Opposition Brief — Tennessee v. Lane

————~ FILED |

ais’

- JUN 02 2003

No. 02-1667 OFFICE OF THE CLER

SST EE ——_—_—————__——————

IN THE

Supreme Court of the United States

State of Tennessee,

Petitioner,

V.

George Lane, Beverly Jones; and

United States of America.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE PRIVATE RESPONDENTS

Samuel R. Bagenstos William J. Brown

1545 Massachusetts Ave. (Counsel of Record)

Cambridge, MA 02138 William J. Brown & Assocs.

23 North Ocoee St.

Thomas C. Goldstein Cleveland, TN 37364

Goldstein & Howe, P.C. (423) 476-4515

4607 Asbury PI., NW

Washington, DC 20016

June 2, 2003

naa

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

1. Whether Title II of the Americans with Disabilities Act

of 1990, 42 U.S.C. 12131 et seq., is a proper exercise of Con-

gress’s power under Section 5 of the Fourteenth Amendment

and thus validly abrogates state sovereign immunity.

2. Whether the Section 5 analysis of Title II should pro-

ceed on a facial basis that considers the statute as a whole or

should instead examine whether Congress had power to apply

the statute to the particular circumstances of this case.

3. Whether Title II is valid Section 5 legislation only

when applied to enforce the Due Process Clause of the Four-

teenth Amendment.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........ccccccocrssssesserrssssesseesseessosessesees i

_ EE ii

TAREE Ge AUT IRORR ITS ccccccccceccsccscossccsccscsccssessessccseeceees iii

BRIEF FOR THE PRIVATE RESPONDENTG..................... I

_—— Te I

Peis WU Pcccencenccnsscensseccssscscsseseet bepentenenenevamnenequesenscsnnesess I

SEITE cnnsenseuntontensnsennssnssonsesccenessensesscsnescesssescesesczecessece l

REASONS FOR GRANTING THE WRIT ............ccccccceeeees 5

I. This Case Implicates The Conflict Over Whether

ADA Title II Is Proper Section 5 Legislation ............... 6

Il. This Case Implicates The Conflict Over Whether

Section 5 Challenges To ADA Title II Must Be

Evaluated In A Facial Or An As-Applied Manner ..... 10

Ill. This Case Presents the Important Question of What

Constitutional Violations ADA Title Il Must Seek

to Remedy in Order Validly to Abrogate State

SD HEIN arensncsnensatitiipnessssescesensesesczcssesssccnseece 13

TE 15

TABLE OF AUTHORITIES

Cases

BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002)............... 12

Board of County Comm'rs v. Umbehr, 518 U.S. 668

(FE csenecennensnssssressssansssessnqremanenmnenpeneetmesmenesestemennnen 7

Board of Trustees v. Garrett, 531 U.S. 356 (2001) ........ 6, 8,9

Boddie v. Connecticut, 401 U.S. 371 (1971) ...ccccccccececeeeeeees 12

City of Boerne v. Flores, 521 U.S. S07 (1997) ......cccccceeeeees 14

Dare v. California, 191 F.3d 1167 (9th Cir. 1999), cert.

denied, 531 U.S. 1190 (2001) .......ccccseseesereesereneeeeneneenees 11

Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001) ......ccccsseesseees 7

Faretta v. California, 422 U.S. 806 (1975) ........ccccccccceeeeeeees 12

Garcia Vv. S.U.N.Y. Health Sciences Center, 280 F.3d 98

CRB GRR, Fe Penttsnersenssnenennmnsertnnsnnmtnecenenesnenns 9, 10, 14

Griffin v. Breckenridge, 403 U.S. 88 (1971)............00000- 11,14

Hason v. Medical Bd., 279 F.3d 1167 (9th Cir. 2002),

cert. dismissed, 123 S. Ct. 1779 (2003) .........ccccccecceeeeeeeee 9

Kiman v. New Hampshire Dep't of Corrections, 301 F.3d

13, vacated on grant of reh’g en banc, 310 F.3d 785

(BSB GRD, SERED cocsnenscnssensnssssnesessemensenssmmemmnenns 7, 10

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) ..... Ky

Klingler v. Director, Dep't of Revenue, 281 F.3d 776

Gai Cas, SERED QGP CUTER ccccssczscccssesszsssccscsssecsssescssessesse 9

Kroll v. St. Charles County, 766 F. Supp. 744 (E.D. Mo.

| 12

Layton v. Elder, 143 F.3d 469 (8th Cir. 1999) .000.....cccceeees 12

ELD. GO. SL Beg FOO Ge CEB CURR ccersensseenenssssssnes 12

Matthews v. Jefferson, 29 F. Supp. 2d 525 (W.D. Ark.

