enforcement clause of the 14th amendment

Interstate Sovereign Immunity

May 15, 2019 by William Goren 1 Comment

Today’s blog entry discusses the case that came down from the United States Supreme Court on May 13, 2019, discussing interstate sovereign immunity. The case is Franchise Tax Board of California v. Hyatt. We have blogged on sovereign immunity before, such as here. It is an incredibly complicated area of the law, but this case isn’t that difficult compared to what we have blogged on before. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and takeaways. The reader is free to focus on any or all of the categories.

Facts

The facts are rather convoluted. Suffice to say, this was the third time this case came before the Supreme Court, but the first time the issue of interstate sovereign immunity was specifically considered. It involved an individual, Hyatt, who made a boatload of money on a microchip while residing in California. He later moved to Nevada. California thought the move was a sham and went after him for big time tax liability. The person being pursued by California for tax liability turned the tables on them by suing them in Nevada for torts he alleged the agency committed during the audit. California authorities argued throughout that they were immune from suit according to California law. After the case went up to the Supreme Court for the first time, Hyatt prevailed at trial. Eventually, the Nevada Supreme Court upheld a $1 million judgment on one of the claims and remanded for new damages trial on another. Then, it went up to the Supreme Court a second time where the Supreme Court said that the full faith and credit clause required Nevada to grant the California Board the same immunity that Nevada agencies enjoy. When the Nevada Supreme Court instructed the trial court to enter damages in accordance with the statutory Nevada provisions, it went back up to the Supreme Court for a third time for specifically considering interstate sovereign immunity. In a prior case, dating back 40 years, the Supreme Court had said that a State could or could not grant sovereign immunity to another State. That is, the grant of sovereign immunity was not mandatory regardless of what the other State’s law might say. In other words, sovereign immunity is available only if the forum State voluntarily decides to respect the dignity of the other State as a matter of comity, or respect.

Majority Reasoning That Sovereign Immunity Is Mandatory Where the Other State’s Law Says So

At the time of the founding of the United States, States were immune under both the common law and the law of nations. The Constitution’s use of the term “States,” reflects both kinds of traditional immunity. States retain those aspects of sovereignty except as altered by the plan of the constitutional convention or certain constitutional amendments.
When the States ratified the Constitution, they surrendered a portion of their immunity by consenting to suit brought against them by the United States in federal courts. While such jurisdiction of the federal courts is not conferred by the Constitution in express words, it is inherent in the constitutional plan.
The whole idea behind the 11^th amendment in light of its history and structure is to preserve the States traditional immunity from private suits.
The Constitution affirmatively alters the relationship between the States so that they no longer relate to each other solely as foreign sovereigns. Each State’s equal dignity and sovereignty under the Constitution implies certain constitutional limitations on the sovereignty of its sister States, such as the inability of one State to bring another into its courts without the latter’s consent.
The Constitution implicitly strips States of any power they once had to refuse each other sovereign immunity, just as it denies them the power to resolve order disputes by political means.
There are many constitutional doctrines not spelled out in the Constitution but are nevertheless implicit in the structure and supported by historical practice, such as: judicial review; intergovernmental tax immunity; executive immunity; and the president’s removal power. Like those doctrines, the States sovereign immunity is a historically rooted principal embedded in the text and structure of the Constitution.
The decision to overrule precedent means looking at: the prior decision’s quality of reasoning; the prior decision’s consistency with related decisions; legal developments since the decision; and reliance on the decision. All of those criteria are met according to the majority because the prior decision failed to account for the historical understanding of state sovereign immunity. It also failed to consider how the Constitution reordered the States relationship with one another. Further, that decision, to the majority’s eyes, was an outlier in sovereign immunity jurisprudence when compared to more recent decisions. Finally, the reliance factor is minimal as it only involves Hyatt incurring the loss of litigation expenses and a favorable decision.

III

Dissenting Opinion Reasoning

At the time of the founding of the United States, nations granted other nations sovereign immunity in their courts not as a matter of legal obligation but as a matter of choice. In legal jargon, comity or grace or consent.
No provision of the Constitution gives States absolute immunity in each other’s courts.
Concept like “constitutional design,” and “plan of the convention;” are highly abstract and difficult to apply. Such concepts invite differing interpretations as much as the Constitution’s broad liberty protecting phrases such as “due process,” and “liberty.” They also suffer from the additional disadvantage of not actually appearing anywhere in the United States Constitution.
Where the Constitution alters the authority of States with respect to other States, it tends to do so explicitly, such as what is found in the import export clause and in the full faith and credit clause.
Why would the framers silently and without any evident reason transform sovereign immunity from one based upon consent into an absolute immunity that States must accord one another?
Overruling a case always require special justification, which is not present in this case. That is, while reasonable judges can disagree about whether the prior decision was correct, the very fact that disagreement is possible shows that overruling the decision is obviously wrong.
States normally grant sovereign immunity voluntarily. If they fear that this practice is insufficiently protective, they can enter into an interstate compact guaranteeing that the normal practice of granting immunity continues.
It is dangerous to overrule decision only because five members of the later court come to agree with earlier dissenters on a difficult legal question.

