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.
Although limitations is at the heart of the Tenth Circuit’s decision its assumption, without discussion, that a sidewalk is a program or service of a City is the foundational error in the decision. Unlike public accommodations, Title II entities have no specific statutory barrier removal obligation. Their obligation is to make their programs and services accessible. In many cases this incorporates barrier removal because programs are carried out in physical places and unless those places are accessible the program itself is inaccessible. Sidewalks are a different matter. There is disagreements among the courts about whether the sidewalk itself is a service or, instead, it is the construction or repair that is a service. Under the latter interpretation a city violates the ADA if it builds a sidewalk that is not accessible or repairs a sidewalk without making it accessible, but there is no ADA violation by simply leaving an old sidewalk the way it is. The distinction is critical for cities with old infrastructure, because the “sidewalk is a service” view obligates the city to make everything, regardless of age, perfect immediately. Unfortunately the Supreme Court is unlikely to address this issue because the 10th Circuit’s decision was based only on limitations.
The first limitations theory has the date of construction trigger the running of limitations. Limitations based on the date of construction is highly desirable for any city because it delivers certainty that it will not be haunted by its mistakes forever but it turns the ADA limitations period into something more like a statute of repose. Statutes of limitation generally run from the date of an injury; statutes of repose, which are designed to protect architects, engineers and contractors from errors in construction run from the date of construction. This difference in purpose usually results in statutes of repose being far longer than statutes of limitation because negligently build buildings pose a danger for years or decades. The ADA borrows the local tort statute of limitations and treating it as a statute of repose doesn’t really make sense. This reflects one of the ADA’s most basic flaws: it treats discrimination in terms of physical accessibility whose effects are not directed at any specific individual the same way it treats discrimination directed at a specific individual. Many of the irrationalities in ADA enforcement stem from this fundamental flaw in the way the ADA was written.
Limitations based on the date the plaintiff was first injured follows the model for most limitations periods based on a tort. You don’t have a claim until you are injured but after that must act with reasonable promptness. This choice of limitations fits the model of the various torts that arise out of a nuisance or dangerous condition. It has the, however, of imposing endless liability on a Title II entity, for as long as a new plaintiff comes along a new lawsuit is possible. Thus, the second theory leaves the entity with no relief for acts taken decades or even a century before. In this respect the Tenth Circuit’s “repeated violations” doctrine isn’t that much worse than a theory that ties limitations to the date of the plaintiff’s injury. Once you define the mere existence of a sidewalk as a service, limitations based on the date of injury will do very little to protect the city.
That brings us back to the nature of the city’s obligation under Title II of the ADA. Title III carefully distinguished between the obligation to make new facilities accessible and the obligation to make old facilities accessible, including in the latter a reasonableness requirement that includes consideration of cost and difficulty. It seems likely that Congress would have done the same in Title II if its intention had been to require that cities retrofit all of their infrastructure. There are more sophisticated arguments than this that can be and have been made in the briefing in Hamer, but the fundamental problem is inescapable. Using the accessible program and services obligation of Title II as a way to shoehorn the design/construction requirements of Title III into Title II exposes cities to huge financial burdens without any end to the risk of litigation. And that exposes a basic flaw in the ADA, which failed to create the two tiered limitations structure applied elsewhere to buildings and similar structures; that is, a statute of limitations tied to an individual injury and a statute of repose tied to the date of construction.
** Thanks to Nicholas Poppe of Nathan Dumm Meyer for alerting me to the filing, of which he was one of the authors.