In our system, the judiciary, in general, does not render advisory opinions . There are a couple of exceptions. Some states have a system, such as Massachusetts, whereby a legislature can request an advisory opinion from their Supreme Court with respect to the constitutionality of proposed legislation. A couple of other instances look like advisory opinions, but really aren’t. For example, a federal court could ask a state court for their view of the state law with respect to a matter before the federal court. A party could also ask for a declaratory judgment, i.e. a declaration of rights, of the parties. However, in both of those cases an actual dispute is involved. Thus, in order to proceed with a lawsuit, a person must have a sufficient stake in the matter before being able to sue. Two recent cases address the issue of how you go about showing the court that standing exists so that a plaintiff can proceed with his or her claim in a title II or title III case where they face access barriers.

In Hamill v. North Wildwood City, 2013 WL 1007297 (D. N.J. March 11, 2013), the plaintiff, Hamill, sued North Wildwood City for violations of the ADA and the Rehabilitation Act because its facilities were not accessible to persons with disabilities. In particular, when he visited North Wildwood in December, 2010, he did so for the purpose of checking out the boardwalk, checking out the beach and the streets to see if there were areas that would enable him to be able to access the beach, checking to see if he would be able to hand cycle on the streets, and checking to see if you would be able to access the boardwalk. In the process of checking it out, he noticed that there was an area of sand between the ramp and the boardwalk so he would not have been able to make it to the ramp in any event. He also noticed many curb cuts that were problematic (for example, curb cuts led to grassy areas), and also really dangerous as well. Hamill lived in Voorhees, New Jersey and frequently visited the Jersey shore, including trips to North Wildwood. Another plaintiff, Lasky, visited North Wildwood in 2010, to see if he could find any places to rent. He also experienced difficulty with curb cuts and had to use his wheelchair in the streets. The open bathroom, a porta potty, was also not accessible. Lasky lived in Broward County, Florida and had visited North Wildwood on numerous occasions. Both plaintiffs were members of the Advocates for Disabled Americans and that group held a yearly meeting at a restaurant in North Wildwood. Lasky also intended to return to North Wildwood with his family for enjoyment, as it is a major tourist attraction. Further, both plaintiffs intended to return in the capacity of testers.

The above facts can be found at Hamlin v. North Wildwood City, 2013 WL 1007297, at **1-3 (D. N.J. March 11, 2013).

In order to have standing, the plaintiff must show an injury in fact that is: 1) concrete and particularized; and actual or imminent, not conjectural or hypothetical; 2) fairly traceable to challenged action of the defendant; 3) and is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The defendant tried to argue that the plaintiffs actually had not suffered any injury because they didn’t actually try out the inaccessible places. Id. at *4. However, the court said that the ADA does not require a person with a disability to engage in futile gestures if the person with a disability has actual notice of a facility’s noncompliance with the ADA. Id. Rather, the person with a disability must prove knowledge of the barriers and that they would visit the facility in the imminent future but for those barriers. Id. The court said that the plaintiff had presented sufficient evidence showing that North Wildwood’s facilities were inaccessible and that they had actual notice as a result of the visual inspections of the facilities. Id. at *5. The court said that the plaintiff did not need to engage in futile and possibly unsafe activities just to be able to establish that they suffered an injury in fact. Id. The court didn’t address explicitly whether the injury was fairly traceable to the challenged action of the defendant and whether it was likely that the injury would be redressed by a favorable decision, however, the decision clearly assumes that both of those elements were satisfied.

Thus, both plaintiffs were able to get to first base with respect to their title II claim. However, it might perhaps be better to say that both plaintiffs were able to get halfway to first base because an injunction was at issue in this case. Whenever a person sues for an injunction, that person must demonstrate a real and immediate threat of future harm. Id. It is simply not sufficient for an ADA plaintiff seeking an injunction mandating removal of architectural barriers to manufacture standing by simply claiming that he or she intends to return to the defendant’s establishment. Id. With respect to considering whether standing exists for obtaining injunctive relief, courts look to four factors: 1) plaintiff’s proximity to defendant place of public accommodation; 2) plaintiff’s patronage; 3) definiteness of the plaintiff’s plan to return; and 4) the plaintiff’s frequency of nearby travel. Id.

The court held that both plaintiffs, Hamill and Lasky, were likely to return and therefore, had standing to seek injunctive relief. With respect to Lasky, while he lived 1206 miles away from North Wildwood, he did plead that North Wildwood was a major tourist attraction. Id. at *6. Second, Lasky had a prior history of making multiple visits to North Wildwood. Id. Third, he also alleged that he intended to return for the yearly meeting of the Advocates for Disabled Americans, which is held in North Wildwood every year at a local restaurant and of which he was president. Id. Fourth, he also intended return to look for vacation rentals for his family. Id. at *7. Fifth, he intended to return to ask to assess accessibility problems (tester) in the North Wildwood area. Id. Interestingly enough, the fact that Lasky was a tester actually weighed in his favor with respect to standing because that meant he had real incentive and a higher likelihood of actually returning to North Wildwood. Id. Sixth, Lasky also planned to return to North Wildwood with his family for enjoyment. Id.. The court also noted that Lasky visited New Jersey up to four times a year due to his role as president of the Advocates for Disabled Americans and in his role as a guardian ad litem for disabled man in Camden New Jersey. Id. He also enjoyed attending Philadelphia sporting events, and his wife’s best friend lived in New Jersey. Id.

With respect to plaintiff Hamill, he had attended the yearly meetings of the Advocate for Disabled Americans held in North Wildwood. He also alleged that he wanted to access the boardwalk for hand cycling but could not do so because of the barriers. Id. at *8. The court found it absurd to require Hamill to specify dates when he wanted to return to do hand cycling when he could not do so because the barriers did not allow him to hand cycle in the first place. Id. Finally, while he did alleged that he frequently visited the Jersey shore, he did not provide details about these other trips. Id. However, since he lived in general proximity to North Wildwood, the court found the proximity to North Wildwood indicated, albeit not strongly, that he intended to return to the Jersey shore. Id.

Breaking it down: The standing requirements with respect to title II and title III, especially when injunctive relief is involved in both cases, are essentially the same (for a recent title III case dealing with standing, see Harty v. Bull’s Head Realty, 2013 WL 1131625 (D. Connecticut March 18, 2013)). With respect to establishing standing involving architectural accessibility issues under title II or title III, the biggest hurdle for the plaintiff is going to be showing that they suffered an injury in fact that was concrete and particularized and that was also actual or imminent. While the plaintiff does not have to engage in a futile act, they are going to have to show knowledge of the barriers, not particularly difficult, especially for testers, and that they would visit the facility in the imminent future but for those barriers. The argument is going to be over whether they would visit the facility in the imminent future but for those barriers. On the plaintiff’s side, that can be done by showing that the plaintiff has an ongoing connection to the community both in the past and in the future. Whether that ongoing connection is sufficient, may vary from judge to judge. Certainly, on the plaintiff’s side, the more specific connection that can be alleged, the better off the plaintiff is going to be. On the defense side, boilerplate pleadings showing only general and tenuous connections, are ripe for being attacked. Finally, if the person is only a tester, there may still be an argument as to whether a tester can have standing. However, in both of the cases mentioned in this blog entry, being a tester was actually favorable to the plaintiff because it indicated the plaintiff had every intention of returning to the site.