En 12

iv .

Nevada Dep't of Human Resources v. Hibbs, No. 01-

SOD GE BF Se prcnnssscenssssesssnsssrssssncesemmessmnesmanecsaness 8

Olmstead v. L.C., 527 U.S. 581 (1999). c...ccccccseseeesesseeneeeeeees 8

Popovich v. Cuyahoga County Court of Common Pleas,

276 F.3d 808 (6th Cir.) (en banc), cert. denied, 123

a GR, Fae Gi rrnanssncnnssnssnessssesesessnmamnsmersmmmenesaess passim

Press-Enterprise C 0.V. Superior Court, 478 U.S. |

Ge ntocensnannnsenpesesenmesenemenmenmennecnmemetincamnnes 12

Reickenbacker v. Foster, 274 F.3d 974 (Sth Cir. 2001).......... 9

Romer v. Evans, 517 U.S. 620 (1996).........cccccecccsssseeeerseeeeees 7

Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001).................... 12

Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001),

cert. denied, 535 U.S. 1077 (2002) .0.......cccccccecceeeeeeees 9,11

United States v. Raines, 362 U.S. 17 (1960)................... 11,14

United States v. Salerno, 481 U.S. 739 (1987) ..............c00000 11

Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert

SE Se Ce Ce eterna 9

Waller v. Georgia, 467 U.S. 39 (1984) ........ccccccccesceeeeeeeees 3, 12

Waters v. Churchill, 511 U.S. 661 (1994) .0.............cccccceeeeenees 7

Wessel v. Glendening, 306 F.3d 203 (4th Cir. 2002)........ 9,11

Youngberg v. Romeo, 457 U.S. 307 (1982) .........cccccceeeeeeeeeeees 8

Statutes

GB i SED cnsnennnennnsensmenememmneenen 9

A a i

ees Career cenemntennnemnenesnansesssmaiinnsssmemmmessnnterenennnseens 2,8

ne 2

ee 8

Americans with Disabilities Act of 1990, 42 U.S.C.

SOS CD GIG, cennessnsnemssmesemenenemsmnemeeenessmeeeeest passim

Regulations

I acinrinitihiillniciinsicheiearsinataeniantiaeitettaeitiatataemimiiibs 2

asia cniiteitetetninihileceibntemistinteninie 2,12

a ceeniaesaenal 2

REE SSE Senora oe ree 2

Other Authorities

Brief for the United States, Medical Board of California

8 Ee eT i)

BRIEF FOR THE PRIVATE RESPONDENTS

Respondents George Lane and Beverly Jones respectfully

acquiesce in the Petition for Writ of Certiorari filed by the

_Attorne y General and Reporter for the State of Tennessee in

this cause.

OPINIONS BELOW

The opinions below are correct as presented.

JURISDICTION

The respondents acknowledge the jurisdiction of the court

to entertain the petition.

STATEMENT

This case involves the State of Tennessee’s failure, in viv-

lation of federal law, to conduct proceedings at courthouses

that are accessible to individuals with disabilities. The plain-

tiffs, two Tennessee 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 those proceedings to perform her work as a court

reporter. The other plaintiff, George Lane, was harmed when

the state held proceedings in the criminal case in which he

was a defendant in the 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 this suit

under Title II of the Americans with Disabilities Act (ADA),

42 U.S.C. 12131 et seq., to challenge the state’s failure to

hold proceedings in accessible courthouses.

1. The Statutory Scheme—The ADA was signed into law

on July 26, 1990, and Title II took effect eighteen months

later. See 42 U.S.C. 12131 note. Title II broadly prohibits

any “public entity’"—including state governments—from

“subject[ing]” any “qualified individual with a disability” to

2

“discrimination.” /d. § 12132. To give content to that broad

requirement, Congress expressly required the Attorney Gen-

eral to promulgate regulations implementing Title II. /d. §

12134. The Attorney General’s regulations, which became

effective January 26, 1992, require public entities to “operate

each service, program, or activity so that the service, pro-

gram, or activity, when viewed in its entirety, is readily ac-

cessible to and usable by individuals with disabilities.” 28

C.F.R. 35.150(a).

