First, a point of clarification: I do not presently have an attorney and am not seeking other participants for a lawsuit that I already have "in the works." I personally have nothing "in the works" other than my attempt to complain to the U.S. Department of Justice (and maybe later this week to a congressional caseworker), as described below. Indeed, I do not believe I have the financial resources to make such a lawsuit successful on my own! Instead, my last posting was looking for any attorneys, or any other groups of individuals affected by Kansas' new rules, who may themselves already have a suit challenging these rules "in the works." I would be willing to join, contribute to, and participate in, such a group.
Now, a rant about being ignored by the Department of Justice.
I think the Department of Justice has stamped "IGNORE" on my forehead in 64-point bright red letters. They wouldn't be the first to do this, but I don't pay taxes to support most of the other folks that have done this.
Well, there has not yet been any response to my original complaint to the Justice Department, Civil Rights Division, Disability Rights Section, mailed hard copy by first class mail with delivery confirmation on September 23, 2009, and confirmed delivered to its addressee by the Postal Service five days later--but never yet acknowledged in any way by USDOJ.
When I attempted to check on the status of my complaint by phone early in December, I was told that there was no record USDOJ had ever received my complaint, but the person on the other end of the conversation gave me the e-mail address ada.complaint@usdoj.gov and suggested that I try e-mailing a copy of my complaint. So, on December 7, 2009, I e-mailed a copy to the e-mail address I was given, and received an automatically-generated acknowledgment of receipt. But I have not heard anything more--just the automated electronic acknowledgment. That electronic acknowledgment stated that, if I hadn't received any response within eight weeks, I could e-mail a request for a status check to the same e-mail address.
On December 10, 2009, ten weeks after the Postal Service delivered my September 23 hard copy complaint, I e-mailed a request for a "status check" regarding that hard copy complaint to USDOJ, explaining what it was and that they hadn't acknowledged it, and stating the tracking number the Postal Service had assigned to it and the date and time the Postal Service said it was delivered. USDOJ's mail server sent me an automatic electronic acknowledgment that it received this request for a "status check," but I have never received any response to the request.
On January 9, 2010, I mailed a "status check" seeking to learn the status of my December 10 "status check" regarding the September 23 complaint. As usual, I received an immediate automatic acknowledgment from USDOJ's mail server, and have heard nothing since.
Today, I will e-mail a request for a "status check" regarding my December 7 attempt to e-mail my complaint to USDOJ. (December 7 was 9 weeks ago). In my status check request, I will ask whether my complaint would be more likely to be at least noticed and openly denied, rather than simply being "lost" every time I send it, if it arrived through the Justice Department's congressional liaison. I will ask the same question by telephone on Tuesday if there is no response to my e-mail. If the response indicates that I am still officially being ignored, I will seek some assistance from a local congressional caseworker. After all, in choosing to ignore my complaint, USDOJ is permitting the state courts that receive funds appropriated by Congress to ignore an Act of Congress. My congressional representatives should have some interest in this!
Sunday, February 7, 2010
Saturday, January 9, 2010
Seeking law students, other rejected applicants, or attorneys interested in challenging the new Bar admission rules
I am still quite interested--in fact, more interested than ever--in finding any law students, former rejected Kansas Bar applicants, or Kansas attorneys--who are interested in challenging the new Kansas Bar admission rules in Federal court, and might be willing to join with others to do this. I am more interested in this than ever because it appears that the U.S. Justice Department may be consciously ignoring me.
If someone from the USDOJ does read this blog, and my conclusion is in error, I apologize. Please let me know that you read this! (A list of the past blog entries relevant to my complaint is posted at Analysis of the new Kansas Rules Relating to Admission of Attorneys.)
I say that it now appears that the USDOJ may have decided to ignore both me and the issue of the applicability of the ADA and the Rehabilitation Act to attorney licensure proceedings. On September 23, 2009, I sent the USDOJ a complaint challenging the new Kansas rules, for the reasons set forth in earlier postings on this blog, with a package of documents substantiating my complaint. On September 28, the Postal Service confirmed delivery of my complaint. But I have never received any acknowledgment of my complaint from USDOJ. On December 10, 2009, I emailed USDOJ a request for a "status check," seeking the status of my September 23 complaint. DOJ's mail server generated me an automatic acknowledgment of receipt, but I have not received any response to my "status check." It seems that both the September 23 complaint and the December 10 status check have disappeared. The disappearance of both communications might have been a random coincidence. But it also seems quite likely that I am being ignored.
If someone from the USDOJ does read this blog, and my conclusion is in error, I apologize. Please let me know that you read this! (A list of the past blog entries relevant to my complaint is posted at Analysis of the new Kansas Rules Relating to Admission of Attorneys.)
I say that it now appears that the USDOJ may have decided to ignore both me and the issue of the applicability of the ADA and the Rehabilitation Act to attorney licensure proceedings. On September 23, 2009, I sent the USDOJ a complaint challenging the new Kansas rules, for the reasons set forth in earlier postings on this blog, with a package of documents substantiating my complaint. On September 28, the Postal Service confirmed delivery of my complaint. But I have never received any acknowledgment of my complaint from USDOJ. On December 10, 2009, I emailed USDOJ a request for a "status check," seeking the status of my September 23 complaint. DOJ's mail server generated me an automatic acknowledgment of receipt, but I have not received any response to my "status check." It seems that both the September 23 complaint and the December 10 status check have disappeared. The disappearance of both communications might have been a random coincidence. But it also seems quite likely that I am being ignored.
Saturday, October 24, 2009
The Rehabilitation Act of 1973 as a Source of Federal Jurisdiction
Section 504(a) of the Rehabilitation Act of 1973, 29 U.S.C. 794(a), states:
Section 504(b)of the Rehabilitation Act then broadly defines a state "program or activity receiving Federal financial assistance" as including "all of the operations" of any state government entity that receives such assistance:
Section 504(b)(1) of the Rehabilitation Act of 1973, 29 U.S.C. sec 794(b).
The strength of the Rehabilitation Act is that, where it can be invoked, the constitutional issue of the scope of Congressional jurisdiction under section 5 of the Fourteenth Amendment is entirely avoided. The Rehabilitation Act was enacted pursuant to Congress' spending power under Article I sec. 8 of the Constitution, on the underlying theory that any entity, public or private, that accepts Federal funds also implicitly consents to both the application of the conditions Congress imposes upon receipt of those funds and the jurisdiction of Federal administrative agencies and courts to enforce those conditions. The Federal courts have frequently recognized that they have jurisdiction to enforce Federal antidiscrimination laws that invoke the spending power, including the Rehabilitation Act, against state government entities that receive Federal funds.
However, the Rehabilitation Act has two weaknesses. The first is that, in order to invoke it, a plaintiff must preliminarily prove that the state entity being sued received Federal funds during the relevant time period. However, in Kansas (and, I suspect, many other states), this is not a problem. Article 3, Section 1 of the Kansas Constitution provides Kansas with a unified judiciary, "one court of justice" rather than the multiple functionally and jurisdictionally independent courts that exist in some states, and the Kansas Legislature does, in fact, budget the state Judiciary as a single entity. Moreover, that entity has received at least small amounts of Federal funds for may years, and its appetite for Federal money has been increasing in recent years. The State of Kansas, Governor's Budget Report, Fiscal Year 2008, Schedule 7, "Federal Receipts by Agency," shows that the Kansas Judiciary actually received $165,345 in Federal funds in FY 2006. This increased to $213,686 in FY 2007. (Governor's Budget Report, Fiscal Year 2009, Schedule 7, "Federal Receipts by Agency.") By contrast, Governor's Budget Report, Fiscal Year 2010, Schedule 7, "Federal Receipts by Agency," shows the Kansas Judiciary actually received $263,422 in Federal funds in FY 2008, was expected to receive $720,007 in Federal funds by the end of FY 2008 (which was only half over when the Governor's Budget Report was issued), and was projected to receive $719,298 in Federal funds in FY 2010. Thus, the Kansas Judiciary's consumption of Federal funds has more than tripled in the last five years. The unified Judiciary of Kansas cannot assert that it is not subject to federal jurisdiction under the Rehabilitation Act.
The second weakness of the Rehabilitation Act is the observation that, in contrast to the ADA, the Rehabilitation Act prohibits only discrimination that occurs "solely" by reason of a disability. This limitation will present a nearly insurmountable obstacle in most cases that allege discrimination by a licensing agency in a single rejected applicant's case, because the licensing agency will nearly always be relying on some other grounds for rejection in addition to the disability (even if those other grounds are nothing but symptoms of the disability). However, this limitation will have no effect on an administrative charge or lawsuit that alleges that a Federally-funded licensing court's application form language, published rules and procedures, when read together, prescribe different and discriminatory treatment for all applicants who have certain disabilities. Where the rules on their face prescribe discrimination against a class of persons with disabilities, the fact that the regulated entity might be able to find other reasons to discriminate against some (or even all) members of the class when presented with their individual applications is irrelevant. The challenged rules themselves discriminate "solely" by reason of particular disabilities, and need to be rewritten to conform to Federal law.
Such is the situation now in Kansas, and, I suspect, many other states.
