Family Services, Maine is also an opportunity state for System Sucks like this, as the state must scramble to find other service providers.  Opportunity Alliance, Youth Alternatives, PROP, etc all provide these kinds of services in Maine and other states.

Reuniting families, regaining trust through foster care – my ass.

http://www.wcsh6.com/news/article/263132/2/Reuniting-families-regaining-trust-through-foster-care

Note: They are totally doing it for the money.

“Reuniting families, regaining trust through foster care” – my ***

Suing the State Under Title II – Is the State Immune?

September 7, 2013 § Leave a comment

 

Top Ten ADA Issues Under Titles II and III

1. Suing the State Under Title II – Is the State Immune?

a. Background

The 14th Amendment to the U.S. Constitution permits Congress to pass laws to address discriminatory actions by states. However, the 11th Amendment has been interpreted to provide states with immunity from private lawsuits for money damages in federal court unless the federal legislation remedies or prevents a problem of unconstitutional state action, and the legislation is deemed proportional and a reasonable response to the problem it is intended to remedy or prevent.

In recent years, the Supreme Court has interpreted the states’ immunity under the 11th Amendment quite broadly, including holding that states are immune from ADA employment discrimination suits seeking money damages, Garrett v. University of Alabama, 531 U.S 356 (2000).

page1image21888

This analysis was developed by Equip for Equality for Cherry Engineering Support Services, Inc. (CESSI). It is developed for use by the national network of ADA and IT Technical As- sistance Centers and is solely advisory in nature. Equip for Equality and CESSI believe the analysis to be current as of the effective date of the document, but make no representation that the discussion remains good law thereafter. The analysis is not intended to be a legal determination of rights or responsibilities in general or in any specific case. Funding for this information brief is provided in part by NIDRR under contract #ED-02-CO-0008 to CESSI. However, the content and analysis in the document do not necessarily represent the opinion of NIDRR or the U.S. Department of Education and you should not assume endorsement by the Federal government.

Barry C. Taylor, Esq. Legal Advocacy Director

EQUIP FOR EQUALITY

September 2006

b. Supreme Court Reviews Constitutionality of Title II of the ADA

Three years after the Supreme Court ruled in Garrett that States are immune from employment discrimination suits for money damages in federal court under Title I of the ADA, the Supreme Court agreed to hear State of Tennessee v. Lane, 541 U.S. 509 (2004) to decide whether Congress acted properly when it made states subject to suits in federal court under Title II of the ADA.

Facts of Tennessee v. Lane

The plaintiffs in the case, two Ten- nessee residents with paraplegia, were denied access to judicial proceedings because those proceedings were held in courtrooms on the second floors of buildings lacking elevators. One of the plaintiffs, Beverly Jones, sought access to the courtroom to perform her work as a court reporter. The other plaintiff, George Lane, was unable to attend a criminal proceeding being held in an inaccessible second-floor courtroom; the state arrested him for failure to appear when he refused to crawl or be carried up the steps. Lane and Jones filed suit under Title II of the ADA to challenge the state’s failure to hold proceedings in accessible courthouses.

Legal Arguments

In response to the ADA suit, the State of Tennessee argued that the Supreme Court’s ruling that states cannot be sued for money damages in ADA employment discrimination cases should be extended to suits for money damages against the state under Title II as well. The plaintiffs

argued that there is a stronger history of discrimination by states under Title II and therefore, states should not be im- mune from suits for money damages.

Supreme Court’s Ruling

In a 5-4 decision, the Supreme Court held that states are subject to lawsuits filed in federal court for money damages under the ADA in cases involving access to the courts. The question before the Supreme Court was whether Congress acted properly when it enacted the ADA and made states liable for discrimina- tion against people with disabilities in the provision of government services. The Supreme Court has decided that the ADA does apply to the states when people with disabilities seek to enforce their rights to gain access to the courts.

In its decision, the Supreme Court ruled that when the ADA was passed, Con- gress identified an extensive history of discrimination by states in the provision of its programs and services for people with disabilities. The Court went on to hold that the remedies set forth by Congress in the ADA were appropriate to address the objective of enforcing access to the courts for people with disabilities. While the Court limited its holding to cases involving access to courts, its

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expansive analysis documents the his- tory of state-sponsored discrimination against people with disabilities in many different areas (such as voting, education, institutionalization, marriage and family rights, prisoners’ rights, access to courts, zoning restrictions, and other areas) and contains broad statements about the careful tailoring of Title II’s requirements generally. These aspects of the decision may prove helpful in defending the constitutionality of other applications of Title II in future cases.

b. Recent Lower Court Interpretations of Tennessee v. Lane

The following cases have been decided applying the Supreme Court’s decision in Lane.

i. Prisons:

• U.S. v. Georgia, 546 U.S. 541 (2006), the United States Supreme Court said that an inmate can bring a Title II case against the State for money damages when the conduct by the State violates the Due Process Clause of the 14th Amendment. While the full Court agreed that damages were available against States for dis- ability discrimination that also violates the Constitution, there is a split among the Justices as to whether damages are available for ADA violations that are not con- stitutional violations. The Court remanded the case to the lower court to identify which conduct by the State would violate the ADA but not the Constitution.

• Hallett v. New York State Dept. of Correctional Services, 2006 WL 903200 (S.D.N.Y. 2006), plaintiff, a former prison inmate, sought dam- ages due to his denial of participation in prison programs, violating Title II of the ADA. The plaintiff used a wheelchair and prison officials told him he could not participate in cer- tain prison programs because “they don’t take wheelchairs.” The defen- dants requested summary judgment, partly because of sovereign immu- nity. However, the district court al- lowed the plaintiff’s claim to proceed. The court found that the actions of the defendants may have involved discriminatory animus, which meant the defendants may have violated the Fourteenth Amendment and there- fore were not entitled to sovereign immunity.

• Degrafinreidv.Ricks,417F.Supp.2d 403 (S.D. N.Y. 2006), prison offi- cials destroyed and failed to replace a prisoner’s hearing aids, the court found that prison officials may have violated his Constitutional rights and allowed him to pursue his ADA claim requesting monetary damages against state officials.

ii. Education:

• Association for Disabled Ameri- cans v. Florida International University, 405 F.3d 954 (11th Cir. 2005), plaintiffs filed suit against University for failing to provide qualified sign language interpret- ers, failing to provide necessary auxiliary aids, such as effective note takers, as well as failing to provide physical access to students with dis- abilities. The 11th Circuit ruled that



State and Local Government

the Supreme Court’s reasoning in Lane should be extended to public education.

• Press v. State Univ. N.Y., 2005 WL 2360050 (E.D.N.Y. Sept. 27, 2005), a student with dyslexia and dysgraphia requested use of a calcu- lator in class. Despite the evidence of a pattern of discrimination in education, the court declined to extend Lane to apply to education.

  • Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474 (4th Cir. 2005), plaintiff had migraine headaches and the university refused to allow her extra time to complete an exam. The 4th Circuit agreed that Lane should be extended to higher education and rejected the state’s immunity claim.
  • Costello v. University of North Carolina at Greensboro, 2005 WL 1528788 (M.D.N.C. June 29, 2005), plaintiff was a college student with obsessive compulsive disorder who alleged that the university golf coach and others discriminated against him. Court held claim did not involve a fundamental right and upheld defendant’s sovereign immu- nity claim. Plaintiff’s Rehabilitation Act claim was allowed to proceed.
  • Pace v. Bogalusa City School Board, 403 F.3d 272 (5th Cir. 2005), the court held that the state of Louisiana knowingly waived 11th Amendment immunity to Section 504 by accepting federal funds. The court reasoned that because Con- gress made waiver of 11th Amend- ment immunity a clear condition

of accepting federal funds, a state cannot then argue it did not know- ingly waive its immunity. The test is whether Congress made a clear statement, not the state’s subjective beliefs. The case involved a student with cerebral palsy suing the state for lack of accessible facilities at the school.

Doe v. Bd. of Trustees of the Uni- versity of Illinois, 429 F.Supp.2d 930 (N.D. Ill. 2006), a former M.D./Ph.D student argued that the University of Illinois failed to rea- sonably accommodate his requested accommodations. The district court dismissed his ADA claim, finding that the reasoning in Lane did not extend to education because educa- tion is not a fundamental Consti- tutional right. Although the court found that Illinois waived sovereign immunity for ADA violations, the waiver only applied to employees and Doe’s claims related only to his status as a student. However, the court allowed Doe’s ADA claims against the individual defendants in their official capacities, under the reasoning of Ex Parte Young.

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• Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006), plaintiff, a college student diagnosed with a mental illness, alleged that the University of Puerto Rico failed to reasonably accommodate him and discrimi- nated against him. The defendant’s appealed the district court’s denial of their motion for summary judg- ment to the First Circuit, but the First Circuit affirmed the district court’s decision. Extending the reasoning in Lane, the First Circuit found that sovereign immunity is

not a defense to claims regarding access to public education.

iii. Disability Services:

• Buchananv.Maine,417F.Supp.2d 24 (D. Me. 2006), plaintiff was the representative of a mental health services client who was fatally shot by police. The court held that Title II of the ADA does not abrogate states’ sovereign immunity as ap- plied to public mental health servic- es because provision of such services does not implicate a fundamental right.