Takeaways

So, what does this mean in terms of how sovereign immunity works. The way it works now after this decision with respect to an individual suing their own State has not changed. That is, the court is going to first look at whether the State has explicitly consented to being sued. If it is a situation where a federal law, such as the ADA, forces a State to waive their sovereign immunity, then the court will attack it this way. First, they will look to whether the State has consented to being sued. Second, if the answer is no, the court turns to federal law to determine if the federal law explicitly waives the State’s sovereign immunity. Finally, if the federal law does do that, which the ADA for example does, then the very complicated question becomes whether the waiver of sovereign immunity is consistent with the enforcement clause of the 14^th amendment to the United States Constitution.
With respect to a person residing in one State but then suing a different State with respect to federal law, the analysis would be the same as in ¶ IV1. With respect to a State law, the analysis turns entirely upon whether the State has waived consent to being sued. If the answer is that they have not, then the forum State now has no choice but to grant the sovereign immunity. The harder question is what if it is not clear whether consent has been waived or not. In that case, does the forum State refer the matter to the other State’s courts for a decision much in the way federal courts may ask for an opinion from a State court on a matter of State law?
Justice Breyer’s statement about the danger of overruling the decision when five members of the later court come to agree with earlier dissenters comes immediately after citing to a decision dealing with abortion. That placement is undoubtedly intentional.
¶ II6 of this blog entry is emphasized intentionally. This kind of statement is not something you expect from a conservative jurist, as they typically look into the text of the document to figure out what the document means at the time it was written. If they don’t try and figure out what document means at the time it was written, they would probably try to figure it out in terms of the plain meaning of the document. Looking to what is embedded in the text and structure of the Constitution potentially blows things wide open. One can argue that that approach isn’t really any different than finding a penumbra of privacy in Griswold v. Connecticut. In fact, Justice Douglas took that very approach in reaching the conclusion that the Constitution had a penumbra of privacy emanating from several different constitutional provisions. See Griswold v. Connecticut 381 U.S. 479, 482-485 (1965). Similarly, Justice Goldberg joined by Chief Justice Warren and Justice Brennan referred to the language and history of the ninth amendment to find a right of marital privacy. Id. at 487. So, look for a huge fight at the Supreme Court when the abortion decisions come up before it with respect to whether prior decisions should be overruled or not. ¶ II6 gives the four liberal justices all kinds of ammunition to argue that considering Griswold and the many years since then, that some level of pro-choice (up to a point of viability?), is now embedded in the Constitution.
You may be asking what does any of this have to do with the rights of persons with disabilities? A fair question. I’m not exactly sure. However, I think the whole area of sovereign immunity is so fascinating that I just couldn’t resist blogging on this case.

Another Arrow in the Bag for Plaintiffs when it Comes to Disability Discrimination by Governmental Entities

December 5, 2018 by William Goren 2 Comments

Before getting started on the blog of the week, I want to express my condolences to the Bush family on the passing of George H.W. Bush. He signed the Americans With Disabilities Act on June 26 of 1990. His son also has a powerful legacy in that regards as he signed the ADAAA. Simply put, for my ability to participate in the mainstream world as well as the specialty I have carved out for my legal career, I owe a great debt to both of them. In keeping with their legacy, I was incredibly moved that H.W.’s service dog was front and center in the papers. G-D speed H.W. May H.W. rest in peace.

Today’s case will revolutionize the consequences for what happens when a nonfederal governmental entity, and possibly a federal governmental entity as well, discriminates on the basis of disability. As I have mentioned before, at least once a month, I get a call about a court system somewhere around the country discriminating against a person with a disability before it. Previously, I have written about two different cases involving suing court systems successfully for disability discrimination. A discussion of those cases can be found here and here.

The case of the day is a case from the Sixth Circuit decided September 25, 2018, Bullington v. Bedford County, Tennessee, which can be found here. As usual, the blog entry is divided into categories and they are: facts; opinion for the court; concurring opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

Facts

Bullington worked as a dispatcher at the Bedford County Sheriff’s Department for eight years. Sometime during that period, she developed Hodgkin’s lymphoma that was treated with chemotherapy. However, the chemotherapy caused neuropathy and scar tissue in her lungs so that she needed additional treatment. As a result of that diagnosis and treatment, she asserted the department treated her differently than the other employees. She filed suit alleging: violation of her constitutional rights under the 14^th amendment to be free from discrimination and retaliation; violation of her constitutional rights because the County did not provide adequate supervision and training; violation of the Tennessee human rights act; and violation of the ADA. The defendant moved for judgment on the pleadings, which was granted by the District Court, and Bullington appealed.

