The URL can be used to link to this page

Home My WebLink About33-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Authorization to join amicus curiae brief in support of the City of Sacramento in the case of Barden v. City of Sacramento C'r-...".c I,' 1., \,..,., <ill Dept: CITY ATTORNEY Date: August 10, 2001 Synopsis of Previous Council action: None. Recommended motion: That the Mayor and Common Council authorize the City Attorney to join in the amicus curiae brief in support of the City of Sacramento in the case of Barden v. City of Sacramento. ~ () "9~ ~." ~ Signature Contact person: Robert L. Simmons Phone: 5355 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Council Notes: Agenda Item No. .3'; 8)2.0 jOJ STAFF REPORT Council Meeting Date: August 20. 2001 TO: FROM: DATE: ITEM: Mayor and Common Council James F. Penman, City Attorney August 10, 2001 Authorization to join amicus curiae brief in support of the City of Sacramento in the case of Barden v. City of Sacramento. The City of Sacramento has requested amicus support in the above case. Plaintiffs asked the District Court to declare the City's streets to be a "program" under the Americans with Disabilities Act (ADA). The District Court denied the request by granting partial summary judgment to the City. The matter is now on appeal to the Ninth Circuit. If the Court decides that the city's sidewalks are a "program" under the ADA, the City will have to bring the "entirety" of its sidewalk system into current ADA compliance. This is an expensive proposition for any city. It goes beyond installing curb ramps. This is an issue that is important to every public entity in California and other states as well. The City Attorney recommends that the City of San Bernardino join in the amicus curiae brief. There is no cost to the City of San Bernardino in the joinder of this brief. www.kutakrock.com ATLANTA CHICAGO DENVER KANSAS CITY LINCOLN LITTLE ROCK OKLAHOMA CITY OMAHA PASADENA RICHMOND SCOTTSDALE WASHINGTON S t-'" ~v (~ I~ , tJ--' V '0 \,. 11i"1 ""''' __ ....,i KUTAK ROCK LLP SUITE 450 620 NEWPORT CENTER DRIVE NEWPORT BEACH, CALIFORNIA 9266().8()19 949-711l-97oo FACSIMILE 949-711l-9708 July 27,2001 ATTENTION: CITY ATTORNEY Re: Subject: BARDeN v. CITY OF S.4CRAMPlTO Request to Cities to Join as Amicus in The League Of California Cities Brief In Support of The City Of Sacramento's Opposition To ADA Title II Appeal: A City's Obligation to Make its Existing Sidewalks ADA Cornpliant Dear City Attorney: The Board of Directors of the League of California Cities is urging cities to join in the Amicus Curiae brief in Barden v, City of Sacramento, In this appeal the plaintiff/appellants are asking the Ninth Circuit Court of Appeals to find that a city's sidewalks are "programs" under the ADA, and that cities are obligated to identify all aspects of their sidewalks which are not in compliance with the current Americans with Disabilities Act Accessibility Guidelines (ADAAG), and to immediately remove any barriers to accessibility that exist within the city's entire sidewalk system. If the appellants position is adopted it will significantly expand a city's liability under Title II of the ADA, and it will result in very expensive obligations for cities in operating and maintaining their sidewalk systems, . lIRIE! DESCRIPTION OF TPE CASE The plaintiff/appellants brought this action against the City of Sacramento in the United States District Court for the Eastern District of California, alleging violations of the ADA and state civil rights laws arising out of the City's design and maintenance of its sidewalk system. The plaintiff/appellants alleged that the City violated their rights by failing to install proper curb ramps at intersections, failing to rnaintain sidewalks in compliance with ADA regulations, and failing to prepare and implement a proper Self-Evaluation and Transition Plan in conformance with ADA regulations, The plaintiffs/appellants seek broad injunctive relief to require the City of Sacramento to broaden its Transition Plan for Curb Ramps to include other sidewalk facilities, and to require the City to bring its entire sidewalk system into conformance with current disabled access standards, 17-21629.01 KUTAK ROCK LLP """". '--' ,,- "", '-' ATTENTION: CITY ATTORNEY July 27,2001 Page 2 The City of Sacramento moved for partial summary judgment on the issue of whether its Transition Plan for Curb Ramps complies with the ADA regulations requiring that public entities make their programs, services and activities readily accessible to disabled persons. The City argued that the "program accessibility" requirement does not mean that its entire sidewalk system must be brought into compliance with current disabled access standards, because sidewalks are not "programs" for purposes of the regulation, On March 7, 2001, United States District Judge Milton L. Schwartz entered partial summary judgment in the City's favor, determining that the City's Transition Plan for Curb Ramps complies