• Bill M. v. Nebraska Dept. of Health and Human Services Finance and Support, 408 F.3d 1096 (8th Cir. 2005), vacated, U.S. v. Nebraska Dept. of Health and Human Services Finance and Support, _ U.S. _ , 126 S. Ct. 1826 (2006), plaintiffs, de- velopmentally disabled adults, sued because they were denied “home and community-based Medicaid- funded services.” The Eighth Circuit limited Lane to the right of access to the courts. However, the Supreme Court vacated the Eighth Circuit’s opinion and remanded for further consideration in light of the Court’s opinion in U.S. v. Georgia.

iv. Employment:

• Blumberg v. Nassau Health Care Corp., 378 F. Supp. 2d 122 (E.D.N.Y. July 8, 2005), plaintiff, a pediatric endocrinologist, was diagnosed with breast cancer, and was terminated when she returned to work. The court held that Title II of the ADA was broad enough to encompass

plaintiff’s claim because “her termi- nation was willful and motivated by disability-discriminatory animus.”

• Cisneros v. Colorado, 2005 WL 1719755 (D. Colo. July 22, 2005), plaintiff, a state employee with a back injury, brought a claim for disability employment discrimination under Title I and Title II of the ADA. The court dismissed plaintiff’s case on the basis that his claims fell within the Supreme Court’s decision in Garrett, which held that states were immune from Title I suits for damages in federal court.

• Maizner v. Hawaii Department of Education, 2005 WL 3475692 (D. Hawaii 2005), the court allowed a special education teacher to pursue her claims for prospective relief, holding that the 11th Amendment protects states from retrospective relief but not prospective relief, such as reinstatement. The teacher alleged failure to accommodate her rheumatoid arthritis and termination because of her disability.

• Guttmanv.Khalsa,446F.3d1027 (10th Cir. 2006), a doctor who was diagnosed with depression and post traumatic stress disorder sued New Mexico, alleging the State violated Title II after it revoked his medical license. The district court granted the State summary judgment, but the Tenth Circuit vacated the opinion and remanded for further consider- ation. The Tenth Circuit ordered the district court to reconsider whether the plaintiff stated a claim under Title II against the State and then determine whether or not the Title II claim is barred by sovereign immu-

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nity based on the Supreme Court’s reasoning in U.S. v. Georgia.

2. Community Integration Litigation

a. Background

When Congress passed Title II of the ADA it found that isolation and segregation was a pervasive form of discrimination and that discrimination against people with disabilities included people in insti- tutional settings. The U.S. Department of Justice was designated by Congress to enforce Title II of the ADA and to issue regulations for Title II. DOJ Regulations stated that state and local governments must provide their services to people with disabilities in the most integrated setting appropriate to the needs of qualified in- dividuals with disabilities and that state and local governments to make reasonable modifications in the services it provides unless those modifications would result in a fundamental alteration.

b. Supreme Court Reviews Community Integration Under Title II of the ADA

In 1999, the U.S. Supreme Court agreed to hear its first case addressing community integration under Title II of the ADA. The case was Olmstead v. L.C., 527 U.S. 581 (1999) and involved two women with mental retardation and mental illness who were patients at a state-operated hospital in Georgia. Although state treatment profes-

sionals for both women had deemed them appropriate for community-based place- ments, both remained institutionalized. They filed suit under Title II of the ADA alleging that the state had violated the ADA’s integration mandate. The Supreme Court found that the unwarranted institu- tionalization of people with disabilities is a form of discrimination that is actionable under the ADA. The Court ruled that the ADA requires States to serve people with disabilities in community settings, rather than in segregated institutions, when three factors are present:

• Treatment professionals determine community placement is appropriate;

• The person does not oppose com- munity placement; and

• The placement can be reasonably ac- commodated taking into account the resources available to the State and the needs of others who are receiving State-supported services.

The Court ruled that a State can meet its obligations under Olmstead if it has a comprehensive, effectively working plan for evaluating and placing people with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace and that is not controlled by the State’s endeavors to keep its institutions fully populated.

c. Recent Interpretations:

i. Fundamental Alteration

The Supreme Court held that states must make reasonable modifications in the ser- vices it provides unless those modifications would result in a fundamental alteration.

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Many cases have turned on whether the plaintiffs’ requested relief would be a fun- damental alteration.

• FrederickL.v.Dept.ofPub.Wel- fare of Pa., 422 F.3d 151 (3rd Cir. 2005), is a class action on behalf of residents of a state psychiatric hos- pital. Plaintiffs challenged the State’s compliance with the court mandate to “develop a plan for future de-insti- tutionalization of qualified disabled persons that commits it to action in a manner for which it can be held accountable by the courts.” Plaintiffs argued that the State failed to provide “concrete, measurable benchmarks and a reasonable timeline for them to ascertain when, if ever, they will be discharged to appropriate com- munity services.” In contrast, the State argued that all it had to do was “demonstrate ‘a commitment to take all reasonable steps to continue [its past] progress’” in order to satisfy the fundamental alteration defense. The court interpreted Olmstead “to mean that a comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense.” In this case, the State’s ef- forts were insufficient to demonstrate “a reasonably specific and measurable commitment to de-institutionaliza- tion for which DPW may be held ac- countable.” The court then provided specifics, stating that at a bare mini- mum, a comprehensive, effectively working plan should: “specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for dis- charge, and a general description of the collaboration required between the local authorities and the hous-

ing, transportation,
care, and education agencies
to effectuate integration into the community.”

• Pennsylvania Protection & Advo- cacy, Inc. v. Pennsylvania Dept. of Public Welfare, 402 F. 3d 374 (3d Cir. 2005), is a class action brought on behalf of residents in a nursing facility serving people with psychiatric and developmental dis- abilities. The Third Circuit stated that budgetary constraints alone do not satisfy the fundamental altera- tion defense. The court also found that defendants did not meet the fundamental alteration test because they failed to demonstrate a “com- mitment to action” to come into compliance with the ADA. The court held that demonstrating such a commitment is a prerequisite to establishing a fundamental altera- tion defense, and only when this is demonstrated do budgetary issues even become a factor.

• Sanchezv.Johnson,416F.3d1051 (9th Cir. 2005), is a case in which plaintiffs argued that paying lower wages and benefits to community- based service providers than employ- ees in state institutions was resulting in some individuals with develop- mental disabilities being unneces-

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State and Local Government

sarily institutionalized. The court held that California already had an acceptable de-institutionalization plan in place, and that disrupting it would be a “fundamental alteration of the State’s current policies and practices in contravention of the Supreme Court’s instructions in Ol- mstead.” The court concluded, based on the record, that “California’s commitment to the de-institution- alization of those developmental center residents for whom commu- nity integration is desirable, achiev- able and unopposed, is genuine, comprehensive and reasonable,” and that disrupting this plan would impermissibly restrict the leeway given to states in their operation of developmentally disabled services.

• Arc of Washington v. Braddock, 427 F.3d 615 (9th Cir. 2005) is a case in which the plaintiffs sued Washington state officials for failing to provide sufficient community ser- vices under its Home and Commu- nity Based Services Medicaid waiver program. The 9th Circuit held that Washington demonstrated that it has a “comprehensive effectively working plan” as contemplated by Olmstead, and therefore were not in violation of the ADA. Specifi- cally, the court found: Washington’s HCBS program (1) is sizeable, with a cap that has increased substantially over the past two decades; (2) is full; () is available to all Medicaid-eli- gible disabled persons as slots be- come available, based only on their mental-health needs and position on the waiting list; (4) has already significantly reduced the size of the state’s institutionalized population; and (5) has experienced budget

growth in line with, or exceeding, other state agencies. Under such circumstances, forcing the state to apply for an increase in its Medicaid waiver program cap constitutes a fundamental alteration, and is not required by the ADA.

• LovelyH.v.Eggleston,235F.R.D. 248 (S.D.N.Y. 2006), involves welfare recipients with disabilities who sought injunctive relief under the ADA and Rehabilitation Act due to a proposed change in the administration of public benefits by New York City. Instead of providing benefits through its 29 neighbor- hood offices, the City proposed to provide these services only through three central offices. Following the reasoning in Olmstead, the court granted injunctive relief because it found that the City’s proposal clearly violated the mandate that persons with disabilities are given the opportunity to participate in mainstream service delivery mecha- nisms.

ii. Risk of Institutionalization

Although the Olmstead case involved plaintiffs in institutions, courts have held that Olmstead includes people who are at risk of institutionalization.

• In Nelson v. Milwaukee County, 2006 WL 290510 (E.D. Wis. 2006), plaintiffs, who are persons over the age of sixty and with disabilities, brought a class action under the ADA and Rehabilitation Act against the Wisconsin Department of Health and Family Services and its Secretary. The plaintiffs alleged that the inad- equate funding of service providers

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by the defendants in its community based services program would force the plaintiffs into more restrictive settings to receive services. The de- fendants sought to dismiss the claim, but the court allowed the plaintiffs claim to go forward, under the rea- soning of Olmstead. The court found that the inadequate compensation of community services would result in unjustified segregation, violating the ADA and the Rehabilitation Act.

• In Ligas v. Maram, 2006 WL 64474 (N.D. Ill. Mar. 7, 2006), court granted plaintiffs’ class cer- tification motion finding that class included people with developmental disabilities who are currently insti- tutionalized as well as those who are at risk of being institutionalized.