No otherwise qualified individual with a disability in the United States,... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Section 504(b)of the Rehabilitation Act then broadly defines a state "program or activity receiving Federal financial assistance" as including "all of the operations" of any state government entity that receives such assistance:
For the purposes of this section, the term "program or activity" means all of the operations of --
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
Section 504(b)(1) of the Rehabilitation Act of 1973, 29 U.S.C. sec 794(b).
The strength of the Rehabilitation Act is that, where it can be invoked, the constitutional issue of the scope of Congressional jurisdiction under section 5 of the Fourteenth Amendment is entirely avoided. The Rehabilitation Act was enacted pursuant to Congress' spending power under Article I sec. 8 of the Constitution, on the underlying theory that any entity, public or private, that accepts Federal funds also implicitly consents to both the application of the conditions Congress imposes upon receipt of those funds and the jurisdiction of Federal administrative agencies and courts to enforce those conditions. The Federal courts have frequently recognized that they have jurisdiction to enforce Federal antidiscrimination laws that invoke the spending power, including the Rehabilitation Act, against state government entities that receive Federal funds.
However, the Rehabilitation Act has two weaknesses. The first is that, in order to invoke it, a plaintiff must preliminarily prove that the state entity being sued received Federal funds during the relevant time period. However, in Kansas (and, I suspect, many other states), this is not a problem. Article 3, Section 1 of the Kansas Constitution provides Kansas with a unified judiciary, "one court of justice" rather than the multiple functionally and jurisdictionally independent courts that exist in some states, and the Kansas Legislature does, in fact, budget the state Judiciary as a single entity. Moreover, that entity has received at least small amounts of Federal funds for may years, and its appetite for Federal money has been increasing in recent years. The State of Kansas, Governor's Budget Report, Fiscal Year 2008, Schedule 7, "Federal Receipts by Agency," shows that the Kansas Judiciary actually received $165,345 in Federal funds in FY 2006. This increased to $213,686 in FY 2007. (Governor's Budget Report, Fiscal Year 2009, Schedule 7, "Federal Receipts by Agency.") By contrast, Governor's Budget Report, Fiscal Year 2010, Schedule 7, "Federal Receipts by Agency," shows the Kansas Judiciary actually received $263,422 in Federal funds in FY 2008, was expected to receive $720,007 in Federal funds by the end of FY 2008 (which was only half over when the Governor's Budget Report was issued), and was projected to receive $719,298 in Federal funds in FY 2010. Thus, the Kansas Judiciary's consumption of Federal funds has more than tripled in the last five years. The unified Judiciary of Kansas cannot assert that it is not subject to federal jurisdiction under the Rehabilitation Act.
The second weakness of the Rehabilitation Act is the observation that, in contrast to the ADA, the Rehabilitation Act prohibits only discrimination that occurs "solely" by reason of a disability. This limitation will present a nearly insurmountable obstacle in most cases that allege discrimination by a licensing agency in a single rejected applicant's case, because the licensing agency will nearly always be relying on some other grounds for rejection in addition to the disability (even if those other grounds are nothing but symptoms of the disability). However, this limitation will have no effect on an administrative charge or lawsuit that alleges that a Federally-funded licensing court's application form language, published rules and procedures, when read together, prescribe different and discriminatory treatment for all applicants who have certain disabilities. Where the rules on their face prescribe discrimination against a class of persons with disabilities, the fact that the regulated entity might be able to find other reasons to discriminate against some (or even all) members of the class when presented with their individual applications is irrelevant. The challenged rules themselves discriminate "solely" by reason of particular disabilities, and need to be rewritten to conform to Federal law.
Such is the situation now in Kansas, and, I suspect, many other states.
Saturday, September 19, 2009
Kansas New Rules. Part Twelve: Specific Violations of the Americans With Disabilities Act
Title II of the ADA, as originally enacted in 1990, regulates the programs and activities of departments and agencies of state governments. 42 U.S.C. § 12131(1). Title II of the ADA expressly 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.” 42 U.S.C. § 12132. While the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (September 25, 2008) (“ADAAA”), did not amend the text of Title II of ADA, it substantially amended the definitions shared by all Titles of the ADA in a way which greatly expanded the scope of coverage of the entire ADA, Title II included.
To whatever extent a particular applicant’s mental illness or other stigmatized medical condition constitutes a protected "disability" for purposes of Title II, Kansas’ new Rules which require that applicant to prove that disability will not affect his or her practice in any way, that require that applicant to prove total rehabilitation from that disability, and that require that applicant, after once being rejected on the basis of that disability, to pay prohibitive application fees and make an additional and particularly burdensome proof that the disability has been cured, would appear to violate this statutory language. As will be shown below, both regulatory and judicial interpretations of the ADA support this initial impression.
The ADA, as originally enacted in 1990, conferred upon the Attorney General the power to promulgate regulations implementing Title II. 42 U.S.C. § 12134. This regulatory authority was reaffirmed and reinforced by the ADAAA. ADAAA, § 6(a)(2), codified as 42 U.S.C. § 12205(a).
With regard to licensure programs and activities, the regulations implementing Title II of the ADA, as it is presently in force, prohibit the administration of a licensure program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of a disability. 28 C.F.R. § 35.130(b)(6):
This regulation, tracking the language of the statute,” also prohibits the administration of a licensure program in a manner that subjects qualified individuals with disabilities to "discrimination" on the basis of a disability. 28 C.F.R. § 35.130(b)(6).
Various courts have held Title II of the ADA to apply to attorney licensure programs and activities of state courts. See, e.g., Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 78 (2nd Cir. 2000); In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996); Petition of Rubenstein, 637 A.2d 1131 (Del Supr. 1994); and State ex rel. Oklahoma Bar Association v. Busch, 1996 OK 38, 919 P.2d 1114. No court appears to have held to the contrary in a published decision.
The regulations implementing Title II further prohibit the use of “eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities” unless the criteria “can be shown to be necessary” to the program in question:
28 C.F.R. § 35.130(b)(8).
According to the interpretative commentary supplied by the Attorney General in the Appendix to 28 C.F.R. pt. 35, this provision was intended both to prohibit “overt denials of equal treatment of individuals with disabilities, or establishment of exclusive or segregative criteria that would bar individuals with disabilities from participation” and to prohibit “policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others:”
28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. § 35.130(b)(8).
While a regulated state government entity may impose neutral rules and criteria that have a tendency to screen out persons with certain disabilities, any such rules and criteria must, in fact, be facially disability-neutral, and the rules or criteria must be “necessary for the safe operation of the program in question.” In determining whether rules or criteria that disporoprtionately impact persons with specific disabilities are “necessary,” “safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about individuals with disabilities:”
28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. § 35.130(b)(8).
Kansas’ new Rules that require applicants with a stigmatized disability to disprove the Disciplinary Administrator’s fears and stereotypes regarding their disabilities by clear and convincing evidence thus quite obviously fail to comply with 28 C.F.R. § 35.130(b)(8), in that they openly allow the Board to base its assessment of the dangerousness of the disability on fears and stereotypes. Moreover, Kansas’ new Rules placing heavier burdens upon applicants previously rejected on account of a disability obviously “impose requirements or burdens on individuals with disabilities that are not placed on others” without any clear necessity justifying the increased burdens.
Courts have held that, under Title II of the ADA, as implemented by 28 C.F.R. § 35.130(b)(8), in determining whether an individual is “qualified” to participate in a program of a state entity, a court may “not rest on the state’s characterization” of the program, “nor on the qualifications or eligibility criteria the state asserts as necessary, but instead must make an independent inquiry into the ‘essential nature’ of the program.” Guckenberger v. Boston University, 974 F.Supp. 106, 133-135 (D. Mass. 1997); citing and quoting Easley by Easley v. Snider, 841 F.Supp. 668, 673 (E.D. Pa. 1993), rev’d on other grounds, 36 F.3d 297 (3rd Cir. 1994); citing Pandazides v. Virginia Board of Education, 946 F.2d 345, 348-350 (4th Cir. 1992) (reaching the same conclusion in a teacher licensing case under the Rehabilitation Act). Furthermore, courts considering ADA challenges to questions on application forms for admission to the Bar have held that application questions which place additional burdens on applicants with certain disabilities that are not placed on other applicants thereby “screen out” or “tend to screen out” applicants with those disabilities and are therefore prohibited by 42 U.S.C. § 12132 and 28 C.F.R § 28.130(b)(6) and (b)(8). Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1494 (S.D. Fla. 1994); Clark v. Virginia Board of Bar Examiners, 880 F.Supp. 430, 442 (E.D. Va. 1995); compare In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996) .
