I blogged about the 10th Circuit’s decision in Hamer v City of Trinidad earlier this year.* The City has now filed a Petition for Certiorari that may well take the case to the Supreme Court because the issues and conflict between the Circuits are well defined.**
The heart of the dispute concerns a novel doctrine invented by the Tenth Circuit, the “repeated violations doctrine.” Under this doctrine every Title II entity has an immediate obligation to fix every problem with accessibility everywhere, and its failure to do so constitutes a new ADA violation every day. The age of the facility doesn’t matter because the obligation is to fix things regardless of when they were built. A sidewalk built a century before passage of the ADA must be fixed in the same way a sidewalk built last week must be fixed. Other Circuits have refused to impose this kind of endless liability, tying the limitations period either to the when the facility was built or renovated or to the date the plaintiff first suffered an injury, and refusing to find a generalized obligation to fix things that did not violate the law when they were built. More
As I predicted, the United States Supreme Court denied Domino’s Petition for Certiorari today. It did so without any formal explanation – the case is simply listed as one of many for which cert was denied. I’m sure the blogosphere and many business groups will decry the lost opportunity for a ruling that might limit ADA website litigation, but after thinking it over I don’t think there was ever much the Supreme Court could have done that would deter ADA website filers. The split in the circuits that was used to justify the Supreme Court’s interest only concerned whether websites with no affiliated physical place of business are covered by the ADA. A favorable decision would have still left the vast majority of businesses at risk. Equally important, the U.S. Supreme Court has no jurisdiction over state versions of the ADA, meaning that plaintiffs in two of the hottest states for these lawsuits, California and New York, could keep filing under state law. Finally, and most important, almost all ADA website cases are filed only to get money for the lawyers who file them. The settlement dynamics are simple – a business pays the lawyers less than the cost of a basic defense and agrees to fix its website because it makes economic sense to do so. No matter what the Supreme Court might have done it could not have significantly changed that settlement dynamic, for even the most business friendly decision could only give defendants a reasonable chance of success on a Rule 12(b)(6) motion. The Supreme Court could not make that motion cheap enough to beat the certainty of settlement because the cost of such a motion is deeply embedded in the structure of the Rules of Federal Procedure. Even more important, the heads I win, tails you still lose advantage on recovery of attorneys fees for plaintiff’s is one fundamental driver of all ADA litigation and the Supreme Court can’t do anything about that without overturning decades of civil rights precedent. The Supreme Court could favorably rule on standing issues in a case I’ll blog about tomorrow, but the refusal of cert. in Domino’s is only a mild disappointment because the real solution remains with Congress.
Halloween is a month away, but the candy is on the shelves at our local grocery stores and the courts are already delivering tricks and treats for those of us concerned with accessibility lawsuits.
A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.