Disability Discrimination in Attorney Licensure

Symptoms and mitigating measures: the new ADA Catch-22

2011-04-07T17:07:00.000-07:00

The previous posting reported a change EEOC made to its proposed ADA Amendments Act regulations that will positively affect persons who have, or are believed to have, certain disabilities, by explicitly including "psychotherapy" (and implicitly including other "human-mediated treatments") in the list of "mitigting measures" that may be used succesfully without destroying the law's protection. This posting will, by contrast, report a change EEOC made to its proposed regulation which will negatively impact many persons, and will certainly increase the cost and complexity of many ADA suits by creating a new "catch 22" for employees and job applicants.

In its September 2009 NPRM, EEOC had proposed language clarifying that, where an employer discriminates against an employee or applicant on the basis of a "symptom" of an impairment, or on the basis of a "mitigating measure" the person uses to reduce the severity of an impairment, that discrimination falls within the third ("regarded as disabled") prong of the definition of a disability and is covered by the ADA. This clarification of the coverage of the third prong would generally have prevented employers from evading the law by saying, for example, "we didn't fire you because we learned you're diabetic, we fired you because you use insulin."

EEOC invited public comment with regard to this change, and received numerous comments. Unfortunately, employer comments were stridently opposed to the proposed language about "symptoms" and "mitigating measures," generally expressing fear that inclusion of the langauge would require them to provide employees "mitigating measures" for their disabilities as "reasonable accommodations" at the employers' expense. This position was nonsensical, in that the language proposed in the NPRM would have clarified the coverage of the "regarded as disabled" prong of the definition only,and the ADAAA statute itself clarified that no employer ever has an obligation to provide a "reasonable accommodation" when the employee's claim is that he or she does not have an actual disabling impairment but was merely "regarded as disabled" by the employer. (Indeed, I argued this issue in a public comment I filed with EEOC.)

Unfortunately, EEOC ultimately agreed with the employers' position that the issue was too complicated to be clarified in a regulation:

In response to a specific request in the preamble to the NPRM, the Commission received many comments about the position in the proposed rule that actions taken because of an impairment’s symptoms or because of the use of mitigating measures constitute actions taken because of an impairment under the "regarded as" prong. Individuals with disabilities and organizations representing them for the most part endorsed the position, noting that the symptoms of, and mitigating measures used for, an impairment are part and parcel of the impairment itself, and that this provision is necessary to prevent employers from evading "regarded as" coverage by asserting that the challenged employment action was taken because of the symptom or medication, not the impairment, even when it knew of the connection between the two. Others asked the Commission to clarify that this interpretation applied even where the employer had no knowledge of the connection between the impairment and the symptom or mitigating measure. However, employers and organizations representing employers asked that this language be deleted in its entirety. They were particularly concerned that an employer could be held liable under the ADA for disciplining an employee for violating a workplace rule, where the violation resulted from an underlying impairment of which the employer was unaware.

In light of the complexity of this issue, the Commission believes that it requires a more comprehensive treatment than is possible in this regulation. Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the "regarded as" prong. No negative inference concerning the merits of this issue should be drawn from this deletion. The Commission’s existing position, as expressed in its policy guidance, court filings, and other regulatory and sub-regulatory documents, remains unchanged.

76(58) Fed. Reg. 16978, 16985 (Friday, March 25, 2011).

In spite of the preamble's warning that "no negative inference concerning the merits of this issue should be drawn" from the omission, we can be certain that any courts that were previously hostile to the ADA will, in fact, draw such negative inferences. This will lead to the kind of hair-splitting over whether individuals with certain disabilities are actually within the coverage of the ADA that the ADAAA was intended to eliminate. It will also likely lead to many individuals who should be protected under the ADAAA actually, in practical effect, being left out.

This is not to say that, in most situations, there won't be ways to get around EEOC's omission in court, after the damage is done. For example, in the previously stated hypothetical of an employee fired for "using insulin," once the employee gets to court he or she could certainly argue under the "actul disability" prong that diabetes is intended to be covered as a disability under the ADAAA, that use of insulin is legitimate "mitigating measure," and therefore the employer should be required to permit(note, not pay for, just permit)the employee to use insulin as a "reasonable accommodation." Thus, after being forced to convert what should have been a realtively simple claim under the "regarded as disabled" prong into a much more complicated "reasonable accommodation" claim under the "actual disability" prong, the hypothetical diabetic employee should win in court (after, regrettably, first being fired). A similar approach will be available to most, though not all, persons discriminated against by an employer who cites a "mitigating measure" as its grounds for its adverse decision. The employer's citation of the mitigating measure instead of the disability will convert a simple claim under the third prong into a complicated "reasonable accommodation" claim under the first prong.