The complete absence of any mental or emotional condition that might, if untreated, interfere in any way with the practice of law is not a necessary qualification for the practice of law. Attorneys who develop a serious or chronic mental illness, including “bi-polar disorder, schizophrenia, paranoia or other psychotic disorder” (in the words of Question 32 of the application form), after they are granted licenses are not generally required to self-report their illness to the Disciplinary Administrator or the couurts and are not uniformly disbarred. Indeed, if the affected attorney seeks treatment before any interference with his or her practice has occurred, the attorney is never required to report either the illness or the treatment to anyone. Moreover, if an attorney develops a mental illness that is referred for treatment after it has interfered with his or her practice, but before any serious disciplinary offenses have resulted from it, the affected attorney may obtain supervision under the Kansas Impaired Lawyer Assistance Program created by Kansas Supreme Court Rule 206. Supervision and treatment received under the Impaired Lawyer Assistance Program is confidential, is not reported to the Disciplinary Administrator or the courts and does not in any way affect the status of the affected attorney’s license. Ks. Supreme Ct. Rule 206(g)(1) and (g)(2). Finally, an attorney who commits even moderately serious disciplinary offenses or serious misdemeanor crimes as a result of a mental illness may sometimes be permitted to continue practicing law on a probationary license status upon a showing of ongoing, successful treatment at the time of the disciplinary hearing. See, e.g., In re Herman, 254 Kan. 908, 869 P.2d 721 (1994), discharged from probation, 246 Kan. 497 (1999); In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999) discharged from probation 276 Kan. 2 (2003). Even under these circumstances, the affected attorney is not uniformly required to prove that the mental illness is completely gone and would have no effect on the attorney’s practice, if untreated, but only that he or she is receiving successful treatment.
The regulations implementing Title II also require “reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of” the program:
28 C.F.R. § 35.130(b)(7).
The Attorney General’s Appendix to 28 C.F.R. pt. 35 also clarifies that the determination whether an individual poses a sufficient threat to be excluded from a program of a public entity “may not be based on generalizations or stereotypes about the effects of a particular disability,” but instead must be “based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures will mitigate the risk:”
28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. § 35.104 (“qualified individual with a disability”) (emphasis added).
Therefore, Kansas’ new Rule that permits the Board to give the Disciplinary Administrator’s statement of a "charge" regarding a disability greater weight than medical or other objective evidence presented at a hearing obviously violates Title II. For the same reason also Kansas' new Rules that openly authorize the Board to give its own speculations and stereotypes about a disability and secret evidence never disclosed to the applicant regarding others' fears related to the applicant's disability greater weight than the medical evidence obviously violate Title II.
Even prior to the enactment of the ADAAA, the regulations implementing Title II of the ADA defined the term “impairment” to include any “emotional or mental illness.” 28 C.F.R. § 35.104. Thus, even before the ADAAA, any mental illness that was sufficiently severe to meet the courts’ “substantially limiting” test would be a protected “disability” under Title II. Moreover, even before the ADAAA was enacted, at least one Federal appellate court had held that disqualification from the practice of law, an entire licensed profession, because of an impairment constituted disqualification from a “class of jobs” under the regulatory definition of the major life activity of “working.” Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 83-84 (2nd Cir. 2000). This reasoning in Bartlett is specifically approved in the legislative history of the ADAAA. 154 CONG. REC. H8290-8291 (Sep. 17, 2008) (Colloquy between Rep. Stark and Rep. Miller). Thus, even before the ADAAA, disqualification from the practice of law because of a mental illness arguably could have been enough to render that illness a protected “disability” under the first prong (actual disability) of the ADA’s definition of a “disability” and require the application of ADA decision standards to an affected applicant.
However, the ADAAA makes this result unavoidable. Among the purposes stated by Congress for the enactment of the ADAAA is the purpose to “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” ADAAA, §2(b)(1). In its uncodified statutory findings incorporated into the ADAAA, Congress found that “Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases”—i.e., Murphy v. United Parcel Service, 527 U.S. 471 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999)—had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect,” and that Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) had “interpreted the term ‘substantially limits’ to require a greater degree of limitation than was intended by Congress,” with the net effect that “lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” ADAAA, § 2(a)(4)-(7) (emphasis added). Congress implemented this broad purpose in part by adding to ADA a statutory “rule of construction” that instructs courts to construe the entire ADA “in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” ADAAA, § 4(a)(4)(A), codified as 42 U.S.C. § 12102(4)(A).
With regard to the first prong of the definition of a “disability” under the ADA, the “actual disability” prong, the uncodified statutory purposes of the ADAAA also include a purpose “to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and that to be substantially limited in performing a major life activity under the ADA ‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.’” ADAAA § 2(b)(4). The uncodified statutory purposes of the ADAAA also include a purpose “to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), for ‘substantially limits,’ and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” ADAAA, § 2(b)(5) (emphasis supplied).
Congress implemented these purposes with regard to the first prong of the definition of a disability in part by adding a statutory “rule of construction” that “[t]he term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.” ADAAA, § 4(a)(4)(B), codified as 42 U.S.C. § 12102(4)(B). According to repeated statements in the legislative history of the statute, this “rule of construction” was added to ensure that the courts would not simply ignore Congress’ instructions to abandon the analysis used in Sutton and its “companion cases” and in Toyota Motor Manufacturing and to adopt in its place a rule of broad coverage . See, e.g., 154 CONG. REC. S8841-8842 (Sep. 16, 2008) (Report of Managers of S. 3406); 154 CONG. REC. S8349-8350 (Sep. 11, 2008) (Remarks of Sen. Harkin); 154 CONG. REC. H6068-6069 (June 25, 2008) (Remarks of Rep. Conyers); 154 CONG. REC. H8290 (Sep. 17, 2008) (Remarks of Rep. Nadler). Congress also implemented its purpose to broaden the first prong of the definition of a disability in part by incorporating into the ADA a broad statutory definition of “major life activities” and by incorporating into this definition a separate paragraph including a list of “major bodily functions.” ADAAA, § 4(a)(2), codified as 42 U.S.C. § 12102(2). “Learning,” “thinking,” “communicating” and “working” are included in the new list of “major life activities.” ADAAA, § 4(a)(2)(A), codified as 42 U.S.C. § 12102(2)(A). “Neurological” and “brain” functions are included in the new list of “major bodily functions.” ADAAA, § 4(a)(2)(B), codified as 42 U.S.C. § 12102(2)(B). Furthermore, the ADAAA added to the ADA a statutory rule of construction that “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.” ADAAA, § 4(a)(4)(C), codified at 42 U.S.C. § 12102(4)(C). Thus, after January 1, 2009, an impairment that limits the major life activity of “working,” due to the denial of a license to practice a profession as a result of the impairment, need not limit any other major life activity in order to constitute a protected “disability.”
Under the ADA as interpreted by the courts before the enactment of ADAAA, whether an “impairment” was sufficiently limiting to qualify as a protected “disability” was to be judged in the fully treated state. Thus, if treatment rendered a mental illness sufficiently controlled that it no longer prevented everyday activities, as long as treatment continued, the condition was no longer a protected “disability” under the first prong of ADA’s definition. However, in the ADAAA Congress declared its purpose “to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures.” ADAAA, § 2(b)(3). Congress implemented its purpose to reject the holdings of the Sutton line of cases regarding mitigating measures by adding a statutory “rule of construction” that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” ADAAA, § 4(a)(4)(E)(i), codified as 42 U.S.C. § 12102(4)(E)(i). Paragraph 4(a)(4)(E) of the ADAAA also includes an “illustrative but non-comprehensive list of the types of mitigating measures that are not to be considered.” 154 CONG. REC. S8842 (Sep. 16, 2008) (Report of Managers of S. 3406). That illustrative list includes both “medication” and “learned behavioral or adaptive neurological modifications.” ADAAA, § 4(a)(4)(E)(i)(I) and (IV), codified as 42 U.S.C. § 12102(4)(E)(i)(I) and (IV). Thus, any mental illness that is sufficiently severe to constitute an ADA “disability” under the first prong “if untreated” (in the language of Kansas’ Bar application form, Question 34) remains a protected “disability” if treatment renders it no longer a threat and requires the application of the ADA decision standards discussed above to any decision to reject an applicant based upon such a successfully treated mental illness.
With regard to the third prong of the definition of a “disability,” the “regarded as disabled” prong, in the ADAAA Congress stated the purpose “to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of a disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of a handicap under the Rehabilitation Act of 1973.” ADAAA, § 2(b)(3) (emphasis added). To implement this purpose, Congress amended the definition of the third prong of the definition of a “disability” to clarify that, in order to show discrimination under that prong, an individual must show only that a regulated entity took action against him or her because of a perceived physical or mental impairment, and need not show that the perceived impairment would qualify as a disability under the first prong of the definition. ADAAA, §§ 4(a)(1)(C) and 4(a)(3), codified as 42 U.S.C. §§ 12102(1)(C) and 12102(3). Thus, when the Kansas Board of Law Examiners and the Kansas Supreme Court deny licensure to an applicant on the basis, wholly or in part, of findings regarding a mental illness or other stigmatized condition, those findings in themselves transform the mental illness into a "disability" protected under the third prong of ADA’s definition on any subsequent application. Therefore, Kansas new Rules that impose upon such an applicant, upon any subsequent application, the burden of proving that mental illness or stigmatized condition to be completely cured, clearly violates the ADA as amended by the ADAAA.
To whatever extent a particular applicant’s mental illness or other stigmatized medical condition constitutes a protected "disability" for purposes of Title II, Kansas’ new Rules which require that applicant to prove that disability will not affect his or her practice in any way, that require that applicant to prove total rehabilitation from that disability, and that require that applicant, after once being rejected on the basis of that disability, to pay prohibitive application fees and make an additional and particularly burdensome proof that the disability has been cured, would appear to violate this statutory language. As will be shown below, both regulatory and judicial interpretations of the ADA support this initial impression.