Recognizing that this mandate might require states to

make physical a:terations of buildings, the Attorney General

included a series of provisions to accommodate states’ need

for an orderly transition to compliance. The Attorney General

required each public entity, by January 26, 1993, to “evaluate

its current services, policies, and practices, and the effects

thereof, that do not or may not meet the requirements of this

part and * * * proceed to make the necessary modifications.”

28 C.F.R. 35.105. Where “structural changes to facilities”

were necessary to achieve compliance, the regulations re-

quired entities like Tennessee to “develop, within six months

of January 26, 1992, a transition plan setting forth the steps

necessary to complete such changes.” 28 C.F.R.

35.150(d)(1). And “[{wjhere structural changes in facilities

are undertaken to comply” with the accessibility requirement,

the regulations provided that “such changes shall be made

within three years of January 26, 1992, but in any event as

expeditiously as possible.” /d. § 35.150(c).

2. The Facts—{a) George Lane—Respondent George

Lane has paraplegia and uses a wheelchair for mobility. Pet.

App. 13. In September 1996, Lane was compelled to appear

at the Polk County courthouse to answer a set of criminal

charges the state had filed against him. Pet. App. 15. Al-

though Title II had been in effect for over four years at that

point, the courthouse had not been brought into compliance

with the statute’s accessibility requirements. Because all pro-

ceedings in that courthouse occurred in rooms on the second

3

floor, and the building had no elevator, Lane was required to

leave his wheelchair and crawl up the steps with his hands in

order to appear in court. /d. Following his arraignment on

the charges, Lane was summoned to appear at an October

hearing in the same courtroom. /d. Lane duly arrived at the

courthouse but sent word to the trial judge that he refused to

go through the humiliation of crawling up the courthouse

steps again, nor would he put his safety at risk by permitting

court employees to carry him up the steps. /d. On the order

of the trial judge, Lane was arrested for failure to appear and

taken to jail. /d.

Subsequent proceedings in Lane’s criminal case occurred

in the same inaccessible courthouse. At these proceedings,

Lane typically waited at the bottom of the stairs while his at-

torney shuttled back and forth to the courtroom. Pet. App. 16.

As a result, the court conducted proceedings, including dis-

cussing the course of future proceedings and the possibility of

a change of venue, out of Lane’s presence. Lane did have an

opportunity to attend his preliminary hearing, which was held

in the ground-floor courthouse library, but that location was

not generally accessible to the public. Pet. App. 16; cf.

Waller v. Georgia, 467 U.S. 39, 48 (1984) (criminal defen-

dant has constitutional right to public suppression hearing).

When an arraignment hearing was called in the second-floor

courtroom after the grand jury returned an indictment contain-

ing new misdemeanor charges in March 1997, Lane’s attor-

ney requested that the court dismiss or at least stay the pro-

ceedings until accessible facilities could be provided. Pet.

App. 16. The trial court denied that request; the judge ruled

that Lane might have a right to bring an independent civil suit

to make the courthouse accessible, but that the inaccessibility

was no basis for not moving forward with the pending case.

- See 3/17/97 Tr. 5. The Tennessee appellate courts declined to

accept jurisdiction over Lane’s request for extraordinary re-

lief. Pet. App. 16-17. Proceedings were subsequently stayed

in Lane’s criminal case, id. 17, and Lane ultimately pleaded

4

guilty to a single charge of driving on a revoked license after

the state added an accessible elevator to the courthouse.

(b) Beverly Jones—Respondent Beverly Jones has para-

plegia and uses a wheelchair for mobility. Pet. App. 19. She

works as a certified court reporter, but because courthouses in

many Tennessee counties are inaccessible, her opportunity to

perform her work has been significantly impeded. /d. 19-20;

see id. 22 (listing 23 Tennessee counties in which the court-

houses were inaccessible at the time the complaint was filed

in this case). She has specifically requested modifications to

the courthouses in four Tennessee counties, but none has been

made accessible to her. /d. 20.

