Opposition Brief — Brown v. North Carolina Division of Motor Vehicles

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No. 99-424

In the

Supreme Court of the United States

October Term, 1999

WILLIE M. BRown, DAviD S. BAGLEY. JOAN BAGLEY,

OrRIS CROSS, and RUSSELL ANDERSON, on behalf of

themselves and all others similarly situated,

Petitioners,

NORTH CAROLINA DIVISION OF MOTOR VEHICLES. -

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

MICHAEL F. EASLEY

North Carolina Attorney General

James Peeler Smith,* Special Deputy Attorney General

Harold F. Askins, Special Deputy Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

Telephone: (919) 716-6900

*Counsel of Record

————————

‘ ‘

GQ i¢

QUESTIONS PRESENTED

l. DOES AN IMPLEMENTINGREGULATION OF THE

AMERICANS WITH DISABILITIES ACT OF 1990, WHICH

REGULATION PROHIBITS A PUBLIC ENTITY FROM

PLACING A SURCHARGE TO COVER THE COST OF

MEASURES REQUIRED TO PROVIDE

NONDISCRIMINATORY TREATMENT TO ANY PERSON

OR GROUP OF PERSONS WITH DISABILITIES,

PROHIBIT A STATE FROM CHARGING A MODEST FEE

TO DEFRAY THE COST OF VOLUNTARILY PROVIDING

“HANDICAPPED” WINDSHIELD PLACARDS TO

MOBILITY IMPAIRED PERSONS SO THAT VEHICLES

TRANSPORTING THEM MAY PARK IN SPACES

RESERVED FOR SUCH VEHICLES?

p 4 IF SO, IS THE REGULATION A VALID EXERCISE

OF CONGRESS’S POWERS TO ENFORCE THE

FOURTEENTH AMENDMENT SO AS TO ABROGATE

THE STATES’ ELEVENTH AMENDMENT IMMUNITY

FROM SUIT?

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TABLE OF CONTENTS

QUESTIONS PRESENTED ...........-.ccccececces

op Re ee 8 i Vv

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED ............. l

pamemmenns OF THE CASE .... 2... cc ccc ccc cwccce 2

REASONS FOR DENYING THE WRIT .............. 8

I. BECAUSE THE DECISION OF THE COURT

-BELOW IS CORRECT, IT IS NOT NECESSARY

FOR THIS COURT TO GRANT CERTIORARI TO

UNS WEESWY BEERS OCIOUOIN, coc c cc cccccnsccsaace 9

A. THE REGULATION EXCEEDS THE Powers OF

CONGRESS TO ENFORCE THE FOURTEENTH

RR STR ER aa en 0)

B. THE PANEL CORRECTLY DECIDED THE

JURISDICTIONAL ISSUE ON THE Basis OF THE

REGULATION ON WHICH PLAINTIFFS” CLAIM

WAS BASED RATHER THAN CONSIDERING THE

ADA As A WHOLE. ...................-05. 14

iH. THE CONFLICT WITH THE DECISION OF THE

NINTH CIRCUIT COURT OF APPEALS IN DARE

Il CALIFORNIA DOES NOT REQUIRE THIS

COURT TO GRANT CERTIORARI INO THE

ORT ANT CAG. 6a co oud cae onsen eck een 17

kt. 6 Fe . :, rrn nnn ONMrEr ere ae are sea e 20

APPENDIX:

ES CH, VAT: BSED acess as nc deka s tans siess la

NC, Gt, SYAT. OOS ED ova cos vnc se se Sosa tennas 3a

Postions of 10) Seat. 3335 CIDER) 2. nc cc ccn cca cecccas 7a

23 CFR §§ 1235.1, 1235.2, 1235.3, 1235.4, 1235.5

pent Wve Fd Th. | rn. oaermera irae ara lla

Dare v. California. 1999 WL 717724

‘_, _o 2. © 0 Perea Terr eres ene 15a

SUN Ce ee, ee

TABLE OF AUTHORITIES

CASES

Alsbrook v.City of Maumelle, No. 99-423,

(pet. for cert. filed Sept. 8, 1999)... .0.0.00000.. 20

Amos v. Maryland Department of Correction,

178 F.3d 212 (4th Cir. 1999) ............., 10,18

Ashwander v. T.V_A., 297 U.S. 288 (1936) ............ 14

Brown vy. North Carolina Division of

Motor Vehicles, 166 F.3d 698 (1999) ...... passim

City of Boerne v. Flores, 521 U.S. 507 (1997) ...... 11,16

City of Cleburne v. Cleburne Living Center,

O73 .S. GILCEURee 20555 ees ese 6,10,13

Clark v. California, 123 F.3d 1267

(9th Cir. 1997). cert. denied,

S20 wm. OS. Zee CT ice vice keel in ee

Dare v. California, 1999 WL 717724

(9th Cir. Sept. 16,1999) .... 00.000... 17.18.19

Florida Department of Corrections v.

Wellington, No. 98-829, (pet. for

oust. Hes Phew, 06. Fe. ok vv os dice ee 20

Harper v. Virginia Board of Elections,

Bae ti COPE PEOE: kiko ccawieouse ee ae 12

VicCullon by Afar land. 4 Wheat 316 ( BREDD coccccece 12

New York vo United States, $05 US. 144. (1992)) ©... 16

- Oregon v. Michell, 400 11.8; 112 (1970) ....-----208: 13

Panhandle Oil Cov. State of Vississippt

ex rel. Knox, 277 U.S. 218 (1928) eee ee 12

Printz v. United States, 521 U.S. R98 (1997) .....-6-5- 16 |

Seminole Tribe v. Florida, 517 U.S. 44(1996) ....... 45 ;

Spector Motor Serv. Inc. vy. McLaughlin, )

ZIZUS. 101 (1944) 0... cece eee reer ete ees 14

STATUTES |

93 CEFR. § 1235.1 (1991) 2... eee eee cere eres rete 3 |

23 C.F.R. § 1235.6 (1996) «0.0... cere e eters essere 3 |

28 C.F.R. § 35.1301) (1999) «2... eee erent 4.8 :

42 U.S.C. §12101( bX 4) (1995)... eee eee et 14 |

N.C. GEN. STAT. ch. 20, art 2A (1998) ...-----e eee 2

N.C. GEN. STAT. § 37.6(a) (199B) “.. cc cece ee cere ceees 2

N_C. GEN. STAT. § 37.6(c) (1998) «eet 2

28 C_E.R. Pt 36, App. A. § 4.1.2 (1999) ...--- +222 200 5 3

28 C.F.R. Pt 36, App. A, § 4.6 (1999)

Vill

boi hate ip ie

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No. 99-434

In the

Supreme Court of the United States

October Term, 1999

WILLIE M. BROWN, DaAvibd S. BAGLEY, JOAN BAGLEY.

ORRIS CROSS, and RUSSELL ANDERSON, on behalf of

themselves and all others similarly situated,

Petitioners.

NORTH CAROLINA DIVISION OF MOTOR VEHICLES.

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

Respondent believes that this case presents a question of

Congress's power to enforce the Fourteenth Amendment only

if it is determined that the States’ power to impose a minimal

charge for the issuance of a special parking placard for mobility

disabled persons is prohibited by 28 C.F.R. § 35.130(f). In

addition to the constitutional provisions, statutes and

regulations cited by petitioners, other statutes and regulations

involved are as follows: N.C. GEN. STAT. §§ 20-37.5, -37.6.

Public Law 100-641. and 23 C.F.R. § 1235. These statutes and

regulations are set out in the Appendix hereto.

STATEMENT OF THE CASE

Since 1972 North Carolina has maintained a system for

providing parking spaces for persons with mobility

impairments. N.C. GEN. STAT. ch. 20, art 2A (1998). (App. la.)

Under current State law. upon presentation of a doctor's

certification, any vehicle owner with either a permanent or

temporary mobility impairment may obtain a license plate

authorizing the vehicle to park in a space reserved for the

handicapped. N.C. GEN. STAT. § 37.6(a) (1998). (App. 3a.)

Additionally, any mobility impaired person may obtain as

many as two placards designating a vehicle authorized to park

in a reserved space. N.C. GEN. STAT. § 37.6(c) (1998). (App.

3a.) The cost of a placard is $5.00 and the placard is good for

five years. Jd. (App. 3a.) A vehicle bearing one of these

familiar placards may park in any space reserved for such

vehicles. regardless of whether the space is located on a

government-owned parking lot. the public streets, or at a

shopping center.

Article 2A was enacted by the General Assembly pursuant

to the Uniform System for Handicapped Parking (“USHP”) (25

C.F.R. 1235), which implements Pub. L. No. 100-641, -102

Stat. 3335 (Nov. 9, 1988). (App. 7a.) The purpose of the USHP

»)

is “to provide guidelines to States for the establishment of a

uniform system for handicapped parking for persons with

disabilities to enhance access and the safety of persons with

disabilities which limit or impair the ability to walk.” 23 C.F.R.

§ 1235.1 (1991). (App. 11a.) These regulations provide that

“[s]pecial license plates, removable windshield placards, or

temporary removable windshield placards displaying the

International Symbol of Access shall be the only recognized

means of identifying vehicles permitted to utilize parking

spaces reserved for persons with disabilities which limit or

impair the ability to walk.” 23 C.F.R. § 1235.6 (1996). (App.

13a.)

The State is not required by the Americans with

Disabilities Act (ADA) of 1990, to issue either special license

plates or placards. Implementing regulations to Title III of the

ADA govern the dimensions of parking spaces, of parking

access aisles for disabled persons, and the ratio of parking

spaces available for employees and visitors. App. A to 28

C.F.R. Pt. 36, §§ 4.1.2. and 4.6. Neither these regulations nor

any others issued pursuant to the ADA, however, purport to

regulate who shall be entitled to park in spaces reserved for the

mobility impaired. These matters are governed specifically by

the USHP and State law. Virtually every State has enacted

statutes implementing the USHP.

Plaintiffs, five persons with mobility impairments, brought

this class action in which they allege that the charge imposed

by the North Carolina] Jivisionot Motor Vehicles (“DMV ) tor

the issuance of a removable windshield placard (“placard”) for

vehicles transporting persons with mobility impairments

violates 42 U.S.C. § 12132 (providing that disabled persons

shall not be denied “the benefit of the services, programs, OF

activities of a public entity” or subjected to discrimination by

reason of such disability), and 28 C.F.R. § 35.130) (“S

35.130(f)" or “the regulation’), an implementing regulation of

the ADA. The regulation provides that

{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 accessibility, that are required to provide that

individual or group with the nondiscriminatory

treatment required by the Act or this part.

