VIEW FROM THE COURTHOUSE STEPS: THE DARE AND GARRETT CASES
-George Moore
Did the Dare case, concerning whether California can charge for "handicapped" parking placards, go our way? Yes and no. The Supreme Court decided not hear the state's appeal of the 9th U. S. Circuit Court of Appeals ruling which overturned California's $6 biennial fee for the placards. But the Supreme Court also refused to grant certiorari to cases from North Carolina and Texas in which the 4th and 5th U.S. Circuit Courts respectively allowed those states to charge a fee for their placards. The issue is not settled uniformly throughout the country.
In the meantime, Governor Davis is still trying to pursue "negotiations" over returning the fees that have been collected. Last June, Davis indicated he would drop the appeal if a settlement could be reached on that issue. It wasn't and he didn't. Many observers in CDR felt the governor was stalling all along, despite his rhetoric.
Watch the newspapers and CDR's website for updates.
As to Garrett, in late February the Supreme Court rendered a decision which has been widely viewed as a setback for enforcement of the ADA in employment. The ruling is, in fact, quite narrow.
Two Alabama state employees sought monetary damages for job discrimination in violation to the ADA. The Supreme Court reversed a U.S. Circuit Court ruling that sided with the employees.
Under this decision, state employees may not sue for money damages under ADA. It does not prohibit suits brought for injunctive relief from a state employer nor does it bar suits initiated by federal enforcement agencies for money damages. It does not forbid individual suits for money damages against private employers or local governments.
The Supreme Court also declined to rule on Title II of ADA which applies to state and local government services.
Some observers believe there shouldn't be much impact in California. An article by Melanie Payne in the Sacramento Bee points out that "...state laws in many respects exceed federal standards when itncomes to providing access for people with disabilities and making it possible for [them] to work, according to experts in disability law."
The danger to the disability community is not so much in the specifics of this case as in making it clear the ADA is under attack by the U.S. Supreme Court. This is the institution which played a major role in the civil rights struggles of the last 50 years. Alas, those Justices are no longer running the institution.
It means we're going to lose some, but we should also be able to fight some off. Stay Alert!
The final day to introduce new bills in the California Legislature for this year was February 23rd. Just as the spring in Sacramento seems to come all at once, and suddenly trees by the thousands are covered in blossoms, so the Legislature suddenly comes alive with a flurry of legislative proposals, with hearings and negotiating sessions popping up everywhere.
There are many new bills important to the disability community, some good and some bad. The CDR legislative committee is already actively working on several, and developing positions on many more.
As decided by the CDR State Council, our CDR sponsored legislation for the year is AB677 (Steinberg), developed to address the problems raised by the Dare case. The bill has three major provisions.
1. AB677 prohibits discrimination in any program or activity administered by the state or a state agency. There is already state law that covers recipients of state funding. We are merely extending that provision to cover the state itself. Of course, there is already such a requirement for the state at the federal level, both in Section 504 of the Rehabilitation Act and in the Americans with Disabilities Act (ADA). But considering the recent attacks on the ADA in the Supreme Court, it seems prudent to strengthen state law as much as possible in this area.
2. AB677 prohibits the state Department of Motor Vehicles (DMV) from charging any fee for parking placards for qualified persons with disabilities. In Dare v. DMV, the court has ruled that the fee for the parking placard violates the ADA. (The U.S. Supreme Court recently declined to hear DMV's appeal in the Dare case, which makes the previous court decision binding on the state.) AB677 would make state law consistent with this decision.
3. AB677 requires DMV to vary the size and shape of the parking placard every two years, to facilitate enforcement.
AB677 has been referred to both the Judiciary and the Transportation committees in the Assembly. We believe the Judiciary committee hearing will be April 5. You will be receiving Legislative Alerts on the bill as it progresses. I hope we can count on your active support on this important piece of legislation.
Another bill on which the CDR legislative committee is actively working is not CDR-sponsored, and in fact we have grave concerns. That is SB105 (Burton) which would remove all services for the blind and visually impaired from the Department of Rehabilitation, and move them to a newly created Commission for the Blind and Visually Impaired.
SB 105 is sponsored by a group called BARC (Blindness Advocates for Rehab Change), a coalition of blind and visually impaired organizations. They want this new commission because they are dissatisfied with the services provided by DR.
The CDR State Council has extensively discussed this bill. There is a lot of sympathy with BARC's concerns. However there is also a strong consensus for a cross-disability stance, and against the divisiveness of one disability group against another. (CDR strives to be cross-disability, and in fact many of our members are blind or visually impaired, including our Executive Director, Michael Dunne, and our sponsored legislation a short while ago was AB422, to provide textbooks in electronic format for blind and visually impaired students.) A better strategy would be to focus on methods of improving DR services for all disability groups.
For this reason, the State Council and the Executive Committee have approved a position of "oppose unless amended," and we have offered amendments intended to lead to reform of DR. Again, we will need your help as this bill goes through the process, and I hope we can count on your active support.
One bill that appears to be bad news is AB1040 (Dutra), a clone of the Clint Eastwood, 45-day-notice bills from the past that unfairly restrict our access to the courts on ADA violations. Please take a look at President Chris Elms' column in this New World for a complete discussion of AB1040.
There are a number of other bills identified as important which we are still evaluating and formulating positions on. Click on this link for details.
Convening in the heavy Los Angeles downpour of February 24 and 25, but mercifully sheltered in the LAX Hilton Hotel, both the CDR State Council and the CDR Foundation Board engaged in a day and a half of extensive discussions about proposed legislation, current litigation, the power crisis, and internal operations.
The legislative matters primarily concerned SB105 and AB677. The first would establish a new state agency to work with blind and limited vision clients who presently are being served by the Department of Rehabilitation. A discussion of the issues involved will be found in a separate story.
The same goes for AB677 which would require under California law thatall state facilities and programs be accessible as required by Federal law under ADA.
It also prohibits the state from charging for the "handicapped" parking placards, as in the Dare suit. More details will also be found elsewhere in this New World.
There was considerable discussion of the ongoing power crisis. Michael Dunne, CDRF Executive Director, told of some activities the Capitol Chapter (14) is carrying out. George Moore also described the ways the Yolano Chapter (2) is raising awareness of possible problems for persons with disabilities both in the disability community and with local and county providers of emergency services.
Michael wrote a report which appears on page one.
On the litigation front, attorney Barry Fisher reported on progress with the Rezulin case in which CDR is an orgazational plaintiff. The Department of Justice is attempting to consolidate several actions which is not a move CDR approves. President Chris Elms was instructed to write an appropriate letter.
Other legal issues, Garrett, Dare, ETS and Barden (Sacramento curb cuts), were discussed. Fuller accounts appear in this New World.
The State Council is also considering an invitation from the California Foundation of Independent Living Centers to join CFILC as an Associate Member. After many exchanges, the matter was referred to the Executive Commitee for further exploration.
It was agreed that CDR would have a booth at the Abilities Expo in April in Anaheim.
CDRF FOUNDATION BOARD OF DIRECTORS:
The principal topic was consideration of how to amend the Foundation bylaws to reduce the size of the Board from its present 26 to about nine. The two principal reasons for this proposed action are , 1) to make more distinct the governing structures of CDR and its adjunct, the CDR Foundation, and 2) to make more practical the writing of Directors & Officers liability insurance. Once drafted, specific language will be sent to all Board members in writing in advance of the Foundation Board meeting at which the amendments will be acted on.