3. Proceedings Below—Respondents brought this suit

against petitioner and a number of Tennessee counties under

Title II seeking injunctive relief and damages. They sued in

their individual capacities and as representatives of a class of

persons denied access to the state’s courthouses because of

their disabilities. The district court declined to dismiss the

case on Eleventh Amendment grounds. Pet. App. 6-7.

On petitioner’s appeal, the United States intervened. The

Sixth Circuit affirmed the district court’s judgment on the ba-

sis of the en banc court’s holding in Popovich v. Cuyahoga

County Court of Common Pleas, 276 F.3d 808, cert. denied,

123 S. Ct. 72 (2002), that ADA Title II validly abrogates the

states’ sovereign immunity to the extent the statutory viola-

tion implicates due process principles. Popovich held, how-

ever, that the abrogation is invalid to the extent the statutory

violation in question instead implicates equal protection prin-

ciples. As amended on rehearing, the panel’s opinion ex-

plained that respondents were “seeking to vindicave” their due

process “right of access to the courts in Tennessee.” Pet.

App. 5. The panel left for remand the fact-specific question

whether respondents’ allegations amount to “due process vio-

lations.” /d.

5

REASONS FOR GRANTING THE WRIT

The judgment of the Sixth Circuit was correct and should

be affirmed. Title II of the ADA—whether considered on its

face or as applied to the specific fact setting of this particular

case—is a proper exercise of Congress’s authority to enforce

the Fourteenth Amendment. Accordingly, the district court

was correct to deny the state’s motion to dismiss, and the

Sixth Circuit was correct to affirm that denial.

We agree with the state, however, that this Court should

grant the petition for certiorari. The courts of appeals are

deeply split over both of the issues presented by the state’s

petition. On the basic constitutional question, three circuits

and a panel of a fourth have held that Title II is, at least in

some circumstances, proper Section 5 legislation; five circuits

have rejected that conclusion and held that the statute exceeds

Congress’s Section 5 power. On the facial-versus-as-applied

question, two circuits and a panel of a third have held that

challenges to the Section 5 basis for Title II must be evaluated

in an as-applied manner, while three circuits have held that

challenges to the statute’s Section 5 basis are necessarily fa-

cial in nature. This case squarely implicates both issues that

have divided the courts of appeals.

This case furthermore presents the unusual circumstance

in which civil litigants’ interests lie in acquiescing to certio-

rari from a judgment under which they prevailed. This Court

has granted certiorari to decide the first question presented

three separate times in recent Terms. Even if this Court were

not to review this particular case, it seems all but inevitable

that the Court would relatively soon resolve the validity of

Title II’s abrogation of state sovereign immunity in another

case. Proceedings on remand in this case in the meantime

under the cloud of uncertainty that hangs over Title II claims

against state entities are all but pointless. So long as the state

retains the prospect that this Court will vindicate its sovereign

immunity claims in some other Title II case, the state will

have no incentive to enter into meaningful settlement discus-

6

sions and every incentive to delay the proceedings in the

lower courts for as long as possible.

Moreover, respondents have an important interest in re-

view in this Court because, although the Sixth Circuit’s judg-

ment is entirely correct, the discussion in that court’s opinion

reflects an unnecessarily crabbed view of the circumstances in

which Title I] might validly abrogate state sovereign immu-

nity. In particular, the Sixth Circuit’s suggestion that Title Il

validly abrogates state sovereign immunity only when it en-

forces due process rights and never when it enforces equal

protection rights may lead the district court to be unjustifiably

skeptical of respondents’ claims, which rest on a right of ac-

cess to courts that implicates both due process and equal pro-

tection principles. Respondents Lane and Jones accordingly

have a strong interest in this Court’s prompt resolution of the

questions presented by this case.

I. This Case Implicates The Conflict Over Whether

ADA Title II Is Proper Section 5 Legislation

In Board of Trustees v. Garrett, 531 U.S. 356 (2001), this

Court held that Congress exceeded its authority under Section

5 of the Fourteenth Amendment by applying ADA Title I to

the actions of state governments. However, the Court specifi-

cally limited its holding to Title I of the statute (the title that

prohibits disability-based employment discrimination) and

reserved the question whether Title II (which prohibits dis-

ability-based discrimination in the provision of public ser-

vices) could nonetheless be upheld as a proper exercise of

Congress’s Section 5 power. See id. at 360 n.1; id. at 371 n.7.