28 C.F.R. § 35.130(f) (1999)

The district court granted the DMV’s motion to dismiss on

the grounds that the action was barred by the Eleventh

Amendment. The Court of Appeals for the Fourth Circuit

affirmed. but on the narrower ground that § 35.130(f) exceeded

Congress’s Fourteenth Amendment enforcement powers, and

therefore did not abrogate the States’ Eleventh Amendment

immunity. Plaintiffs’ motion for rehearing and rehearing ¢n

hanc was denied on May 11, 1999.

The majority opinion of the Fourth C ircuit followed the

analysis employed by this Court in Seminole Tribe v. Florida,

S17 U.S. 44 (1996). Brown vo North Carolina Division of

Motor Vehicles, 166 F.3d 698, 703 (1999) (Pet. App. A-7). At

the outset, the court rejected the contention of the United States

that courts should “look broadly at the entire statutory

tramework--here Title If of the ADA--and ratify its

constitutionality without looking at the validity of its individual

provisions or the agency regulations promulgated under its

authority” to determine whether the States’ immunity was

validly abrogated. The court reasoned that such a “broad brush

review” would require courts “to ratify unnecessarily the

constitutionality of every provision in the title.” /d. (Pet. App.

A-9). The court also found that the need for administrability

required review of individual provisions in the event that only

parts of the title were found to be unconstitutional. /d at 704

(Pet. App. A-10). Finally, the court concluded that “the crucial

federalism concerns that animate the Eleventh Amendment.”

(Pet App. A-10), necessitate review of the individual

provisions lest the “important state interests in immunity” be

left “under protected.” /d (Pet App. A-11). The court also

reasoned that considering only the constitutionality of the

statute without reference to the constitutionality of the

implementing regulation would permit the States to be sued

pursuant to an unconstitutional agency regulation. /d (Per

App. A-11). Thus, the court concluded that “[rjeasons of

separation of powers, administrability, and federalism . . .

dictate a searching review of the legal basis for suit... . [In

determining whether it was acting pursuant to a valid exercise

of power, we examine the legality of the specific statute and

regulation whose asserted violation by state government gave

rise to the claim for relief in federal court.” /d. at 705 (Pet. App.

A-12).

The court then examined whether the State’s immunity

was effectively abrogated by the regulation. /d. (Pet. App. A-

12). The court found that in enacting the ADA Congress clearly

stated its intent to abrogate the States’ sovereign immunity, id..

and that in so doing Congress “‘invoke[d] the sweep of

congressional authority, including the power to enforce the

fourteenth amendment... . 42 U.S.C. §12101(b)(4).°" /d. (Pet.

App. A-13). But Congress's Section 5 power was limited to

remedying violations of rights protected by the Amendment;

Congress has no power “to define the substance of those right.”

Id.. citing City of Boerne v. Flores, 521 U.S. 507, 519 (1997)

(Pet. App. A-13).

The court recognized that “[u]nder Boerne, Section 5

enactments must target unconstitutional state action. The

Constitution, however. has given state governments significant

latitude in dealing with problems of disability.”/d. at 706 (Pet.

App. A-15). Relying on City of Cleburne v. Cleburne Living

Center, 473 U.S. 432 (1985), the court held that the

. constitutionality of statutes affecting the disabled must be

reviewed on a rational-basis test. /d. (Pet. App. A-16).

The Court explained why the sweep of § 35.130(f)

unconstitutionally intruded upon the “basic ability [of state

governments] to provide for their own citizens’ health and

welfare.” Jd. at 707 (Pet. App. A-17).

Here Congress, through the Attorney General, acted

to ban state surcharges designed to recover the costs

of programs provided for the benefit of disabled

persons. Such an act is only sustainable under the

Section 5 power if many of those surcharges “have a

significant likelihood of being unconstitutional.”

[Bourne, 117 S. Ct.] at 2170. In view of the efforts of

States to assist the handicapped, including the

admirable efforts of North Carolina which are at issue

here, that likelihood is not apparent to this court. Nor

has any party pointed us to any support in the

legislative record for the proposition that state

surcharges for handicapped programs are motivated

by animus toward the class. It may well be that some

subset of those surcharges is in fact so motivated. But

on the record before us, we can only believe that most

fees are like that imposed by North Carolina law--a

modest cost-recovery mechanism rationally employed

to recoup the costs of programs aimed at assisting

persons with disabilities. Such a fee is rationally

based and perfectly constitutional under Cleburne.

Id. (Pet. App. A-16-A-17).

The court proceeded to find that the regulation could not

be justified as a prophylactic measure because it was

disproportionate and incongruent to the “underlying

unconstitutional state action” [though no such action has been

identified]. /d. (Pet. App. A-16). Finally, the court concluded

that the regulation created a “positive entitlement to a free

handicapped parking space.” /d at 708 (Pet. App. A-18). As

such it transforms the Equal Protection Clause from “a

prohibition on invidious state action into a charter of positive

rights. Such a step, however, is beyond the scope of the

Fourteenth Amendment.” /d.

Judge Murnaghan, dissenting, disagreed with — the

majority ‘s analysis. First, he could find nothing to indicate that

“S$ 35.130(f) is anything like the now discredited [Religious

Freedom Restoration Act].” /d (Pet App. A-21). He then

opined that the fact that the disabled were not a suspect class

did not preclude Congress’s legislating to protect a class of

people that it found to be victims of invidious discrimination.

Id. at 708-09 (Pet. App. A-21-A-22). The dissent reasoned that

the regulation did not create an entitlement to a free parking

space. Judge Murnaghan summarized his view as follows:

It makes no more sense to allow states to recoup from

the disabled the costs of providing the remedial

programs needed to fully integrate them into society

than it would, for example, to permit universities

receiving federal funding to charge women higher

tuition rates to cover the cost of complying with Title

IX of the Civil Rights Act of 1964.

Id. at 709-10 (Pet. App. A-18).

REASONS FOR DENYING THE WRIT

The Fourth Circuit correctly held that “28 C.F.R. §

35.130(f), which prohibits a state from charging even a modest

fee to recover the costs of its efforts to aid the handicapped, lies

beyond the remedial scope of the Section 5 power. As such, it

is not a constitutionally valid exercise of power, and the effort

to abrogate must fail.” /d. at 705 (Pet. App. A-13).

lhe court’s narrow focus on the regulation rather than on

litle Il as a whole properly takes into account the principle of

federalism, which undergirds the structure of the Constitution.

and avoids unnecessarily deciding constitutional questions

which may reasonably be avoided. If this Court should issue its

writ of certiorari in this case, it should do so to affirm the

analytical approach and decision of the Fourth Circuit in this

Case.

I. BECAUSE THE DECISION OF THE COURT

BELOW IS CORRECT, IT IS NOT NECESSARY

FOR THIS COURT TO GRANT CERTIORARI TO

REVIEW THE DECISION.

A. THE REGULATION EXCEEDS THE POWERS OF

CONGRESS TO ENFORCE THE FOURTEENTH

AMENDMENT.

Petitioners’ argument begins with the false premise that the

minimal fee charged by the State for the windshield placard is

a charge for the cost of providing mobility impaired persons

with non-discriminatory treatment. Petitioners urge this Court

to issue its writ of certiorari, reverse the court below, and adopt

the reasoning of Judge Murnaghan, who accepted petitioners’

false premise and based his dissent upon it. This Court should

not do so.

According to Judge Murnaghan in his dissent below, “[alll

§ 35.130(f) really stands for . . . is the unspectacular

proposition that a state may not recover from victims of

discrimination the cost of ending discrimination against those

victims.” 166 F.3d at 708. (Pet. App. A-21). Although this may

describe the intent of the drafters of the regulation, the

description is completely inaccurate when the regulation 1s

applied to North Carolina’s minimal charge for the placard.

First. the statement is wrong because the placard is not a

measure to end discrimination. Rather, the purpose of the

placard is to enhance the ability of persons with mobility

impairments to more easily and fully partake of the benefits of

society, not to end invidious discrimination. Past failures of

architects and engineers to make buildings accessible to the

handicapped were not acts of intentional discrimination against

them. Nor was the failure to designate special parking places a

discriminatory act or omission by building owners or managers

against those with mobility impairments.' Moreover, the failure

of private entities to make their facilities more accessible to

those with mobility impairments cannot be imputed to the

State. If. indeed, the ADA is read to define such conduct as

discrimination prohibited by the Fourteenth Amendment, then

But see Judge Murnaghan’s concurring opinion in Amos y.

Marvland Department of Correction, 178 F 3d 212, 224 (4th Cir. 1999) ("A

state's decision to construct facilities and design programsas if the disabled

are not a part of society stems from attitudes formed during a ‘lengthy and

tragic history of segregation and discrimination, City of Cleburne, 473 U.S.

at 461 (Marshall, J., concurring in the judgment in part and dissenting in

part) (quoting Univ. of Cal. Regents v Bukke, 438 U.S. 265, 303 (1978).”).

EE —————————_

Congress has attempted unlawfully to redefine the scope and

meaning of the amendment. See City of Boerne v. Flores, 52)

U.S. 507 (1997) (holding unconstitutional the Religious

Freedom Restoration Act as in excess of Congress’s power to

enforce the Fourteenth Amendment and a violation of the

separation-of-powers doctrine).

Second, the above-quoted statement from the dissent in the

case below is wrong because the measure is not an attempt to

recover the cost of ending discrimination against those with

mobility impairments. The dissent’s comparison of the fee for

the placards to the costs for complying with Title IX of the

Civil Rights Act of 1964, 166 F.3d at 709-10 (Pet. App. A-23:

A-24), is completely erroneous. The minimal fee is charged for

a beneficial service voluntarily provided by the State, not one

which the State is under a legal obligation to provide.

The dissent below further errs in saying that “(t]he

regulation . . . merely ensures that the costs of correcting the

wrongs inflicted upon the disabled will be borne by the

wrongdoer (the state) rather than the victim (the disabled

individual or group).” /d. at 709. (Pet. App. A-22). Most of the

measures imposed by the ADA on private and public entities

have nothing to do with ending discrimination, at least as that

term is used in its constitutional sense. Rather, as noted above.

the special placards and license plates increase the ability of

disabled persons to enjoy the benefits of society to the same

extent as persons without disabilities. There is no

“wrongdoing” by anyone. Except in rare instances, there is no

] =)

discrimination at all. Thus, to call the State a “wrongdoer” is

not only wrong, it is unfair.

Petitioners’ other arguments for certiorari are equally

invalid. It is simply not correct to say that the majority opinion

“would permit states to undermine the ADA by imposing

surcharges on individuals with disabilities whenever they use

public services.” (Pet. at 7.) Such a statement goes beyond

hyperbole. This case did not involve an attempt by the State to

charge the disabled for the cost of building an access ramp or

installing a special elevator for them. The State has never

contemplated, much less attempted. to charge for modifications

to facilities to make them more accessible to the disabled.