The ADA, as originally enacted in 1990, conferred upon the Attorney General the power to promulgate regulations implementing Title II. 42 U.S.C. § 12134. This regulatory authority was reaffirmed and reinforced by the ADAAA. ADAAA, § 6(a)(2), codified as 42 U.S.C. § 12205(a).
With regard to licensure programs and activities, the regulations implementing Title II of the ADA, as it is presently in force, prohibit the administration of a licensure program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of a disability. 28 C.F.R. § 35.130(b)(6):
(6) A public entity may not administer a licensing or certification program in manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor my a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability.
This regulation, tracking the language of the statute,” also prohibits the administration of a licensure program in a manner that subjects qualified individuals with disabilities to "discrimination" on the basis of a disability. 28 C.F.R. § 35.130(b)(6).
Various courts have held Title II of the ADA to apply to attorney licensure programs and activities of state courts. See, e.g., Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 78 (2nd Cir. 2000); In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996); Petition of Rubenstein, 637 A.2d 1131 (Del Supr. 1994); and State ex rel. Oklahoma Bar Association v. Busch, 1996 OK 38, 919 P.2d 1114. No court appears to have held to the contrary in a published decision.
The regulations implementing Title II further prohibit the use of “eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities” unless the criteria “can be shown to be necessary” to the program in question:
(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from equally enjoying any service, program or activity unless such criteria can be shown to be shown to be necessary for the provision of the service, program or activity being offered.
28 C.F.R. § 35.130(b)(8).
According to the interpretative commentary supplied by the Attorney General in the Appendix to 28 C.F.R. pt. 35, this provision was intended both to prohibit “overt denials of equal treatment of individuals with disabilities, or establishment of exclusive or segregative criteria that would bar individuals with disabilities from participation” and to prohibit “policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others:”
Paragraph (b)(8) prohibits the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered. This prohibition is also a specific application of the general prohibition of discrimination and is based on section 302(b)(2)(A)(i) of the ADA. It prohibits overt denials of equal treatment of individuals with disabilities, or the establishment of exclusive or segregative criteria that would bar individuals with disabilities from participation in services, benefits or activities.
Paragraph (b)(8) also prohibits policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others…
In addition, paragraph (b)(8) prohibits the imposition of criteria that "tend to" screen out an individual with a disability. This concept, which is derived from current regulations under section 504 (see, e.g., 45 C.F.R. 84.13), makes it discriminatory to impose policies or criteria which, while not creating a direct bar to individuals with disabilities, indirectly prevent or limit their ability to participate…
28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. § 35.130(b)(8).
While a regulated state government entity may impose neutral rules and criteria that have a tendency to screen out persons with certain disabilities, any such rules and criteria must, in fact, be facially disability-neutral, and the rules or criteria must be “necessary for the safe operation of the program in question.” In determining whether rules or criteria that disporoprtionately impact persons with specific disabilities are “necessary,” “safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about individuals with disabilities:”
A public entity may, however, impose neutral rules and criteria that screen out, or tend to screen out, individuals with disabilities if the criteria are necessary for the safe operation of the program in question. Safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about individuals with disabilities.
28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. § 35.130(b)(8).
Kansas’ new Rules that require applicants with a stigmatized disability to disprove the Disciplinary Administrator’s fears and stereotypes regarding their disabilities by clear and convincing evidence thus quite obviously fail to comply with 28 C.F.R. § 35.130(b)(8), in that they openly allow the Board to base its assessment of the dangerousness of the disability on fears and stereotypes. Moreover, Kansas’ new Rules placing heavier burdens upon applicants previously rejected on account of a disability obviously “impose requirements or burdens on individuals with disabilities that are not placed on others” without any clear necessity justifying the increased burdens.
Courts have held that, under Title II of the ADA, as implemented by 28 C.F.R. § 35.130(b)(8), in determining whether an individual is “qualified” to participate in a program of a state entity, a court may “not rest on the state’s characterization” of the program, “nor on the qualifications or eligibility criteria the state asserts as necessary, but instead must make an independent inquiry into the ‘essential nature’ of the program.” Guckenberger v. Boston University, 974 F.Supp. 106, 133-135 (D. Mass. 1997); citing and quoting Easley by Easley v. Snider, 841 F.Supp. 668, 673 (E.D. Pa. 1993), rev’d on other grounds, 36 F.3d 297 (3rd Cir. 1994); citing Pandazides v. Virginia Board of Education, 946 F.2d 345, 348-350 (4th Cir. 1992) (reaching the same conclusion in a teacher licensing case under the Rehabilitation Act). Furthermore, courts considering ADA challenges to questions on application forms for admission to the Bar have held that application questions which place additional burdens on applicants with certain disabilities that are not placed on other applicants thereby “screen out” or “tend to screen out” applicants with those disabilities and are therefore prohibited by 42 U.S.C. § 12132 and 28 C.F.R § 28.130(b)(6) and (b)(8). Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1494 (S.D. Fla. 1994); Clark v. Virginia Board of Bar Examiners, 880 F.Supp. 430, 442 (E.D. Va. 1995); compare In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996) .
The complete absence of any mental or emotional condition that might, if untreated, interfere in any way with the practice of law is not a necessary qualification for the practice of law. Attorneys who develop a serious or chronic mental illness, including “bi-polar disorder, schizophrenia, paranoia or other psychotic disorder” (in the words of Question 32 of the application form), after they are granted licenses are not generally required to self-report their illness to the Disciplinary Administrator or the couurts and are not uniformly disbarred. Indeed, if the affected attorney seeks treatment before any interference with his or her practice has occurred, the attorney is never required to report either the illness or the treatment to anyone. Moreover, if an attorney develops a mental illness that is referred for treatment after it has interfered with his or her practice, but before any serious disciplinary offenses have resulted from it, the affected attorney may obtain supervision under the Kansas Impaired Lawyer Assistance Program created by Kansas Supreme Court Rule 206. Supervision and treatment received under the Impaired Lawyer Assistance Program is confidential, is not reported to the Disciplinary Administrator or the courts and does not in any way affect the status of the affected attorney’s license. Ks. Supreme Ct. Rule 206(g)(1) and (g)(2). Finally, an attorney who commits even moderately serious disciplinary offenses or serious misdemeanor crimes as a result of a mental illness may sometimes be permitted to continue practicing law on a probationary license status upon a showing of ongoing, successful treatment at the time of the disciplinary hearing. See, e.g., In re Herman, 254 Kan. 908, 869 P.2d 721 (1994), discharged from probation, 246 Kan. 497 (1999); In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999) discharged from probation 276 Kan. 2 (2003). Even under these circumstances, the affected attorney is not uniformly required to prove that the mental illness is completely gone and would have no effect on the attorney’s practice, if untreated, but only that he or she is receiving successful treatment.
The regulations implementing Title II also require “reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of” the program:
(7) A public entity shall make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.
28 C.F.R. § 35.130(b)(7).
The Attorney General’s Appendix to 28 C.F.R. pt. 35 also clarifies that the determination whether an individual poses a sufficient threat to be excluded from a program of a public entity “may not be based on generalizations or stereotypes about the effects of a particular disability,” but instead must be “based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures will mitigate the risk:”
The "essential eligibility requirements" for participation in some activities covered under this part may be minimal. For other activities, identification of the "essential eligibility requirements" may be more complex. Where questions of safety are involved, the principles established in sec. 36.208 of the Department’s regulation implementing title III of the A.D.A will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate if that individual poses a direct threat to the health and safety of others. A "direct threat" is a significant risk to the health and safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court recognized that there is a need to balance the interests of people with disabilities against legitimate concerns for public safety. Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be "qualified," if reasonable modification to the public entity’s policies, practices or procedures will not eliminate that risk. The determination that a person poses a direct threat to the health or safety of others may not be based on stereotypes about the effects of a particular disability. It must be based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures will mitigate the risk.
28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. § 35.104 (“qualified individual with a disability”) (emphasis added).
Therefore, Kansas’ new Rule that permits the Board to give the Disciplinary Administrator’s statement of a "charge" regarding a disability greater weight than medical or other objective evidence presented at a hearing obviously violates Title II. For the same reason also Kansas' new Rules that openly authorize the Board to give its own speculations and stereotypes about a disability and secret evidence never disclosed to the applicant regarding others' fears related to the applicant's disability greater weight than the medical evidence obviously violate Title II.
Even prior to the enactment of the ADAAA, the regulations implementing Title II of the ADA defined the term “impairment” to include any “emotional or mental illness.” 28 C.F.R. § 35.104. Thus, even before the ADAAA, any mental illness that was sufficiently severe to meet the courts’ “substantially limiting” test would be a protected “disability” under Title II. Moreover, even before the ADAAA was enacted, at least one Federal appellate court had held that disqualification from the practice of law, an entire licensed profession, because of an impairment constituted disqualification from a “class of jobs” under the regulatory definition of the major life activity of “working.” Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 83-84 (2nd Cir. 2000). This reasoning in Bartlett is specifically approved in the legislative history of the ADAAA. 154 CONG. REC. H8290-8291 (Sep. 17, 2008) (Colloquy between Rep. Stark and Rep. Miller). Thus, even before the ADAAA, disqualification from the practice of law because of a mental illness arguably could have been enough to render that illness a protected “disability” under the first prong (actual disability) of the ADA’s definition of a “disability” and require the application of ADA decision standards to an affected applicant.