3. Reasonable Modifications in Title II Transportation Cases

Title II of the ADA is divided into two sections. Part A of Title II covers state and local governmental entities and Part B of Title II covers transportation. While Part A specifically states that state and local governments have an obligation to provide reasonable modi- fications, there is no explicit language regarding reasonable modifications in Part B. As a result, an emerging ADA issue is whether people with disabilities are entitled to a reasonable modification when bringing transportation discrimi- nation cases.

In Disabled in Action of Pennsylvania v. National Passenger R.R., 2005 WL 1459338 (E.D. Pa. June 17, 2005), plain- tiffs are members of a group comprised of wheelchair users who travel on Amtrak together, typically to political events. For years, Amtrak, with appropriate notice, would create the necessary accessible space by removing fixed seats from train cars. In 200, however, Amtrak stated that it would no longer remove the seats unless a $200 per ticket fee is paid, in addition to the normal train fare. Plaintiffs filed suit under Title II of the ADA. The court held that since Part B of Title II states specifically how many spaces for passen- gers using wheelchair must be available on each train, no additional requirement can be imposed. The court found that public transportation entities are exempt to the reasonable modification requirements of Part A of Title II with respect to matters specifically governed by Part B, including the number of accessible seats.

In Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004), parents of disabled adult passenger brought suit alleging that public paratransit service’s failure to modify its paratransit services to require alley pick-up for passenger violated Americans with Disabilities Act. The 5th Circuit held that the Title II of the ADA does not require a paratransit provider to make reasonable modifications to its services. (Interestingly, the Department of Transportation recently issued Guidance stating that transit agencies must provide paratransit services in a way that goes beyond “curb to curb service” if necessary to actually get the passenger from point of origin to destination. This would seem to indicate that the Department of Trans- portation believes that transit providers are required to provide reasonable modifica- tions of their policies and procedures.)

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4. Parking Placard Surcharge

a. Background

Under the ADA’s regulations, “a public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program ac- cessibility that are required to provide that individual or group with the nondiscrimi- natory treatment required by the Act.”

b. Court Rules that Parking Placard Surcharge Violates Title II of the ADA

In Klingler v. Missouri Department of Revenue, 433 F.3d 1078 (8th Cir. 2006), individuals with disabilities sued the State of Missouri alleging that it violated Title II of the ADA by charging a fee for removable disability parking placards. The court agreed with the plaintiffs and held that Missouri was in violation of the ADA. The court rejected that

Missouri met the ADA’s requirements by providing its disability license plates at no cost since the license plate could only be obtained by owners of vehicles that were operated at least 50% of the time by the physically disabled person or used primar- ily to transport physically disabled mem- bers of the owner’s household. Therefore, a removable placard was necessary for an individual who did not own a vehicle or did not ride in a vehicle that met these requirements. Note: Because the 8th Cir- cuit previously held that money damages against the state are only available in court access cases (see Bill M. case above) the plaintiffs were only entitled to injunctive relief in this case, i.e. the removal of the surcharge. However, the court recently revisited its decision to deny plaintiffs monetary damages in light of a recent Supreme Court decision, which held that whether plaintiffs are entitled to recover money damages from the State depends on a claim-by-claim analysis (See Goodman v. Georgia, discussed above). Upon review, the court upheld its decision to deny plaintiffs money damages, finding that the State’s conduct, although in violation of the ADA, was not unconstitutional. Klingler, 455 F.3d 888 (8th Cir. 2006)

In Keef v. Nebraska Dept. of Motor Vehicles, 2006 WL 1651042 (N.W.2d 2006), individuals with disabilities sued the State of Nebraska for both injunc- tive relief and money damages, alleging the State violated Title II of the ADA by charging a $ fee for removable disability parking placards. The Nebraska Supreme Court did not address the plaintiffs’ claim for an injunction because the State had stopped charging the fee for the placards prior to the court’s consideration of the is- sue. As for money damages, the court held that plaintiffs were not entitled to recovery of the placard fee. The court determined

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that the fee did not deny individuals of a fundamental right, nor was there evidence that Congress was specifically concerned about fees for placards when it enacted the ADA. Therefore, the court held that the State was immune from suit for recovery of the parking placard fee.

5. Association Discrimination Under Title II

a. Background

Under the ADA, people who are discrimi- nated because of their association with a person with a disability can state a cause of action. Typically, the association discrimi- nation cases have arisen in the context of employment under Title I. However, two recent cases explore the application of association discrimination in the context of Title II.

b. Is an Association Discrimination Claim Viable Under Title II?

In Barber v. Colorado, 2005 WL 2657885 (D. Colo. 2005), the court dismissed claims against the state by two daughters of an individual with a visual disability, holding that Title II of the ADA does not support associational claims of dis- crimination. The court reasoned that unlike Title I, Title II does not expressly authorize claims based on associational discrimination. However, the court subse- quently clarified its decision after plaintiffs amended their complaint, ruling that a plaintiff may assert a claim for associa-

tional discrimination under Title II as long as the plaintiff is directly injured as a result of discrimination against another person with a disability. See Barber, 2006 WL 213970 (D. Colo. January 4, 2006).

c. Can Third Party Recover Under Association Discrimination Claim for Denial of Access for Person with Disability?

In Popovich v. Cuyahoga County Court of Common Pleas, 150 Fed. Appx. 424 (6th Cir. 2005), the court affirmed the dismissal of a claim alleging violations of Title II and Section 504, holding that the individual lacked standing to bring an as- sociational discrimination claim because she was not the individual denied access. The court ruled that it is the claimant who must have suffered the denial of ac- cess because of her relationship with the individual with a disability, and cannot bring a claim based on denial of access of the person with whom she associates.

In Autism Society of Michigan (ASM) v. Fuller, 2006 WL 1519966 (W.D. Mich. 2006), ASM brought suit under Title II, alleging that its organization had suffered an injury because it had to expend resourc- es to address the public school’s discrimi- nation against a student with autism. The court dismissed ASM’s complaint, holding that in order for organizations to have a claim under Title II, they must allege that they were themselves discriminated against or singled out in a discriminatory way due to their association with individuals with disabilities. Because ASM had not suffered an “ADA injury,” its claim of associational discrimination failed.

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State and Local Government

6. Accommodations for Post-

Secondary Students

a. Background

Many students with learning disabilities need accommodations when taking tests. However, courts have generally been hostile to claims made by students who have succeeded in the past despite hav- ing a learning disability that may or may not have been diagnosed. Because of the general hostility by courts to these kinds of claims, plaintiffs should try to identify a major life activity other than learning in which they are substantially limited.

b. Case Examples

In Wong v. University of California, 410 F.3d 1052 (9th Cir. 2005), the court ruled that a medical student with a learning im- pairment was not disabled because he had a record of prior academic achievements accomplished without accommodation. The student had failed his clerkship after being denied the accommodation of an additional reading period, but had a his- tory of academic success.

In Brown v. University of Cincinnati, 2005 WL 1324885 (S.D. Ohio 2005), the court ruled that a student is not substan- tially limited in his ability to learn since he successfully completed high school and college without accommodations. Test results indicating below to low average neuropsychological function did not es- tablish substantial limitation in the major

life activity of learning, especially given his past academic success.

In Dixson v. University of Cincinnati, 2005 WL 2709628 (S.D. Ohio 2005), a graduate student with bipolar disorder, dyslexia, and ADD was rightfully denied testing accommodation because she failed to establish her conditions were disabilities as defined by the Rehabilitation Act. The student’s history of success worked against her claim of substantial limitation of her ability to learn.

In Krolik v. Nat’l Bd. Of Medical Ex- aminers, 2006 WL 1794759 (D. Ariz. 2006), the court ruled that a recent medical school graduate was not entitled to a time extension or use of pen and paper for his board exams because he failed to show how his alleged ADHD substantially limited a major life activ- ity. Although the graduate claimed that his learning and reading abilities were substantially limited, the court held that his history of academic success was “directly inconsistent with a claim that a student is substantially limited in learn- ing.” Further, the graduate’s claim that his disability affected his ability to pass the test, which in turn affected his abil- ity to work, failed because he had a long successful history of working.

7. Title II Liability for Failing to Make Sidewalks Accessible

There has been relatively little litigation against municipalities for failing to make its sidewalks accessible, but some recent decisions demonstrate that municipalities

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will be held accountable if they do not meet their obligations under the ADA.

In Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), a group of in- dividuals with disabilities filed an action against the City for violation of Title II and Section 504 due to the city’s failure to provide curb cuts and make its sidewalks accessible. The district court dismissed the portion of plaintiffs’ complaint that dealt with sidewalk obstructions, such as benches, signposts and wires, in the path of access of the city’s sidewalks on the grounds that the ADA or Section 504 did not cover sidewalks. Although the language in the ADA calls for curb cuts in public sidewalks, it does not specifically address the issue of sidewalk accessibil- ity. However, the 9th Circuit reversed and concluded that since the regulations do specifically address curb ramps, they could only do so if sidewalks were covered as well. The court found this interpreta- tion consistent with the purpose of curb cuts and that sidewalks are a “program, service or activity” of the City covered by Title II of the ADA. The City petitioned for the Supreme Court to review the decision, but the Supreme Court denied the petition and let the Ninth Circuit’s decision stand.

