ADA Decisions, California, ex rel Bill Lockyer, Attorney General, Plaintiff v County of Santa Cruz et al, Defendants., U.S. District Court, N.D. California, 12 ADD ¶12-194, (Oct. 30, 2006)

[Statement of Case]

Whyte, District Judge: Defendants County of Santa Cruz and Gail Pellerin move for summary adjudication on a discrete legal issue. Plaintiff Bill Lockyer, in his capacity as Attorney General of California, moves for a preliminary injunction against both defendants. For the reasons set forth below, the court the grants defendants' motion for summary adjudication in part and denies plaintiff's motion for a preliminary injunction.

I. BACKGROUND

California Attorney General Bill Lockyer, on behalf of all Californians, instituted this action against the County of Santa Cruz and its County Clerk, Gail Pellerin, in the California Superior Court. Lockyer sought (1) a writ of mandate under California Code of Civil Procedure §1085 requiring the defendants to comply with California Elections Code §12280 and the California Secretary of State's guidelines for accessibility by individuals with physical disabilities and (2) injunctive relief preventing defendants from violating portions of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12131-12134, and regulations promulgated thereunder, the ADA Accessibility Guidelines (“ADAAG”), [1] 28 C.F.R. pt. 36, app. A.

The defendants removed the action to this court and moved to dismiss both causes of action; Lockyer moved to remand his first cause of action to state court. The court denied the motion to dismiss and, finding that the California Elections Code §12280 cause of action raised novel issues of state law and constituted an exceptional circumstance, granted Lockyer's motion for partial remand. People ex rel. Lockyer v. County of Santa Cruz, 416 F. Supp. 2d 797 (N.D. Cal. Feb. 21, 2006). Proceedings before this court are now limited to Lockyer's ADA cause of action.

At the April 14, 2006 case management conference, the parties agreed that resolution of a discrete legal issue would aid resolution of this action. [2] The court instructed them to brief the following issue:

Can the County be in violation of the ADA solely because its voting program contains polling places that do not comply with the standards set forth in the ADAAG, if those polling places are housed in buildings that were constructed or last substantially remodeled prior to January 1992 and that were not constructed by, for, or on behalf of the County?

The defendants have moved for summary adjudication of the above issue. Lockyer also moves for a preliminary injunction requiring defendants to (1) make a good-faith effort to comply with the ADAAG and the ADA Checklist for Polling Places when conducting the November 7, 2006 election, (2) inform voters which polling sites are likely to be inaccessible, and (3) pay for independent monitoring of the November 7, 2006 election in Santa Cruz County to determine compliance with the ADA. There is substantial overlap of the legal issues in this pair of motions.

II. ANALYSIS

Title II of the ADA, 42 U.S.C. §§12131-12165, covers public services. Title II provides that “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.” §12132. “This provision guards against both intentional discrimination and simple exclusion from services resulting not from intentional discriminatory acts, but rather from inaction, thoughtlessness, or equal treatment when particular accommodations are necessary.” Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d 1134, 1136 (N.D. Cal. 1998). “The ADA applies to all programs, services, and activities of state and local governments, including elections.” Am. Ass'n of People with Disabilities v. Shelley (“ AAPD ”), 324 F. Supp. 2d 1120, 1125 (C.D. Cal. 2004). “The term `qualified individual with a disability' means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” §12131(2). “To prove a public program or service violates Title II of the ADA, a plaintiff must show: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Weinreich v. Los Angeles County Metro. Transp. Auth., ( 4ADD ¶4-050) 114 F.3d 976, 978 (9th Cir. 1997).

A. Defendants' motion for summary adjudication

Congress directed the U.S. Attorney General to promulgate regulations implementing portions of Title II that did not deal with transportation. See §12134(a). The U.S. Attorney General's regulations are therefore entitled to deference under the standard of Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). See Zimmerman v. Or. Dept. of Justice, ( 6 ADD ¶6-112) 170 F.3d 1169 (9th Cir. 1999). Under Title II, public entities providing services must adhere to the following standard:

(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not—

(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;

(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or

(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(b) Methods—(1) General. A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of §35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.

28 C.F.R. §35.150(a), (b). Public entities are also required to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” §35.130(d). “A public entity may not, in determining the site or location of a facility, make selections … [t]hat have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination.” §35.130(b)(4)(i). Buildings are addressed specifically by 28 C.F.R. §35.151(a), which provides that “[e]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.”

