Sovereign Immunity, State Judiciary, and Other Stuff

This week’s blog entry is a case that I have had in my blog to file for some time. This is one of Andrew Rozynski’s cases, and it is not the first time I have blogged on one of his cases. In the interest of full disclosure, he and I do stay in touch and also have been on a panel together. The case is Luke v. Lee County decided in August and September 2023 (here and here). As usual, the blog entry is divided into categories, and they are: facts; magistrate’s discussion that due process violations do not survive the motion to dismiss; magistrate’s discussion that the equal protection claims do survive the motion to dismiss; magistrate’s discussion that emotional distress damages for Title II claims are not allowed after Cummings; District Judge’s discussion of why expectation damages survive the motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any all of the categories.

I

Facts

Luke, a Deaf claims that after he was arrested for marijuana possession, the Defendants, including the CSCDs, failed to provide him with an ASL interpreter throughout “the investigation, arrest, booking, detainment, arraignment, release, court proceedings, and probation.” .

After Luke initially filed suit, the CSCDs filed a motion to dismiss, which the District Court granted.

Luke appealed to the Fifth Circuit, which analyzed whether Luke’s claims were in fact barred by sovereign immunity or whether sovereign immunity had been validly abrogated. The Fifth Circuit found that sovereign immunity did not apply to Lee County as it was a political subdivision rather than an arm of the State. It also found that Luke successfully pleaded a Title II claim satisfying step one of the [Georgia] abrogation test.” The court vacated the dismissal as to the CSCDs and remanded the case for disposition upon further briefing from the parties as to whether Luke’s claims satisfy the second and third steps of the abrogation test. Id. The Fifth Circuit also ordered the District Court to determine whether emotional distress damages are available under Title II after finding that Luke pleaded sufficient facts supporting compensatory damages in stating that he suffered “fear, anxiety, [and] humiliation” as a result of the alleged Title II violation.

Additionally, the Fifth Circuit remanded this case (1) for “consideration of whether Congress validly abrogated state sovereign immunity for the claims against the Supervision Departments” and (2) to “decide the effect, if any, Cummings has on Luke’s ability to recover emotional distress damages under Title II” and nothing more.

After the magistrate decision, the decision was appealed to the district judge with respect to the question of whether expectation damages were permissible after Cummings.

II

Magistrate’s Discussion That Due Process Violations Do Not Survive the Motion to Dismiss

1. An essential component of due process rights is that individuals be given fair warning of acts that may lead to revocation.
2. A lack of a qualified interpreter can implicate due process.
3. Luke failed to explain how the lack of fair warning was implicated in his meetings with the probation officers.
4. While the Fifth Circuit stated that Luke’s claims against Lee County on the basis of the denial of an interpreter throughout his criminal proceedings should proceed past the pleading stage, Luke did not sufficiently plead a 14^th amendment due process violation as to the Community Supervision and Corrections Department of San Jacinto County, Texas.

III

Magistrate’s Discussion That the Equal Protection Claims Do Survive the Motion to Dismiss

1. Disabled individuals are not a suspect class, which means they are usually subject to rational basis scrutiny. Under that standard, a legislative classification gets upheld against an equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.
2. Since parties attacking the presumption of rational basis have the burden to negative every conceivable basis that might support it, Luke did not meet his burden in order to overcome the presumption of validity afforded to classification subject to rational basis review, which in this case was the Community Supervision and Corrections Department cost-saving justification.
3. In Tennessee v. Lane, here, the Supreme Court found Title II’s accessibility requirements congruent and proportional to its object of enforcing the right of access to the courts. It further found that Title II unquestionably valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services.
4. The ADA forbids discrimination against persons with disabilities in the provision of public services, program, and activities under Title II by public entities, including state and local governments, as well as their agencies and instrumentalities.
5. In Tennessee v. Lane, the Supreme Court found that Title II also seeks to import a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review, like the right of access to the courts, that are protected by the Due Process Clause of the 14^th
6. The Supreme Court in Lane went on to explain that Congress enacted Title II against the backdrop of pervasive unequal treatment in the administration of state services and program, including systematic deprivations of fundamental rights, such as the pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system.
7. The Supreme Court noted that Congress had heard numerous examples of the exclusion of person with disability from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service, failure of state and local government to provide interpretive services for the hearing impaired, failure to permit the testimony of adults with developmental disabilities and abuse cases, and failure to make court rooms accessible to witnesses with physical disabilities.
8. Lane held that with respect to the right of access to the courts, States sovereign immunity was abrogated (forcibly waived).
9. Lane makes clear that the right of access to the court falls under the wider umbrella of judicial services.
10. The failure to provide an ASL interpreter implicates the accessibility of judicial services for several reasons: 1) the Lee and San Jacinto County Community Supervision and Corrections Departments supervise offenders who were sentenced to community supervision by local courts; 2) They are also established by district judges in each judicial district and organized within local judicial districts; 3) supervision department employees work for the judicial districts, and the judicial districts pay their salary and provide office space, equipment, and other forms of support; 4) given the relationship between the Community Supervision and Corrections Departments and the Local court districts per the Texas Local Government Code, it is reasonable to infer that Luke’s claims implicate a judicial service, namely the oversight of his probation period.