However, the ADAAA makes this result unavoidable. Among the purposes stated by Congress for the enactment of the ADAAA is the purpose to “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” ADAAA, §2(b)(1). In its uncodified statutory findings incorporated into the ADAAA, Congress found that “Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases”—i.e., Murphy v. United Parcel Service, 527 U.S. 471 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999)—had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect,” and that Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) had “interpreted the term ‘substantially limits’ to require a greater degree of limitation than was intended by Congress,” with the net effect that “lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” ADAAA, § 2(a)(4)-(7) (emphasis added). Congress implemented this broad purpose in part by adding to ADA a statutory “rule of construction” that instructs courts to construe the entire ADA “in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” ADAAA, § 4(a)(4)(A), codified as 42 U.S.C. § 12102(4)(A).
With regard to the first prong of the definition of a “disability” under the ADA, the “actual disability” prong, the uncodified statutory purposes of the ADAAA also include a purpose “to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and that to be substantially limited in performing a major life activity under the ADA ‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.’” ADAAA § 2(b)(4). The uncodified statutory purposes of the ADAAA also include a purpose “to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), for ‘substantially limits,’ and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” ADAAA, § 2(b)(5) (emphasis supplied).
Congress implemented these purposes with regard to the first prong of the definition of a disability in part by adding a statutory “rule of construction” that “[t]he term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.” ADAAA, § 4(a)(4)(B), codified as 42 U.S.C. § 12102(4)(B). According to repeated statements in the legislative history of the statute, this “rule of construction” was added to ensure that the courts would not simply ignore Congress’ instructions to abandon the analysis used in Sutton and its “companion cases” and in Toyota Motor Manufacturing and to adopt in its place a rule of broad coverage . See, e.g., 154 CONG. REC. S8841-8842 (Sep. 16, 2008) (Report of Managers of S. 3406); 154 CONG. REC. S8349-8350 (Sep. 11, 2008) (Remarks of Sen. Harkin); 154 CONG. REC. H6068-6069 (June 25, 2008) (Remarks of Rep. Conyers); 154 CONG. REC. H8290 (Sep. 17, 2008) (Remarks of Rep. Nadler). Congress also implemented its purpose to broaden the first prong of the definition of a disability in part by incorporating into the ADA a broad statutory definition of “major life activities” and by incorporating into this definition a separate paragraph including a list of “major bodily functions.” ADAAA, § 4(a)(2), codified as 42 U.S.C. § 12102(2). “Learning,” “thinking,” “communicating” and “working” are included in the new list of “major life activities.” ADAAA, § 4(a)(2)(A), codified as 42 U.S.C. § 12102(2)(A). “Neurological” and “brain” functions are included in the new list of “major bodily functions.” ADAAA, § 4(a)(2)(B), codified as 42 U.S.C. § 12102(2)(B). Furthermore, the ADAAA added to the ADA a statutory rule of construction that “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.” ADAAA, § 4(a)(4)(C), codified at 42 U.S.C. § 12102(4)(C). Thus, after January 1, 2009, an impairment that limits the major life activity of “working,” due to the denial of a license to practice a profession as a result of the impairment, need not limit any other major life activity in order to constitute a protected “disability.”
Under the ADA as interpreted by the courts before the enactment of ADAAA, whether an “impairment” was sufficiently limiting to qualify as a protected “disability” was to be judged in the fully treated state. Thus, if treatment rendered a mental illness sufficiently controlled that it no longer prevented everyday activities, as long as treatment continued, the condition was no longer a protected “disability” under the first prong of ADA’s definition. However, in the ADAAA Congress declared its purpose “to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures.” ADAAA, § 2(b)(3). Congress implemented its purpose to reject the holdings of the Sutton line of cases regarding mitigating measures by adding a statutory “rule of construction” that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” ADAAA, § 4(a)(4)(E)(i), codified as 42 U.S.C. § 12102(4)(E)(i). Paragraph 4(a)(4)(E) of the ADAAA also includes an “illustrative but non-comprehensive list of the types of mitigating measures that are not to be considered.” 154 CONG. REC. S8842 (Sep. 16, 2008) (Report of Managers of S. 3406). That illustrative list includes both “medication” and “learned behavioral or adaptive neurological modifications.” ADAAA, § 4(a)(4)(E)(i)(I) and (IV), codified as 42 U.S.C. § 12102(4)(E)(i)(I) and (IV). Thus, any mental illness that is sufficiently severe to constitute an ADA “disability” under the first prong “if untreated” (in the language of Kansas’ Bar application form, Question 34) remains a protected “disability” if treatment renders it no longer a threat and requires the application of the ADA decision standards discussed above to any decision to reject an applicant based upon such a successfully treated mental illness.
With regard to the third prong of the definition of a “disability,” the “regarded as disabled” prong, in the ADAAA Congress stated the purpose “to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of a disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of a handicap under the Rehabilitation Act of 1973.” ADAAA, § 2(b)(3) (emphasis added). To implement this purpose, Congress amended the definition of the third prong of the definition of a “disability” to clarify that, in order to show discrimination under that prong, an individual must show only that a regulated entity took action against him or her because of a perceived physical or mental impairment, and need not show that the perceived impairment would qualify as a disability under the first prong of the definition. ADAAA, §§ 4(a)(1)(C) and 4(a)(3), codified as 42 U.S.C. §§ 12102(1)(C) and 12102(3). Thus, when the Kansas Board of Law Examiners and the Kansas Supreme Court deny licensure to an applicant on the basis, wholly or in part, of findings regarding a mental illness or other stigmatized condition, those findings in themselves transform the mental illness into a "disability" protected under the third prong of ADA’s definition on any subsequent application. Therefore, Kansas new Rules that impose upon such an applicant, upon any subsequent application, the burden of proving that mental illness or stigmatized condition to be completely cured, clearly violates the ADA as amended by the ADAAA.
Thursday, September 17, 2009
Kansas New Rules. Part Eleven: More Onerous the Second Time Around
Title II of the ADA generally prohibits public entities from erecting barriers against individuals with disabilities who seek to participate in public services, programs or activities by imposing additional fees or creating additional eligibility requirements that are imposed because of an individual's disability. See, generally, 28 C.F.R. sec. 35.130. Yet this is precisely what Rules 704(a) and 722(j) of the new Kansas Rules Relating to Admission of Attorneys do, when applied to applicants who have been previously rejected, pursuant to new Rules 707(d) through (f) or the equivalent informal policies that preceded them, for failure to adequately prove "mental and emotional fitness" due to the presence of a mental illness or other stigmatized condition that constitutes a "disability" for purposes of the ADA.
New Rule 704(a)(3) provides that, for an ordinary first-time Bar applicant, the application fee is $400. By contrast, new Rule 704(a)(6) provides that the fee for "reapplication for an individual whose application to take the bar examination has been previously denied for failure to establish good moral character or mental and emotional fitness," is $1250. See New Rule 704(a). Thus, previous denial of an application because of a disability, results in somewhat more than a tripling of the application fee. This is true even when the only grounds for denial of the previous application is a fact finding that the applicant failed to prove "mental and emotional fitness" due to a medical or psychological condition that was an ADA disability at the time the prior adverse decision was rendered, or that was subsequently brought within the definition of a "disability" by the ADA Amendments Act of 2008.
Where new Rule 704(a) adds a large additional application fee burden to applicants previously denied due to a disability, Rule 722(j) imposes upon such applicants a more onerous burden of proof than as placed on applicants "red flagged" for only the first time. Recall from previous postings that the proof required of a first-time "red flagged" applicant under new Rules 705, 707 and 721 is already impossible to meet. New Rule 722(j) makes all of these Rules, with their impossible burdens, applicable to second-time applicants, and "additionally" requires five other elements to be proved:
(Kansas Rules Relating to Admission of Attorneys, Rule 722(j), emphasis added).
The items on this list that are most relevant to an applicant who was previously denied based on a medical or psychological condition are items 2 and 5. Item 2 appears to assume that an applicant who is denied for failure to prove mental and emotional fitness is, at the time of his or her rejection, not socially useful, and must therefore increase his or her efforts to be an "active and productive citizen" in order to overcome the finding of a disqualifying illness. This requirement is of the same kind as new Rule 707(f)(8), which requires "social contributions since the conduct" which led to the red flag, to atone for that "conduct" (even when that "conduct" is an illness). But, since Rule 722(j) requires proof of "current mental and emotional fitness" first, then "additionally" proof of conduct that demonstrates usefulness as a citizen, applicants once rejected on account of a disability must be required to present better proof of additional socially useful activities, in addition to the proof required of an applicant who is red flagged for the first time.