And indeed, the Section 5 basis for Title II is substantially

stronger than is the Section 5 basis for Title I.

First, “the scope of the constitutional right at issue,”

Garrett, 531 U.S. at 365, is different. Title I applies to state

governments only when they act in their capacity as employ-

ers—a context in which the state’s decisions are judged only

by the deferential rational basis test. See id. at 366-368; cf.

7

Board of County Comm'rs v. Umbehr, 518 U.S. 668, 676

(1996) (“‘[T]he government’s interest in achieving its goals

as effectively and efficiently as possible is elevated from a

relatively subordinate interest when it acts as sovereign to a

significant one when it acts as employer.”’”) (quoting Waters

v. Churchill, 511 U.S. 661, 675 (1994) (plurality)). But Title

Il much more directly enforces the principle that is “[c]entral

both to the idea of the rule of law and to our own Constitu-

tion’s guarantee of equal protection’—‘“the principle that

government and each of its parts remain open on impartial

terms to all who seek its assistance.” Romer v. Evans, 517

U.S. 620, 633 (1996).

Not only does Title II operate broadly to protect individu-

als with disabilities against being effectively shut out of op-

portunities to have access to and influence on their state gov-

ernments, but the statute also applies to a wide range of spe-

cific circumstances in which states have obligations to indi-

viduals with disabilities that go well beyond the minimal re-

quirement of a rational basis. The fact setting of this case,

which involves access to judicial proceedings and public fa-

cilities, provides one example. See Pet. App. 3; Popovich v.

Cuyahoga County Court of Common Pleas, 276 F.3d 808,

813-815 (6th Cir.) (en banc) (detailing obligations that the

Due Process Clause imposes on states to assure that individu-

als with disabilities can participate meaningfully in proceed-

ings that adjudicate important rights), cert. denied, 123 S. Ct.

~ 72 (2002). The statute’s application to election procedures

and voting qualifications,’ the conditions of confinement of

prisoners with disabilities,’ and the unnecessary institutionali-

' See, e.g., Doe v. Rowe, 156 F. Supp. 2d 35, 51-59 (D. Me.

2001) (state constitutional provision disenfranchising persons under

guardianship by reason of mental illness violates both the Four-

teenth Amendment and ADA Title II).

? See, e.g., Kiman v. New Hampshire Dep't of Corrections, 301

F.3d 13, 19-22 (1st Cir.) (failure to accommodate medical, sanitary,

8

zation of individuals with mental disabilities’ provide other

examples. As this Court recently made clear in Nevada De-

partment of Human Resources v. Hibbs, No. 01-1368 (May

27, 2003), slip op. 12-13, Congress has substantially greater

leeway when, as in Title II, it enforces constitutional princi-

ples that involve a “heightened level of scrutiny” of state con-

duct.

Second, there is a much greater “history and pattern” of

violations of the constitutional rights of individuals with dis-

abilities, Garrett, 531 U.S. at 368, in the public services con-

text addressed by Title II than in the employment context ad-

dressed by Title I. The Garrett Court itsolf recognized that

the “overwhelming majority” of examples of state disability

discrimination presented to the congressionally created fact-

finding task force involved public services. /d. at 371 n.7.4

~

and safety-related needs of prisoner with Amyotrophic Lateral

Sclerosis violates both the Cruel and Unusual Punishments Clause

and ADA Title II), vacated on grant of reh’g en banc, 310 F.3d 785

(Ist Cir. 2002).

* Compare Olmstead v. L.C., 527 U.S. 581, 587 (1999) (hold-

ing that Title II prohibits unnecessary institutionalization of indi-

viduals with mental disabilities when, inter alia, “the State’s treat-

ment professionals have determined that community placement is

appropriate”) with Youngberg v. Romeo, 457 U.S. 307, 324 (1982)

(institutionalized persons with disabilities have Due Process right to

freedom from restraint “except when and to the extent professional

judgment deems this necessary to assure such safety or to provide

needed training”).