The EEOC's omission of "mitigating measures" in themselves from the coverage of the third prong also creates a new catch-22 for employees and applicants in many situations. Consider the hypothetical case of a prospective employee with a record of alcoholism, reflected in some public record, but no current use. In this sitution, an employer may ask "do you attend Alcoholics Anonymous?" If the applicant answers "yes," he may be rejected because he attends AA (which shows, the employer will say, that there is still a risk of relapse). If the applicant answers "no," she may be rejected on the grounds of still being "in denial" of her condition. It should not be difficult to see that similar sorts of questions about treatment could be adapted to reject 100% of all applicants who an employer knows (through whatever means)or believes to have a disability to which the employer strongly objects. If the applicant is still receiving treatment, it shows continuing risk; if the applicant is not receiving treatment, it shows culpable "denial."

The regulatory omission of "symptoms" from the coverage of the third prong will also convert what should have been relatively simple claims under the third prong into much more complicated claims under the first prong. The issues presented by these claims under the first prong will generally be 1) whether the "symptoms" cited by the employer are severe enough to qualify as actual disabilities in and of themselves, 2) whether the employer actually knew of the underlying diability, and 3) if the employer actually knew of the underlying disability, whether its citation of only a symptom as its grounds for adverse action was pretextual. Proving any of these things is likely to be very difficult in most cases.

Index.

Psychotherapy in the New EEOC ADA Amendments Act Regulations

2011-03-28T04:48:00.000-07:00

Last Friday, March 25, 2011, the Equal Employment Opportunity Commission issued its final regulations implementing the Americans with Disabilities Amendments Act of 2008("ADA Amendments Act" or "ADAAA"). While these new regulations implement only the changes to Title I of the ADA, and thus will have no immediate effect upon state government professional licensure activities (which are governed by Titles II and III), EEOC had been given the lead in the matter of ADAAA regulations, and the Justice Department is expected to initiate some very similar changes in its own regulations implementing Titles II and III. Thus, the regulatiry changes made by the EEOC likely will ultimately affect attorney licensure.

The EEOC announced its new regulations after the normal, lengthy public promulgation process. It issued a Notice of Proposed Rulemaking (NPRM) in September 2009, followed by several months of invited public comments and several open public "town hall listening sessions." After public comments closed, EEOc took more than a year considering the comments and making the required regulatory analysis. The final regulations differed from the proposed regulations published with the NPRM in at least three ways which may ultimately have some affect on professional licensure, if they are carried over into the Justice Department Title II and III regulations: 1) it explcitly included "psychotherapy" and "behavior modification therapy" in the list of "mitigating measures;" 2) it retained the former concept of a "class of jobs or broad range of jobs" in its definition of an impairment of the life activity of working, rather than create a new definition involving "types of work" as propsed in the NPRM; 3) it removed from the prposed regulation language which would have explicitly included discrimination on the basis of "symptoms" or "mitigating measures" in the "regarded as" disabled prong; and 4) it included several mental illnesses in the examples of conditions that can "predictably" be determined to be actual disabilities.

This post will consider only the first of these changes. The rest will be considered in later postings.

One of the major purposes of the ADAAA was to legislatively overrule judicial precedents that had held that an otherwise disabling condition that is successfully ameliorated by a "mitigating measure" is not a protected disability at all. Therefore, a regulation was required that would give some minimum fixed substance to the concept of a "mitigating measure." Proposed new 29 C.F.R. 1630.2(j)(5), "Examples of Mitigating Measures," as contained in the NPRM, listed medications, medical supplies and equipment, prosthetics, assistive technology, "reasonable accommodations" or "auxiliary aids and services" as defined in the statute, and "learned behaviorial or adaptive neurological modifications." But it did not mention as legitimate "mitigating measures" any kind of "human mediated" treatment or mitigation, such as psychotherapy, physical therapy, or 12-step support groups.

Therefore, it remained to public commenters to suggest adding these kinds of mitigating measures to the list. I was the only commenter to suggest the term "human-mediated treatment" to describe these kinds of mitigating measures. I was also the only commenter to raise the issue of 12-step support groups. However, the issue of psychotherapy was raised by two of my comments and two comments by other commenters (in chronological order):

1. "Psychotherapy" in my October 5, 2009 comment.

2.Oral comment by Matthew Cohen on November 17, 2009, during a Town Hall Listening Session (see p. 48 of .pdf transcript).

3. Comment by Catherine Coleman on November 24, 2009.

4. "Psychotherapy" in my November 24, 2009, comment.

As a result of these comments, EEOC added the following numbered clause to 29 C.F.R. 1630.2(j)(5):

(v) Psychotherapy, behavioral therapy, or physical therapy.

The regulatory preamble explains this addition to the NPRM langauge as follows:

The final regulations retain, as one of the nine rules of construction, the statutory requirement that mitigating measures, other than ordinary eyeglasses or contact lenses, must not be considered in determining whether an individual has a disability. Several organizations representing persons with disabilities suggested adding more examples of mitigating measures, including: job coaches, service animals, personal assistants, psychotherapy and other ‘‘human-mediated’’ treatments, and some specific devices used by persons who have hearing and/or vision impairments.