In Ability Center of Greater Toledo v. City of Sandusky, 385 F. 3d 901 (6th Cir. 2004), the Sixth Circuit Court of Appeals upheld a lower court ruling that found that the City of Sandusky violated Title II of the ADA and its related regulations for failing to ensure accessibility when it renovated the City’s sidewalks. However, the Sixth Circuit found in favor of the City with respect to the plaintiff’s claim that the City was required to develop a transition plan for ADA compliance when structural changes are undertaken. The court found

that this provision of the ADA is not en- forceable via a private cause of action.

In Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006), an individual with paraple- gia sued the City of Boston, alleging that the city violated Title II’s self-evaluation and transition plan regulations by failing to evaluate and improve the condition of its streets and sidewalks to make them more accessible. The court held that the self-evaluation and transition plan regula- tions impose obligations on public entities that go beyond those imposed by Title II of the ADA itself. Consequently, those regulations may not be enforced through the private right of action available under Title II. Moreover, the court noted that even if the plaintiff were entitled to a pri- vate right of action, neither the self-evalu- ation and transition plan regulations nor Title II itself imposes a duty on a public entity to make structural changes to exist- ing facilities.

8. Standing to Sue Under Title III

a. Background on Standing

Article III of the Constitution of the United States restricts the federal courts to the adjudication of “cases” and “con- troversies.” Therefore, to proceed with a federal court case, a plaintiff must have “standing” or a sufficient personal stake in a dispute to ensure the existence of a live case or controversy, which renders judicial resolution appropriate.

To establish Article III standing, a plaintiff must show that:

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State and Local Government

  1. She has suffered an “injury in fact” that is

    (a) concrete and particularized and

    (b) actual or imminent, not conjec- tural or hypothetical;

  2. The injury is fairly traceable to the challenged action of the defendant; and
  3. It is likely, as opposed to merely speculative, that the injury will be redressed by the relief requested.

b. Cases in Which Plaintiff Found to Lack Standing

In Marcovecchio v. Commerce Bancorp, Inc., 2005 WL 159596 (D.N.J. 2005), a court ruled that a bank customer alleg- ing access violations lacked standing to bring claims against any bank location other than his local branch. The court held that an ADA claimant can only sue if there is an actual or imminent threat of future disability discrimination, and thus cannot bring claims against branches he has never been to and has no plans to visit.

In Access 4 All v. Oak Spring, Inc., 2005 WL 1212663 (M.D. Fla. 2005), the court held than an individual who lived five hours away from a Howard Johnson Inn in Ocala lacked standing to bring a Title III claim because he failed to show a likelihood of future harm from the alleged violations. The individual had gone to Ocala to visit an aunt and an amusement park, but his aunt had passed away and he expressed no interest

in returning to the park, so the threat of future injury was speculative at best.

In Access 4 All, Inc. v. Wintergreen Com- mercial Partnership, Ltd., 2005 WL 2989307 (N.D. Tex. 2005), the court dismissed Title III claims of a Florida resi- dent and a Florida organization for lack of standing because they failed to show a threat of future injury from alleged access violations at a Texas Holiday Inn. The court held that although the resident had visited the hotel once, a plaintiff that lives in another state and has no future plans to visit the defendant’s business lacks standing. A reservation made after the complaint was filed could not be considered for standing purposes.

In Chambers v. Melmed, 141 Fed. Appx. 718 (10th Cir. 2005), the court held that an individual who alleged she was denied artificial insemination treatments due to her blindness could not maintain her claim for injunctive relief under Title III because she could not show likelihood of suffering similar harm in the future. The plaintiff had moved away from the clinic and the doctor had ceased all artificial insemination services.

In Molski v. Mandarin Touch Restau- rant, 385 F.Supp.2d 1042 (C.D. Cal. 2005), the court ruled that a restaurant patron with paraplegia lacked standing to sue a California restaurant for failure to comply with accessibility provisions of Title III. The court determined that the patron had not established likelihood of future injury because the restaurant was 116 miles from the patron’s home and he had visited the restaurant only once and had no concrete plans to return. Also, the fact that the patron had previously filed hundreds of lawsuits against small businesses throughout California for

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ADA violations caused the court to doubt the sincerity of his intent to return to the restaurant. The patron appealed the court’s decision, and the case is currently pending in the 9th Circuit.

In Access for America, Inc. v. Associated Out-Door Clubs, 2006 WL 1746890 (11th Cir. 2006), the 11th Circuit upheld a district court’s finding that the claim- ants lacked standing to bring a claim against a track facility for having archi- tectural barriers. The court noted that the claimant could not demonstrate that there was any reasonable chance that he would revisit the track, and he failed to prove a threat of future injury

In Wilson v. Costco Wholesale Corp., 426 F.Supp.2d 1115 (S.D. Cal. 2006), the court held that a store customer who complained of architectural barriers in Costco’s store lacked standing under Title III because the customer failed to set forth evidence that he intended to return to the store. The court considered such factors as the vast distance between the customer’s residence and the facility, the lack of past patronage at the store, the litigation history of the customer, and the customer’s failure to reply to the store’s letter requesting specific informa- tion about the barriers he encountered at the store.

c. Cases in Which Plaintiff Found to Have Standing

In Gillespie v. Dimensions Health Corp., 369 F.Supp.2d 636 (D. Md. 2005), the court allowed former patients with hear- ing impairments to proceed with their Title III claim for failure to provide a live

sign language interpreter upon request, as the patients’ risk of future harm granted them standing to seek injunctive relief. The patients could show likelihood of suffering similar injury if they live in close proximity to the hospital and the hospital engages in an ongoing pattern of behavior in violation of the ADA.

In Kratzer v. Gamma Management Group, Inc., 2005 WL 2644996 (E.D. Pa. 2005), a group of individuals with mobility impairments successfully alleged a Title III claim against Ramada Inn, as they had standing under the ADA’s futility provision despite not attempting to sched- ule conferences at the hotel. The individu- als were able to show actual knowledge of barriers preventing equal access, and that they would use the facility if not for the barriers.

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In Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), court found that some bus passengers with disabilities had standing to seek prospective relief in action against city transit system for inaccessible fixed-route bus system when there was specific pleading of the intent to use the bus system in the future and there was sufficient allegations of specific accessibility problems in the past that was traceable to the transit system’s al-

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State and Local Government

leged failure to comply with the ADA’s transportation provisions.

In Wilson v. Pier 1 Imports, Inc., 413 F.Supp.2d 1130 (E.D. Cal. 2006), the court held that a customer who encoun- tered architectural barriers at a Pier 1 Imports store had standing to bring suit under the ADA, even as to architectural barriers that the customer had not encoun- tered himself and of which he was not aware until his expert visited the store. The court held that plaintiffs are not required to actually encounter a barrier in order to sue for its removal under the ADA. The future threat of encountering physi- cal barriers at the store, whether or not initially encountered, sufficed to establish the customer’s standing.

In Access 4 All, Inc. v. 539 Absecon Blvd., L.L.C., 2006 WL 1804578 (D. N.J. 2006), the court granted a hotel patron leave to amend his complaint, stating that if the patron included evidence that he intended to return to the New Jersey hotel, he could establish standing to sue the hotel for failure to provide accessibility under Title III. The court disagreed with the hotel that the claimant’s distance from the hotel made it unlikely that he would return if it became accessible. Instead, the

court held that due to the nature of hotels, distance is not a good measure of intent to return. In his affidavit, the patron stated that he returned to New Jersey several times a year and had family in that area. Also, the hotel is located very close to the airport, so it would be an ideal hotel for the claimant to stay when he returned to New Jersey.

9. Evacuation of People with Disabilities

Although most Title III litigation has focused on barriers for people with dis- abilities to enter places of public accom- modation, a recent state court decision indicates that people with disabilities may also have an ADA cause of action if there are barriers to their safe evacuation out of a business.

In Savage v. City Place Ltd. Partnership, 2004 WL 3045404 (Md. Cir. Ct. Dec. 20, 2004), plaintiff, who uses a wheel- chair, was shopping at Marshalls when the store and the mall it was located in were evacuated. Store personnel forced her to exit into an area of the mall that was below ground level and, as a result, she was unable to evacuate because the elevators were shut down and all the exits had stairs. A state court found that Title III of the ADA does apply to the issue of evacuation, and public accommodations must consider the needs of its customers with disabilities when developing emer- gency evacuation plans. The judge rejected the store’s argument that after placing the plaintiff outside the store’s entrance, it was the mall’s legal responsibility to address her evacuation needs.

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Following the court’s ruling, the parties entered into a comprehensive settlement agreement in which Marshalls agreed to redevelop the evacuation procedures at its more than 00 stores located in 42 states and Puerto Rico.

Highlights of the settlement include:

  • Certificationofemergencyexitsfor people with disabilities;
  • Certification of store services in the event of an emergency;
  • Written emergency policies and procedures;
  • Training on emergency policies and procedures;
  • ADA consultants hired for develop- ment and implementation of the new policies and procedures; and
  • Designation of responsible corpo- rate employee to oversee and coor- dinate implementation of the terms of the settlement.

