Before proceeding with the blog entry of the day, I want to say that my thoughts and prayers go out to everyone in Houston, Texas. I actually lived in Houston, Texas for a year and ½. It is just awful what is going on there and everyone there is in my thoughts.

The blog entry of the week is an update on two prior blog entries: King v. Marion Circuit Court, which is discussed here; and Karczewski v. DCH Mission Valley LLC, which is discussed here. As usual, the blog entry is divided into categories and they are: King v. Marion Circuit Court: Tennessee v. Lane does not mean what you think; King takeaways; Karczewski update; and thoughts on Karczewski rehearing petition. Of course, the reader is free to focus on any or all of the categories.

I

King v. Marion Circuit Court (Tennessee v. Lane May Not Mean What You Think It Does)

On August 18, 2017, the Seventh Circuit decided King v. Marion Circuit Court. The Seventh Circuit’s reasoning bears reviewing:

  1. While it is true that Lane held that the ADA forcibly waived sovereign immunity in cases implicating the fundamental right of access to the courts, that is not what is involved here. King did not make a showing that limits on the subsidy of court annexed mediation services denied him or anyone else access to judicial services.
  2. The Constitution does not guarantee a freestanding fundamental right of access to the courts. Accordingly, no constitutional problem exists with filing fees or requiring litigants to pay for their own lawyers in civil cases even though those expenses may make litigation impractical if not impossible for some people.
  3. Lane used the phrase fundamental right of access to the courts to denote a cluster of constitutional rights that are valid grounds on which Congress might forcefully abrogate States sovereign immunity. All of those rights affect the adjudicatory process itself. That is, they safeguard the people’s ability to get into court and receive a judicial decision. A limited subsidy, where the plan pays for a mediator but not an interpreter, does not affect any of the rights delineated in Lane.
  4. The rule requiring mediation preceding judicial resolution of all domestic relation cases only applies to child related litigation following a divorce and not to all domestic relation cases. Further, even if the case met the criteria for mandatory mediation, local rules required mediation only when the parties cannot show good cause to come directly to court. Neither of these situations is a general condition precedent to litigation.
  5. Critically, King admitted that the Circuit Court offered to adjudicate his claims and to provide a qualified sign language interpreter at no cost to him. Accordingly, the Circuit Court’s invitation to litigate instead of going through the mediation process afforded King full access to the courts as litigation is the gold standard of due process.
  6. King did not contend that the Circuit Court used its power to order mediation as part of a scheme to bar persons with disability from obtaining legal redress.
  7. King also did not allege that the courts routinely demand mediation as a prerequisite to adjudication knowing that a party’s disabilities will block mediation and block litigation too.
  8. King is free to pursue any claims under Indiana law. Since I am not licensed in Indiana, I can’t say what laws that might be. I can say that it is conceivable such laws exist, as Georgia, for example, has a law on point at O.C.G.A. §30-4-2(a).

II

King takeaways:

  1. I have been informed that the ACLU has gotten involved and that it is likely they will request a rehearing en banc before the Seventh Circuit and/or subsequently appeal it to the Supreme Court.
  2. Before this case, I assumed that the access to the courts for persons with disabilities was a wide-ranging right of access. This case says that may not be the situation.
  3. The critical piece to this case is that the court offered to modify its policies and procedures by allowing for litigation even without mediation occurring first so that it could accommodate the plaintiff with a qualified sign language interpreter. Without that piece, this decision could be very different. Such an approach worked here, but it would seem to be certainly cheaper to provide an interpreter at a mediation rather than insist on litigation.
  4. The case opens up a fertile ground for litigation for those representing court systems to argue over whether a particular reasonable accommodation request involves the safeguarding of a person with a disability’s right to get into court and receive a judicial decision.

III

Karczewski Update

On July 24, 2017, attorneys for DCH Mission Valley LLC filed a request for a panel rehearing and petition for an en banc rehearing,  and the highlights are below:

  1. The panel decision concluded that a fundamental alteration does not exist. However, that decision should only be made with analysis of the facts, which has not occurred yet.
  2. Vehicle hand controls are almost always individually prescribed because every disability is different. No one brand of vehicle hand controls is usable by every person requiring hand controls. That is, there is no universal vehicle hand control. Instead, there are many types and designs, and in most cases, they are individually prescribed to meet the personal needs of the consumer. Accordingly, it is certainly possible that a vehicle hand control is a personal device. Further, since portable hand controls come in various styles and are marketed directly to consumers, and motorists with disabilities can purchase them for purposes of travel or for switching between multiple vehicles, these facts fall under the panel’s definition of independently useful object a person possesses for a general purpose, i.e. a personal device a title III entity does not have to provide.
  3. The question of whether hand controls usable on any vehicle and whether they are personalized to the individual’s disability as opposed to universally usable, are extremely factual issues requiring further development. Accordingly, a categorical statement that vehicle hand controls are not personal devices is premature at the pleading stage and highly prejudicial on remand because it removes an affirmative defense from consideration.
  4. Plaintiff never raised the policy and practices section of the ADA on appeal as a basis for finding that he had a viable claim. In fact, the issue was not even briefed by the parties. The only discussion of the issue is a side note in an amicus brief filed by the Department of Justice. Accordingly, a rehearing with briefing need to occur for full development of the issue.
  5. The panel without authority located the vehicle hand control regulation in the policy and practices section rather than in the section of the regulations it currently appears in. Such an approach, violates a well-established principle that where an agency’s interpretation of a statute fails, a court is not supposed to supply a rationale to uphold it.
  6. The panel placing the provision in the policy or practice section cannot be reconciled with existing agency regulation that talks about policies, practices or procedures. That regulation, 28 C.F.R. §36.302, contains examples of policies or practices illustrating what such policies and practices might be. Those policies and practices are clearly a distinct animal from architectural barrier claims as they involve such matters as rules and operating policies concerning the way of doing things.
  7. The DOJ when interpreting its own regulation in an appendix says that the personal device exclusionary rule applies across all sections of the ADA. Accordingly, policies and procedures involve rules and operational policies and need not be modified to require the provision of personal devices or services.
  8. Vehicle hand controls were properly rejected by the panel as a form of architectural barrier removal despite where it is located within the regulations.

II

Thoughts on Karczewski Rehearing Petition

  1. For the most part, the petition for rehearing draws upon the opinion that neither concurred nor dissented from the panel decision.
  2. I do think that excellent points are made with respect to the panel’s conclusory statement that a fundamental alteration was not present. Fundamental alteration is inherently an intensely factual call.
  3. As mentioned in my main blog entry, I didn’t entirely follow how product accessibility became a policy and practice matter under the panel decision, a point the petition for rehearing makes.
  4. Whether the portable vehicle hand controls are a personal device may or may not be a question of fact. The problem is just what is the standard for a personal device. As this case makes clear, a personal device may not always be so obvious.
  5. It is also compelling to ask for full briefing on a point that drove the decision but did not receive full briefing.
  6. Whether any of this leads to a rehearing by the panel or an en banc rehearing I don’t know, but it is certainly worth appealing to the United States Supreme Court in case the Ninth Circuit decides that they are done with it.
  7. The principal that where an agency’s interpretation of a statute fails, a court will not supply a rationale to uphold it was recently seen in AARP v. United States Equal Employment Opportunity Commission, where the court there threw out the EEOC wellness regulations and remanded it back to the EEOC to establish an administrative record for their conclusions.