In the final regulations, the Commission has added psychotherapy, behavioral therapy, and physical therapy. In the appendix, the
Commission has explained why other suggested examples were not included, noting first that the list is nonexhaustive. Some suggested additional examples of mitigating measures are also forms of reasonable accommodation, such as the right to use a service animal or job coach in the workplace. The Commission emphasizes that its decision not to list certain mitigating measures does not create any inference that individuals who use these measures would not meet the definition of "disability."

76(58) Fed. Reg. 16978, 16982 (Friday, March 25, 2011).

Thus, it appears that, through its inclusion of some "human mediated" therapy forms and and its repeated statement that the list given is non-exhaustive, EEOC actually intended to include a full range of other "human mediated" forms of mitigating measures.

See the index to my full argument about the application of the ADAAA to attorney licensure.

Disclaimer about my Reported Association with World Bank

2011-03-22T19:51:00.000-07:00

It has come to my attention that Google Books' entry for my book Our Oneness in Christ indicates that I, Ian Johnson, am a Vice President at the World Bank!

This never has been true. Indeed, the only international banker I have ever met was a retired international banker, whom I met in Topeka, Kansas (hardly a center of international finance!) over 20 years ago. My accurate résumé is posted here. Considerably more information is available on this blog. It shows I have never even been in the same room with a World Banker (Bank security would probably exclude me).

My research shows that, as late as 2006, the publication date of my book, there was a man named Ian Johnson who was either Vice President for Environmentally and Socially Sustainable Development or Vice President of the Wordld Bank's Program for Sustainable Development. Both titles are used in different online documents. He appears to still be with World Bank, though the page of that organization's website from which this information was derived appears not to have been updated very recently. But I am NOT THAT Ian Johnson. Google is wrong.

Justice Department files reply brief in Guttman v. New Mexico

2011-02-06T10:19:00.000-08:00

The Justice Department has filed with the Tenth Circuit a reply brief in Guttman. This brief supplies further arguments for the proposition that, in enacting the ADA, Congress had the authority to regulate the public licensing activities of states, authority which included the granting of professional licenses as a part of the larger field of public licensure in general. I have posted it here: Reply Brief of the United States, Appelant_Intervenor, in Guttman v. New Mexico.

Justice Department files brief in Guttman v. New Mexico

2010-12-11T07:48:00.000-08:00

Dr. Stuart Guttman lost his New Mexico medical license in 2001 as a result of depression and PTSD, and sued in the federal courts under the ADA. Prior to this year, his case had already made three trips to the Tenth Circuit and one trip to the U.S. Supreme Court (in which the Tenth Circuit decision presented for review was summarily vacated and remanded for reconsideration in light of a decision reached in another case).

The Guttman case is now on its fourth appearance before the Tenth Circuit. This time, it rather cleanly presents the legal issue whether Title II of the ADA may validly be applied to the field of professional licensure within Congress' power to enforce the Fourteenth Amendment. The United States Department of Justice recently filed a brief in intervention in Guttman (Tenth Circuit Case Nos. 10-2167 and 10-2172), arguing that, based on its findings of pervasive irrational disability discrimination in the provision of public services and programs (including licensure), in enacting Title II of the ADA, Congress validly regulated the field of "public licensure" under its power to enforce the Fourteenth Amendment.

This case bears watching.

See also the index to all of my arguments on this subject.

General Election 2010: Kansas Constitution no longer equates mental illness and crime

2010-11-03T17:13:00.000-07:00

Prior to last night, Article 5, section 2 of the Kansas Constitution read as follows:

Disqualification to vote. The legislature may, by law, exclude persons from voting because of mental illness or commitment to a jail or penal institution. No person convicted of a felony under the laws of any state or of the United States, unless pardoned or restored to his civil rights, shall be qualified to vote.

This language authorized the legislature to treat mental illness as a crime, denying the vote to persons with any mental illness just as it is denied to an incarcerated felon. The legislature, wisely, never acted on this authorization. Still, the state constitution contained this language that appeared to equate mental illness with crime. This constitutional language, thus, reflected exactly the same prejudice as is reflected in the Kansas Supreme Court's rules for admission to the bar. Admission to the bar is presently denied, by formal rule, to any applicant who has a current mental illness, regardless of the success of ongoing treatment. This is discussed at length elsewhere in this blog. (See the index to these entries.).

Perhaps, when it promulgated its July 2009 Rules Relating to Admission of Attorneys, the Court believed that Article 5, Section 2 of the Kansas Constitution authorized or required discrimination against persons with any, even well-controlled, mental illness. If people may be denied the vote for mental illness, the Court may have reasoned that they must be denied licensure as attorneys for the same reason?

If so, the Court's support for its position disappeared suddenly last night. In yesterday's General Election, the voters overwhelmingly approved Constitutional Amendment Question No. 2, which struck the words "mental illness or" out of Article 5, Section 2. The legislature is no longer authorized to deny the vote to persons because of a diagnosis of mental illness. The state constitution no longer even arguably treats mental illness as a kind of crime. The Court's licensure rules shouldn't either.