    10. ADA’s Application to Websites

    The ADA does not explicitly discuss whether it applies to websites, and thus far, there have been few cases. Over the years courts have reached different conclusions as to whether websites are covered under the ADA. (See Martin v. Metropolitan Atlanta Rapid Tran- sit Authority, 225 F. Supp. 2d 1362 (N.D. Ga. 2002), holding that transit

1. Suing the State Under Title II – Is the State Immune?

a. Background

The 14th Amendment to the U.S. Constitution permits Congress to pass laws to address discriminatory actions by states. However, the 11th Amendment has been interpreted to provide states with immunity from private lawsuits for money damages in federal court unless the federal legislation remedies or prevents a problem of unconstitutional state action, and the legislation is deemed proportional and a reasonable response to the problem it is intended to remedy or prevent.

In recent years, the Supreme Court has interpreted the states’ immunity under the 11th Amendment quite broadly, including holding that states are immune from ADA employment discrimination suits seeking money damages, Garrett v. University of Alabama, 531 U.S 356 (2000).

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This analysis was developed by Equip for Equality for Cherry Engineering Support Services, Inc. (CESSI). It is developed for use by the national network of ADA and IT Technical As- sistance Centers and is solely advisory in nature. Equip for Equality and CESSI believe the analysis to be current as of the effective date of the document, but make no representation that the discussion remains good law thereafter. The analysis is not intended to be a legal determination of rights or responsibilities in general or in any specific case. Funding for this information brief is provided in part by NIDRR under contract #ED-02-CO-0008 to CESSI. However, the content and analysis in the document do not necessarily represent the opinion of NIDRR or the U.S. Department of Education and you should not assume endorsement by the Federal government.

Barry C. Taylor, Esq. Legal Advocacy Director

EQUIP FOR EQUALITY

September 2006

b. Supreme Court Reviews Constitutionality of Title II of the ADA

Three years after the Supreme Court ruled in Garrett that States are immune from employment discrimination suits for money damages in federal court under Title I of the ADA, the Supreme Court agreed to hear State of Tennessee v. Lane, 541 U.S. 509 (2004) to decide whether Congress acted properly when it made states subject to suits in federal court under Title II of the ADA.

Facts of Tennessee v. Lane

The plaintiffs in the case, two Ten- nessee residents with paraplegia, were denied access to judicial proceedings because those proceedings were held in courtrooms on the second floors of buildings lacking elevators. One of the plaintiffs, Beverly Jones, sought access to the courtroom to perform her work as a court reporter. The other plaintiff, George Lane, was unable to attend a criminal proceeding being held in an inaccessible second-floor courtroom; the state arrested him for failure to appear when he refused to crawl or be carried up the steps. Lane and Jones filed suit under Title II of the ADA to challenge the state’s failure to hold proceedings in accessible courthouses.

Legal Arguments

In response to the ADA suit, the State of Tennessee argued that the Supreme Court’s ruling that states cannot be sued for money damages in ADA employment discrimination cases should be extended to suits for money damages against the state under Title II as well. The plaintiffs

argued that there is a stronger history of discrimination by states under Title II and therefore, states should not be im- mune from suits for money damages.

Supreme Court’s Ruling

In a 5-4 decision, the Supreme Court held that states are subject to lawsuits filed in federal court for money damages under the ADA in cases involving access to the courts. The question before the Supreme Court was whether Congress acted properly when it enacted the ADA and made states liable for discrimina- tion against people with disabilities in the provision of government services. The Supreme Court has decided that the ADA does apply to the states when people with disabilities seek to enforce their rights to gain access to the courts.

In its decision, the Supreme Court ruled that when the ADA was passed, Con- gress identified an extensive history of discrimination by states in the provision of its programs and services for people with disabilities. The Court went on to hold that the remedies set forth by Congress in the ADA were appropriate to address the objective of enforcing access to the courts for people with disabilities. While the Court limited its holding to cases involving access to courts, its

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expansive analysis documents the his- tory of state-sponsored discrimination against people with disabilities in many different areas (such as voting, education, institutionalization, marriage and family rights, prisoners’ rights, access to courts, zoning restrictions, and other areas) and contains broad statements about the careful tailoring of Title II’s requirements generally. These aspects of the decision may prove helpful in defending the constitutionality of other applications of Title II in future cases.

b. Recent Lower Court Interpretations of Tennessee v. Lane

The following cases have been decided applying the Supreme Court’s decision in Lane.

i. Prisons:

• U.S. v. Georgia, 546 U.S. 541 (2006), the United States Supreme Court said that an inmate can bring a Title II case against the State for money damages when the conduct by the State violates the Due Process Clause of the 14th Amendment. While the full Court agreed that damages were available against States for dis- ability discrimination that also violates the Constitution, there is a split among the Justices as to whether damages are available for ADA violations that are not con- stitutional violations. The Court remanded the case to the lower court to identify which conduct by the State would violate the ADA but not the Constitution.

• Hallett v. New York State Dept. of Correctional Services, 2006 WL 903200 (S.D.N.Y. 2006), plaintiff, a former prison inmate, sought dam- ages due to his denial of participation in prison programs, violating Title II of the ADA. The plaintiff used a wheelchair and prison officials told him he could not participate in cer- tain prison programs because “they don’t take wheelchairs.” The defen- dants requested summary judgment, partly because of sovereign immu- nity. However, the district court al- lowed the plaintiff’s claim to proceed. The court found that the actions of the defendants may have involved discriminatory animus, which meant the defendants may have violated the Fourteenth Amendment and there- fore were not entitled to sovereign immunity.

• Degrafinreidv.Ricks,417F.Supp.2d 403 (S.D. N.Y. 2006), prison offi- cials destroyed and failed to replace a prisoner’s hearing aids, the court found that prison officials may have violated his Constitutional rights and allowed him to pursue his ADA claim requesting monetary damages against state officials.

ii. Education:

• Association for Disabled Ameri- cans v. Florida International University, 405 F.3d 954 (11th Cir. 2005), plaintiffs filed suit against University for failing to provide qualified sign language interpret- ers, failing to provide necessary auxiliary aids, such as effective note takers, as well as failing to provide physical access to students with dis- abilities. The 11th Circuit ruled that



State and Local Government

the Supreme Court’s reasoning in Lane should be extended to public education.

• Press v. State Univ. N.Y., 2005 WL 2360050 (E.D.N.Y. Sept. 27, 2005), a student with dyslexia and dysgraphia requested use of a calcu- lator in class. Despite the evidence of a pattern of discrimination in education, the court declined to extend Lane to apply to education.

  • Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474 (4th Cir. 2005), plaintiff had migraine headaches and the university refused to allow her extra time to complete an exam. The 4th Circuit agreed that Lane should be extended to higher education and rejected the state’s immunity claim.
  • Costello v. University of North Carolina at Greensboro, 2005 WL 1528788 (M.D.N.C. June 29, 2005), plaintiff was a college student with obsessive compulsive disorder who alleged that the university golf coach and others discriminated against him. Court held claim did not involve a fundamental right and upheld defendant’s sovereign immu- nity claim. Plaintiff’s Rehabilitation Act claim was allowed to proceed.
  • Pace v. Bogalusa City School Board, 403 F.3d 272 (5th Cir. 2005), the court held that the state of Louisiana knowingly waived 11th Amendment immunity to Section 504 by accepting federal funds. The court reasoned that because Con- gress made waiver of 11th Amend- ment immunity a clear condition

of accepting federal funds, a state cannot then argue it did not know- ingly waive its immunity. The test is whether Congress made a clear statement, not the state’s subjective beliefs. The case involved a student with cerebral palsy suing the state for lack of accessible facilities at the school.

Doe v. Bd. of Trustees of the Uni- versity of Illinois, 429 F.Supp.2d 930 (N.D. Ill. 2006), a former M.D./Ph.D student argued that the University of Illinois failed to rea- sonably accommodate his requested accommodations. The district court dismissed his ADA claim, finding that the reasoning in Lane did not extend to education because educa- tion is not a fundamental Consti- tutional right. Although the court found that Illinois waived sovereign immunity for ADA violations, the waiver only applied to employees and Doe’s claims related only to his status as a student. However, the court allowed Doe’s ADA claims against the individual defendants in their official capacities, under the reasoning of Ex Parte Young.

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• Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006), plaintiff, a college student diagnosed with a mental illness, alleged that the University of Puerto Rico failed to reasonably accommodate him and discrimi- nated against him. The defendant’s appealed the district court’s denial of their motion for summary judg- ment to the First Circuit, but the First Circuit affirmed the district court’s decision. Extending the reasoning in Lane, the First Circuit found that sovereign immunity is

not a defense to claims regarding access to public education.

iii. Disability Services:

• Buchananv.Maine,417F.Supp.2d 24 (D. Me. 2006), plaintiff was the representative of a mental health services client who was fatally shot by police. The court held that Title II of the ADA does not abrogate states’ sovereign immunity as ap- plied to public mental health servic- es because provision of such services does not implicate a fundamental right.

• Bill M. v. Nebraska Dept. of Health and Human Services Finance and Support, 408 F.3d 1096 (8th Cir. 2005), vacated, U.S. v. Nebraska Dept. of Health and Human Services Finance and Support, _ U.S. _ , 126 S. Ct. 1826 (2006), plaintiffs, de- velopmentally disabled adults, sued because they were denied “home and community-based Medicaid- funded services.” The Eighth Circuit limited Lane to the right of access to the courts. However, the Supreme Court vacated the Eighth Circuit’s opinion and remanded for further consideration in light of the Court’s opinion in U.S. v. Georgia.

iv. Employment:

• Blumberg v. Nassau Health Care Corp., 378 F. Supp. 2d 122 (E.D.N.Y. July 8, 2005), plaintiff, a pediatric endocrinologist, was diagnosed with breast cancer, and was terminated when she returned to work. The court held that Title II of the ADA was broad enough to encompass

plaintiff’s claim because “her termi- nation was willful and motivated by disability-discriminatory animus.”