The parties disagree the extent to which the defendants must adhere to the ADAAG when conducting elections. The defendants claim that they are merely required to ensure that Santa Clara's election program is accessible to the disabled as a whole. Lockyer's argument appears to be that a single violation of the ADAAG at a polling location constitutes a violation of the ADA. The Ninth Circuit does not appear to have addressed this issue, and there is a dearth of other case law.

Lockyer presents two arguments as to why defendants are bound by the ADAAG. First, Lockyer argues that a publication by the U.S. Department of Justice (“DOJ”), ADA Checklist for Polling Places (“ Checklist ”), [3] should be afforded deference under Chevron and that defendants should be required to follow the publication. In places, the Checklist refers to portions of the ADAAG when discussing access requirements for polling places. See, e.g., Checklist at 7. However, the publication is prefaced with a disclaimer that it “does not constitute a legal interpretation of the” ADA. Checklist at i. No deference should be given a document that the authoring federal agency has expressly stated should not be relied on as an authoritative interpretation of the law. The incorporation of parts of the ADAAG into the Checklist therefore does not make or indicate that the ADAAG is, of itself, binding on the defendants. [4]

Second, Lockyer also argues that in order to comply with 28 C.F.R. §§35.130, 35.150 the defendants must also comply with the Checklist. Lockyer, though, presents no authority for such a position. In any event, the Checklist does not support Lockyer's argument that the requirements of the ADAAG should be used to determine if the condition of individual polling places constitute violations of Title II. As noted on page 4 of the Checklist, “[t]here may also be some sites that cannot be made accessible so plans will be needed to offer accessible voting in some other way,” implying that defendants are correct that all that is required of them under the ADA is programmatic compliance. The Checklist also states that “[w]hen State and local governments make permanent modifications or alterations to facilities that serve as polling places these alterations must comply with the ADA Standards.” Id. This sentence would be superfluous if all polling places, regardless of ownership or last date of modification, had to comply with the ADAAG.

The Checklist is not of itself binding on the defendants; arguments that the defendants are violating the ADA by not complying with the Checklist are therefore misplaced. [5] As another court stated in another dispute involving the ADA's requirements for public elections:

Title II requires only that programs be made “readily accessible to and usable by” people with disabilities. 28 C[.]F.R. §35.150…. As provided in the controlling regulations, a public entity may employ such means as “assignment of aides to beneficiaries … or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities.” 28 C.F.R. §35.150(b)(1).

It cannot be disputed that casting a vote independently and secretly would be preferred over casting a vote with the assistance of a family member or other aide. However, the ADA does not require accommodation that would enable disabled persons to vote in a manner that is comparable in every way with the voting rights enjoyed by persons without disabilities. Rather, it mandates that voting programs be made accessible, giving a disabled person the opportunity to vote.

AADP, 324 F. Supp. 2d at 1126.

The defendants, however, have not framed this issue completely accurately. The age of a building or who owns it is not directly relevant to whether the defendants have violated the ADA when conducting elections. The reason is that buildings used as polling places are not typically constructed for that purpose. If they were, 28 C.F.R. §35.151(a) would apply, which requires buildings modified after January 1992 and used for public services to be “readily accessible to and usable by individuals with disabilities.”

But the defendants have also not shown that they are held to any lesser a standard under §35.130 and §35.150 when voting is held in buildings the County does not own or buildings last modified before January 1992. The defendants cannot purposefully select pre-1992 buildings for polling places to avoid the ADAAG; such would run afoul of 28 C.F.R. §35.130(b)(4)(i)'s prohibition on making selections in a manner that has a discriminatory effect. Generally, §35.130(b)(4)(i) would seem to impose on defendants a duty to select the best available sites for polling.

Likewise, building age would appear to be irrelevant to compliance with §35.150. That regulation requires a jurisdiction's voting program “when viewed in its entirety” to be “readily accessible to and usable by individuals with disabilities” without any qualifications regarding the age of buildings. Section 35.150 (unlike the relative standard of §35.130) therefore provides a minimum threshold the defendants must satisfy when providing election services.

The court will grant the defendant's motion for summary adjudication in part on the narrow issue presented: Even though some buildings which the defendants use for polling places do not fully conform to the requirement of the ADAAG, the defendants are not necessarily in violation of Title II and the regulations promulgated thereunder. [6] However, the court will grant partial summary adjudication in part in favor of Lockyer: The defendants' use of older buildings does not relax the analysis under 28 C.F.R. §35.150; selection of older, non-ADAAG-compliant buildings may even violate 28 C.F.R. §35.130(b)(4)(i) if better choices are available to the defendants.