On the other hand, new Rule 722(j)(5) by its plain language requires that "treatment and rehabilitation" for a medical or psychological condition that led to a previous denial must be entirely in the past. The rule on its face requires the applicant to prove that he or he "has received" (past tense!!!) "adequate treatment and rehabilitation." It further requires the applicant to prove, by clear and convincing evidence, that he or she has "experienced a sustained period of rehabilitation FROM any substance abuse or mental or emotional illness or condition." As noted in the discussion of Rules 707(d) through (f) in previous postings, the only way to absolutely prove rehabilitation FROM an illness is to prove it is no longer present at all—i.e., completely "cured." Medical control or even sustained, stable remission will not meet this standard. Rule 722(j) further clarifies that this is the intended interpretation by then deliberately mixing the concepts of illness and improper "conduct," stating that an applicant must prove absolute "rehabilitation FROM any substance abuse or mental or emotional illness or condition, to the extent that such conduct gave rise to the denial of the previous application." Absolute repentance from one's illness is required, and must be proven with particularly strong evidence if the applicant has been previously denied admission on account of that illness!
Obviously, none of this squares very well with the ADA, but this doesn't matter, due to the previously-discussed complete lack of any recourse for the Kansas Board of Law Examiners' inability to even consider the ADA.
New Rule 704(a)(3) provides that, for an ordinary first-time Bar applicant, the application fee is $400. By contrast, new Rule 704(a)(6) provides that the fee for "reapplication for an individual whose application to take the bar examination has been previously denied for failure to establish good moral character or mental and emotional fitness," is $1250. See New Rule 704(a). Thus, previous denial of an application because of a disability, results in somewhat more than a tripling of the application fee. This is true even when the only grounds for denial of the previous application is a fact finding that the applicant failed to prove "mental and emotional fitness" due to a medical or psychological condition that was an ADA disability at the time the prior adverse decision was rendered, or that was subsequently brought within the definition of a "disability" by the ADA Amendments Act of 2008.
Where new Rule 704(a) adds a large additional application fee burden to applicants previously denied due to a disability, Rule 722(j) imposes upon such applicants a more onerous burden of proof than as placed on applicants "red flagged" for only the first time. Recall from previous postings that the proof required of a first-time "red flagged" applicant under new Rules 705, 707 and 721 is already impossible to meet. New Rule 722(j) makes all of these Rules, with their impossible burdens, applicable to second-time applicants, and "additionally" requires five other elements to be proved:
(j) Any subsequent reapplication shall be heard by the Board. The applicant shall have the burden of establishing by clear and convincing evidence that the applicant possesses the requisite good moral character and current mental and emotional fitness to engage in the active and continuous practice of law. Additionally, the applicant shall have the burden of establishing by clear and convincing evidence that:
(1) The applicant has demonstrated consciousness and acknowledged the seriousness of any wrongful conduct to the extent that wrongful conduct gave rise to the denial of the previous application;
(2) The applicant has engaged in conduct since the denial of the previous application which demonstrates that the applicant has been an active and productive citizen;
(3) The time elapsed since any misconduct, to the extent that wrongful conduct gave rise to the denial of the previous application, is sufficient;
(4) The applicant has not engaged in the unauthorized practice of law; and
(5) The applicant has received adequate treatment and rehabilitation and experienced a sustained period of rehabilitation from any substance abuse or mental or emotional illness or condition, to the extent that such conduct gave rise to the denial of the previous application.
(Kansas Rules Relating to Admission of Attorneys, Rule 722(j), emphasis added).
The items on this list that are most relevant to an applicant who was previously denied based on a medical or psychological condition are items 2 and 5. Item 2 appears to assume that an applicant who is denied for failure to prove mental and emotional fitness is, at the time of his or her rejection, not socially useful, and must therefore increase his or her efforts to be an "active and productive citizen" in order to overcome the finding of a disqualifying illness. This requirement is of the same kind as new Rule 707(f)(8), which requires "social contributions since the conduct" which led to the red flag, to atone for that "conduct" (even when that "conduct" is an illness). But, since Rule 722(j) requires proof of "current mental and emotional fitness" first, then "additionally" proof of conduct that demonstrates usefulness as a citizen, applicants once rejected on account of a disability must be required to present better proof of additional socially useful activities, in addition to the proof required of an applicant who is red flagged for the first time.
On the other hand, new Rule 722(j)(5) by its plain language requires that "treatment and rehabilitation" for a medical or psychological condition that led to a previous denial must be entirely in the past. The rule on its face requires the applicant to prove that he or he "has received" (past tense!!!) "adequate treatment and rehabilitation." It further requires the applicant to prove, by clear and convincing evidence, that he or she has "experienced a sustained period of rehabilitation FROM any substance abuse or mental or emotional illness or condition." As noted in the discussion of Rules 707(d) through (f) in previous postings, the only way to absolutely prove rehabilitation FROM an illness is to prove it is no longer present at all—i.e., completely "cured." Medical control or even sustained, stable remission will not meet this standard. Rule 722(j) further clarifies that this is the intended interpretation by then deliberately mixing the concepts of illness and improper "conduct," stating that an applicant must prove absolute "rehabilitation FROM any substance abuse or mental or emotional illness or condition, to the extent that such conduct gave rise to the denial of the previous application." Absolute repentance from one's illness is required, and must be proven with particularly strong evidence if the applicant has been previously denied admission on account of that illness!
Obviously, none of this squares very well with the ADA, but this doesn't matter, due to the previously-discussed complete lack of any recourse for the Kansas Board of Law Examiners' inability to even consider the ADA.
Wednesday, September 16, 2009
Kansas New Rules. Part Ten: No Federal Issues Welcome and No Recourse
The new Kansas Rules Relating to Admission of Attorneys have been drafted in such a way as to make it almost as clear as it can possibly be that issues of Federal law, such as issues under the ADA, cannot properly be raised at any step of the procedure and will not be considered or decided if an applicant attempts to raise them. This proposition could only be made clearer if it were stated explicitly—and stating it explicitly would have the undesired effect of opening the Rules themselves to a general challenge in a private suit in federal court. On the other hand, by simply leaving no place in the procedures for Federal issues, without explicitly prohibiting any attempt to raise them, the new Rules essentially shut off all recourse under Federal law in attorney licensure proceedings, as will be shown below.
The application and screening procedures have already been discussed. There are no spaces on the Petition for Admission form, nor on any of the other documents in the admission package, that invite any response that might contain an appeal to any Federal law such as the ADA. Moreover, as a practical matter, disclosing reliance on a Federal anti-discrimination law on the face of the application would appear to be an almost certain way to insure that one's application will be "red flagged" and submitted for a hearing with the impossible burden of proof discussed in previous posts. It would be self-defeating.
After an application is "red flagged," the first opportunity for applicant input is the applicant's written response to the Disciplinary Administrator's formal Notice of Hearing. The Disciplinary Administrator is instructed by new Rule 721(l) that the Notice of Hearing should contain "factual allegations that generally inform the applicant of issues that appear to bear on the applicant’s character and fitness," but legal theories need not be specified. The applicant's response to the Notice of Hearing is described in the new Rules as follows:
(Kansas Rules Relating to Admission of Attorneys, Rule 721(m), relevant part, emphasis added.)
According to this Rule, the applicant's written response to the Notice of Hearing may respond only to the "factual allegations" in the notice. An applicant is NOT authorized by this rule to include any legal argumentation about the factual allegations in his or her response to the notice of hearing, or to attempt to raise therein issues under Federal statutes which regulate the Board's consideration of these factual allegations. Therefore, it is to be anticipated that, if an applicant were to attempt to raise the ADA, or some other federal issue, in his or her response to the notice of hearing, those federal issues would be ignored as not properly raised.
The next opportunity for applicant input under the new Rules is at the hearing before the Board. But this opportunity is also restricted to the presentation of facts; no legal argument is invited:
(Kansas Rules Relating to Admission of Attorneys, Rule 721(n), relevant part, emphasis added.)
Indeed, the first mention of issues or findings of law in the new Rules is found in Rule 721(x), the rule that requires the Board to issue a written decision in each case that comes before it for a hearing:
(Kansas Rules Relating to Admission of Attorneys, Rule 721(x), relevant part, emphasis added.)
Thus, the Board must include in its formal decision its "conclusions of law" in support of its recommendation. But the Rules clearly anticipate that it will reach these "conclusions of law" without input from the applicant. The applicant has no opportunity to raise or argue issues of law, even, or perhaps particularly, issues under applicable Federal law.
Once the Board issues its adverse decision, the matter is referred to the kansas Supreme Court for review and decision, as stated in the rule quoted above. The first step in that review process is that the applicant is permitted to file "exceptions" with the Court. Note that the language of this rule is still focused on "exceptions" to evidence, not legal argument:
(Kansas Rules Relating to Admission of Attorneys, Rule 722(c), emphasis added.)
This rule does not explicitly prohibit legal arguments attacking the "findings of law" actually stated by the Board in its formal decision, but it does not invite such legal arguments. Any portion of the Board's report that is not specifically excepted to is deemed "admitted," and "admitted" is a term generally reserved for factual allegations rather than legal conclusions. Moreover, the language of this rule makes it abundantly clear that an applicant is only permitted to file exceptions "to the written decision of the Board." Thus, anything that is omitted from the Board's decision cannot properly be addressed in any exceptions the applicant may file with the Court. Exceptions to the conclusions of law actually stated by the Board may be OK, even if not warmly invited. But if the Board ignores an applicant's attempts to raise legal issues under a Federal anti-discrimination statute, there will be nothing in the decision of the Board to which exceptions may attach. Exception obviously may not be taken to the Board's silence about an applicable federal law.