Kansas Supreme Court should take warning from 2010 election results

2010-11-03T06:53:00.000-07:00

The Kansas Supreme Court should take note of the election results this year, which show a 58% increase in their "disapproval rating" since 2004 and a 27% increase in the last two years alone, and should take warning. What happened in Iowa this year--the removal of three justices at the polls--is possible in Kansas!

Concerning the Supreme Court's current disapproval rating: preliminary returns show that all four of the Supreme Court justices up for retention in yesterday's election had "no" vote percentages in the 37% or 38% range. The likely mean "no" vote for supreme court retention yesterday appears to be 38%, rounded to the nearest percentage point.

By contrast, the 4 Supreme Court justices who ran for retention in the 2004 general election were retained with "no" vote percentages that ranged from 23.4% to 24.3%, mean 24% (rounded to the nearest percentage point). This was consistent with the results for the 3 Court of Appeals judges who were on the ballot that year, whose "disapproval ratings" (i.e., "no" vote percentages) ranged from 23.4 to 23.6%, mean 23.5%. "Disapproval ratings" in the low 20% range, never above 25%, were standard before 2004. The increase from 24% "no" votes in 2004 to 38% "no" votes this year is a 58% increase (14/24) since 2004.

In 2006, the one Supreme Court justice on the ballot, Robert E. Davis (now deceased), had a "disapproval rating" of 32.4%, apparently explained mostly by opposition from pro-life organizations. The 9 court of appeals judges had "disapproval ratings that ranged from 27.4% to 30.9%, mean 29%.

In 2008, Kansans for Life recommended that its constituents vote against both of the Supreme Court justices on the ballot, and vote against all of the Court of Appeals judges on the ballot EXCEPT Richard Greene (I still have a copy of KFL's e-mail). The result was that the two supreme court justices in that election had "disapproval ratings" of 29.7 and 30.0%, mean 30%. Court of Appeals Judge Richard Greene's "disapproval rating" was 25.5%. Thus, Judge Greene's "disapproval rating" was in the same range (within one percentage point) that was "standard" in 2004 and previous elections--that is, in elections in which there was no organized pro-life opposition. The "disapproval ratings" of the other 3 Court of Appeals judges (whom KFL had opposed) ranged from 29.4 to 29.6% (mean 29%, to the nearest percentage point), consistent with the "disapproval ratings" of the Supreme Court justices KFL opposed. Therefore, it is likely that the jump in the appellate courts' overall "disapproval ratings" between 2004 and 2008 can be attributed mostly to organized pro-life opposition, which continued to operate in the election held yesterday.

However, as already noted, the preliminary "no" vote percentages for Supreme Court justices this year were all within half a percent of 38%, NOT 29% or 30% as in 2006 and 2008. This 27% (8/30) increase in "disapproval rating" since 2008 cannot be mostly attributed to organized pro-life opposition, which showed its strength in 2006 and 2008 and brought disapproval up to only 30%. That the pro-life vote by itself is not to blame can also be seen from the fact that there was no significant difference between Justice Carol Beier's "no" vote and that of the other three justices. The pro-life opposition carried on a very active "fire Beier" campaign this year, a campaign that included extensive paid advertising in the media. No such paid advertising campaign was carried on against the other three justices; they were simply included in voter guides distributed to the existing pro-life constituency with a recommendation to vote "no." So it appears quite unlikely that pro-life voters were the cause of the 27% increase in disapproval between 2008 and this year.

So where did the dramatic increase in disapproval of the Court this year come from?

Partly from simple anti-incumbency, perhaps, but that was also a strong election theme in both 2006 and 2008.

More likely, however, the culprit this year was a widespread feeling that the courts generally, and the Kansas Supreme Court in particular, are becoming too "activist." I have seen a great deal published about this sentiment, both in the print media and on the web. The complaint here is that unelected courts are trying to replace elected legislatures, ignoring laws that legislatures write when they feel those laws are erroneous (and can hang their feelings on something in the federal or a state Constitution), and writing laws in the form of judicial precedents when they feel the legislature should have written a law but hasn't. In Iowa, it is now generally acknowledged that three justices were removed from office yesterday for finding in the Constitution a law on a hot-button issue (gay marriage) that the Iowa Legislature had declined to find there. Similarly, in Kansas, there is a lot of published discontent centering around the Kansas Supreme Court refusing to enforce some laws (particularly regarding crime)that the Legislature has enacted, and writing some laws (for instance, about school finance) that the Legislature declined to write on its own. I believe this accumulation of discontent about judicial "activism" is what led to the 27% jump in the Kansas Court's disapproval rating yesterday.

Finally, I note that my own complaint about the Kansas Supreme Court--its decision to adopt attorney licensure rules that openly and blatantly ignore the Americans with Disabilities Act--is an example of judicial activism. The Kansas Supreme Court elected to ignore a law enacted by Congress that it didn't like, a least when that law was applied to the Court itself. The Court elected to substitute its judgment for that of an elected legislature--Congress. (See the index of previous postings on this issue).

The Court should take warning from yesterday's election results!

