Today’s blog entry is an update on a prior blog entry where I discussed a District Court of New Hampshire decision saying that legislative immunity trumps everything, including the ADA. That case got appealed to the First Circuit. I was very flattered to learn that my blog entry discussing the decision holding that legislative immunity trumps everything was actually included as an appendix by the appellant/plaintiffs in the case in their appellate brief to the First Circuit. The First Circuit on April 8, 2021 vacated the decision218 and remanded for further proceedings. Let’s see how they got to that point. As usual, the blog entry is divided into categories and they are: additional facts; court’s reasoning; and thoughts/takeaways. The blog entry is pretty short, and so you will probably want to read all of it.

 

I

Additional Facts

 

The facts are laid out in my prior blog entry here184185197206206203. I do want to add that in the very first footnote of the decision the First Circuit explains some of the disabilities involved including: stage IV prostate cancer; compromised or suppressed immune system; cardiac problems; type II diabetes; Guillain-Barré syndrome; kidney disease; degenerative joint disease; asthma and other issues affecting lung capacity and function; and advanced age. At least one plaintiff lives in a communal facility that restricts residents from participating in events involving groups larger than 10 individuals, even when outside the community.

 

II

Court’s Reasoning

 

  1. Title II of the ADA at 42 U.S.C. §12132185186198207207204 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.
  2. 42 U.S.C. §12131186187199208208205(1)(A)-(B) defines a public entity as including any State or local government or any instrumentality of the State or States or local government.
  3. 42 U.S.C. §12202187188200209209206 says that Congress’s imposition of obligations on state governments under title II may even trump 11th amendment immunity. The court also cites to Tennessee v. Lane188189201210210207 as well.
  4. 504 Rehabilitation Act, 29 U.S.C. §794189190202211211208(a), provides that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds.
  5. Under the Rehabilitation Act, 29 U.S.C. §794190191203212212209(b)(1)(A)-(B), the term program or activity includes all of the operations of an instrumentality of the State or of a local government and of each State or local government entity to which federal assistance is extended.
  6. 504 requires a public entity to make reasonable modification to existing practices to accommodate persons with disabilities.
  7. Under the Rehabilitation Act, States waive immunity by receiving funds from a federal program.
  8. A statute may express a congressional intent sufficient to override a common law doctrine without expressly mentioning the doctrine. The key question is whether the statute as a whole makes it evident that Congress understood its mandate to control.
  9. Congress expressly said at 42 U.S.C. §12131191192204213213210(1)(A) that the requirements of the ADA apply to any State… Government.
  10. Not surprisingly, the Speaker of the New Hampshire House did not make any argument that the New Hampshire House of Representatives is not part of the New Hampshire state government.
  11. The mandates of the Rehabilitation Act apply to a state government as well.
  12. A State waves immunity under the Rehabilitation Act when it decides to accept federal program funds. Here, New Hampshire’s legislature has received at least $190,000 in federal funds from the Coronavirus Aid, Relief, and Economic SecuritiesAct. Those funds were provided to the legislature in order to cover Covid-19 related expenses, such as off-site sessions, subscription for videoconferencing technology, IT equipment for remote work, and sanitation.
  13. It is not persuasive that the fact the ADA expressly abrogates 11th amendment immunity by name but fails to include a similar mention of legislative immunity, means that legislative immunity trumps everything. That is because sovereign immunity is a more obvious impediment expressly enshrined in the Constitution. So one can easily see why Congress might expressly mention it, while relying otherwise on the broad statement applying the statute to state governments to abrogate any other asserted bar, including legislative immunity.
  14. Under both the ADA and the Rehabilitation Act, the decision whether to require an accommodation must balance the benefits of the accommodation against the legitimate interests of the affected entity.
  15. It can be reasonably expected that a federal court would give considered weight to the views of the state legislature when considering the reasonableness of any proposed accommodation affecting the conduct of that legislature.
  16. On return of the case back to the District Court, the District Court will have to consider the following: whether plaintiffs are persons with disabilities within the meaning of the ADA or the Rehabilitation Act; whether the ADA or the Rehabilitation Act or both has been violated and if so, what remedy or remedies should be provided; and to what extent changing circumstances may moot the plaintiffs claims.

 

III

Thoughts/Takeaways

 

  1. It never made any sense to me how legislative immunity could trump the field the way the District Court held that it did.
  2. Undoubtedly, the District Court will find that the plaintiffs are persons with disabilities under the ADA and the Rehabilitation Act, especially with the amendments to the ADA.
  3. Legislative immunity is not a get out of jail free card when it comes to complying with the ADA or to Rehabilitation Act.
  4. Whenever dealing with claims of sovereign immunity by a state entity, Tennessee v. Lane313214211 is a must read.
  5. An abrogation of sovereign immunity is also an abrogation of legislative immunity.
  6. Accepting federal funds waives sovereign immunity under the Rehabilitation Act.
  7. The Rehabilitation Act goes further than the ADA when it comes to title II because under the Rehabilitation Act all of the operation of an instrumentality of the state or of a local government must be meaningfully accessible to persons with disabilities. On the other hand, the ADA will often take you into the issue of program accessibility.
  8. Interactive process is very important and there really wasn’t much of it here, if at all. Assuming an interactive process does occur, what a state legislature comes up with would be given considerable weight. Even so, you still have to happen interactive process. Accommodations will have to be made unless a fundamental alteration or an undue burden exists, which in this context both will be difficult to show.
  9. Effective communication rules were not discussed in the opinion.
  10. Can the same arguments be made with respect to judicial immunity when a court does not grant accommodation to a litigant or someone associated with a litigant? Even if not, an argument can be made that the granting or not granting of an accommodation is not a judicial act but a clerical one. It will be interesting to see if this particular ruling expands to situations where a court fails to accommodate a person with a disability.
  11. On remand, it will be interesting to see whether the different causation standard for the ADA and the Rehabilitation Act will be an issue. See also this blog entry192193205214215212.

I do want to mention that if any of my blog entries are helpful to you on either side of the aisle with respect to a case you have, feel free to include the blog entry in an appendix to your brief as I don’t mind at all.

2 Responses to Legislative Immunity Does NOT Trump Everything

This just in: 1) the First Circuit has decided to rehear the case en banc; and 2) the First Circuit invited the DOJ to file an amicus brief on the following questions: A) what are the contours of the common law doctrine of legislative immunity and what are the exceptions to the doctrine if any; and B) if legislative immunity does attach, does it apply to an action for injunctive relief?

It will be very interesting to see whether the DOJ accepts the invitation to file an amicus brief. Any amicus brief by DOJ has to be filed before July 20, 2021. If they decline to participate, they have to inform the First Circuit by June 28, 2021 that they are declining to so participate. The Biden administration has often talked about persons with disabilities favorably. For example, Pres. Biden specifically brought up persons with disabilities in his acceptance speech. That said, this does involve the legislature. It will be very interesting to see what DOJ does. Not sure I want to bet on this either way, though I certainly hope they come in on the side of Representative Cushing, the lead plaintiff.

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