B. Lockyer's motion for a preliminary injunction

A district court has discretion to grant or deny a request for preliminary injunctive relief. Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006). Under the traditional test for granting preliminary injunctive relief, the applicant must demonstrate: “(1) a likelihood of success on the merits; (2) a significant threat of irreparable injury; (3) that the balance of hardships favors the applicant; and (4) whether any public interest favors granting an injunction.” Raich v. Ashcroft, 352 F.3d 1222, 1227 (9th Cir. 2003). Alternatively, “[t]he moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party.” Stuhlbarg Intern. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839-40 (9th Cir. 2001). The two parts of this alternative test “represent extremes of a single continuum, rather than two separate tests.” Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003) (internal citation and quotation marks omitted).

Lockyer's arguments that he is likely to succeed are based on the erroneous assumption that violations of the Checklist and the ADAAG automatically constitute violations of 28 C.F.R. §35.130 and 28 C.F.R. §35.150. The court is aware of the studies Lockyer has been conducting of Santa Cruz County polling sites since 2004 and the finding of numerous ADAAG violations. For example, using the ADAAG standards, of 114 Santa Cruz polling sites from the June 2006 election, seventeen lacked parking spaces of adequate size, thirty-five had parking spaces with too steep a slope, twenty-five had access problems from the sidewalk or street to the voting location, and nineteen had door thresholds that were too high. This list of problems, however, does not prove that voting in Santa Cruz County “when viewed in its entirety, is [not] readily accessible to and usable by individuals with disabilities” or that polling locations selected “have the effect of excluding individuals with disabilities from, [or] denying them the benefits of” voting (or subjects them to discrimination when doing so). See 28 C.F.R. §35.150(a).

As a picture is worth a thousand words, in the interest of saving space, some representative images from Lockyer's investigations are incorporated into this order ( Not Displayed—CCH). The first image shows the Veterans of Foreign Wars Post 7263, where polling was conducted in March 2004, November 2004, November 2005, and June 2006. Adler Decl. ¶38, Ex. A(8) at 1 (“64.jpg”). The ramp pictured leads from the parking lot to the front door, and according to Lockyer's investigators, has a slope of up to 9.2%. Id., Ex. A(4) at 25. The maximum allowed under the ADAAG for post-1992 construction is 8.3%. [7] ADAAG §4.8.2. The ramp also lacks edge protection of the sort described in ADAAG §4.8.7. Adler Decl., Ex. A(4) at 24. The second picture shows a walkway leading from the parking lot to the polling location at Crown College. Id., Ex. A(4) at 23, A(7) at 4 (“51A.jpg”). There is a grating in the middle of the sidewalk, and the spaces between the bars are three-fourths of an inch across. Id. The maximum allowed under the ADAAG is one-half inch. ADAAG §4.5.4. The last picture shows a ramp leading from the parking lot to the sidewalk at Scotts Valley High School. Adler Decl., Ex. A(4) at 25, A(8) at 1 (“67.jpg”). The slope of the flared sides is 54% on the left and 67% on the right. Id. ¶29(b)(iii), Ex. A(4) at 25. ADAAG §4.7.5 allows a maximum slope of 10% for flared sides. The slope of the access portion of this ramp also has a slope of up to 10.3%. Adler Decl. ¶29(b)(ii), Ex. A(4) at 24. This evidence clearly shows trees of individual ADAAG violations, but it is far from clear whether this collection as a whole forms the forest of a Title II violation. Lockyer has not demonstrated that it is probable he will succeed on the merits of this action.

Lockyer argues that the defendants have been on notice since 2004 of his investigation, and that therefore the defendants cannot complain about the burden of the injunction he seeks. However, as defendants point out, Lockyer has not after his extensive investigation brought to the attention of the court facts indicating that any person with a qualified disability in Santa Cruz County has been prevented from, or even hindered while, voting. [8] While the loss of voting rights “constitutes irreparable injury,” see Cardona v. Oakland Unified School Dist., 785 F. Supp. 837, 840 (N.D. Cal. 1992), the evidence before the court does not show a high likelihood of irreparable injury. Lockyer's motion for a preliminary injunction is denied.

III. ORDER

For the foregoing reasons, the court

1. rules on the defendants' motion for summary adjudication partially in favor of each side;

2. denies plaintiff's motion for a preliminary injunction; and

3. sets a further case management conference for December 15, 2006 at 10:30 a.m.