with the ADA's "program accessibility" requirement. Judge Schwartz reasoned 1.hat the City's Sidewalks are not a separate program, service or activity and, therefore, are not subject to the "program accessibility" requirements of the ADA and state law. In his Order, Judge Schwartz certified an immediate appeal of this issue of first impression, finding that a substantial ground for difference of opinion exists and that an immediate appeal would materially advance the ultimate termination of the litigation. On April 13, 2001, the United States Court of Appeals for the Ninth Circuit accepted review of Judge Schwartz's ruling, In this appeal, the Ninth Circuit will decide whether a public entity's sidewalk facilities constitute a "program" for purposes of the "program accessibility" requirement under the ADA and state law. WHY THIS CASE MERITS CITY ATTENTION This is an issue of first impression with profound implications for public entities having responsibility over sidewalks, streets and other structures in public rights of way. The plaintiff! appellants argue that the "program accessibility" requirement means that public entities must bring the entirety of their sidewalk systems into compliance with current disabled access standards. The City of Sacramento maintains that its Transition Plan for Curb Ramps, which sets forth the City's plans for installing and modifying curb ramps at intersections, complies with the ADA regulations, and that it is not required to bring its entire sidewalk system into compliance with current accessibility standards. AMICUS ISSUES The Amicus Curiae Brief to be submitted in support of the City of Sacramento's position will address the legal support for the City's interpretation of the "program accessibility" requirement, and the policy arguments supporting the City's analysis of the applicable ADA regulations, For example, the Amicus Curiae Brief will argue that the Department of Justice, which promulgated the regulations at issue, could not have intended to fundamentally alter the "program accessibility" requirement by broadening it to include sidewalks and other structures where a public entity's programs, services and activities are not offered. Further, the Brief will emphasize the importance of this issue to the municipalities, counties and other public entities having responsibility over public rights of way, who would be burdened with the enormous cost of bringing millions of miles of sidewalks into compliance with current design standards, 17-21629.01 KUTAK ROCK LLP c "'""I >wi ATTENTION: CITY ATTORNEY July 27,2001 Page 3 The Amicus Curiae Brief may also address issues discussed in the Brief(s) filed by Amici Curiae in support of the plaintiff/appellants' position. The plaintiff/appellants have asked the United States Department of Justice and disabled advocacy groups to file Amici Curiae Briefs in favor of extending the "program accessibility" requirement to sidewalks. It will be important to respond to the legal and policy arguments made by amici curiae supporting the plaintiff/ appellants' arguments. FILING SCHEDULE The plaintiff/appellants' Opening Brief is due on July 30, 2001. The City of Sacramento's Brief is due on August 29, 2001. Pursuant to Rule 29(e) of the Federal Rules of Appellate Procedure, the Amicus Curiae Brief in support of the City's position is due on September S, 2001. CONCLUSION The issue of whether sidewalks are "programs" for purposes of the ADA's "program accessibility" requirernent is of great significance to public entities having responsibility over sidewalks and other structures in public rights of way, We are asking your city to authorize us to file an Amicus Curiae Brief in the Barden case before the Ninth Circuit Court of Appeals on your behalf. Specifically, we are asking you to execute and return the attached authorization of representation form by fax or regular mail no later than August 17, 2001. Please do not hesitate to contact me if you have any questions regarding this request for Amicus. Attached for your further consideration is a copy of the Summary Judgment Motion upon which the plaintiffs/appellants appeal is based. Very truly yours, r utak Rock Disabled Access Group Gregory,hurley@kutakrock.com Direct Dial: 949-719-2289 jiv Enclosures 17-21629.01 "'"" ........ '-' KUTAK ROCK LLP ...." www.kutakrock.com ATLANTA CHICAGO DENVER KANSAS CITY LINCOLN LITTLE ROCK OKLAHOMA CITY OMAHA PASADENA RICHMOND SCOTTSDALE WASHINGTON SUITE 450 620 NEWPORT CENTER DRIVE NEWPORT BEACH, CALIFORNIA 92660-8019 949-71S-<;700 FACSIMILE 949-71S-<;708 GREGORY F. HURLEY, Esq. 949-719-2289 Mr. Hurley's practice is limited to defending claims alleging discrimination under the Americans with Disabilities Act, and state statutes. He is the author of Wiley Law Publications textbook Defending Disabled Access Claims. a panelist for the Program on Disabled Access Claims of the United States District Court for the Eastern District of California, and Lorman Education Services seminars on New Developments in Disabled Access Law (Fall 2001). He supervises the Finn's 12 member Disabled Access Law Practice Group. Mr. Hurley is a nationally recognized expert on disability law. He has been defending access discrimination suits for over eleven years. He has advised numerous facilities, The San Diego Padres & Chargers, The American Institute of Architects, the Building Owners and Managers Association, Leo A. Daly, Gensler & Associates, Pacific Life, The Irvine Company's Retail, Office, & Industrial Groups, the City of Newport Beach, the City of San Diego, the City of Riverside, The Denver Broncos, the National Association of Theater Owners, and the California Restaurant Association on the requirements of the ADA, as well as state laws and regulations. Mr. Hurley has been asked to testify before state and federal lawmakers, agencies, and panels on the effect of the ADA on retail businesses. He has represented dozens of property owners/operators including Home Depot, The Irvine Company, Fox Photo, El Torito Restaurants, Carrows Restaurants, Restaurant Enterprises Group, The Historic Mission Inn, Builders Emporium, AMC Theaters, Wolfe Camera, Pacific Theaters, West Coast Realty Investors, and the City of Riverside in lawsuits relating to disabled access. Mr. Hurley's practice group has litigated over a dozen class action lawsuits, and over a hundred claims alleging discrimination under state & federal disabled access laws. Mr. Hurley is actively involved in working with the owners and operators of facilities nationwide in preparing new regulations and guidelines for disabled accessibility. He is lead trial counsel defending three national lawsuits filed by United States Department of Justice against facilities and their architects. 17-21215.0111 '. . KUTAK ROCK LLP ,..... I",...- .,....., I"".J ATTENTION: CITY ATTORNEY July 27,2001 Page 4 CONSENT TO JOIN AS AMICUS CURIAE TO: Gregory F. Hurley Chair Kulak Rock Disabled Access Practice Group 620 Newport Center Drive Suite 450 Newport Beach, CA 92660 Phone: (949) 719-2289 Fax: (949) 718-6708 Please add the City of to the amicus curiae brief being prepared by the League of California Cities on behalf of the City of Sacramento in the Appeal of Barden v. City of Sacramento United States Court of Appeals Docket Number: 01-15744, I understand that no financial contribution of any kind is required of amicus parties. This authorization extends only to adding the City's name to the amicus brief you are preparing in the above case at this stage in the litigation. You will need to get supplernental authorization from me in writing to add the City's name to any further brief and efforts, CONTACT PERSON AND ADDRESS: BAR NUMBER: PHONE: () FAX: () Questions please contact Gregory F. Hurley, Chair Kulak Rock Disabled Access Group, 620 Newport Center Drive, Suite 450, Newport Beach, California 92660, Phone: 949-719-2289, Fax: 949-718-6708 17-21629.01 " ' '-' - ..,.., -... July 18, 2001 CIlI'UI'Y' CITY .\'rIOlct,m DlANIlI. lI/U.l1lR PAULA. GAIZ GIlRALP c:. HlCIIS STIYIN Y. lTAQAKI rn:YIl'I T. JOtIIl' MAIlco.1,., KIlOPI' IQcHAII) '" ~~ .10"" M. UJIIlIIlIJ(ll GIIfll\VO .. NAImI'IU IMU.Y'INlDON }OI~", MAmIIW'D.II\lYAIC DllIOWt I. ICtlIJ,n . .QIA~ T.ItAllla IlOIIllt'J' I). 'I'OIaJI'IAG^ mPIfIlN P, TMYI.OtI . IAPI_Nt;; $~NA ALc:ALot> 'WOOD CIPIICIl 01' ,.. c:JtT_I~lIm QTY OF SACRAMENTO CWftlIIIM S~UIl.I.1AcgcN CITY ATTllJ/ll1l'l' w.UolAM Po ~ao CIlID ASaTo\NT art ~ ~ l AlICIlIIAlD .\tIISfAIn' cnT AnOaNl\' nNIOl DDl'l./TY em' ATl'OJlOIJYI "UCI C, ctlNl ~..I\\II" JANllM c. TI\I.IlCIT * NINTH mIlT, TINTIf n.ool llACIlAMIl"l'O, c:h ,"I,""" \'H nW640'S46 PAX "Il.164-?41J Dear City Attorney: ~ed Ie 8 letter from Oreg Hurley, .m/oua counsel for the League of California Cities ,.qu..tlng that your city join in tl'le Amlcua Cllfiat brief to be tilled In the matter of sarden v. Clry of S8C1amento. ~ Mr. Hurley details, the obligation which the plaintiffs In ti'lis matter attempt to impose on munldpalllle. I. enormoue. The plain tilT. contend that a clty'. Ild.wa/ks are .programs" under the Americans with Dlsabllltle. Act and the ~.hab"ItIlUon Act of 1973. The ramlflcatlons of such a holding would be devastating to the public works' budget of any city. If a sldewlllJl 18 I 'program" under the ADA or RehablRtatlon Act, the .idswalk mU5t be made ..ccesslbl.. (I.e. tom up and replaced). Sac;ramento ha. apPlOxlmllte1y 1,100 mil.. of sidewalk - . good portion of which WIll eonatructed in 111. .arty or mid-portlon of the laat century. The cast of replacIng theM aldewalks In cltle. such.. Sacramento, 8en Francraco, Los Angell. and San DIego and even smaller municipalities can well be Imagined. Nor 18 the lasue lImited to California. Aa this II an (.IUS of tlret Impresalon, any cSeclalon of the Ninth CIrcuit will have natlonal Importance and may be the only declalan on thla Issue far some tlme. I theretore etrongly urge your city to Join In the 8m/oua brief I,g be fil.d ~ the League lilt Callfgrnl. ettles. Iy you,., DCH:pw