Why I will vote "NO" for Kansas Supreme Court, except for Justice Biles

2010-10-16T19:18:00.000-07:00

On November 2, four justices of the Kansas Supreme Court--a majority of that court--are on the general election ballot for retention or non-retention in office. I plan to vote "NO," do not retain, three of them--Chief Justice Lawton Nuss and Justices Marla Luckert and Carol Beier. (I will either vote to retain the fourth Justice, Dan Biles, or leave that space blank). I will vote in this way because I believe that, by joining in promulgating the Rules Relating to Admission of Attorneys that went into effect on July 1, 2009, these three justices knowingly decided to ignore a federal law--the Americans with Disabilities Act--that interfered with their own institutional prerogatives. I believe all four justices up for retention this year have otherwise done a relatively good job, EXCEPT for their decision to ignore the ADA in promulgating the rues that apply to their own court. If they had simply promulgated rules consistent with the ADA, I would be voting to retain each of them. But I view what was apparently a conscious decision to set themselves up as above Federal anti-discrimination law as a serious enough matter to justify a vote against retention.

First of all, I note that the new Rules Relating to Admission of Attorneys violates the ADA in several ways, as is explained at length in past entries in this blog. Indeed, not only do the new Rules make no mention of the ADA, they appear to go out of their way to conspicuously ignore its requirements. (See the index to the ADA argument against the Kansas Rules Relating to Admission of Attorneys.).

Second, I note that, prior to their promulgation of the new rules on July 1, 2009, Justices Nuss, Beier and Luckert had each been thorougly briefed at least TWICE regarding the ADA issues that existed under the former Rules. The first briefing of which I am aware occurred in January and February 2007, in the process of rejecting my 2006 application to take the Kansas bar exam. Two members of the Board of Law Examiners had dissented in my case, and one of the dissenters had written in his dissenting report that he believed the ADA applied in my case and required my admission. The ADA issue was then briefed in my exceptions to the Board's majority report, but the Kansas Supreme Court denied my application without mentioning the ADA issue. Justices Nuss, Luckert and Beier were on the Court at that time; Justice Biles was not. The issue here is not whether the Court was right or wrong in its decision of my individual case, but whether the three Justices then on the Court who are now up for retention knew that their Rules for admission of attorneys, promulgated two years after this, could present ADA issues. They clearly were put on notice of the ADA issue by the Board's minority report and my brief in 2007. (See the link list, Relevant Commnications with the Kansas Board of Law Examiners and the Kansas Supreme Court.

The second briefing of the issue occurred in December 2008, shortly after the enactment of the Americans with Disabilities Amendments Act of 2008. At that time, I moved for reconsideration of the determination against me in 2007, in light of the broadening of the definition of a disability under ADAAA. I once again briefed the issue of the application of the ADA (as now strengthened by the ADAAA) to Bar admissions. In January 2009, the Court summarily denied my motion. Justices Nuss, Luckert and Beier were on the court when my motion was filed and decided; Justice Biles was not.

Thus, at least the three same three justices who were put on notice of the ADA's applicability to attorney licensure in January and February 2007 were put on notice of this again in January 2009. Nevertheless, in July 2009, they joined in promulgating rules for attorney licensure that totally ignore the ADA. This appears to me to be reason enough to vote against retaining them.

Justice Biles may be a different matter, however. He did not join the Court until March 2009--after all of the decisions in my case had been made. It is, therefore, very unlikely that he read any of my documents before he joined in promulgating the new Rules in July 2009. Indeed, it is quite possible that all of the decisions about the text of the new Rules had been made before he joined the Court. Therefore, I am willing to give Justice Biles the benefit of the doubt--he may not have had any say in the new Rules, and, if he did, he may not have had any reason to think that the ADA applied to what he was doing. Therefore, I will not vote against him. But the other three Justices up for retention have no such excuse.

New Justice Department Title II ADA regulations clarify objective evidence must be used

2010-09-18T17:56:00.000-07:00

On September 15, 2010, the Justice Department has published new regulations amending 28 CFR part 35, its regulations implementing Title II of the ADA. The citation for these new regulations is 75(178) Fed. Reg. 56163-56236 (Sept. 15, 2010). The new regulations are focused on physical accessibility and the regulatory implementation of the ABA/ADA Accessibility Guidelines, but contain three amendments that affect my argument that the ADA requires attorney licensing authorities to give controlling weight to objective evidence of the actual risk posed by an individual applicant’s disability rather than on its speculations or generalizations about that disability. My full argument that the current Kansas attorney admission rules violate Title II of the ADA and its implementing regulations (even prior to the recent amendment) are set forth in a previous posting.

The definition of a "direct threat" in 28 CFR 35.104 is amended as follows:

Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or
services as provided in Sec. 35.139.

New 28 CFR 35.130(h) is added:

(h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety
requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

And new 28 CFR 35.139 is added:

Sec. 35.139 Direct threat.

(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.

(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: 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 or the provision of auxiliary aids or services will mitigate the risk.

Prior to the promulgation of these regulations, the requirement that a regulated entity base its determinations on actual individual risks as shown by objective evidence was contained only in the commentary in the Appendix to 28 CFR pt. 35. The recent amendments to the regulations bring this requirement out of the commentary and place it in the text of the regulations themselves.