Petitioners also engage in gross exaggeration in their

paraphrase of Chief Justice Marshall's famous quote 4n

McCulloch yv. Maryland, 4 Wheat 316. 431 (1819). They assert

that the State’s “power to charge a fee on access is the power

to destroy the right of access.” (/er. at 8.) Perhaps the simplest

answer would be to paraphrase Justice Holmes’s equally

famous response in Panhandle Oil Co. v. State of Mississippi

ex rel Knox, 277 U.S. 218, 223 (1928) (Holmes, J., dissenting):

I he power to charge a fee is not the power to destroy while the

courts sit

Petitioners’ citation of Harper v 'irginia Board of Elections, 383

U.S 663 (1966) (holding the $1.50 Virginia poll tax unconstitutional) (Pet

at 8.) is completely inapposite. DMV does not argue that the charge for the

placards is constitutional because it is minimal. The charge is constitutional

because it is rationally related to the cost of providing a service. No one has

suyvested that the purpose or effect of the charge is to prevent poor disabled

—

lod

Petitioners would have the Court treat the fee as if it were

a legislative enactment affecting a suspect class. In City of

Cleburne, 473 U.S. 432, this Court refused to treat the mentally

retarded as a quasi-suspectclass and thereby subject legislation

affecting the retarded to heightened scrutiny. Consequently,

State legislation affecting the disabled is reviewed only to

determine whether the legislation is rationally related to a

legitimate governmental purpose. /d It is unquestionably

rational for the State of North Carolina to charge a minimal fee

10 defray the cost of voluntarily providing a beneficial service

to the handicapped. Under the aegis of Section 5, Congress has

no power to outlaw a fee that is not invidiously discriminatory

per se nor used to discriminate. Cf Oregon v. Mitchell, 400

U.S. 112(1970) (upholding Congressional ban on literacy tests,

which in fact had been used to prevent A frican-Americans from

voting).

Petitioners’ arguments in support of certiorari will not

withstand careful analysis. The charge is not an attempt by the

State to recover the cost of a measure required to end

discrimination against persons with mobility impairments. The

fee is a modest, rationally based measure to defray the cost of

the State's voluntarily providing a beneficial service to the

disabled. The majority opinion below correctly held that the

regulation is not congruent or proportional to any identifiable

constitutional violation. Indeed, nothing in the Congressional

_ findings indicates that the States have singled out the disabled

people from parking. Nor does the charge impinge upon the exercise of a

fundamental right like voting.

by charging them for the cost of remedial measures. The

regulation’s sweep, however, is so broad as to ban even State

charges. such as the fee at issue in the instant case, that are

neither discriminatory nor required to provide

nondiscriminatory treatment. 166 F.3d at 707. The majority

correctly decided the issue: therefore, the opinion of the court

below should be left undisturbed by this Court.

B. THE PANEL CORRECTLY DECIDED THE

JURISDICTIONAL ISSUE ON THE Basis OF THE

REGULATION ON WHICH PLAINTIFFS’ CLAIM

Was BASED RATHER THAN CONSIDERING THE

Apa AS A WHOLE.

It is axiomatic that a case should be decided on the

narrowest ground possible. Ashwander v. T.V.A., 297 U.S. 288,

346-48 (1936) (Brandeis, J., concurring). It 1s a cornerstone of

adjudication that a court should not decide constitutional

questions unless to do so is not reasonably avoidable. Spector

Motor Serv.. Inc. v. McLaughlin, 323 U.S. 101, 104 (1944):

Ashwander, 297 U.S. at 346-48. Petitioners fault the panel

majority for their adherence to these established principles of

judicial decision-making.

In enacting the ADA, Congress announced its intention “to

invoke the sweep of congressional authority, including the

power to enforce the fourteenth amendment and to regulate

commerce. in order to address the major areas of discrimination

faced day-to-day.”42 U.S.C. § 12101(b)(4)(1995).A review of

the Congressional findings, 42 U.S.C. §12101, and individual

provisions of the Act quickly shows that Congress was

Pe EN OT ee

concerned not only with ending intentional discrimination

against the disabled, but also, and probably more so, with

eliminating physical barriers that hindered full participation in

society by the disabled. The Act was aimed at both the public

and private sectors. Because of the broad scope of the Act, it is

necessary to examine its provisions individually to determine

whether they are founded on the Commerce Clause, the

Fourteenth Amendment, or possibly some other constitutional

provision. Obviously, measures that may be valid under one

provision of the Constitution may not be sustainable under

another.

In its answer and briefs, DMV contended that the ADA did

not effectively override the States’ immunity. The district court

agreed and dismissed the action. However, the order of the

district court was broader than necessary to determine the

immediate question presented. Had the district court order

stood, no private action could have been brought under the

ADA against a State by a citizen in federal court. The Fourth

Circuit's narrower approach appropriately avoided reaching

this question. Because North Carolina had not waived its

immunity or consented to federal jurisdiction, and the DMV

acknowledged that Congress clearly intended to override the

State's immunity, the court properly limited its inquiry to

whether the regulation at issue was a valid measure under

Section 5 of the Fourteenth Amendment. The,court declined to

employ a “broad-brush review” in order to avoid unnecessarily

passing on whether Title II effectively abrogated the States’

immunity. Likewise, the court refused to decide the

constitutionality of an entire statute based on a challenge to one

provision of that statute. 166 F.3d at 703-04. Moreover.

concerns of federalism and the States’ Eleventh Amendment

immunity militated against a broad-brush review. The court

appropriately recognized that “[rJatifying an entire title and

finding abrogation without examining the actual, specific legal

basis for suit could subject a state to suit in federal court

pursuant to an unconstitutional provision buried in the midst of

an otherwise constitutional statutory scheme.” /d. at 704. (Pet.

App. A-11). Furthermore, to review the statute without

reviewing the regulation “would lead to the abrogation of

immunity in cases even where the agency rule was

unconstitutional or beyond the bounds of delegated authority.”

Id. (Pet. App. A-11)2

Petitioners also argue that the Fourth Circuit misapplied City of

Boerne. 521 U.S. 507. (Pet. at 10). The court did not err. Even given its

broad Section 5 enforcement powers, Congress does not have the power to

require the States to provide free of charge a service to the disabled,

assuming the disabled were treated as a suspect class. If the regulation has

the effect of requiring States to provide the service but prohibits them from

charging for it, the regulation would violate Boerne’s proportionality and

congruence test. Furthermore, such an interpretationof the regulation would

also violate New York v. United States, -505 U.S. 144 (1992), by

commandeering the States’ legislative and administrative processes, and

Printz v. United States, 521 U.S. 898 (1997), by commandeering the

resources of the States.

apeaceathontal mn as

BE OARS, Hie LES

ll. THE CONFLICT WITH THE DECISION OF THE

NINTH CIRCUIT COURT OF APPEALS IN DARE V.

CALIFORNIA DOES NOT REQUIRE THIS COURT

TO GRANT CERTIORARI IN THE INSTANT CASE.

Petitioners have filed a supplemental brief in which they cite

Dare v. California, 1999 WL 717724 (9th Cir. Sept. 16, 1999)

(petition for rehearing and suggestion for rehearing en banc

filed Sept. 30, 1999) (App. 15a), as creating a conflict between

the circuits requiring this Court to grant certiorari. In / Jare, the

Ninth Circuit considered a challenge to California’s charge for

the parking placard. California’s provision of special license

plates and placards for persons with mobility disabilities was

pursuant to the USHP and is quite similar to the program in

North Carolina. The majority opinion found that the fee charged

by California violated § 35.130(f).

The Dare majority first concluded that the placards were in

fact measures required to provide persons who have mobility

disabilities with nondiscriminatory treatment. (App. 24a.) The

Ninth Circuit did not employ the Fourth Circuit’s surgical

approach of examining whether the regulation, as opposed to

Title Il, effectively abrogated the States’ immunity. (App. 20a.)

The court then found that UHSP was merely “hortatory” and

had no effect on the court’s analysis. (App. 23a) (“Even

California concedes that in recognizing principles of federalism

and state sovereignty, Congress rendered state compliance with

Public Law 100-641 completely voluntary.”)). The majority

then found that the placards were required to provide

nondiscriminatory treatment for the mobility disabled The

majority reasoned as follows:

The ADA requires special parking arrangements such

as handicapped parking spaces. These spaces allow

disabled people equal access to public buildings in

which California provides services, programs, and

activities. Because California polices handicapped

parking spaces, disabled people need placards or

license plates to use them. California thus meets the

ADA’s requirement for nondiscriminatory access to

public buildings by providing disabled people with

placards and license plates.

Dare, 1999 WL 717724, at *4. (App. 24a.) By this faulty

syllogism, the majority found the special license plates and

placards mandated by the ADA, even though the multitude of

explicit regulations promulgated to implement the Act have no

such requirement. Having found that the ADA itself mandates

the placard program, the majority concluded that the charge

violates the ADA. (App. 25a.)The Dare majority then noted

that it adhered to the Ninth Circuit’s decision in Clark v.

California, 123 F.3d 1267, 1270-71 (9th Cir. 1997) (holding

that the ADA validly abrogated the States’ Eleventh

Amendment immunity), cert. denied, 118 S. Ct. 2340 (1998)

(App. 26a).*

Jud: > Fernandez dissented, however, on the ground that

the fee did not violate the ADA.

‘ Likewise, the Fourth Circuit held in Amos, 178 F.3d 212 that the

ADA was a valid exercise of Congress's Section 5 enforcement powers. The

Amos majority distinguished Brown, 178 F.3d at 221 n.8, but Judge Williams,

dissenting, felt that the reasoning in Brown controlled the case. 178 F.3d at

225.

en eee ETN

Nothing in the law requires that California police

usage of the spaces in order to assure that only

disabled people are taking advantage of them.

Indeed. if the federal government decided that usage

must be policed by the states, that would come at least

parlously close to an attempt to “commandeer state

government” into enforcing a federal government

policy at state cost. See Printz, 521 U.S. at ---, 117 S.

Ct. at 2381.

Dare, 1999 WL 717724, at *10. (App. 39a.) Judge Fernandez

also noted the USHP. He observed that the USHP provides that

there should be no additional charge for special license plates

but is silent as to placards. Such silence “suggests that

Congress did not see anything particular! y discriminatory in the

exaction of a small fee for the issuance of placards, if any were

issued at all.” /d. at *11. (App. 40a.)