Opinion for the Court

Plaintiff admitted that she did not file a charge with the EEOC. Accordingly, she did not exhaust administrative remedies. Further, while she may have followed prior counsel’s advice on whether to file a charge with the EEOC, which was mistaken, that is not enough to allow for equitable tolling. Accordingly, the ADA claim has to be dismissed.
Determining whether Congress precluded a remedy under §1983 turns on congressional intent.
A distinction exists between §1983 claims premised on constitutional violations and those based on statutory violations in determining whether a §1983 claim is precluded.
Where the contours of rights between the statutory claim and the constitutional protection diverge in significant ways, it is not likely that Congress intended to displace §1983 suits involving important constitutional rights.
Both the Third and the Eighth Circuits have held that the ADA does preclude §1983 claims for violations of the ADA. Even so, that is not what is going on here. Rather, plaintiff alleges constitutional violations and not violations of the ADA itself. So, her claims are being brought under the 14^th amendment’s equal protection clause and not under the ADA.
Several Circuits have allowed constitutional claims to be brought under §1983 even where the plaintiff’s constitutional claims run parallel to claims brought under analogous statutes. Further, other courts have allowed plaintiffs to pursue claims under §1983 for disability discrimination even when they run parallel to ADA violations.
The court looked to a Supreme Court case, Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009), holding that a §1983 claim for an equal protection violation was allowed to run parallel to a title IX claim. In reaching that decision, the Supreme Court look to title IX’s enforcement mechanism, the scope of title IX rights and 14^th amendment rights, and to the context and history of title IX.
Based upon Fitzgerald, there are three things to consider when examining congressional intent to preclude a constitutional claim, and they are the statute’s: text and history; remedial scheme; and the contours of its rights and protections.
The burden of proving preclusion of a §1983 claim lies with the defendant.
Neither the statutory text nor the legislative history of the ADA contains a clear indication of congressional intent to preclude simultaneous constitutional claims.
42 U.S.C. §12201(b) expressly provides that nothing in the ADA shall be construed to invalidate or limit remedies, rights, and procedures of any federal law or law of any State or political subdivision of any State or jurisdiction providing greater equal protection for the rights of individuals with disabilities than afforded by the ADA. Such language is strong evidence that Congress did not intend to preclude remedies under §1983 for constitutional violations.
The Committee on Education and Labor’s report as well as the Committee on the Judiciary’s report both make clear that the ADA was not intended to preclude other remedies, including those of constitutional law.
The ADA’s relation to title VII of the civil rights act also suggests that Congress did not intend to include alternative remedies for disability discrimination as the ADA uses the procedures set forth in title VII. That relationship is important because at the time Congress passed the ADA in 1990, courts frequently held that the comprehensive scheme provided in title VII does not preempt §1983, and that discrimination claims may be brought under either statute, or both.
At the time Congress enacted the ADA, the Sixth Circuit had already allowed plaintiffs to bring parallel concurrent title VII and §1983 constitutional claims.
Congress’s presumed familiarity with title VII case law and the numerous references to title VII within the ADA suggest that Congress could not have intended for the ADA to preclude a §1983 claim.
With respect to title II of the ADA, it’s remedies are tied into title VI of the Civil Rights Act. Title VI of the Civil Rights Act as far back as 1967 was routinely interpreted to allow for parallel and concurrent §1983 claims.
Where an employee establishes employer conduct violating both title VII and rights derived from another source, whether it be the Constitution or federal statutes existing at the time of the enactment of title VII, the claim based on the other sources are independent of the title VII claim.
In 2012, the Sixth Circuit held that a §1983 claim regarding a constitutional violation could survive despite title VII.
Where the contours of such rights and protections between the two laws diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights even where there is some overlap in coverage.
Rights created by the ADA are strikingly different from those already protected by the equal protection clause as the stated purpose of the ADA as found in 42 U.S.C. §12101(b)(1)-(3) is: providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing standards set forth in the ADA on behalf of individuals with disabilities.
In addition to invoking its power under §5 of the 14^th amendment, Congress also invoked a broad power under the commerce clause.
The protections available under the ADA and the equal protection clause are critically different from each other. For a person to prove an ADA claim, the plaintiff has to show: that she was in a class of persons protected by the ADA; that she was otherwise qualified for the position; that she suffered an adverse employment action; that the employer knew or had reason to know of her disability; and that the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
The equal protection clause requires a very different showing than the ADA. With respect to the equal protection clause, citing to Heller v. Doe, 509 U.S. 312 (1993), and to Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a plaintiff has to show that there was no rational basis for the State action to treat her differently because of her disability.
Given the different requirements for proving the claim under the ADA and the equal protection clause, it makes sense that even if the comprehensive remedial scheme of the ADA somehow precluded utilizing §1983 to assert an ADA violation, the plaintiff still gets to assert a violation of the equal protection clause based on alleged disability discrimination through 1983.
Since both the rights created by the ADA and the equal protection clause very significantly as do the elements required to prove both of those claims, that evidences a lack of congressional intent that the ADA precluded separate enforcement of individuals with disabilities constitutional rights.