* The Court suggested that the record of state violations of the

constitutional rights of individuals with disabilities might also have

related to matters covered by Title III, the ADA’s public accom-

modations title. See Garrett, 531 U.S. at 371 n.7. But Title III by

its terms covers only “private entities.” 42 U.S.C. 12181(7). To

the extent that states violated the constitutional rights of individuals

with disabilities outside of the employment context, it is Title Il

that responds to those violations. See id. 12132 (Title II provision

9

And although Congress tellingly omitted any mention of gov-

ernmental employment discrimination from its statutory find-

ings, see id. at 371, Congress expressly found that “discrimi-

nation against individuals with disabilities persists in such

critical areas as * * * access to public services.” 42 U.S.C. §

12101(a)(3). Finally, unlike in the employment context, ex-

amination of judicial decisions reveals “extensive litigation

and discussion of the constitutional violations,” Garrett, 531

U.S. at 376 (Kennedy, J., concurring), in the public services

context. See Brief for the United States, Medical Board of

California v. Hason, No. 02-479, at 1a-8a (listing more than

60 “[c]ases [e]videncing [uJnconstitutional [t]reatment of

[i]ndividuals with [d]isabilities”’).

A number of circuits, recognizing these key distinctions

between Titles I and II of the ADA, have held that Title II is,

in whole or in part, proper Section 5 legislation. See Hason

v. Medical Bd., 279 F.3d 1167, 1170 (9th Cir. 2002), cert. dis-

missed, 123 S. Ct. 1779 (2003); Garcia v. S.U.N.Y. Health

Sciences Center, 280 F.3d 98, 111-12 (2d Cir. 2001); Pop-

ovich, 276 F.3d at 813-16; see also Kiman, 301 F.3d at 24

(panel opinion, currently pending on rehearing en banc). A

number of other circuits, by contrast, have ignored these dis-

tinctions and held that Title Il was not a proper exercise of

Congress’s Section 5 authority. See Wessel v. Glendening,

306 F.3d 203, 215 (4th Cir. 2002); Klingler v. Director, Dep't

of Revenue, 281 F.3d 776, 777 (8th Cir. 2002) (per curiam);

Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir.

2001), cert. denied, 535 U.S. 1077 (2002); Reickenbacker v.

Foster, 274 F.3d 974, 983 (Sth Cir. 2001); Walker v. Snyder,

213 F.3d 344, 347 (7th Cir. 2000), cert. denied, 531 U.S.

1190 (2001). This conflict in the circuits is deep and persis-

tent, and this case squarely implicates it. The Court should

grant certiorari to resolve the conflict and make clear that Ti-

broadly prohibiting any public entity from “subject|ing]” a quali-

fied individual with a disability to “discrimination”’).

10

tle Il is, whether as a whole or as applied here, proper Section

5 legislation.

II. This Case Implicates The Conflict Over Whether Sec-

tion 5 Challenges To ADA Title Il Must Be Evaluated

In A Facial Or An As-Applied Manner

This case also directly implicates a second conflict in the

circuits. The Sixth Circuit held that even if Title II exceeds

Congress’s Section 5 authority in some of its applications, the

statute must nonetheless be upheld as applied to cases in

which individuals with disabilities invoke it to obtain redress

for violations of constitutional rights guaranteed by the Four-

teenth Amendment’s Due Process Clause. Pet. App. 3; see

also Popovich, 276 F.3d at 811-16 (holding that Title II was a

proper exercise of Congress’s authority to enforce the Due

Process Clause as applied to require that hearing-impaired

parent be provided hearing assistance in child custody pro-

ceeding). The Second Circuit has similarly employed an as-

applied analysis in holding that Title II can be upheld as

proper Section 5 legislation when it is applied to cases where

the state’s action “was motivated by either discriminatory

animus or ill will due to disability,” even if it cannot be up-

held as applied to a case involving a mere failure to provide

reasonable accommodation. Garcia v. S.U.N.Y. Health Sci-

ences Center, 280 F.3d 98, 111-12 (2001). And a panel of the

First Circuit has held that Title II may be upheld as proper

Section 5 legislation in any case in which the statute is in-

voked to provide a remedy for an actual violation of the plain-

tiff’s constitutional rights. See Kiman v. New Hampshire

Dep't of Corrections, 301 F.3d 13, 19-22, vacated on grant of

reh’g en banc, 310 F.3d 785 (2002).