Index of full argument this posting supplements.

New Kansas Disciplinary Case Shows Asperger's Disorder does NOT Disqualify Attorney from CONTINUED Practice of Law

2010-09-04T07:42:00.000-07:00

It will be recalled that, in the previous seven postings, I showed at some length that, under the new Kansas Rules Relating to Admission of Attorneys (promulgated July 1, 2009) and Petition for Admission to the Bar, original admission to the Kansas Bar requires absolute freedom from any mental or developmental disorder that even theoretically “could… if untreated” affect the practice of law. From my own personal experience, Asperger’s Disorder IS one of the disorders that is considered to absolutely disqualify an applicant from INITIALLY OBTAINING a license.

However, a recent published Kansas Bar disciplinary case clearly demonstrates that Asperger’s Disorder is NOT considered to permanently disqualify an attorney already licensed from CONTINUING to PRACTICE law, when it first manifests (or is first made known to the Court) AFTER licensure, even where it is implicated as contributing to a serious ethical violation. In In re Campbell, 287 Kan. 757, 199 P.3d 776 (2009), a public prosecutor improperly displayed photographs of a minor sexual assault victim to parents of other minors who had attended the same party where the assault occurred, in violation of K.S.A. 38-2310(c) and KRPC 8.4(g). The Court found he had abused the power of his office and done actual harm to the sexual assault victim, and suspended him from the practice of law for only six months (not indefinitely), despite evidence noted in the Court’s opinion (199 P.3d at 780) that he suffered from Asperger’s Disorder and Attention Deficit Disorder and that these conditions may have had a role in his misconduct.

Approximately a year later, Mr. Campbell applied for reinstatement. In re Campbell, 290 Kan. 504, ___ P.3d ___ (May 19, 2010), the disciplinary panel recommended conditional reinstatement, and the Court agreed, despite the finding that “the petitioner suffers from Asperger’s Disorder for which he has been undergoing some type of therapy since approximately 1993, and further, that while the petitioner has been receiving therapy to assist him in developing appropriate social relationships and in understanding social clues, Asperger’s Disorder is a permanent condition and the petitioner will always process information differently than individuals who do not have the disorder.” (290 Kan. at 504).

So, the Court recognizes that Asperger’s Disorder is a permanent condition and will always make Mr. Campbell somewhat “different,” but agrees with him that he should be allowed to resume practice under his license (which was only temporarily suspended), even though his condition will NEVER be “cured” and completely go away. This is in line with the Court’s DISCIPLINARY rules and case law which are relatively lenient toward mental illnesses that manifest in attorneys AFTER licensure. (See Part 8. Total Absence of Any Mental Illness or Addiction is NOT an Essential Qualification to PRACTICE Law in Kansas for many more examples.)

By contrast, the Court insists that applicants for initial licensure must be completely “normal,” and that any past conditions that “could” interfere with the practice of law must be completely gone. See, particularly, Part 6. Must Reject Any Disability that “Could, If Untreated” Affect Law Practice, for a discussion of the relevant rules and of my case—showing that my application was denied in 2007 on the grounds that I had not shown my Asperger’s Disorder to be completely gone and a showing that the new 2009 admission rules prescribe this result for all future cases.

Moreover, this disparity in treatment between persons with mental or developmental disorders in general (and now Asperger’s Disorder in particular), based on whether their disease manifested BEFORE or AFTER licensure, violates both the Equal Protection clause of the Fourteenth Amendment and the Americans with Disabilities Act, as explained in the entries linked in this sentence.

Part 1. The Application

2010-08-06T08:27:00.000-07:00

Note: This posting was updated May 14, 2011.

Kansas' new Rules Relating to Admission of Attorneys, promulgated July 1, 2009, when read in conjunction with its Petition for Admission form, not only authorize but actually require discrimination against applicants who present with certain stigmatized disabilities. Over the next eleven postings, I will prove this to be true by presenting a systematic exposition of the offending rules, explaining how, when read together, they in fact require this result. The ten postings after that will show that this aspect of the application form and new Rules violate the Fourteenth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973, and will suggest means of obtaining Federal court jurisdiction to test the rules. (Here is a link to a full index to all of the postings in this series.). Note that, while I believe I have already made too many enemies to ever be admitted to the Bar myself, I would be quite willing to join with a group of other plaintiffs, who hopefully have more sympathetic facts, in order to make official documents from my Bar application processes available as evidence of the actual application of the new Rules in a suit challenging the rules.

I will start with an analysis of the application form and the rules dealing with the obligation to disclose medical conditions on that form. I will include a link to the official Kansas Judicial Branch website for every rule or other official public document I discuss or quote. I will also include links to web pages (usually in .pdf format) out of my own case that I discuss, and I will carefully distinguish official public material from material out of my own case.