III

Concurring Opinion of Judge Kethledge

Extrinsic materials like legislative history have a role in statutory interpretation only to the extent they shed a reliable light on the enacting legislature’s understanding of otherwise ambiguous terms.
Legislative history by itself has zero significance in statutory construction. Legislative history only matters to the extent it clarifies a specific ambiguity in the statutory text.
Nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. Accordingly, that is reason enough to hold that the ADA and constitutional claims can parallel each other. Therefore, referring to legislative history to justify that conclusion is completely unnecessary.

Takeaway/Thoughts

This case is absolutely huge with respect to the consequences of what happens when a State court engages in disability discrimination. Now, under this decision, a person with a disability has parallel tracks they can pursue (the ADA as well as procedural and substantive due process).
Very interesting that the court cites to Heller and Board of Trustees of the University of Alabama for two reasons. First, as I have written in all of the Editions of my book, Understanding the ADA, which can be found here, in Heller, the United States Supreme Court assumed that persons with disabilities were in the rational basis class since both parties didn’t contest that. It is true that Board of Trustees of the University of Alabama said that persons with disabilities with respect to employment are in the rational basis class. However, Board of Trustees of the University of Alabama relied upon Heller, where a rational basis classification was assumed without argument, and upon Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), which would be more appropriately classified as a rational basis plus classification. So, putting persons with disabilities in the rational basis class with respect to employment does not follow squarely from precedent.
Regardless of persons with disabilities being classified in the rational basis class when it comes to employment not squarely following from precedent, it is now settled that persons with disabilities are in the rational basis class with respect to employment. However, that is simply not the case with respect to title II of the ADA. Under Tennessee v. Lane, 541 U.S. 509 (2004), which we discussed here, when it comes to accessing the courts, persons with disabilities are in a much higher classification than rational basis. Accordingly, that means rebutting an equal protection violation or a substantive due process violation under title II of the ADA means the State showing it had a compelling interest in the discrimination. Considering the ADA, that is going to be an almost impossible bar for the State to jump over.
Since the equal protection clause and the substantive due process clause mirror each other, one wonders whether this decision cannot be used to address disability discrimination by a federal court, where it happens, even though the federal courts are not subject to the ADA.
Will the courts split on this thereby leading to a U.S. Supreme Court decision? Hard to tell. However, the concurring opinion provides a way for the courts to avoid splitting, as any split would likely come from judges that frown on legislative history. It is possible, even if it is very unlikely, that the United States Supreme Court could decide to hear a matter without a split among the Circuits.
Title I of the ADA requires exhaustion of administrative remedies, but keep in mind, that title II and title III of the ADA do not. When exhaustion is required is absolutely something the attorney has to know unless they want to be contacting their malpractice carrier.
The concurring opinion believes that it was so clear that the ADA does not preclude equal protection claims that you don’t even have to look at legislative history. That is important because many people on the U.S. Supreme Court don’t like to look at legislative history unless they have to. That said, it is concerning that this is a title I case as persons with disabilities have not fared well at the Supreme Court level when it comes to disability discrimination in employment. I would feel more comfortable about a person with a disability chances at the Supreme Court over the issue of constitutional law and the ADA running in parallel to each other if this was a title II case.
Failure to provide training on the ADA possibly could violate a person with a disability equal protection rights under this decision.
The burden of showing preclusion is on the defense.

I am figuring on one more blog entry before our annual greatest hits issue. I have an entry in mind, but you never know what will come up.

Sovereign Immunity in the Absence of Constitutional Violations

November 15, 2017 by William Goren 3 Comments

The capitol Building — Legislative Branch

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11^th amendment and also defended under the 10^th amendment as well.

Court’s Reasoning

In rejecting the defendants 11^th and 10^th amendment claims, the court reasoned as follows:

No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14^th
When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14^th amendment; and 3) if the misconduct violated title II but not the 14^th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
Plaintiff did not allege a violation of the 14^th amendment in his complaint.
Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14^th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
Finally, the court found that any 10^th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

Takeaways:

I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!