It is respectfully suggested that should the State of

California submit a petition for writ of certiorari in this Court

to review the Dare decision, that the writ should be issued in

order to reverse the Ninth Circuit’s holding in that case and

hold instead that the charge for the placards does not violate §

35.130(f), as Judge Fernandez concluded. If this Court should

find that the charge does violate the regulation, then the Court

Should hold. as did the Fourth Circuit, that the regulation

exceeds the powers of Congress to enforce the Fourteenth

Amendment.

CONCLUSION

Because the Fourth Circuit correctly held that the

regulation exceeded the powers of Congress to enforce the

Fourteenth Amendment, the States’ Eleventh Amendment

immunity was not abrogated by the regulation. It is, therefore,

not necessary for this Court to issue its writ of certiorari to

correct the holding of the court below. The question of whether

Congress effectively overrode the State's Eleventh Amendment

immunity is not necessarily before the Court. Only if the Court

should find that the Fourth Circuit erred by the narrow scope of

its opinion would it be necessary to decide the issue of whether

the ADA validly abrogated the States’ Eleventh Amendment

immunity. That issue, however, is before the Court in Florida

Department of Corrections v. Wellington, No. 98-829, pet. for

cert. filed, Nov.16, 1998, and is also presented in Alsbrook

v.City of Maumelle, No. 99-423, pet. for cert. filed Sept. 8,

19999

One of the questions presented in the petition for certiorari in

Maumelle was the following:

Whether the ADA was a proper exercise of the power

granted to Congress by § 5 of the Fourteenth Amendment to the

United States Constitution such that the immunity granted to the

State of Arkansas by the Eleventh Amendmentto the United States

Constitution was abrogated.

—

Respectfully submitted.

MICHAEL F. EASLEY

North Carolina Attorney General

James Peeler Smith*

Special Deputy Attorney General

Harold F. Askins

Special Deputy Attorney General

October 20, 1999 *Counsel of Record

_—

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APPENDIX

+ ee

STL TPP aperert teetimy 7

TABLE OF CONTENTS

NC, GEN. Stat. § MATS ee la

N.C. GEN. STAT. § DOIIB i a ea 3a

Portions of 102 Stat. 3335 (1988) ................... 7a

Dare v. California, 1999 WL 717724

CARLO oe ee l5a

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N.C. GEN. STAT. § 20-37.5

WEST'S NORTH CAROLINA STATUTES

CHAPTER 26. MOTOR VEHICLES

ARTICLE 2A. AFFLICTED, DISABLED OR

HANDICAPPED PERSONS

Current through end of 1998 legislation

§ 20-37.5. Definitions

Unless the context requires otherwise, the following

definitions apply throughout this Article to the defined words

and phrases and their cognates:

(1) "Distinguishing license plate" means a license plate

that displays the International Symbol of Access using the

same color, size of plate, and size of letters or numbers as a

regular plate.

(2) “Handicapped” shall mean a person with a mobility

impairment who, as determined by a licensed physician:

a. Cannot walk 200 feet without stopping to rest;

b. Cannot walk without the use of. or assistance

from. a brace, cane, crutch, another person,

prosthetic device, wheelchair, or other assistive

device:

c. Is restricted by lung disease to such an extent that

the person's forced (respiratory) expiratory

volume of one second, when measured by

spirometry, is less than one liter. or the arterial

oxygen tension is less than 60 mm/hg on room

air at rest:

Uses portable oxygen;

Has a cardiac condition to the extent that the

person's functional limitations are classified in

severity as Class III or Class IV according to

standards set by the American Heart Association;

Is severely limited in their ability to walk due to

an arthritic, neurological, or orthopedic

condition; or

Is totally blind or whose vision with glasses is SO

defective as to prevent the performance of

ordinary activity for which eyesight is essential,

as certified by a licensed ophthalmologist,

optometrist, or the Division of Services for the

Blind.

(3) "International Symbol of Access" means the

symboladopted by Rehabilitation International in 1969 at its

Eleventh World Congress on Rehabilitation of the Disabled.

(4) "Removable windshield placard" means a two-sided,

hooked placard which includes on each side:

The International Symbol of Access. which is at

least three inches in height, centered on the

placard. and is white on a blue shield;

An identification number;

An expiration date; and

The seal or other identification of the issuing

authority.

N.C. GEN. STAT. § 20-37.6

WEST'S NORTH CAROLINA STATUTES

CHAPTER 20. MOTOR VEHICLES

ARTICLE 2A. AFFLICTED, DISABLED OR

HANDICAPPED PERSONS

Current through end of 1998 legislation

§ 20-37.6. Parking privileges for handicapped drivers and

passengers

(a) General Parking.--Any vehicle that is driven by or is

transporting a person who is handicapped and that displays a

distinguishing license plate, a removable windshield placard,

or a temporary removable windshield placard may be parked

for unlimited periods in parking zones restricted as to the

length of time parking is permitted. . . . Any qualifying

vehicle may park in spaces designated as restricted to

vehicles driven by or transporting the handicapped.

(b) Handicapped Car Owners; Distinguishing License

Plates.--If the handicapped person is a registered owner of a

vehicle, the owner may apply for and display a distinguishing

license plate. This license plate shall be issued for the normal

fee applicable to standard license plates. Any vehicle owner

who qualifies for a distinguishing license plate may also

receive one removable windshield placard.

Placards.--A handicapped person may apply for the issuance

of a removable windshield placard or a temporary removable

windshield placard. Upon request, one additional placard

may be issued to applicants who do not have a distinguishing

license plate. .. . The Division shall establish procedures for

the issuance of the placards and may charge a fee sufficient to

pay the actual cost of issuance, but in no event less than five

dollars ($5.00) per placard.

(cl) Application and Renewal: Physician's Certification.-

-The initial application for a distinguishing license plate.

removable windshield placard, or temporary removable

windshield placard shall be accompanied by a certification of

a licensed physician, ophthalmologist, or optometrist or of

the Division of Services for the Blind that the applicant is

handicapped. The application for a temporary removable

windshield placard shall contain additional certification to

include the period of time the certifying authority determines

the applicant will have the disability. Distinguishing license

plates shall be renewed annually, but subsequent applications

shall not require a medical certification that the applicant is

handicapped. Removable windshield placards shall be

renewed every five years, and the renewal shall require a

medical recertification that the person is handicapped.

Temporary removable windshield placards shall expire no

later than six months after issuance.

(c2) Existing Placards; Expiration; Exchange for New

Placards.--All existing placards shall expire on January 1.

1992. No person shall be convicted of parking in violation of

pad)

this Article by reason of an expired placard if the defendant

produces in court, at the time of trial on the illegal parking

charge, an expired placard and a renewed placard issued

within 30 days of the expiration date of the expired placard

and which would have been a defense to the charge had it

been issued prior to the time of the alleged offense. Existing

placards issued on or after July 1, 1989, may be exchanged

without charge for the new placards.

(c3) It shall be unlawful to sell a distinguishing license

plate, a removable windshield placard, or a temporary

removable windshield placard issued pursuant to this section.

A violation of this subsection shall be a Class 2 misdemeanor

and may be punished pursuant to G.S. 20-176(c) and (c1).

(f) Penalties for Violation.--

(4) Notwithstanding any other provision of the

General Statutes. the provisions of this section

relative to handicapped parking shall be enforced by

State, county, city and other municipal authorities in

their respective jurisdictions whether on public or

private property in the same manner as is used to

enforce other parking laws and ordinances by said

agencies.

[This page intentionally left blank]

Portions of 102 Stat. 3335 (1988)

UNITED STATES PUBLIC LAWS

100th Congress - Second Session

Convening January 25, 1988

PL 100-641 (HR 3327)

November 9, 1988

SEC. 3. "23 USC 402 note" HANDICAPPED PARKING

SYSTEM.

(a) REGULATIONS. -- Not later than the 180th day

following the date of the enactment of this Act, the Secretary

of Transportation shall issue regulations --

(1) which establish a uniform system for handicapped

parking designed to enhance the safety of

handicapped individuals, and

(2) which encourage adoption of such system by all the

States.

In issuing such regulations, the Secretary shall consult the

States.

(b) DEFINITIONS. -- For purposes of this section --

(1) UNIFORM SYSTEM FOR HANDICAPPED

PARKING. -- A uniform system for handicapped

parking designed to enhance the safety of

handicapped individuals is a system which --

(A)

(C)

(D)

adopts the International Symbol of

Access (as adopted by Rehabilitation

International in 1969 at its 11th World

Congress on Rehabilitation of the

Disabled) as the only recognized

symbol for the identification of vehicles

used for transporting individuals with

handicans which limit or impair the

ability to walk:

provides for the issuance of license

plates displaying the International

Symbol of Access for vehicles which

will be used to transport individuals

with handicaps which limit or impair

the ability to walk, under criteria

determined by the State;

provides for the issuance of removable

windshield placards (displaying the

International Symbol of Access to

individuals with handicaps which limit

or impair the ability to walk, under

criteria determined by the State;

provides that fees charged for the

licensing or registration of a vehicle

used to transport individuals with

handicaps do not exceed fees charged

; 9a

: for the licensing or registration of other

t similar vehicles operated in the State:

: and

i (E) for purposes of easy access parking,

recognizes licenses and __ placards

displaying the International Symbol of

Access which have been issued by other

States and countries.

10a

(This page intentionally left blank]

lla

23 C.F.R. §§ 1235.1, 1235.2, 1235.3, 1235.4, 1235.5,

1235.6, 1235.8 (1991)

§ 1235.1 Purpose.

The purpose of this part is to provide guidelines to

States for the establishment of a uniform system for

handicapped parking for persons with disabilities to enhance

access and the safety of persons with disabilities which limit

or impair the ability to walk.

§ 1235.2 Definitions.

Terms used in this part are defined as follows:

(a) /nternational Symbol of Access means the symbo!

adopted by Rehabilitation International in 1969 at its

Eleventh World Congress on Rehabilitation of the Disabled.

(b) Persons with disabilities which limit or impair the

ability to walk means persons who, as determined by a

licensed physician:

(1) Cannot walk two hundred feet without stopping

to rest: or

(2) Cannot walk without the use of. or assistance

from. a brace, cane, crutch, another person,

prosthetic device, wheelchair, or other assistive

device: or

(3) Are restricted by lung disease to such an extent

that the person’s forced (respiratory ) expiratory

volume for one second, when measured by

spirometry, is less than one liter, or the arterial

oxygen tension is less than sixty mm/hg on room

12a

air at rest: or

(4) Use portable oxygen: or

(5) Have a cardiac condition to the extent that the

person's functional limitations are classified in

severity as Class III or Class IV according to

standard set by the American Heart Association;

(6) Are severely limited in their ability to walk due

to an arthritic, neurological, or orthopedic

condition.

§ 1235.3 Special license plates.