That the Court's review is limited to the evidence before the Board and the formal findings of law actually decided by the Board is further clarified by the language of paragraphs (f) through (h) of new Rule 722:
(Kansas Rules Relating to Admission of Attorneys, Rule 722(c), emphasis added.)
How this new Rule is intended to operate is demonstrated quite well by the facts of my own 2006 application, which was decided under the old Rules. The old Rules were, in fact, somewhat looser about permitting an applicant some opportunity to present legal argument before the Board than are the new Rules—or, at least, the Board believed they were. In June 2006, I filed a motion with the Board requesting an opportunity to brief my legal issues, including issues under the ADA. The Board granted me permission to file a pre-hearing brief. I did so, and the Admissions Attorney filed a responsive pre-hearing brief. In her pre-hearing brief, the Admissions Attorney agreed with me that the ADA applies to attorney licensure and should be considered in my case. This is reflected in the report of the dissenting Board member in my case, who also believed that the ADA required my admission:
(Minority Dissenting Report of the Board in my case, pp. 5-6).
Nevertheless, the formal Report of the Board's majority completely ignored ADA—indeed, never mentioned either the ADA or the word "disability" at all. Thus, although the Exceptions I filed with the Kansas Supreme Court discussed the ADA at some length as an argument for rejecting some of the Board's factual findings, I could not make them into exceptions to any Board finding applying the ADA. By its total silence about the ADA, the Board had left me nothing to attack directly. The Kansas Supreme Court then entered an order denying my application summarily, again without ever mentioning the ADA.
Thus, in spite of my quite vociferous efforts to raise the ADA, and the Admissions Attorney's agreement that the statute applied to attorney licensure and should be considered in my case, the Board and the Kansas Supreme Court produced a record of decisions that was totally devoid not only of any decision regarding my ADA issues, but indeed of any mention of the ADA whatsoever. The end result of this total formal silence was to deny me any and all further recourse, since it blocked the access to the ONLY federal forum that might have considered my issues—namely, the United States Supreme Court.
The United States Department of Justice, Civil Rights Division, is delegated the administrative responsibility to enforce Title II of the ADA in cases involving state courts and justice agencies. However, the Civil Rights Division has a standing policy of refusing to intervene to investigate charges of discrimination in individual attorney licensing matters, as was explained to me in a 2009 form letter from the Civil Rights Division.
The lower Federal courts lack jurisdiction to hear complaints against state courts in individual attorney licensing matters pursuant to District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), as explained in an opinion in my case, Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995).
That leaves the only possible redress in the United States Supreme Court. However, that Court only invites for review issues of Federal law that were actually decided on the record in the court below. U.S. Supreme Court Rule 10 states:
(Rules of the United States Supreme Court, Rule 10, emphasis added).
While Rule 10 does not limit the jurisdiction of the U.S. Supreme Court, and there remains a bare metaphysical possibility that Court might accept for review an ADA issue not actually decided on the face of a state court decision, the odds of this happening are similar to the odds of winning the Powerball lottery jackpot without buying a ticket. I'd really be much more likely to be struck by lightning tomorrow than to have a petition for writ of certiorari granted as to an issue not actually decided below. In all practicality, it's never going to happen.
So, by arranging things even under the old Rules such that the Board would not consider or mention the ADA, even though I raised it, the Kansas Supreme Court made it virtually inevitable that no one would ever consider the Federal issue.
The new Rules make this result even more certain. Federal law will NOT be considered, and there will be no recourse to challenge this.
The application and screening procedures have already been discussed. There are no spaces on the Petition for Admission form, nor on any of the other documents in the admission package, that invite any response that might contain an appeal to any Federal law such as the ADA. Moreover, as a practical matter, disclosing reliance on a Federal anti-discrimination law on the face of the application would appear to be an almost certain way to insure that one's application will be "red flagged" and submitted for a hearing with the impossible burden of proof discussed in previous posts. It would be self-defeating.
After an application is "red flagged," the first opportunity for applicant input is the applicant's written response to the Disciplinary Administrator's formal Notice of Hearing. The Disciplinary Administrator is instructed by new Rule 721(l) that the Notice of Hearing should contain "factual allegations that generally inform the applicant of issues that appear to bear on the applicant’s character and fitness," but legal theories need not be specified. The applicant's response to the Notice of Hearing is described in the new Rules as follows:
(m) Within twenty days of service of the notice of hearing, the applicant shall file a response to the notice of hearing, admitting or denying each of the factual allegations contained in the notice of hearing...
(Kansas Rules Relating to Admission of Attorneys, Rule 721(m), relevant part, emphasis added.)
According to this Rule, the applicant's written response to the Notice of Hearing may respond only to the "factual allegations" in the notice. An applicant is NOT authorized by this rule to include any legal argumentation about the factual allegations in his or her response to the notice of hearing, or to attempt to raise therein issues under Federal statutes which regulate the Board's consideration of these factual allegations. Therefore, it is to be anticipated that, if an applicant were to attempt to raise the ADA, or some other federal issue, in his or her response to the notice of hearing, those federal issues would be ignored as not properly raised.
The next opportunity for applicant input under the new Rules is at the hearing before the Board. But this opportunity is also restricted to the presentation of facts; no legal argument is invited:
(n) At the hearing, the applicant bears the burden of establishing, by clear and convincing evidence, that the applicant possesses the requisite good moral character and current mental and emotional fitness to engage in the active and continuous practice of law.
(Kansas Rules Relating to Admission of Attorneys, Rule 721(n), relevant part, emphasis added.)
Indeed, the first mention of issues or findings of law in the new Rules is found in Rule 721(x), the rule that requires the Board to issue a written decision in each case that comes before it for a hearing:
(x) Following the hearing, the Board shall issue a written decision detailing its findings of fact, conclusions of law, and recommendation whether the applicant should be allowed to sit for the written examination or be approved for licensure pursuant to Rules 708 or 712. If the Board approves the applicant, the matter is concluded. If the Board does not recommend approval of the applicant, the matter shall be referred to the Supreme Court for review and decision.
(Kansas Rules Relating to Admission of Attorneys, Rule 721(x), relevant part, emphasis added.)
Thus, the Board must include in its formal decision its "conclusions of law" in support of its recommendation. But the Rules clearly anticipate that it will reach these "conclusions of law" without input from the applicant. The applicant has no opportunity to raise or argue issues of law, even, or perhaps particularly, issues under applicable Federal law.
Once the Board issues its adverse decision, the matter is referred to the kansas Supreme Court for review and decision, as stated in the rule quoted above. The first step in that review process is that the applicant is permitted to file "exceptions" with the Court. Note that the language of this rule is still focused on "exceptions" to evidence, not legal argument:
(c) The applicant may, within twenty days of service of the transcript of the hearing, file with the Clerk exceptions to the written decision of the Board. Any part of the written decision which is not specifically excepted to shall be deemed admitted.
(Kansas Rules Relating to Admission of Attorneys, Rule 722(c), emphasis added.)
This rule does not explicitly prohibit legal arguments attacking the "findings of law" actually stated by the Board in its formal decision, but it does not invite such legal arguments. Any portion of the Board's report that is not specifically excepted to is deemed "admitted," and "admitted" is a term generally reserved for factual allegations rather than legal conclusions. Moreover, the language of this rule makes it abundantly clear that an applicant is only permitted to file exceptions "to the written decision of the Board." Thus, anything that is omitted from the Board's decision cannot properly be addressed in any exceptions the applicant may file with the Court. Exceptions to the conclusions of law actually stated by the Board may be OK, even if not warmly invited. But if the Board ignores an applicant's attempts to raise legal issues under a Federal anti-discrimination statute, there will be nothing in the decision of the Board to which exceptions may attach. Exception obviously may not be taken to the Board's silence about an applicable federal law.
That the Court's review is limited to the evidence before the Board and the formal findings of law actually decided by the Board is further clarified by the language of paragraphs (f) through (h) of new Rule 722:
(f) The notice of hearing, the response to the notice of hearing, the written decision of the Board, the applicant’s exceptions and the Board’s response, if any, the transcript of the hearing, and all other evidence admitted before the Board shall constitute the record before the Supreme Court.
(g) The Board’s factual findings will be accepted if a reasonable factfinder could have been persuaded that the factual finding was proved to be highly probable. The Supreme Court shall make the final determination as to those persons who shall be admitted to practice law in the State of Kansas.
(h) Oral argument will not be permitted. The Supreme Court will make a determination based upon the record before the Board and enter its final order.
(Kansas Rules Relating to Admission of Attorneys, Rule 722(c), emphasis added.)
How this new Rule is intended to operate is demonstrated quite well by the facts of my own 2006 application, which was decided under the old Rules. The old Rules were, in fact, somewhat looser about permitting an applicant some opportunity to present legal argument before the Board than are the new Rules—or, at least, the Board believed they were. In June 2006, I filed a motion with the Board requesting an opportunity to brief my legal issues, including issues under the ADA. The Board granted me permission to file a pre-hearing brief. I did so, and the Admissions Attorney filed a responsive pre-hearing brief. In her pre-hearing brief, the Admissions Attorney agreed with me that the ADA applies to attorney licensure and should be considered in my case. This is reflected in the report of the dissenting Board member in my case, who also believed that the ADA required my admission:
Our own attorney's brief on the application of the Americans With Disabilities Act (ADA) to applicants who take bar examinations may be summarized to say that the ADA prohibits a public entity (Board of Law Examiners) from discriminating against a qualified individual with a disability. A qualified person is a person who "with or without reasonable modification to rules, policies or practices" can meet essential eligibility requirements.