These holdings accord with the basic rules governing fa-

cial challenges to statutes. As this Court has emphasized, a

“facial challenge to a legislative act is, of course, the most

difficult challenge to mount successfully, since the challenger

must establish that no set of circumstances exists under which

the Act would be valid.” United States v. Salerno, 481 U.S.

739, 745 (1987). The Court has twice applied that principle

in the specific context of a claim that Congress has adopted a

Statute that exceeded the authority to enforce the Civil War

Amendments. In both United States v. Raines, 362 U.S. 17,

20-26 (1960), and Griffin v. Breckenridge, 403 U.S. 88, 102-

07 (1971), this Court held that if Congress had power to reach

the specific facts alleged in the plaintiff's complaint, the stat-

ute must be upheld as applied to those facts even if the statute

might have other applications that went beyond the legisla-

ture’s enforcement authority. See also Hibbs, slip op. 3

(Scalia, J., dissenting) (stating that the Salerno principle ap-

plies to facial challenges to the Section 5 basis for a congres-

sional enactment).

Disregarding these principles, three courts of appeals have

refused to examine the constitutionality of Title II in an as-

applied manner. They have instead held that the Section 5

basis for Title Il must be established for the statute “as a

whole.” Dare v. California, 191 F.3d 1167, 1175-77 (9th Cir.

1999), cert. denied, 531 U.S. 1190 (2001); see also Wessel v.

Glendening, 306 F.3d 203, 207-08 (4th Cir. 2002) (where

plaintiff's claim “arises directly under Title II,” rather than

under a specific regulation implementing the statute, Section

5 analysis must consider Title II as a whole); Thompson v.

Colorado, 278 F.3d 1020, 1028 n.4 (10th Cir. 2001) (holding

that it is appropriate to “conduct the abrogation analysis by

considering Title Il in its entirety”), cert. denied, 535 U.S.

1077 (2002). The conflict between these decisions and the

decisions holding that an as-applied analysis is appropriate is,

like the vasic conflict over the constitutionality of Title II,

widespread and persistent.

This case squarely implicates the conflict over whether

Section 5 analysis of Title II should proceed on a facial or an

as-applied basis. Unlike some of the Title II cases in which

petitions for certiorari have been filed in this Court, cf.

Thompson, supra (plaintiffs challenged the state’s imposition

12

of a $2.25 fee for receipt of a handicapped parking placard),

this case involves an application of Title II that directly en-

forces core constitutional rights. Respondents Lane and Jones

contend that the state violated Title II by operating a court

system that “when viewed in its entirety” was “not readily

accessible to and usable by individuals with disabilities.” 28

C.F.R. 35.150(a). Such an inaccessible court system threat-

ens to violate numerous constitutional rights, including: the

First Amendment right of citize™s to petition the government

for redress of grievances, which encompasses a “right of ac-

cess to the courts,” BE&K Constr: Co. v. NLRB, 536 U.S.

516, 525 (2002) (internal quotation marks omitted); the First

Amendment right of the public to attend court proceedings,

see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-15

(1986); the Sixth Amendment rights of criminal defendants to

be present at their trials and to have their trials open to the

public, see Waller v. Georgia, 467 U.S. at 46 (right to public

trial); Faretta v. California, 422 U.S. 806, 819 n.15 (1975)

(right to be present); and the guarantee under the Due Process

and Equal Protection Clauses of the Fourteenth Amendment

that full and meaningful access to important court proceed-

ings will not be denied because of a litigant’s poverty or other

constitutionally irrelevant factor, see M.L.B. v. S.LJ., 519

U.S. 102, 124 (1996); Boddie v. Connecticut, 401 U.S. 371,

380-81 (1971). Even if any given individual with a disability

who cannot attend a particular proceeding in an inaccessible

courthouse might not experience a violation of his or her con-

stitutional rights, the widespread inaccessibility of court-

houses throughout the nation’—and the significant threat that

inaccessibility poses to a range of constitutional rights—fully

justifies Title Il as “reasonably prophylactic legislation” in

* For examples of challenges to inaccessible courthouses, see

Shotz v. Cates, 256 F.3d 1077, 1080-81 (1 Ith Cir. 2001); Layton v.