(a) Upon application of a person with a disability which

limits or impairs the ability to walk, each State shall issue

special license plates for the vehicle which is registered in

the applicant’s name. The initial application shall be

accompanied by the certification of a licensed physician that

the applicant meets the § 1235.2(b) definition of persons

with disabilities which limit or impair the ability to walk.

The issuance of a special license plate shall not preclude the

issuance of a removable windshield placard.

§ 1235.4 Removable windshield placards.

(a) The State system shall provide for the issuance and

periodic renewal of a removable windshield placard, upon

the application of a person with a disability which limits or

impairs the ability to walk. The State system shall require

that the issuing authority shall, upon request, issue one

additional placard to applicants who do not have special

license plates.

§ 1235.5 Temporary removable windshield placards.

(a) The State system shall provide for the issuance of a

temporary removable windshield placard, upon the

application of a person with a disability which limits or

impairs the ability to walk. The State System shall require

that the issuing authority issue, upon request, one additional

temporary removable windshield placard to applicants.

§ 1235.6 Parking.

Special license plates, removable windshield placards, or

temporary removable windshield placards displaying the

International Symbol of Access shall be the only recognized

means of identifying vehicles permitted to utilize parking

spaces reserved for persons with disabilities which limit or

impair the ability to walk.

§ 1235.8 Reciprocity.

The State system shall recognize removable windshield

placards, temporary removable windshield placards and

special license plates which have been issued by issuing

authorities of other States and countries. for the purpose of

identifying vehicles permitted to utilize parking spaces

reserved for persons with disabilities which limit or impair

the ability to walk.

i+a

[This page intentionally left blank. |

—_—S a eos eS ae. ow Pe if oe

l5a

Dare v. California, 1999 WL 717724 (9th Cir.(Cal.))

William Robert DARE; Gary Petillo, Plaintiffs-

Appellees,

STATE OF CALIFORNIA; Dept. Of Motor Vehicles,

Defendants-Appellants.

No. 97-56065.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 15, 1999

Filed Sept. 16, 1999

Angela Sierra, Deputy Attorney General, San Diego.

California, for the defendant-appellant.

Andrew R. Hall, Elizabeth Staggs-Wilson, Davis. Wright &

Tremaine, Los Angeles, California, for the plaintiffs-appellees.

Appeal from the United States District Court for the Central

District of California. J. Spencer Letts, District Judge.

Presiding, D.C. No. CV-96-05569- JSL-ANx.

Before: Dorothy W. Nelson. Ferdinand F. Fernandez. and

William A. Fletcher, Circuit Judges.

l6a

D.W. NELSON, Circuit Judge:

This case involves a challenge under the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. (West

Supp.1999) ("ADA"), and its regulations to California's $6

biennial fee for disability parking placards. The State of

California, Department of Motor Vehicles [hereinafter

"California"], appeals the district court's grant of partial

summary judgment in favor of William Robert Dare, Gray

Petillo. and the class of plaintiffs they represent. California

claims that the fee does not violate the ADA and that a blanket

prohibition on such nominal fees is unconstitutional. We

disagree and affirm the district court.

Facts and Procedural History

California has a comprehensive priority parking program

for qualifying disabled individuals and veterans. See Cal.

Veh.Code. §§ 295.5, 295.7 (West 1999). California provides

these individuals with extensive priority parking and

exemptions from all parking meter fees and most parking time

restrictions. See id. §§ 22511.5, 22511.7, 22511.8. To prevent

abuse. California limits access to these privileges to vehicles

displaying state- issued disability license plates or parking

placards. See id. §§ 22507.8. 22511 5. California imposes

significant fines upon illegal use of disability parking spaces

and authorizes local entities to establish enforcement units. See

id. §§ 4461, 4463(d), 22507.9, 22511.8, 2251 1.56, 22511.58,

42001.5.

17a

Registered vehicle owners who are disabled themselves or

who use their vehicles to transport disabled individuals at least

51% of the time can obtain disability license plates. California

charges the standard license plate fees for these special plates.

See id. §§ 5007(a), 9250. In lieu of or in addition to a disability

license plate, California issues disability parking placards to

disabled individuals for a $6 fee. See id. § 22511.55.

Individuals may use these portable placards in multiple

vehicles. The placards expire if not renewed every two years,

and California charges fees for renewal or replacement. See id.

§ 22511.55(a)(3) & (c)(2). The placard fees partly defray the

cost of the disability parking program.

On August 13, 1996, Dare and Petillo, two disabled

individuals, filed a class action lawsuit challenging California's

$6 placard fee as a violation of ADA Title II and its

promulgating regulations. Dare and Petillo allege that the fee

constitutes an impermissible surcharge upon measures

necessary to provide the nondiscriminatory treatment of

individuals and groups required by the ADA. They rely on 42

U.S.C. § 12132, which states that "[s]ubject to the provisions

of this subchapter, no qualified individual shall, by reason of

such disability, be excluded from participation in or denied the

benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity." 42

U.S.C. § 12132. To prove the ADA's particular prohibition of

surcharges on parking permits, Dare and Petillo cite 28 C.F.R.

§ 35.130(f), promulgated by the Department of Justice in

implementing the ADA, which states that

18a

[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 accessibility, that are required to provide that

individual with the nondiscriminatory treatment

required by the Act or this part.

28 C.F.R. § 35.130(f) (1998).

The district court granted partial summary judgment with

respect to the class of people qualifying as disabled under the

ADA.! found the fee to be an impermissible surcharge, and

ordered a permanent injunction against California's imposition

of the fee. Caiifornia timely appeals.

Jurisdiction

We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)

(West Supp.1999) to review the district court's interlocutory

order granting a permanent injunction. Because the district

court's partial summary judgment order provides legal authority

for the injunction and is thus inextricably bound with it, we

also have jurisdiction to review that order. See Paige v. State of

California, 102 F.3d 1035, 1040 (9th Cir.1996).

Specifically, this plaintiff class included all purchasers of

California placards since January 26, 1992 and future purchasers who are

disabled under the ADA.

19a

Standard of Review

We review for abuse of discretion the district court's grant

of a motion for a permanent injunction, see Gaudiya Vaishnava

Soc. v. City of San Francisco, 952 F.2d 1059, 1062 (9th

Cir.1991), but review any determination underlying the grant

of the motion by the standard that applies to that determination.

see Multnomah Legal Servs. Workers Union y Multnomah

County Legal Aid Serv., 936 F.2d 1547, 1552 (9th Cir.1991).

We review de novo a district court's grant of a motion for

partial summary judgment. See Thompson v. Holy Family

rosp., 121 F.3d 537, 539 (9th Cir.1997).

Discussion

This case raises two main issues: (1) Does California's $6

placard fee violate Title II of the ADA and its implementing

regulations, and, if so, (2) was Congress's enactment of Title II

of the ADA a valid exercise of its power under § 5 of the

Fourteenth Amendment to abrogate California's Eleventh

Amendment immunity from suit? Because we answer both of

these questions in the affirmative, we affirm the district court's

grant of partial summary judgment and a permanent injunction

against imposition of the placard fee.

I. Violation of ADA Title II

Analyzing whether California's $6 placard fee violates the

ADA requires three inquiries. First, what obligations does Title

I] impose upon states regarding fees for measures under the

20a

ADA? Second. does Public Law 100-641, 23 U.S.C. § 402

(West Supp.1999), which contemplates a fee for disabled

parking placards as part of a uniform system for disabled

parking. limit states’ Title II obligations? Third, are these

obligations violated by California's $6 fee for parking placards?

As explained below, we conclude that the $6 fee constitutes a

surcharge for required measures in violation of the ADA and its

implementing regulations.

A. Obligation under Title II

In order to evaluate whether a fee constitutes a surcharge

that violates Title II of the ADA, we conduct a two-part

inquiry. First, as a threshold matter, we consider whether the

measure for which California levies the fee is "required to

provide that individual or group nondiscriminatory treatment"

as mandated by the ADA. 28 C.F.R. § 35.130(f). If California

charges for a measure not required under the ADA, the inquiry

ends; 28 C.F.R. § 35.130(f) only forbids surcharges for

"required" measures.

Second, we evaluate whether the fee for the measure is a

surcharge; in other words, we consider whether it constitutes a

charge that nondisabled people would not incur. If nondisabled

people pay the same fee for an equivalent service, the charge to

disabled people would not constitute a surcharge on a

"required" measure. Thus, for example, a state can charge a fee

for disabled license plates so long as it charges the same fee for

nondisabled license plates.

2la

Because surcharges against disabled people constitute facial

discrimination, the meaningful access test formulated by the

Supreme Court in Alexander v. Choate, 469 US. 287, 105

S.Ct. 712, 83 L.Ed.2d 661 (1985). does not apply. Under this

test, a court considers whether the allegedly discriminatory

measure prevents "meaningful access to the benefit that the

grantee offers." /d. at 301. The Ninth Circuit has applied this

test in the ADA context to evaluating whether facially neutral

laws violate § 12132. See Hunsaker v. Contra Costa County,

149 F.3d 1041, 1042-43 (9th Cir.1998): Crowder vy. Kitagawa.

81 F.3d 1480, 1484 (9th Cir.1996).

Using this standard in the context of facially discriminatory

laws, however, would ignore the clear language of Title II. Cf

Bay Area Addiction Research & Treatment. Inc. v. City of

Antioch, 179 F.3d 725, 733-35 (9th Cir. 1 999) (holding that the

reasonable modifications test does not apply to facially

discriminatory laws because they present per se § 12132

violations). § 12132 covers not only "exclusion from

participation in or [denial of] benefits of the services, programs.

or activities of a public entity," but also being "subjected to

discrimination by any such entity." 42 U.S.C. § 12132. By

reviewing all § 12132 claims under a meaningful access test,

this Circuit would focus only on exclusions and denials, and

ignore completely the discriminationclause, not to mention the

explicit language of the ADA regulation at issue here. Other

courts evaluating fees similar to the one at issue here have read

the statute and ADA regulation together rather than applying a

meaningful access test. See Thompson v. Colorado, 29 F. Supp.

2d 1226, 1231 (D.Colo.1998); Thrope v. State of Ohio, 19 F.

22a

Supp. 2d 816, 824 (S.D.Ohio 1998): McGarry v. Director,

Dept. of Revenue, 7 F. Supp.2d 1022, 1028 (W.D.Mo.1998).

We thus follow their approach and do the same; we hold that

when states apply charges to required measures, we consider

whether these fees constitute a surcharge forbidden under the

ADA.

B. Effect of Public Law 100-641

The government urges us to view Public Law 100-641 and

the regulations promulgated pursuant to it as justifying the

placards surcharge. On November 9, 1988, prior to the passage

of the ADA, Congress enacted Public Law 100-641, 23 U.S.C.