• Cisneros v. Colorado, 2005 WL 1719755 (D. Colo. July 22, 2005), plaintiff, a state employee with a back injury, brought a claim for disability employment discrimination under Title I and Title II of the ADA. The court dismissed plaintiff’s case on the basis that his claims fell within the Supreme Court’s decision in Garrett, which held that states were immune from Title I suits for damages in federal court.

• Maizner v. Hawaii Department of Education, 2005 WL 3475692 (D. Hawaii 2005), the court allowed a special education teacher to pursue her claims for prospective relief, holding that the 11th Amendment protects states from retrospective relief but not prospective relief, such as reinstatement. The teacher alleged failure to accommodate her rheumatoid arthritis and termination because of her disability.

• Guttmanv.Khalsa,446F.3d1027 (10th Cir. 2006), a doctor who was diagnosed with depression and post traumatic stress disorder sued New Mexico, alleging the State violated Title II after it revoked his medical license. The district court granted the State summary judgment, but the Tenth Circuit vacated the opinion and remanded for further consider- ation. The Tenth Circuit ordered the district court to reconsider whether the plaintiff stated a claim under Title II against the State and then determine whether or not the Title II claim is barred by sovereign immu-

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nity based on the Supreme Court’s reasoning in U.S. v. Georgia.

2. Community Integration Litigation

a. Background

When Congress passed Title II of the ADA it found that isolation and segregation was a pervasive form of discrimination and that discrimination against people with disabilities included people in insti- tutional settings. The U.S. Department of Justice was designated by Congress to enforce Title II of the ADA and to issue regulations for Title II. DOJ Regulations stated that state and local governments must provide their services to people with disabilities in the most integrated setting appropriate to the needs of qualified in- dividuals with disabilities and that state and local governments to make reasonable modifications in the services it provides unless those modifications would result in a fundamental alteration.

b. Supreme Court Reviews Community Integration Under Title II of the ADA

In 1999, the U.S. Supreme Court agreed to hear its first case addressing community integration under Title II of the ADA. The case was Olmstead v. L.C., 527 U.S. 581 (1999) and involved two women with mental retardation and mental illness who were patients at a state-operated hospital in Georgia. Although state treatment profes-

sionals for both women had deemed them appropriate for community-based place- ments, both remained institutionalized. They filed suit under Title II of the ADA alleging that the state had violated the ADA’s integration mandate. The Supreme Court found that the unwarranted institu- tionalization of people with disabilities is a form of discrimination that is actionable under the ADA. The Court ruled that the ADA requires States to serve people with disabilities in community settings, rather than in segregated institutions, when three factors are present:

• Treatment professionals determine community placement is appropriate;

• The person does not oppose com- munity placement; and

• The placement can be reasonably ac- commodated taking into account the resources available to the State and the needs of others who are receiving State-supported services.

The Court ruled that a State can meet its obligations under Olmstead if it has a comprehensive, effectively working plan for evaluating and placing people with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace and that is not controlled by the State’s endeavors to keep its institutions fully populated.

c. Recent Interpretations:

i. Fundamental Alteration

The Supreme Court held that states must make reasonable modifications in the ser- vices it provides unless those modifications would result in a fundamental alteration.

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Many cases have turned on whether the plaintiffs’ requested relief would be a fun- damental alteration.

• FrederickL.v.Dept.ofPub.Wel- fare of Pa., 422 F.3d 151 (3rd Cir. 2005), is a class action on behalf of residents of a state psychiatric hos- pital. Plaintiffs challenged the State’s compliance with the court mandate to “develop a plan for future de-insti- tutionalization of qualified disabled persons that commits it to action in a manner for which it can be held accountable by the courts.” Plaintiffs argued that the State failed to provide “concrete, measurable benchmarks and a reasonable timeline for them to ascertain when, if ever, they will be discharged to appropriate com- munity services.” In contrast, the State argued that all it had to do was “demonstrate ‘a commitment to take all reasonable steps to continue [its past] progress’” in order to satisfy the fundamental alteration defense. The court interpreted Olmstead “to mean that a comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense.” In this case, the State’s ef- forts were insufficient to demonstrate “a reasonably specific and measurable commitment to de-institutionaliza- tion for which DPW may be held ac- countable.” The court then provided specifics, stating that at a bare mini- mum, a comprehensive, effectively working plan should: “specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for dis- charge, and a general description of the collaboration required between the local authorities and the hous-

ing, transportation,
care, and education agencies
to effectuate integration into the community.”

• Pennsylvania Protection & Advo- cacy, Inc. v. Pennsylvania Dept. of Public Welfare, 402 F. 3d 374 (3d Cir. 2005), is a class action brought on behalf of residents in a nursing facility serving people with psychiatric and developmental dis- abilities. The Third Circuit stated that budgetary constraints alone do not satisfy the fundamental altera- tion defense. The court also found that defendants did not meet the fundamental alteration test because they failed to demonstrate a “com- mitment to action” to come into compliance with the ADA. The court held that demonstrating such a commitment is a prerequisite to establishing a fundamental altera- tion defense, and only when this is demonstrated do budgetary issues even become a factor.

• Sanchezv.Johnson,416F.3d1051 (9th Cir. 2005), is a case in which plaintiffs argued that paying lower wages and benefits to community- based service providers than employ- ees in state institutions was resulting in some individuals with develop- mental disabilities being unneces-

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State and Local Government

sarily institutionalized. The court held that California already had an acceptable de-institutionalization plan in place, and that disrupting it would be a “fundamental alteration of the State’s current policies and practices in contravention of the Supreme Court’s instructions in Ol- mstead.” The court concluded, based on the record, that “California’s commitment to the de-institution- alization of those developmental center residents for whom commu- nity integration is desirable, achiev- able and unopposed, is genuine, comprehensive and reasonable,” and that disrupting this plan would impermissibly restrict the leeway given to states in their operation of developmentally disabled services.

• Arc of Washington v. Braddock, 427 F.3d 615 (9th Cir. 2005) is a case in which the plaintiffs sued Washington state officials for failing to provide sufficient community ser- vices under its Home and Commu- nity Based Services Medicaid waiver program. The 9th Circuit held that Washington demonstrated that it has a “comprehensive effectively working plan” as contemplated by Olmstead, and therefore were not in violation of the ADA. Specifi- cally, the court found: Washington’s HCBS program (1) is sizeable, with a cap that has increased substantially over the past two decades; (2) is full; () is available to all Medicaid-eli- gible disabled persons as slots be- come available, based only on their mental-health needs and position on the waiting list; (4) has already significantly reduced the size of the state’s institutionalized population; and (5) has experienced budget

growth in line with, or exceeding, other state agencies. Under such circumstances, forcing the state to apply for an increase in its Medicaid waiver program cap constitutes a fundamental alteration, and is not required by the ADA.

• LovelyH.v.Eggleston,235F.R.D. 248 (S.D.N.Y. 2006), involves welfare recipients with disabilities who sought injunctive relief under the ADA and Rehabilitation Act due to a proposed change in the administration of public benefits by New York City. Instead of providing benefits through its 29 neighbor- hood offices, the City proposed to provide these services only through three central offices. Following the reasoning in Olmstead, the court granted injunctive relief because it found that the City’s proposal clearly violated the mandate that persons with disabilities are given the opportunity to participate in mainstream service delivery mecha- nisms.

ii. Risk of Institutionalization

Although the Olmstead case involved plaintiffs in institutions, courts have held that Olmstead includes people who are at risk of institutionalization.

• In Nelson v. Milwaukee County, 2006 WL 290510 (E.D. Wis. 2006), plaintiffs, who are persons over the age of sixty and with disabilities, brought a class action under the ADA and Rehabilitation Act against the Wisconsin Department of Health and Family Services and its Secretary. The plaintiffs alleged that the inad- equate funding of service providers

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by the defendants in its community based services program would force the plaintiffs into more restrictive settings to receive services. The de- fendants sought to dismiss the claim, but the court allowed the plaintiffs claim to go forward, under the rea- soning of Olmstead. The court found that the inadequate compensation of community services would result in unjustified segregation, violating the ADA and the Rehabilitation Act.

• In Ligas v. Maram, 2006 WL 64474 (N.D. Ill. Mar. 7, 2006), court granted plaintiffs’ class cer- tification motion finding that class included people with developmental disabilities who are currently insti- tutionalized as well as those who are at risk of being institutionalized.

3. Reasonable Modifications in Title II Transportation Cases

Title II of the ADA is divided into two sections. Part A of Title II covers state and local governmental entities and Part B of Title II covers transportation. While Part A specifically states that state and local governments have an obligation to provide reasonable modi- fications, there is no explicit language regarding reasonable modifications in Part B. As a result, an emerging ADA issue is whether people with disabilities are entitled to a reasonable modification when bringing transportation discrimi- nation cases.