Elder, 143 F.3d 469, 472 (8th Cir. 1999); Matthews v. Jefferson, 29

F. Supp. 2d 525, 533-34 (W.D. Ark. 1998); Kroll v. St. Charles

County, 766 F. Supp. 744, 752 (E.D. Mo. 1991).

13

this context. Kimel v. Florida Board of Regents, 528 U.S. 62,

88 (2000); see also Hibbs, slip op. 15 (reaffirming Congress’s

prophylactic Section 5 power).

And indeed, the plaintiffs in this case have alleged facts

that, if established, would demonstrate that the state actually

violated their Fourteenth Amendment rights. Respondents

Lane and Jones were denied their constitutional right of ac-

cess to a judicial proceeding simply because of the state’s de-

cision to hold court in inaccessible courthouses. The viola-

tion of respondent Lane’s constitutional rights went even fur-

ther, for the inaccessibility of the courtroom denied Lane his

right as a criminal defendant to be present at proceedings in-

volving the case against him. And Lane’s Kafkaesque arrest

for failure to appear at his pretrial hearing—a hearing that

was held in an inaccessible second-floor courtroom in a build-

ing with no elevator—further deprived him of liberty without

due process. This case thus directly presents the question

whether Title II can be upheld as proper Section 5 legislation

as applied to a case in which the plaintiff challenges state

conduct that violated his or her constitutional rights.

Ill. This Case Presents the Important Question ef What

Constitutional Violations ADA Title II Must Seek to

Remedy in Order Validly to Abrogate State Sover-

eign Immunity

This case also presents an opportunity to resolve the con-

fusion that persists among those courts that have held that the

Section 5 basis for Title II should be evaluated in an as-

applied manner. The First Circuit panel held that Title II is

proper Section 5 legislation as applied to any case in which

the plaintiff challenges conduct that actually violated his or

her constitutional rights. See Kiman, 301 F.3d at 24. But the

Second and Sixth Circuits have artificially limited the circum-

stances in which the statute can be upheld as applied—though

they have done so in different ways. The Second Circuit has

ruled that the statute may be upheld only when it is applied to

14

state conduct that was motivated by “discriminatory animus

or ill will due to disability’—conduct that the court believed

violated the Equal Protection Clause. Garcia, 280 F.3d at

112. The Sixth Circuit, by contrast, has ruled that the statute

can be upheld only when it enforces due process—and not

equal protection—trights. See Popovich, 276 F.3d at 811-15.

Those limitations only confuse the issue. A statute must

be upheld as proper enforcement legislation whenever Con-

gress had power to reach the facts alleged in the plaintiff's

complaint. See Raines, 362 U.S. at 20-26; Griffin, 403 U.S.

at 102-07. Accordingly, Title II must be upheld as applied to

any case in which the plaintiff challenges conduct that falls in

either of two categories: (a) conduct that actually violated the

plaintiff's constitutional rights; or (b) conduct that Congress

may regulate to prevent a meaningful risk that constitutional

rights will be violated. See City of Boerne v. Flores, 521 U.S.

507, 519 (1997) (Section 5 gives Congress power to “remedy

or prevent unconstitutional actions”).

This case accordingly presents the Court an opportunity

both to reaffirm that the ordinary rules governing facial chal-

lenges apply to claims that Congress has exceeded its Section

5 authority and to make clear that ADA Title Il may be up-

held whenever it provides a remedy for the violation of any

right the Fourteenth Amendment guarantees to individuals

with disabilities. The Court should accordingly grant certio-

rari and affirm the judgment of the Sixth Circuit, but it should

not endorse the due process/equal protection distinction that

appears in the Sixth Circuit’s case law.

15

CONCLUSION

This Court should grant the petition for certiorari.

Samuel R. Bagenstos

1545 Massachusetts Ave.

Cambridge, MA 02138

Thomas C. Goldstein

Goldstein & Howe, P.C.

4607 Asbury PI., NW

Washington, DC 20016

June 2, 2003

Respectfully submitted,

William J. Browa

(Counsel of Recerd)

William J. Brown & Assocs.

23 North Ocoee St.

Cleveland, TN 37364

(423) 476-4515