§ 402. This law indicates that the Secretary of Transportation

shall issue regulations which: (1) establisha uniform system for

handicapped parking designed to enhance the safety of

handicapped individuals and (2) encourage adoption of such

system by all the states. See id.

Pursuant to Public Law 100-641, the Department of

Transportation (DOT) promulgated regulations in March 1991,

eight months after Congress enacted the ADA. The DOT

regulations provide in pertinent part that:

Special license plates, removable windshield

placards, or temporary removable windshield

placards displaying the International Symbol of

Access shall be the only recognized means of

identifying vehicles permitted to utilize parking

spaces reserved for persons with disabilities

which limit or impair the ability to walk.

23a

23 C.F.R. § 1235.6(1998). DOT regulations further provide

that each state shall issue special license plates upon the

application of a person with a disability that impairs the ability

to walk and that "[t]he fee for the issuance of a special license

plate shall not exceed the fee charged for a similar license plate

for the same class vehicle." Id. § 1235.3. In contrast to the

provisions concerning license plate fees, neither Public Law

100-641 nor the regulations prohibit the imposition of placard

fees.

The government's argument fails, however, because Public

Law 100-641 is purely hortatory. See McGarry, 7 F.Supp.2d at

1026. Congress enacted Public Law 100-641 two years before

the ADA and has no enforcement mechanism. Even California

concedes that in recognizing principles of federalism and state

sovereignty, Congress rendered state compliance with Public

Law 100-641 completely voluntary.

In contrast, the ADA expressly applies to the states through

Congress's Fourteenth Amendment powers, as discussed in

more detail in Part II. Regulations promulgated pursuant to the

ADA bind states so long as the regulations are not arbitrary,

capricious, or contrary to the ADA. See Does 1-5 v. Chandler.

83 F.3d 1150, 1153 (9th Cir.1996). As discussed below, 28

C.F.R. § 35.130(f) meets that standard. We thus evaluate

California's surcharge based on the requirementsof Title II and

28 C.F.R. § 35.130(f). Public Law 100-641 does not impact our

analysis.

24a

C. Application to the California Fees

Applying this approach to the California fee at issue, we

tind the fee to be a surcharge for a required measure in

violation of the ADA. The ADA requires special parking

arrangements such as handicapped parking spaces. These

spaces allow disabled people equal access to public buildings

in which California provides services, programs, and activities.

Because California polices handicapped parking spaces,

disabled people need placards or license plates to use them.

California. thus meets the ADA's requirement for

nondiscriminatory access to public buildings by providing

disabled people with placards and license plates.

Furthermore, California's provision of license plates alone

would not be sufficient to give individuals nondiscriminatory

access to public places. In addition to the fact that many

disabled people may not own cars or have someone who drives

them 51% of the time, even those who do may sometimes have

to use other vehicles as passengers or as drivers. They may rent

cars or wish to drive with another person. To require disabled

people to use only a designated car for which they have a

license plate restricts them far more in accessing public places

than people who lack their disabilities. This reasoning comports

with cases by other courts that have struck down fees like the

one in California. See Thompson, 29 F. Supp. 2d at 1231-32;

Thrope, 19 F. Supp. 2d at 825; McGarry, 7 F. Supp. 2d at 1028.

Because providing the placards is a required measure under

California's current program of providing access to

25a

handicapped parking spaces, we turn to the question of whether

charging the fee for them constitutes a forbidden surcharge.

This issue hinges on whether California provides the same fee

for an equivalent service for nondisabled people. In support of

such equivalence, the appellees argue that the placard fee is

comparable to, and probably less than, charges nondisabled

people accrue at parking meters. California thus claims that if

the $6 fee is viewed as a partial payment of waived meter fees.

then disabled people are not being charged more than other

people.

California's argument fails, however. because many public

places do not have parking meters and people who lack

disabilities face no fees in parking at those places. Such a

distinction is unacceptable. Charging disabled people for

parking that would otherwise be free constitutes discrimination

in the provision of access to public buildings, a measure

required under the ADA. We thus affirm the district court on

this issue and hold that California's fee for handicapped parking

placards violates the ADA.

II. Constitutionality

Having established an ADA violation, we turn to the

constitutional issues raised by the government. This Circuit has

held that in enacting Title II of the ADA, Congress validly

abrogated state sovereign immunity pursuant to its Fourteenth

Amendment powers. See Clark v California, 123 F.3d 1267.

1270- 71 (9th Cir.1997). The majority of Circuits addressing

26a

this issue have followed this Circuit's approach in Clark.

We continue to adhere to our holding in Clark today. In

light of the Supreme Court's recent decision in Florida Prepaid

Postsecondary Educational Expense Board v. College Savings

Bank. --- US. ----, 119 S.Ct. 2199, --- L.Ed.2d---- (1999)

(hereinafter Florida Prepaid }, and the circuit split on this issue,

however, we provide further discussion of Title Il of the ADA

Compare Martin v. Kansas, 1999 WL 635916, at *3-*6 (10th Cir.

Aug.19, 1999), Muller v. Costello, Nos. 98-7491, 98-7729, 1999 WL

599285 (2d Cir. Aug.11, 1999) (page references not available) (holding that

the ADA constitutesa proper exercise of Congress’ Fourteenth Amendment

powers), Amos v. Maryland Dept. of Pub. Safety and Correctional Servs.,

178 F.3d 212, 216-23 (4th Cir.1999) (same), Kimel v. State of Fla. Bd. of

Regents, 139 F.3d 1426, 1433 (11th Cir.1998) (same), Coolbaugh v.

Louisiana, 136 F.3d 430, 432-38 (Sth Cir.1998) (same), cert. denied, ---

U.S. ----, 119 §.Ct. 58, 142 L.Ed.2d 45 (1998), and Crawford v. Indiana

Dept. of Corrections, 115 F.3d 481, 487 (7th Cir.1997), with Alsbrook v.

City of Maumelle, No. 97-1825, 1999 WL 521709, at *4-*7 (8th Cir. July

23. 1999) (en banc) (holding that Title II of the ADA was not a valid

exercise of Congress's § 5 powers), and Brown v. North Carolina Div. of

Motor Vehicles, 166 F.3d 698, 702-10 (4th Cir.1999) (holding that

forbidding surcharges under the ADA exceeds Congress’ Fourteenth

Amendment powers). See generally Torres v Puerto Rican Tourism Co.,

175 F. 3d 1, 4-5 (Ist Cir.1999) (failing to reach the issue, in part, because

of the dominant precedent upholding Congress’ exercise of its Fourteenth

Amendment powers in enacting the ADA): Nelsony. Miller, 170 F.3d 641,

648 & n. 7 (6th Cir.1998) (declining to reach this issue, but summarizing

the state of the law). We note that the Fourth Circuit has ruled both that the

ADA constitutesa proper exercise of Congress's § 5 powers, see Amos, 178

F.3d at 221-222 & n. 8, and that the regulation forbidding surcharges

exceeds Congress's § 5 authority, see Brown, 166 F.3d at 702-10. Because

we hold that regulations do not receive an independent constitutional

assessment, see infra Subsection I1.A.2. the Fourth Circuit authority is thus

more in accord with than opposing our Fourteenth Amendment analysis.

27a

as an appropriate Congressional exercise of its § 5 powers that

thus accords with both the Tenth and Eleventh Amendments.

A. Eleventh Amendment

1. Title II of the ADA

When Congress both expresses unequivocal intent to

abrogate immunity and also acts pursuant to its § 5 powers, a

state's immunity is waived. See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252

(1996); Clark, 123 F.3d at 1269. As noted in Clark, "Congress

has unequivocally expressed its intent to abrogate the State's

immunity under ... the ADA," 123 F.2d at 1269. The focus of

our discussion is therefore on why Title II constitutes a valid

exercise of Congress's powers under § 5 of the Fourteenth

Amendment.

The Court's recent decision in Florida Prepaid clarifies the

congruence and proportionality test outlined in C ity of Boerne

v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624

(1997). The first step of this test involves identification of the

"Fourteenth Amendment ‘evil’ or ‘wrong’ that Congress

intended to remedy," using historical experience as a reference

point. Florida Prepaid, --- U.S. at ----, 119 S.Ct. at 2207

(quoting City of Boerne, 521 U.S. at 525). The second step

requires consideration of whether the provisions of the statute

are proportional to their remedial or preventive goal. See id. at

2210 (quoting City of Boerne, 521 U.S. at 532).

28a

Before applying this test to Title Il of the ADA, we note

that Congress's enforcement authority is at its apex when

fashioning remedies aimed at the core Fourteenth Amendment

guarantee of Equal Protection. City of Boerne and Florida

Prepaid both emphasized Congress's power in dealing with

discrimination, such as in the voting rights context. See Florida

Prepaid, --- U.S. at ----, 119 S.Ct. at 2207; City of Boerne, 521

U.S. at 525-27. The Court explained that "[IJegislation which

deters or remedies constitutional violations can fall within the

sweep of Congress’ enforcement power even if in the process

it prohibits conduct which is not itself unconstitutional and

intrudes into legislative sphere of autonomy previously

reserved to the States." Florida Prepaid, --- U.S. at ----, 119

S.Ct. at 2206 (quotation omitted); City of Boerne, 521 U.S. at

518 (internal quotation omitted).

a. Congruence

Although disabled people do net constitute a suspect class,

the Equal Protection C lause prohibits irrational and invidious

discriminationagainst them. See City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 439, 446, 105 S.Ct. 3249, 87

L.Ed.2d 313 (1985). When it enacted the ADA, Congress made

specific factual findings of arbitrary and invidious

discrimination against the disabled. See id. § 12101(a)(7). On

the basis of these findings, Congress concluded that the ADA

was a necessary legislative response to a long history of

arbitrary and irrational discrimination against people with

29a

disabilities. See 42 U.S.C. § 12101(b).2 We thus hold that the

ADA in general and Title II in particular satisfy the congruence

requirement.

b. Proportionality

Having established the ADA's congruence with Congress's

power to enforce the Equal Protection Clause, we turn to

proportionality. In so doing, we reiterate the importance of

deference to Congress in this analysis.* The Supreme Court has

specifically found protections for people with disabilities to be

an area in which Congressional judgment should be given great

deference. See Cleburne Living Center, 473 U.S. at 442-43. °

A number of cases have held that the ADA constitutes a proper

exercise of Congress’ Fourteenth Amendment powers with specific

reference to Congress's factual findings. See Muller, 1999 WL 599285, at

~---, Amos, 178 F.3d at 218-19, Kimel, 139 F.3d at 1433, Coolbaugh, 136

F.3a at 435-38, Crawford, 115 F.3d at 486-87: cf. Timothy Cook, The

Americans with Disabilities Act: The Move to Integration,64 Temp. L.Rev.