In Disabled in Action of Pennsylvania v. National Passenger R.R., 2005 WL 1459338 (E.D. Pa. June 17, 2005), plain- tiffs are members of a group comprised of wheelchair users who travel on Amtrak together, typically to political events. For years, Amtrak, with appropriate notice, would create the necessary accessible space by removing fixed seats from train cars. In 200, however, Amtrak stated that it would no longer remove the seats unless a $200 per ticket fee is paid, in addition to the normal train fare. Plaintiffs filed suit under Title II of the ADA. The court held that since Part B of Title II states specifically how many spaces for passen- gers using wheelchair must be available on each train, no additional requirement can be imposed. The court found that public transportation entities are exempt to the reasonable modification requirements of Part A of Title II with respect to matters specifically governed by Part B, including the number of accessible seats.

In Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004), parents of disabled adult passenger brought suit alleging that public paratransit service’s failure to modify its paratransit services to require alley pick-up for passenger violated Americans with Disabilities Act. The 5th Circuit held that the Title II of the ADA does not require a paratransit provider to make reasonable modifications to its services. (Interestingly, the Department of Transportation recently issued Guidance stating that transit agencies must provide paratransit services in a way that goes beyond “curb to curb service” if necessary to actually get the passenger from point of origin to destination. This would seem to indicate that the Department of Trans- portation believes that transit providers are required to provide reasonable modifica- tions of their policies and procedures.)

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State and Local Government

4. Parking Placard Surcharge

a. Background

Under the ADA’s regulations, “a public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program ac- cessibility that are required to provide that individual or group with the nondiscrimi- natory treatment required by the Act.”

b. Court Rules that Parking Placard Surcharge Violates Title II of the ADA

In Klingler v. Missouri Department of Revenue, 433 F.3d 1078 (8th Cir. 2006), individuals with disabilities sued the State of Missouri alleging that it violated Title II of the ADA by charging a fee for removable disability parking placards. The court agreed with the plaintiffs and held that Missouri was in violation of the ADA. The court rejected that

Missouri met the ADA’s requirements by providing its disability license plates at no cost since the license plate could only be obtained by owners of vehicles that were operated at least 50% of the time by the physically disabled person or used primar- ily to transport physically disabled mem- bers of the owner’s household. Therefore, a removable placard was necessary for an individual who did not own a vehicle or did not ride in a vehicle that met these requirements. Note: Because the 8th Cir- cuit previously held that money damages against the state are only available in court access cases (see Bill M. case above) the plaintiffs were only entitled to injunctive relief in this case, i.e. the removal of the surcharge. However, the court recently revisited its decision to deny plaintiffs monetary damages in light of a recent Supreme Court decision, which held that whether plaintiffs are entitled to recover money damages from the State depends on a claim-by-claim analysis (See Goodman v. Georgia, discussed above). Upon review, the court upheld its decision to deny plaintiffs money damages, finding that the State’s conduct, although in violation of the ADA, was not unconstitutional. Klingler, 455 F.3d 888 (8th Cir. 2006)

In Keef v. Nebraska Dept. of Motor Vehicles, 2006 WL 1651042 (N.W.2d 2006), individuals with disabilities sued the State of Nebraska for both injunc- tive relief and money damages, alleging the State violated Title II of the ADA by charging a $ fee for removable disability parking placards. The Nebraska Supreme Court did not address the plaintiffs’ claim for an injunction because the State had stopped charging the fee for the placards prior to the court’s consideration of the is- sue. As for money damages, the court held that plaintiffs were not entitled to recovery of the placard fee. The court determined

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that the fee did not deny individuals of a fundamental right, nor was there evidence that Congress was specifically concerned about fees for placards when it enacted the ADA. Therefore, the court held that the State was immune from suit for recovery of the parking placard fee.

5. Association Discrimination Under Title II

a. Background

Under the ADA, people who are discrimi- nated because of their association with a person with a disability can state a cause of action. Typically, the association discrimi- nation cases have arisen in the context of employment under Title I. However, two recent cases explore the application of association discrimination in the context of Title II.

b. Is an Association Discrimination Claim Viable Under Title II?

In Barber v. Colorado, 2005 WL 2657885 (D. Colo. 2005), the court dismissed claims against the state by two daughters of an individual with a visual disability, holding that Title II of the ADA does not support associational claims of dis- crimination. The court reasoned that unlike Title I, Title II does not expressly authorize claims based on associational discrimination. However, the court subse- quently clarified its decision after plaintiffs amended their complaint, ruling that a plaintiff may assert a claim for associa-

tional discrimination under Title II as long as the plaintiff is directly injured as a result of discrimination against another person with a disability. See Barber, 2006 WL 213970 (D. Colo. January 4, 2006).

c. Can Third Party Recover Under Association Discrimination Claim for Denial of Access for Person with Disability?

In Popovich v. Cuyahoga County Court of Common Pleas, 150 Fed. Appx. 424 (6th Cir. 2005), the court affirmed the dismissal of a claim alleging violations of Title II and Section 504, holding that the individual lacked standing to bring an as- sociational discrimination claim because she was not the individual denied access. The court ruled that it is the claimant who must have suffered the denial of ac- cess because of her relationship with the individual with a disability, and cannot bring a claim based on denial of access of the person with whom she associates.

In Autism Society of Michigan (ASM) v. Fuller, 2006 WL 1519966 (W.D. Mich. 2006), ASM brought suit under Title II, alleging that its organization had suffered an injury because it had to expend resourc- es to address the public school’s discrimi- nation against a student with autism. The court dismissed ASM’s complaint, holding that in order for organizations to have a claim under Title II, they must allege that they were themselves discriminated against or singled out in a discriminatory way due to their association with individuals with disabilities. Because ASM had not suffered an “ADA injury,” its claim of associational discrimination failed.

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State and Local Government

6. Accommodations for Post-

Secondary Students

a. Background

Many students with learning disabilities need accommodations when taking tests. However, courts have generally been hostile to claims made by students who have succeeded in the past despite hav- ing a learning disability that may or may not have been diagnosed. Because of the general hostility by courts to these kinds of claims, plaintiffs should try to identify a major life activity other than learning in which they are substantially limited.

b. Case Examples

In Wong v. University of California, 410 F.3d 1052 (9th Cir. 2005), the court ruled that a medical student with a learning im- pairment was not disabled because he had a record of prior academic achievements accomplished without accommodation. The student had failed his clerkship after being denied the accommodation of an additional reading period, but had a his- tory of academic success.

In Brown v. University of Cincinnati, 2005 WL 1324885 (S.D. Ohio 2005), the court ruled that a student is not substan- tially limited in his ability to learn since he successfully completed high school and college without accommodations. Test results indicating below to low average neuropsychological function did not es- tablish substantial limitation in the major

life activity of learning, especially given his past academic success.

In Dixson v. University of Cincinnati, 2005 WL 2709628 (S.D. Ohio 2005), a graduate student with bipolar disorder, dyslexia, and ADD was rightfully denied testing accommodation because she failed to establish her conditions were disabilities as defined by the Rehabilitation Act. The student’s history of success worked against her claim of substantial limitation of her ability to learn.

In Krolik v. Nat’l Bd. Of Medical Ex- aminers, 2006 WL 1794759 (D. Ariz. 2006), the court ruled that a recent medical school graduate was not entitled to a time extension or use of pen and paper for his board exams because he failed to show how his alleged ADHD substantially limited a major life activ- ity. Although the graduate claimed that his learning and reading abilities were substantially limited, the court held that his history of academic success was “directly inconsistent with a claim that a student is substantially limited in learn- ing.” Further, the graduate’s claim that his disability affected his ability to pass the test, which in turn affected his abil- ity to work, failed because he had a long successful history of working.

7. Title II Liability for Failing to Make Sidewalks Accessible

There has been relatively little litigation against municipalities for failing to make its sidewalks accessible, but some recent decisions demonstrate that municipalities

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will be held accountable if they do not meet their obligations under the ADA.

In Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), a group of in- dividuals with disabilities filed an action against the City for violation of Title II and Section 504 due to the city’s failure to provide curb cuts and make its sidewalks accessible. The district court dismissed the portion of plaintiffs’ complaint that dealt with sidewalk obstructions, such as benches, signposts and wires, in the path of access of the city’s sidewalks on the grounds that the ADA or Section 504 did not cover sidewalks. Although the language in the ADA calls for curb cuts in public sidewalks, it does not specifically address the issue of sidewalk accessibil- ity. However, the 9th Circuit reversed and concluded that since the regulations do specifically address curb ramps, they could only do so if sidewalks were covered as well. The court found this interpreta- tion consistent with the purpose of curb cuts and that sidewalks are a “program, service or activity” of the City covered by Title II of the ADA. The City petitioned for the Supreme Court to review the decision, but the Supreme Court denied the petition and let the Ninth Circuit’s decision stand.

In Ability Center of Greater Toledo v. City of Sandusky, 385 F. 3d 901 (6th Cir. 2004), the Sixth Circuit Court of Appeals upheld a lower court ruling that found that the City of Sandusky violated Title II of the ADA and its related regulations for failing to ensure accessibility when it renovated the City’s sidewalks. However, the Sixth Circuit found in favor of the City with respect to the plaintiff’s claim that the City was required to develop a transition plan for ADA compliance when structural changes are undertaken. The court found

that this provision of the ADA is not en- forceable via a private cause of action.

In Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006), an individual with paraple- gia sued the City of Boston, alleging that the city violated Title II’s self-evaluation and transition plan regulations by failing to evaluate and improve the condition of its streets and sidewalks to make them more accessible. The court held that the self-evaluation and transition plan regula- tions impose obligations on public entities that go beyond those imposed by Title II of the ADA itself. Consequently, those regulations may not be enforced through the private right of action available under Title II. Moreover, the court noted that even if the plaintiff were entitled to a pri- vate right of action, neither the self-evalu- ation and transition plan regulations nor Title II itself imposes a duty on a public entity to make structural changes to exist- ing facilities.

8. Standing to Sue Under Title III

a. Background on Standing

Article III of the Constitution of the United States restricts the federal courts to the adjudication of “cases” and “con- troversies.” Therefore, to proceed with a federal court case, a plaintiff must have “standing” or a sufficient personal stake in a dispute to ensure the existence of a live case or controversy, which renders judicial resolution appropriate.

To establish Article III standing, a plaintiff must show that:

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State and Local Government

  1. She has suffered an “injury in fact” that is

    (a) concrete and particularized and

    (b) actual or imminent, not conjec- tural or hypothetical;

  2. The injury is fairly traceable to the challenged action of the defendant; and
  3. It is likely, as opposed to merely speculative, that the injury will be redressed by the relief requested.

b. Cases in Which Plaintiff Found to Lack Standing

In Marcovecchio v. Commerce Bancorp, Inc., 2005 WL 159596 (D.N.J. 2005), a court ruled that a bank customer alleg- ing access violations lacked standing to bring claims against any bank location other than his local branch. The court held that an ADA claimant can only sue if there is an actual or imminent threat of future disability discrimination, and thus cannot bring claims against branches he has never been to and has no plans to visit.

In Access 4 All v. Oak Spring, Inc., 2005 WL 1212663 (M.D. Fla. 2005), the court held than an individual who lived five hours away from a Howard Johnson Inn in Ocala lacked standing to bring a Title III claim because he failed to show a likelihood of future harm from the alleged violations. The individual had gone to Ocala to visit an aunt and an amusement park, but his aunt had passed away and he expressed no interest

in returning to the park, so the threat of future injury was speculative at best.

In Access 4 All, Inc. v. Wintergreen Com- mercial Partnership, Ltd., 2005 WL 2989307 (N.D. Tex. 2005), the court dismissed Title III claims of a Florida resi- dent and a Florida organization for lack of standing because they failed to show a threat of future injury from alleged access violations at a Texas Holiday Inn. The court held that although the resident had visited the hotel once, a plaintiff that lives in another state and has no future plans to visit the defendant’s business lacks standing. A reservation made after the complaint was filed could not be considered for standing purposes.

In Chambers v. Melmed, 141 Fed. Appx. 718 (10th Cir. 2005), the court held that an individual who alleged she was denied artificial insemination treatments due to her blindness could not maintain her claim for injunctive relief under Title III because she could not show likelihood of suffering similar harm in the future. The plaintiff had moved away from the clinic and the doctor had ceased all artificial insemination services.

In Molski v. Mandarin Touch Restau- rant, 385 F.Supp.2d 1042 (C.D. Cal. 2005), the court ruled that a restaurant patron with paraplegia lacked standing to sue a California restaurant for failure to comply with accessibility provisions of Title III. The court determined that the patron had not established likelihood of future injury because the restaurant was 116 miles from the patron’s home and he had visited the restaurant only once and had no concrete plans to return. Also, the fact that the patron had previously filed hundreds of lawsuits against small businesses throughout California for

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ADA violations caused the court to doubt the sincerity of his intent to return to the restaurant. The patron appealed the court’s decision, and the case is currently pending in the 9th Circuit.

In Access for America, Inc. v. Associated Out-Door Clubs, 2006 WL 1746890 (11th Cir. 2006), the 11th Circuit upheld a district court’s finding that the claim- ants lacked standing to bring a claim against a track facility for having archi- tectural barriers. The court noted that the claimant could not demonstrate that there was any reasonable chance that he would revisit the track, and he failed to prove a threat of future injury

In Wilson v. Costco Wholesale Corp., 426 F.Supp.2d 1115 (S.D. Cal. 2006), the court held that a store customer who complained of architectural barriers in Costco’s store lacked standing under Title III because the customer failed to set forth evidence that he intended to return to the store. The court considered such factors as the vast distance between the customer’s residence and the facility, the lack of past patronage at the store, the litigation history of the customer, and the customer’s failure to reply to the store’s letter requesting specific informa- tion about the barriers he encountered at the store.

c. Cases in Which Plaintiff Found to Have Standing

In Gillespie v. Dimensions Health Corp., 369 F.Supp.2d 636 (D. Md. 2005), the court allowed former patients with hear- ing impairments to proceed with their Title III claim for failure to provide a live

sign language interpreter upon request, as the patients’ risk of future harm granted them standing to seek injunctive relief. The patients could show likelihood of suffering similar injury if they live in close proximity to the hospital and the hospital engages in an ongoing pattern of behavior in violation of the ADA.

In Kratzer v. Gamma Management Group, Inc., 2005 WL 2644996 (E.D. Pa. 2005), a group of individuals with mobility impairments successfully alleged a Title III claim against Ramada Inn, as they had standing under the ADA’s futility provision despite not attempting to sched- ule conferences at the hotel. The individu- als were able to show actual knowledge of barriers preventing equal access, and that they would use the facility if not for the barriers.

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In Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), court found that some bus passengers with disabilities had standing to seek prospective relief in action against city transit system for inaccessible fixed-route bus system when there was specific pleading of the intent to use the bus system in the future and there was sufficient allegations of specific accessibility problems in the past that was traceable to the transit system’s al-

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State and Local Government

leged failure to comply with the ADA’s transportation provisions.

In Wilson v. Pier 1 Imports, Inc., 413 F.Supp.2d 1130 (E.D. Cal. 2006), the court held that a customer who encoun- tered architectural barriers at a Pier 1 Imports store had standing to bring suit under the ADA, even as to architectural barriers that the customer had not encoun- tered himself and of which he was not aware until his expert visited the store. The court held that plaintiffs are not required to actually encounter a barrier in order to sue for its removal under the ADA. The future threat of encountering physi- cal barriers at the store, whether or not initially encountered, sufficed to establish the customer’s standing.

In Access 4 All, Inc. v. 539 Absecon Blvd., L.L.C., 2006 WL 1804578 (D. N.J. 2006), the court granted a hotel patron leave to amend his complaint, stating that if the patron included evidence that he intended to return to the New Jersey hotel, he could establish standing to sue the hotel for failure to provide accessibility under Title III. The court disagreed with the hotel that the claimant’s distance from the hotel made it unlikely that he would return if it became accessible. Instead, the

court held that due to the nature of hotels, distance is not a good measure of intent to return. In his affidavit, the patron stated that he returned to New Jersey several times a year and had family in that area. Also, the hotel is located very close to the airport, so it would be an ideal hotel for the claimant to stay when he returned to New Jersey.

9. Evacuation of People with Disabilities

Although most Title III litigation has focused on barriers for people with dis- abilities to enter places of public accom- modation, a recent state court decision indicates that people with disabilities may also have an ADA cause of action if there are barriers to their safe evacuation out of a business.

In Savage v. City Place Ltd. Partnership, 2004 WL 3045404 (Md. Cir. Ct. Dec. 20, 2004), plaintiff, who uses a wheel- chair, was shopping at Marshalls when the store and the mall it was located in were evacuated. Store personnel forced her to exit into an area of the mall that was below ground level and, as a result, she was unable to evacuate because the elevators were shut down and all the exits had stairs. A state court found that Title III of the ADA does apply to the issue of evacuation, and public accommodations must consider the needs of its customers with disabilities when developing emer- gency evacuation plans. The judge rejected the store’s argument that after placing the plaintiff outside the store’s entrance, it was the mall’s legal responsibility to address her evacuation needs.

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Following the court’s ruling, the parties entered into a comprehensive settlement agreement in which Marshalls agreed to redevelop the evacuation procedures at its more than 00 stores located in 42 states and Puerto Rico.

Highlights of the settlement include:

  • Certificationofemergencyexitsfor people with disabilities;
  • Certification of store services in the event of an emergency;
  • Written emergency policies and procedures;
  • Training on emergency policies and procedures;
  • ADA consultants hired for develop- ment and implementation of the new policies and procedures; and
  • Designation of responsible corpo- rate employee to oversee and coor- dinate implementation of the terms of the settlement.

    10. ADA’s Application to Websites

    The ADA does not explicitly discuss whether it applies to websites, and thus far, there have been few cases. Over the years courts have reached different conclusions as to whether websites are covered under the ADA. (See Martin v. Metropolitan Atlanta Rapid Tran- sit Authority, 225 F. Supp. 2d 1362 (N.D. Ga. 2002), holding that transit

The mastermind of them stealing from SSI for title alotments some pretty cleaver job of destroying SSI and they still do it today but with more destruction ….

July 31, 2013 § Leave a comment

Congress had been stealing your payroll taxes since 1936, when the first payroll taxes were collected. For this reason, future generations of taxpayers have to actually pay the benefits....
Congress had been stealing your payroll taxes since 1936, when the first payroll taxes were collected. For this reason, future generations of taxpayers have to actually pay the benefits….

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