IV

Magistrate’s Discussion That Emotional Distress Damages For Title II Claims Are Not Allowed After Cummings;

1. Cummings, which we discussed here, clearly established that emotional distress damages are not recoverable under spending clause antidiscrimination statutes, such as the Rehabilitation Act. It follows that the interpretation of remedies under the Rehabilitation Act is also applicable to Title II of the ADA.
2. The plain reading of the language of 42 U.S.C. §12133 reflects a congressional policy that the remedies under the Rehabilitation Act are the remedies available under Title II of the ADA.
3. Since the general principle is that the rights and remedies under Title II and the Rehabilitation Act are the same, emotional distress damages are not available under Title II.

V

District Judge’s Discussion of Expectation Damages Survive The Motion To Dismiss

1. Whether expectation damages are workarounds to Cummings does not necessarily render them unavailable as a matter of law.
2. A party’s expectation losses are not necessarily the same as their emotional distress.
3. Cummings instructed that court should examine whether a remedy is traditionally, generally, or normally available for contract actions.
4. Just as it is hornbook law that emotional distress damages are not available for contract claims, it is also hornbook law that expectation damages are available for contract claims.
5. Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give the person the benefit of the bargain by awarding the person a sum of money that will, to the extent possible, put that person in as good a position as he/she/they would have been in had the contract been performed.
6. By entering into a contract under Title II remedies, the Community Services Correction Department was on notice that it could potentially be liable for standard contractual remedies.
7. In general, recovery under expectation damages is limited to an amount that the evidence permits to be established with reasonable certainty.
8. The reasonable certainty inquiry is a question of fact and simply cannot be determined at the motion to dismiss stage.
9. While certain losses of Luke may be incapable of quantification, other instances, such as loss of employment through prolonged confinement, may result in damages capable of calculation.
10. At the pleading stage, each subset of family does not need to be pled with specificity or directly supported with evidence.
11. Even if expectation damages are unlikely to prove quantifiable at a later stage of litigation, which very well may be the case in this situation, they are not barred as a matter of law.
12. In a footnote, the court noted that since expectation damages are a standard contractual remedy, Community Services Corrections Department had notice by definition under Cummings.
13. Any concern that expectation damages are not intuitive and seemingly inapplicable to ADA violations, is addressed by the fact that expectation damages must be quantifiable.

VI

Thoughts/Takeaways

1. Persons with disabilities are the only class of people whose equal protection category varies depending upon the particular factual situation. For example, with respect to employment, persons with disabilities are in the rational basis class per Board of Trustees of the University of Alabama v. Garrett. As we see in the case discussed this week, with respect to judicial services they are in the highest class. It just depends from one factual situation to the other as to where people with disabilities will land with respect to the equal protection classification.
2. This decision holds that “accessing the courts,” mentioned in Lane is actually far broader and applies to judicial services.
3. The courts are holding that emotional distress damages are not available under Title II of the ADA even though Cummings specifically said they were saving that question for another day.
4. Expectation damages may be a workaround to the Cummings prohibition on emotional distress damages. However, those damages require reasonable certainty in order to be allowed, but it is nevertheless possible such damages could be shown.
5. The case settled.
6. “Visual impairments,” is acceptable in the vision loss community. However, “hearing impairment,” drives most in the hearing loss community absolutely bonkers.