191 F. 3d 1167 - William Robert Dare

Notes:

Specifically, this plaintiff class included all purchasers of California placards since January 26, 1992 and future purchasers who are disabled under the ADA.

Compare Martin v. Kansas, 1999 WL 635916, at *3-*6 (10th Cir. Aug. 19, 1999), Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) (page references not available) (holding that the ADA constitutes a 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 (5th Cir. 1998) (same), cert. denied, _______ U.S. _______, 119 S. Ct. 58 (1998), and Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 487 (7th Cir. 1997), with Alsbrook v. City of Maumelle, 184 F.3d 999, 1005-09 (8th Cir. 1999) (en banc) (holding that Title II of the ADA was not a valid exercise of Congress's 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 (1st 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); Nelson v. 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 constitutes a proper exercise of Congress'sS 5 powers, see Amos, 178 F.3d at 221-222 & n.8, and that the regulation forbidding surcharges exceeds Congress's 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 II.A.2, the Fourth Circuit authority is thus more in accord with than opposing our Fourteenth Amendment analysis.

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, 187 F.3d at 31, Amos, 178 F.3d at 218-19, Kimel, 139 F.3d at 1433, Coolbaugh, 136 F.3d 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 acceptable 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 Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)); accord Florida Prepaid , 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 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." Id. The Court recently reinforced this approach in Olmstead v. Zimring, 119 S. Ct. 2176 (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 and services discriminate arbitrarily against the disabled " for abrogration of immunity to be appropriate.

As the Supreme Court stated in Olmstead:

[b]ecause 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 defer-ence described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (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 (quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (internal quotation 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 regulations would unduly constrain Congress's power to construct a 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.

FERNANDEZ, Circuit Judge dissenting:

Because I 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 SS 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 S 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 opportunities. 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. CodeS 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 transport a disabled person at least fifty-one percent of the time. There is no charge for the license plate beyond that which ispaid 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 S 22511.55; see also Cal. Veh. Code S 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 SS 22511.55(a)(2), 22511.55(a)(3). That does not pay for the full cost of issuing placards, and in a typical twoyear 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 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 I 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. S 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. S 12134. It has issued various regulations and guidelines. In explaining its understanding of the require-ments of the ADA, the DOJ has stated that "a public entity should provide an adequate number of accessible parking spaces in 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.

C.F.R. S 35.130(f); see also Americans with Disabilities Act, DOJ Technical Assistance Manual (Title II), Section II 3.5400. I would hold 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 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 SS 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. S 36.304(a)(18). That, of course, does not, itself, even require special designation or signing. In fact, one could conceive of a 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 S 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 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 S 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 S 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. S 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 S 3(b)(1)(B) & (D). It also indicated that the uniform policy should provide for placards. See HPSS 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. SS 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.

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 still 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 evenhelps 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 see any reason to believe that Congress did, or that California or we need to, take that kind of reasoning seriously.

Moreover, I 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 the 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 for 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 minutepart 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. Ohio, 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, I 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 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.1 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 ofthe enhanced usage possibilities. I 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 placards.2

In fine, the ADA is 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. I 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, I 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 I consider whether the federalgovernment can constitutionally impose program costs upon the states in this fashion. As I see it, those issues are, for now, beyond our ken.3

Thus, I respectfully dissent.

Notes:

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). I, however, do not put any significant weight upon that missive.

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 borrow or rent cars from time to time. They are, I 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.

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, 184 F.3d 999, (8th Cir. 1999) (en banc). But cf., 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 I did, I am inclined to agree with those courts rather than with the majority.