393, 393-94 & nn. 1-4 (1991 ) (discussing Congress's extensive fact-finding

and the history of state-sponsored irrational discrimination and animus

against disabled people).

: As stated above, the Supreme Court has explicitly indicated that

Congress's enforcement power to deter or remedy constitutional violations

allows it to prohibit some constitutionally acceptabic conduct, even in

traditional areas of state autonomy, as part of its larger enforcement effort.

See City of Boerne, 521 U.S. at 518 (quoting F it=pairick v. Bitzer, 427 U.S.

445,455, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)): accord Florida Prepaid,

--- U.S. at ----, 119 S.Ct. at 2206 (quoting City of Boerne, 521 U.S. at 518).

Discussing in Cleburne Living Center the legal protections to

which individuals with developmental disabilities are entitled, the Court

30a

fhe ADA is thus an appropriate exercise of § 5 powers if

Congress enacted it in response to a widespread problem of

unconstitutional discrimination that includes state programs

and services and if the ADA's provisions are proportional to the

scope of that discrimination.®

As noted above, Congress made extensive factual findings

regarding the widespread arbitrary and invidious discrimination

which disabled people face. See 42 U.S.C. § 12101(a). The

ADA's particular provisions for each sector then indicate

specifically the discrimination which is forbidden and the

conduct needed to remedy the discrimination. See 42 U.S.C. §

12101 et seg. Although Title II's provisions may prohibit some

State conduct which would pass muster under rational basis

review, the Title's, focus is on eliminating the discrimination

outlined in the factual findings.

We thus agree with the Second Circuit and hold that "[iJn

noted that "[h]ow this large and diversified group is to be treated under the

law is a difficult and often a technical matter, very much a task for

legislators guided by qualified professionals and not by the perhaps ill-

informed opinions of the judiciary.” /d. The Court recently reinforced this

approach in Olmstead v. Zimring, --- U.S. ----. 119 S.Ct. 2176, --- L.Ed.2d

---- (1999). Although declining to reach constitutional questions, see id. at

2181, the Court held that "unjustified isolation ... is properly regarded as

discrimination based on disability,” id. at 2185, and spoke approvingly of

the ADA's efforts to end that isolation, see id. at 2187.

We therefore disagree with the Eighth Circuit that the ADA's

legislative record must "support the proposition that most state programs

arid services discriminate arbitrarily against the disabled" for abrogration of

immunity to be appropriate.

3la

light of Congress's findings of the extent of discrimination

against people with disabilities and with due regard to the

deference owed to Congress in making such judgments, we will

not second-guess Congress's judgment that the ADA was

targeted to remedy and prevent irrational discrimination against

people with disabilities." Muller, 1999 WL 599285, at ----.

Congress's findings were sufficiently extensive and related to

the ADA's provisions that the provisions can "be understood as

responsive to or designed to prevent, unconstitutional

behavior." Florida Prepaid, --- U.S. at ----, 119 S.Ct. at 2210

(quoting City of Boerne, 521 U.S. at 532). Therefore. we hold

that the ADA was a congruent and proportional exercise of

Congress's enforcement powers under § 5 of the Fourteenth

Amendment that abrogated Eleventh Amendment immunity.

2. Acceptability of 28 C.F.R. § 35.130(f)

Although California acknowledges the constitutionality of

Title Il of the ADA, it claims that the prohibition in 28 C.F.R.

§ 35.130(f) against states charging even de minimis

administrative fees violates the Fourteenth Amendment. We

disagree.

The primary flaw in the government's approach: is that it

conducts its Fourteenth Amendment analysis in a piecemeal

manner. Because the statutory scheme as a whole constitutes a

proper exercise of Congress’ power to legislate under § 5, see

Clark, 123 F.3d at 1270-71, regulations promulgated pursuant

to the ADA "must be given ‘legislative and hence controlling

weight unless they are arbitrary, capricious. or clearly contrary

32a

to the statute.’ "" Does 1-5, 83 F.3d at 1153 (quoting United

States vy. Morton, 467 U.S. 822. 834, 104 S.Ct. 2769, 81

L.Ed.2d 680 (1984)).’

Here, the regulation is not arbitrary, capricious, or contrary

to the ADA. See id. Title II protects the rights of disabled

people to have the same public services. programs, and

activities as those who are not disabled. See 42 U.S.C. § 12132.

If public entities place a surcharge on measures that help

disabled people achieve this parity, disabled people then are

As the Supreme Court stated in Olmstead:

[because the Department [of Justice] is the agency directed by

Congress to issue regulations implementing Title II, its views

warrant respect. We need not inquire whether the degree of

deference described in Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984), is in order; "[i]t is enough to observe that the

well-reasoned views of the agencies implementing a statute

‘constitute a body of experience and informed judgement to which

courts and litigants may properly resort for guidance.’ "

--- U.S. ----. 119 S.Ct. at 2186, --- L.Ed.2d---- (quoting Bragdon v. Abbott,

524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)

(internalquotation and citation omitted)).

In taking this approach, we reject the reasoning of the Fourth Circuit in

Brown, which determined that "separation of powers, administrability, and

federalism" required an examination of "the legality of the specific statute

and regulation whose asserted violation by the state government gave rise

to the claim for relief in federal court." Brown, 166 F.3d at 705. In our

view, a piecemeal analysis of the reguiations would unduly constrain

Congress's power to constructa statutory scheme addressing discrimination;

the federal courts, in effect, would have a line-item veto over legislation

directed at intentional or arbitrary discrimination by the states.

33a

paying fees others do not and so are not being treated equally.

Forbidding such additional charges is a solution aimed at

preventing this type of discrimination: it addresses the

improper approach to funding services for the disabled. see 28

C.F.R. § 35.130(f), while leaving states broad flexibility to

administer and fund their programs otherwise, cf. Duprey v.

State of Conn., Dept. of Motor Vehicles, 28 F.Supp.2d 702, 708

(D.Conn.1998) ( "If the DMV wants to pass on the costs of

providing placards, rather than absorbing the costs itself, it

must pass the cost on to all parkers, and not just those disabled

individuals protected by the ADA."). The rationale for this

regulation thus dovetails neatly with the purposes of Title II.

We therefore hold that 28 C.F.R. § 35.130(f) has controlling

weight.

B. Tenth Amendment

Because Title II falls within Congress's Fourteenth

Amendment powers, it does not conflict with powers reserved

to the states under the Tenth Amendment. See Ex parte

Virginia, 100 U.S. 339, 344-47, 25 L.Ed. 676 (1879); see also

Armstrong, 124 F.3d at 1024-25. We thus hold that the ADA

does not violate the Tenth Amendment.

Conclusion

The California placard fee violates the ADA and its

implementing regulations. Because the ADA constitutes an

appropriate exercise of Congress's enforcement powers under

34a

S$ 5 of the Fourteenth Amendment, California's Tenth and

Eleventh Amendment challenges fail. Furthermore, we accord

28 C.F.R. § 35.130(f) controlling weight as an regulation

promulgated pursuant to the ADA that is not arbitrary,

capricious, or contrary to the statute. We therefore AFFIRM the

district court's grant of summary judgment in favor of appellees

and of a permanent injunction against imposition of the

surcharge.

AFFIRMED.

35a

FERNANDEZ, Circuit Judge dissenting:

Because | cannot agree that the small fee California charges

for placards violates the ADA, I dissent.

California has sought to ameliorate the parking problems

that those with disabilities can face when they use automobiles

to attend to business, recreation or any of the other pursuits of

daily life. To that end, special parking places are set aside and

marked for the sole use of disabled people. See, e.g., Cal.

Veh.Code §§ 22511.7,22511.8. In addition, unlimited parking

is available in zones in which others may only park for a

limited time, and disabled people need not pay parking meter

fees. See Cal. Veh.Code § 22511.5. It is one thing, however, to

set aside spaces and confer other benefits. but quite another to

assume that only disabled people will take advantage of those

Opp¢rtunities. Others may well succumb to the temptation to

park in the special spaces, which are generally more convenient

to the place one is going and which may well be open when all

other desirable spaces are filled. Therefore. California not only

has made the spaces available, but also has created a method

that helps to assure that the spaces, and other benefits, will

remain available for disabled people only.

Under California law, a disabled person who owns a motor

vehicle can obtain a license plate, which contains a special

Symbol--the International Symbol of Access. “commonly

known as the wheelchair symbol." Cal. Veh.Code § 5007. As

interpreted by the DMV, the license plate is also available to

any person who is not disabled, if the vehicle is used to

36a

transport a disabled person at least fifty-one percent of the time.

There is no charge for the license plate beyond that which ts

paid by every other person who registers an automobile with

the DMV.

California, however, also decided to add more flexibility to

the program. It recognized that many disabled persons may be

driven by others, who do not do so fifty-one percent of the

time, and that it would be beneficial if the other person's

automobile could also be parked in the special parking spaces

when a disabled person was transported. Therefore, California

provided for the issuance of special placards, which are

portable and can be used in any automobile that is being driven

or utilized by a disabled person. See Cal. Veh.Code §

22511.55: see also Cal. Veh.Code § 22511.56 (misuse of

placards). While license plates are issued to every automobile,

the special placard is a unique item which is issued to disabled

persons only. It, therefore, imposes special costs upon DMV.

In order to defray a portion of those added costs, California has

imposed a small fee upon those who apply for the placard. That

fee is, basically, six dollars every two years. See Cal. Veh.Code

$§ 22511.55(a)(2), 22511.55(a)(3). That does not pay for the

full cost of issuing placards, and in a typical two-year cycle,

1995-1996, DMV's costs exceeded the fee revenues by

$1.182.829. That fee is the subject of this litigation. This case

deals with a sensitive area which lies at the border of federal

and state relationships. Ours is a system of dual sovereignty,

and some care must be taken when Congress wishes to have the

states carry out congressional policies. The states are not mere

adjuncts of the federal government. See, e.g.. Printz v. United

37a

States, 521 U.S. 898, ----, 117 S.Ct. 2365, 2376-77, 138

L.Ed.2d 914 (1997). That broods over this case as we undertake

the task of deciding whether California violated the ADA when

it enacted a placard fee, which amounts to twenty-five cents per

month. Dare argues that it did. If so, and if Congress could

constitutionally prohibit that, the district court's decision must

be upheld. California attacks both parts of that conjunctive

sentence. Because | agree that the ADA was not violated, I see

no need to consider the more thorny constitutional portion of

the sentence. But that is getting slightly ahead of the story, for

I should start with the ADA itself.