The most recent version of the "Application for Admission to the Bar of the State of Kansas by Written Examination" (a public document) was issued in July 2010. It replaced a "Petition for Admission" form issued in 2005 which was at the center of my personal case, but it is noteworthy that the text of the mental health questions (questions 32-34 on the 2005 form) and the accompanying instructions did not change at all. Questions 40 through 42 of the 2010 Application form, like questions 32 through 34 of its predecessor,require full disclosure of any current diagnosis of, or treatment within the last 5 years for, "any condition" which "if untreated could affect your ability to practice law," including specifically "bi-polar disorder, schizophrenia, paranoia or other psychotic disorder," in the following words:

40. Within the last five (5) years have you been diagnosed with, or have you been treated for, bi-polar disorder, schizophrenia, paranoia or other psychotic disorder?

41. Have you since attaining the age of eighteen or within the last five years, whichever is shorter, been admitted to a hospital or other facility for the treatment of bi-polar disorder, schizophrenia, paranoia or other psychotic disorder?

42. Do you currently have any condition or impairment (including, but not limited to, a mental, emotional or nervous disorder or condition) not disclosed above which, in any way, currently affects, or if untreated could affect, your ability to practice law.

(Application, p. 13, questions 40-42 (emphasis in original)).

Thus, it is clear that any past diagnosis of bipolar disorder, schizophrenia, or any other condition the Kansas courts would consider "psychotic," must be disclosed regardless of whether there has been treatment within the last five years, because these are life-long "chronic" conditions. Therefore, the "diagnosis" of any condition the Kansas courts believe to be "psychotic" would continue to exist even if medical experts believe treatment is no longer needed, and failure to disclose such a diagnosis at any time in the past would be quite dangerous under the rules discussed below. Similarly, any current or past diagnosis, within the past five years, of any other medical or psychiatric condition that merely "could," with any non-zero probability, "if untreated" "affect" "in any way" the applicant's "ability to practice law" must be disclosed. And the Board of Law Examiners is, in practical fact, the final judge of whether a condition has any slight possibility of affecting the ability to practice law, if left untreated, and the final arbiter of whether the applicant intended to deceive by not disclosing it. Very few serious conditions really can be said to have no chance of ever affecting the practice of law. Only perfect, or willingly dishonest, applicants need bother to apply.

The instructions that immediately precede questions 40 through 42 clarify that any "lack of candor" in self-identifying conditions or impairments that might in any way interfere with the practice of law if left untreated (even though currently successfully treated) will result in denial of licensure and that the burden of proving the complete absence of any present impairment as a result of such conditions or impairments is on the applicant:

The Board of Law Examiners does, on occasion, deny certification to applicants whose ability to function is impaired in a manner relevant to the practice of law at the time the licensing decision is made, or to applicants who demonstrate a lack of candor by their responses. This is consistent with the public purpose that underlies the licensing responsibilities assigned to bar admission agencies; further, the responsibility for demonstrating qualification to practice law is ordinarily assigned to the applicant.

(Petition, p. 13, instructions.)

The instructions to Questions 40 through 42 also require any applicant who answers "yes" to any of these questions to "provide the names and addresses of each hospital or other facility, the date(s) of the hospitalization(s), and the description of the treatment received," accompanied by "documentation" of these responses. Moreover, all applicants are required to submit three notarized copies of a standard "Authorization and Release" form as a part of their application package. (Instructions to Petition, pp. 2, 6 & 7). The standard "Kansas Board of Law Examiners Authorization and Release" form requests its recipients to release to the Board, inter alia, "such information or records, including documents… medical files and physician reports… and any other pertinent data so requested" by the Board. (See the Application's "Authorization and Release"). All of this medical information must be released without reservation, for consideration in detail by a Board composed entirely of medical laymen, there to be judged in accordance with the Board members' prejudices.

However, the new Rules make both non-disclosure and disclosure with attempted reservation very dangerous--grounds for both denial of an application and subsequent disbarment if it is later decided that a condition that was concealed creates some risk. New Rule 714 of the Kansas Rules Relating to Admission of Attorneys, effective July 1, 2009, emphasizes the importance of completely self-reporting in response to questions 40 through 42 any impairment that might conceivably interfere with the practice of law if treatment were discontinued:

(a) Each applicant for admission to the bar has a duty to be candid and to respond carefully and accurately to all questions in all phases of the application and admission process. Each applicant must respond fully to all inquiries.

(b) Failure to accurately and completely answer all questions on the application, failure to disclose requested information, lack of candor in any answer or falsification of any answer may result in denial of an application for admission to practice law in Kansas and may constitute grounds for revocation of the license to practice law granted to any person based thereon.

(Rules Relating to Admission of Attorneys, Rule 714.)

On the other hand, any attempt to qualify the standard "Authorization and Release" form will simply result in the application being deemed "defective" by the Clerk of Appellate Courts and returned to the applicant without further action. (Rules Relating to Admission of Attorneys, Rule 713).

Thus, any current or continuing past (chronic) diagnosis of a stigmatized psychological or neurological condition MUST be fully disclosed, regardless of current treatment status or effectiveness, and the language of the application form itself strongly suggests that the end result of the disclosure will be virtually automatic rejection.