It appears that all of the evidence before the Board and indeed, the wording of paragraph 10 of the Board Recommendations, is that this applicant has put in place accommodations such as to meet the essential eligibility requirements to allow him to engage in the continuous practice of law.
(Minority Dissenting Report of the Board in my case, pp. 5-6).
Nevertheless, the formal Report of the Board's majority completely ignored ADA—indeed, never mentioned either the ADA or the word "disability" at all. Thus, although the Exceptions I filed with the Kansas Supreme Court discussed the ADA at some length as an argument for rejecting some of the Board's factual findings, I could not make them into exceptions to any Board finding applying the ADA. By its total silence about the ADA, the Board had left me nothing to attack directly. The Kansas Supreme Court then entered an order denying my application summarily, again without ever mentioning the ADA.
Thus, in spite of my quite vociferous efforts to raise the ADA, and the Admissions Attorney's agreement that the statute applied to attorney licensure and should be considered in my case, the Board and the Kansas Supreme Court produced a record of decisions that was totally devoid not only of any decision regarding my ADA issues, but indeed of any mention of the ADA whatsoever. The end result of this total formal silence was to deny me any and all further recourse, since it blocked the access to the ONLY federal forum that might have considered my issues—namely, the United States Supreme Court.
The United States Department of Justice, Civil Rights Division, is delegated the administrative responsibility to enforce Title II of the ADA in cases involving state courts and justice agencies. However, the Civil Rights Division has a standing policy of refusing to intervene to investigate charges of discrimination in individual attorney licensing matters, as was explained to me in a 2009 form letter from the Civil Rights Division.
The lower Federal courts lack jurisdiction to hear complaints against state courts in individual attorney licensing matters pursuant to District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), as explained in an opinion in my case, Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995).
That leaves the only possible redress in the United States Supreme Court. However, that Court only invites for review issues of Federal law that were actually decided on the record in the court below. U.S. Supreme Court Rule 10 states:
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.
(Rules of the United States Supreme Court, Rule 10, emphasis added).
While Rule 10 does not limit the jurisdiction of the U.S. Supreme Court, and there remains a bare metaphysical possibility that Court might accept for review an ADA issue not actually decided on the face of a state court decision, the odds of this happening are similar to the odds of winning the Powerball lottery jackpot without buying a ticket. I'd really be much more likely to be struck by lightning tomorrow than to have a petition for writ of certiorari granted as to an issue not actually decided below. In all practicality, it's never going to happen.
So, by arranging things even under the old Rules such that the Board would not consider or mention the ADA, even though I raised it, the Kansas Supreme Court made it virtually inevitable that no one would ever consider the Federal issue.
The new Rules make this result even more certain. Federal law will NOT be considered, and there will be no recourse to challenge this.
Tuesday, September 15, 2009
Kansas New Rules. Part Nine: Purgatory is in Kansas
Rule 718 of the new Kansas Rules Relating to Admission of Attorneys states:
(Kansas Rules Relating to Admission of Attorneys, Rule 718.)
Rule 718(a) is the portion of this new Rule that sanctions the relocation of Purgatory. It should be carefully noted that this paragraph does not authorize conditional admission, as is now done in many states. In a conditional admission situation, an applicant would be licensed on the condition of cooperation with the Impaired Lawyers Assistance Program for some specified period of time upon and after admission. No, what this rule does is explicitly sanction the practice of placing an applicant's application "on hold" for a period of months or years to permit the applicant to participate in an Impaired (would be-)Lawyers Assistance Program, at his or her own expense,before being eligible for a license. In essence, it permits the Board to use a period of mandatory pre-admission counseling with a counselor answerable to the Impaired Lawyers Assistance Program to go "fishing" for evidence that supports the rejection of the applicant.
Something rather like this was actually done sometimes under the old Rules. Though I personally was never referred to counseling by the Board, I am personally acquainted with another applicant who was referred for somewhat over a year of pre-admission counseling by the Board under the old Rules (although the Impaired Lawyers Assistance Program wasn't formally involved in that process). On my friend's first hearing before the Board, the Board was convinced that my friend might be mentally ill, though there was no medical evidence to support the Board's diagnosis. So my friend was referred to a counselor appointed by the Board, to receive counseling at my friend's expense. More than a year later, when the Board's appointed counselor reported that my friend was not mentally ill, the Board rejected my friend's application on moral character grounds instead. Possibly the Board believed that the counselor's failure to find evidence of the mental illness they believed to be present showed lack of candor on my friend's part? In any event, new Rule 718(a) now formally sanctions the use of extended periods of pre-admission counseling as "fishing" expeditions seeking evidence against an applicant.
New Rules 718(b) and (c), by contrast, formally authorize the procedure that was followed in my case under the old Rules. They permit the Board to send an applicant for a one-time psychological or substance abuse evaluation by an expert chosen by the Board. These rules would be quite reasonable, were it not that the Disciplinary Administrator and the Board carry no burden of proof whatever. The implications of this absent burden of proof have been explained at length in a previous posting. The net effect of the combination of new Rules 718(b) and (c) with the absent burden of proof is to give permission for the kinds of things that actually happened in my case. I came before the Board in 2006 with 21 years of successful treatment, and a positive report from my own treating psychiatrist. However, the Admissions Attorney didn't believe my psychiatrist's report, and had the Board refer me for an evaluation by an independent psychologist retained by the Board. After examining all available medical records, and putting me through three days of tests and interviews, the Board's expert reported favorably to me. Nevertheless, the Board chose to ignore BOTH experts—mine and its own—and to instead believe its on stereotyped fears regarding my diagnosis. It was obvious that, in my case, the purpose of the referral to the independent expert was not to arrive at "the truth," but only to generate evidence against me. The new Rules now formally permit this.
(a) The Board may refer an applicant to the Kansas Impaired Lawyers Assistance Program.
(b) The Board may require an applicant to submit to a substance-abuse evaluation by a qualified professional of the Board’s choosing.
(c) The Board may require an applicant to submit to a psychological evaluation by a qualified professional of the Board’s choosing.
(Kansas Rules Relating to Admission of Attorneys, Rule 718.)
Rule 718(a) is the portion of this new Rule that sanctions the relocation of Purgatory. It should be carefully noted that this paragraph does not authorize conditional admission, as is now done in many states. In a conditional admission situation, an applicant would be licensed on the condition of cooperation with the Impaired Lawyers Assistance Program for some specified period of time upon and after admission. No, what this rule does is explicitly sanction the practice of placing an applicant's application "on hold" for a period of months or years to permit the applicant to participate in an Impaired (would be-)Lawyers Assistance Program, at his or her own expense,before being eligible for a license. In essence, it permits the Board to use a period of mandatory pre-admission counseling with a counselor answerable to the Impaired Lawyers Assistance Program to go "fishing" for evidence that supports the rejection of the applicant.
Something rather like this was actually done sometimes under the old Rules. Though I personally was never referred to counseling by the Board, I am personally acquainted with another applicant who was referred for somewhat over a year of pre-admission counseling by the Board under the old Rules (although the Impaired Lawyers Assistance Program wasn't formally involved in that process). On my friend's first hearing before the Board, the Board was convinced that my friend might be mentally ill, though there was no medical evidence to support the Board's diagnosis. So my friend was referred to a counselor appointed by the Board, to receive counseling at my friend's expense. More than a year later, when the Board's appointed counselor reported that my friend was not mentally ill, the Board rejected my friend's application on moral character grounds instead. Possibly the Board believed that the counselor's failure to find evidence of the mental illness they believed to be present showed lack of candor on my friend's part? In any event, new Rule 718(a) now formally sanctions the use of extended periods of pre-admission counseling as "fishing" expeditions seeking evidence against an applicant.
New Rules 718(b) and (c), by contrast, formally authorize the procedure that was followed in my case under the old Rules. They permit the Board to send an applicant for a one-time psychological or substance abuse evaluation by an expert chosen by the Board. These rules would be quite reasonable, were it not that the Disciplinary Administrator and the Board carry no burden of proof whatever. The implications of this absent burden of proof have been explained at length in a previous posting. The net effect of the combination of new Rules 718(b) and (c) with the absent burden of proof is to give permission for the kinds of things that actually happened in my case. I came before the Board in 2006 with 21 years of successful treatment, and a positive report from my own treating psychiatrist. However, the Admissions Attorney didn't believe my psychiatrist's report, and had the Board refer me for an evaluation by an independent psychologist retained by the Board. After examining all available medical records, and putting me through three days of tests and interviews, the Board's expert reported favorably to me. Nevertheless, the Board chose to ignore BOTH experts—mine and its own—and to instead believe its on stereotyped fears regarding my diagnosis. It was obvious that, in my case, the purpose of the referral to the independent expert was not to arrive at "the truth," but only to generate evidence against me. The new Rules now formally permit this.
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