That statute, as relevant here, provides that "Subject to the

provisions of this subchapter, 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,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity." 42 U.S.C. § 12132. On its

face, it would not seem that the fee in question here can be said

to, somehow, deny disabled people the benefit of any services

offered to the public by California, or that it can be said to

discriminate against them. But, of course, the bare words of the

Statute are not the only law in this area.

The United States Department of Justice is responsible for

interpreting and implementing that provision of the ADA. See

42 U.S.C. § 12134. It has issued various regulations and

guidelines. In explaining its understanding of the requirements

of the ADA, the DOJ has stated that "a public entity should

provide an adequate number of accessible parking spaces in

38a

existing parking lots or garages over which it has jurisdiction."

28 C.F.R. Pt. 35 App. A at 457. There is no dispute that

California has provided special parking places for disabled

persons with vehicles.

The dispute in this case is over whether California has

violated a DOJ regulation, which provides that:

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 cost of

measures. such as the provision of auxiliary aids or

program accessibility, that are required to provide that

individual or group with the nondiscriminatory

treatment required by the Act or this part.

28 C.F.R. § 35.130(f); see also Americans with Disabilities

Act, DOJ Technical Assistance Manual (Title I), Section II--

3.5400. I would hoid that California has not violated that

provision.

Certainly. California has not, in as many words, excluded

disabled persons from any program generally offered to the

public. If a failure to make special parking places available

could be said to exclude them from the use of some other

program, California has not failed to provide for the spaces

themselves. No doubt the spaces are available in the sense that

they have been set aside. California, however, has sought to

assure that those who are not disabled will not use the spaces.

No doubt, its method of doing so can inhibit use by a disabled

person because the only rational way to provide the extra

39a

assurance is to police usage by placing some sort of special

symbol on the parked automobile. Even that is not a perfect

solution, of course, because people could use counterfeit

permits or otherwise abuse the program. See Cal. Veh.Code §§

4463, 22511.56. Nevertheless, that it does help cannot be

doubted.

Under the ADA, as it relates to the issues before us, the

most that California is required to do is make accessible

parking places available at public facilities. See 28 C.F.R. §

36.304(a)(18). That, of course, does not, itself, even require

special designation or signing. In fact, one could conceive ofa

situation where all spaces in a parking area were quite

accessible. At any rate, there is no claim that California has not

made spaces available. In fact, it has gone far beyond that and

has provided for overtime parking in zones limited for

everyone else and for free metered parking. See Cal. Veh.Code

§ 22511.5.

Nothing in the law requires that California police usage of

the spaces in order to assure that only disabled people are

taking advantage of them. Indeed, if the federal government

decided that usage must be policed by the states, that would

come at least parlously close to an attempt to "commandeer

State government" into enforcing a federal government policy

at state cost. See Printz, 521 U.S. at ----, 117 S.Ct. at 2381. No

doubt the provision of spaces has many costs, not the least of

which is the expense of Setting aside and signing special

spaces, perhaps larger than normal, which may go unutilized a

good part of the time, and which surely have less usage than

40a

other parking spaces. I, of course, need not address those costs.

California has willingly accepted them.

California has also accepted the cost, if any, of issuing

special license plates for disabled persons who have their own

vehicles, which need to be parked, as well as for those who

transport disabled people most of the time. See, e.g., Cal.

Veh.Code § 5007. I need not decide whether California could

impose a charge for that enhancement of the parking program

because, again, California has not sought to do so. In that

regard, however, it is interesting to note that Congress passed

a statute designed to "encourage" states to adopt a uniform

system for handicapped parking. See Act of Nov. 9, 1988,

Pub.L. No. 100-641, 102 Stat. 3335 § 3 (1988) (Handicapped

Parking System Provision (HPS)). It did so before the

enactment of the ADA, but at a time when the Rehabilitation

Act of 1973 was in effect. See 29 U.S.C. § 701-796l. At that

point, Congress indicated that a uniform policy should provide

for special license plates for which there should be no charge.

See HPS § 3(b)(1)(B) & (D). It also indicated that the uniform

policy should provide for placards. See HPS § 3(b)(1)(C).

However, Congress did not indicate that no fee should be

charged for placards. The regulations under the HPS are also to

the same effect. See 23 C.F.R. §§ 1235.3, 1235.6. These

hortatory suggestions by Congress might be one reason that

California has not chosen to impose a fee for the special license

plates. It also suggests that Congress did not see anything

particularly discriminatory in the exaction of a small fee for the

issuance of placards. if any were issued at all.

4la

As it is, California has decided to confer upon disabled

people the still further benefit of a system under which they can

drive or be driven in any automobile at all. and stil] use the

special parking places. as well as take advantage of other

special parking benefits. That is, California did set up an

optional flexible placard program. That complemented the

already optional enforcement program which was designed to

assure that spaces would not only be provided, but also that

they would remain available. As I see it. nothing in the ADA or

the regulations precludes California from making a small

charge for those additional benefits.

I, of course, recognize that a disabled person can argue that

he does not really care at all about having a vigorous

enforcement program, which greatly enhances the opportunities

of all disabled people to use the special parking places, and

even helps make it possible to confer still further parking

privileges upon them. In other words, a disabled person could

say, "Fine, just set aside and mark the spaces, but do not force

any additional benefits upon me, even at a nominal cost." I do

not sec any reason to believe that Congress did. or that

California or we need to, take that kind of reasoning seriously.

Moreover, | fail to see how a charge of twenty-five cents

per month, which accords all of those benefits above and

beyond the bare provision of spaces, can be dubbed a violation

of the ADA on the theory that the costs of state programs that

are required to preclude discriminatory treatment have been

placed upon disabled persons. No cost of a generally available

program has been so levied; rather an expanded ability to use

42a

ahe special parking spaces has been afforded. With or without

enhancement. the spaces remain, and even they are one step

removed from any particular state program as such.

In short, the placard enhancement allows tor great

flexibility in the use of the special spaces, affords even further

parking opportunities, and helps assure that the spaces will

actually be available for those who need them. The fact that a

disabled person, who does not have a car of his own or a car

which is used for disabled people most of the time, needs to

pay what amounts to twenty-five cents per month to be able to

use the special spaces does not put the cost of the parking space

program upon him; it only visits a minute part of the cost of the

enhancement upon him.

That being said, what of the district court cases which are

to the contrary? See Thompson v. Colorado, 29 F. Supp. 2d

1226. 1231-32 (D.Colo.1998); Duprey v. Connecticut, 28 F.

Supp. 2d 702, 709-11 (D.Conn.1998); Thrope v. ¢ hiv, 19 F.

Supp. 2d 816, 824-25 (S.D.Ohio 1998); McGarry v. Director,

Dep't of Revenue, 7 F. Supp. 2d 1022. 1027-29

(W.D.Miss.1998). Those cases appear to presume either that

some form of enforcement is required, or that the state has

chosen to enhance the availability of spaces and that is the

state's problem. See. e.g. Thompson, 29 F. Supp. 2d at 1232;

Duprey, 28 F. Supp. 2d at 709. As already noted, | see no

violation centered on the fact that a state has exacted a small

charge for the purpose of enhancing the benefits available to

disabled persons beyond those absolutely required by law. I,

therefore, do not accept that particular form of reasoning. The

43a

district court cases also note that without placards the program

could not be as flexible as it is because, for example. a disabled

person who is being driven in another person's car could not

confer the right to park in a special space upon the driver. See.

e.g. Thrope, 19 F. Supp. 2d at 825; McGarry, 7 F. Supp. 2d at

1028. Moreover, they say, a disabled person may wish to rent

or borrow a car, which did not have a special license plate, and

would not have access to a special space in that instance. And.

they say, free license plates do not help in those regards.’ See

id. Again, that puts the cart before the horse. It assumes that the

state must not only make spaces available, but also provide for

all possible permutations of desire to use those spaces, without

asking for any fee to help defray the cost of the enhanced usage

possibilities. | see no persuasive basis for that assumption. It

simply fails to recognize that the states are not discriminating

against disabled people when they undertake to police the use

of spaces, nor are they discriminating when they ask for a small

fee to enable them to do that policing in an efficient fashion.

There is, by the way. nothing before us to suggest that the fee

exceeds that which the DMV charges other people for services

it performs for them, or that the fee is in an excessive or

discriminatory amount whose design injures disabled people.

Far from it. The fee does not even cover the cost of issuing the

l It is interesting to note that a somewhat ambiguous

opinion letter from the DOJ suggested that a free license plate program was

a satisfactory alternative to a placard program. See DOJ Opinion Letter

from Deval L. Patrick, Assistant Attorney General, Civil Rights Division to

Congressman C.W. Bill Young. (Apr. 29, 1996). |, however. do not pul any

significant weight upon that missive.

44a

placards.”

In fine, the ADA ts an anodyne which serves to assuage

some of the sufferings of disabled persons. California does not

disagree with that general goal, and insists that it did not

deprive disabled persons of any rights when it imposed a

nominal fee upon those who sought to obtain parking placards,

which provide great flexibility in the use of the special parking

spaces that California has already made available. | agree with

that assessment of the situation, and determine that the district

court abused its discretion when it issued the permanent

injunction against the DMV.

In reaching my conclusion, | limit myself to the facts at

hand--a fee that comes to twenty-five cents per month to help

defray the cost of issuing the placard. I do not reflect upon

whether the state could charge a vastly greater sum for the

placards. Nor do I consider other programs or fees charged for

them. Nor, for that matter, do | consider whether the federal

government can constitutionally impose program costs upon

the states in this fashion. As I see it, those issues are, for now,

2 The best argument against this small and reasonable

placard fee is, it seems to me, that there are some disabled people who can

drive most cars and who wish to bor-ow or rent cars from time to time.

They are, | believe, the only ones who can reasonably complain at all about

the fee in any event. But even if the fee were invalid as applied to them, that

would not justify the breadth of the injunction issued by the district court

and approved of today.

A TT LT ET LE TL CE, TC A A EL, CET ES TAS

45a

beyond our ken.*

hus, I respectfully dissent.

3 It should be pointed out, however, that one Court of

Appeals and at least one District Court have declared that an attempt to

enforce the surcharge regulation in federal court violates the Eleventh

Amendment. See Brown v. North Carolina Div. of Motor Vehicles, 166

F.3d 698, 706-08 (4th Cir. 1999): Hedgepeth v. Tennessee, 33 F.Supp.2d

668, 674-77 (W.D. Tenn. 1998):see also Alsbrook v. City of Maumelle. No.

97-1825, 1999 WL 521709, at *7 (8th Cir. July 23, 1999) (en banc). Butef..

Clark v. California, 123 F.3d 1267, 1269-71 (9th Cir.1997). cert. denied, ---

U.S. ----, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998), Again, I see no need to

decide that issue in this case. If | did, | am inclined to agree with those

courts rather than with the majority

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.