As will be seen in future postings, both the substantive and the procedural provisions of the new Rules also strongly suggest this result.

E-mail me.

Part 2. Must Prove Eligibility by Clear and Convincing Evidence

2010-08-06T08:14:00.000-07:00

Rule 705 of the new Kansas Rules for Admission of Attorneys, promulgated effective July 1, 2009, continue in effect the requirement of the old Rules that required applicants to prove their eligibility—including their mental and emotional fitness—"by clear and convincing evidence:"

(a) The practice of law is a licensed privilege, not a right, and the burden of establishing eligibility for licensure by clear and convincing evidence shall rest upon the applicant.

(b) In order for an applicant to establish eligibility to sit for the bar examination in the State of Kansas, the applicant must comply with the educational requirements and prove 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 705)

This requirement is reiterated in new Rule 707(a):

(a) Before an applicant shall receive a license to practice law pursuant to Rules 708, 709, or 712 or a temporary permit pursuant to Rule 710, the applicant must establish 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 707(a).)

For applicants whose applications present a sufficient appearance of perfection to pass the initial screening prescribed by the rules (which will be discussed in a future posting), no hearing is required. Therefore, for these perfect-appearing applicants, the requirement to "prove" their mental and emotional fitness at all never comes into play. However, for those whose applications reveal some imperfection, Rule 721(n) of the new Rules again reiterates that, at any hearing, the applicant bears the burden of proving mental and emotional fitness "by clear and convincing evidence:"

(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).)

For applicants who are flagged as potentially mentally ill, possibly emotionally unstable, or afflicted with some other stigmatized condition, the requirement of proof of fitness by "clear and convincing" evidence is logically impossible—not just difficult, truly impossible—for four reasons that conspire to make the proof impossible: 1) the definition of proof by "clear and convincing evidence," 2) the fact that the new rules make the Disciplinary Administrator's decision to red flag a file and report the possibility of a lack of fitness in itself evidence of lack of fitness, 3) the total absence of any rules of evidence limiting the types of evidence the Board may consider against an applicant, and 4) the new substantive definitions of "current mental and emotional fitness" and of the factors to be considered in making this determination. The meaning of proof "by clear and convincing evidence" will be discussed in this posting. The other three reasons will be discussed in later postings.

While proof by "clear and convincing evidence" is not defined in the new Rules themselves, and the Kansas Supreme Court never publishes bar admissions opinions, the term is used in other settings in the law and has been defined in Kansas case law. In one commonly-cited older case involving attorney discipline, the term "clear and convincing evidence" was defined as follows:

Clear and convincing evidence is defined in Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979), to mean "the witnesses to a fact must be found to be credible; the facts to which the witness testifies must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.” In re Zimmerman, 270 Kan. 855, 858, 19 P.3d 160 (2001) (quoting In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 [1998]).

In re Rausch, 272 Kan. 308, 320, 32 P.3d 1181 (2001).

In another case, the same Court defined proof by "clear and convincing evidence" as follows:

Clear and convincing evidence is evidence that is certain, unambiguous, and plain to the understanding and so reasonable and persuasive as to cause the trier of fact to believe it. Clear and convincing evidence is not a quantum of proof, but rather a quality of proof; thus, a party establishes a claim by a preponderance of the evidence, but this evidence must be clear and convincing in nature.

Chandler v. Central Oil Corp., 253 Kan. 50, Court’s Syl. 5, 853 P.2d 649 (1993).

Thus, the requirement in the Rules that the applicant must prove mental and emotional fitness by "clear and convincing evidence" instructs the Board of Law Examiners that, if any evidence presented by the Disciplinary Administrator creates the slightest ambiguity, uncertainty or confusion as to any detail the Board considers relevant, the application must be rejected. Under this standard any evidence which appears to the Board to contradict in any way the applicant's showing of fitness requires rejection, regardless of the relative weight and strength of the applicant's evidence favoring admission. No quantity of evidence can ever be sufficient to overcome a single Board member’s lingering doubts.

An example of this older version of the "clear and convincing evidence" standard of proof at work is found in my 2007 bar admission case, as explained in the Minority Dissenting Report of the Board of Law Examiners. My application was rejected because, although both my treating psychiatrist and the Board's independent expert psychologist agreed that my condition had been in a long-term, stable, full remission for many years and posed only a "very low" risk of recurrence, there was some disagreement in the details of their testimony. Because the two experts did not agree totally, perfectly, and, in addition, did not agree with the prejudices of a majority of the Board members, the evidence was not of a sufficiently "clear and convincing" quality to succeed.

However, since my application was denied in 2007, the Kansas Supreme Court has clarified—and significantly tightened—its definition of proof by "clear and convincing" evidence. In In re BD-Y, 286 Kan. 686, 187 P.3d 594 (2008), a termination of parental rights case, after first criticizing its own prior case law for its "imprecision," and stating that "clear and convincing evidence is not simply a quality of proof" (emphasis added), the BD-Y court adopted the definition of "clear and convincing evidence" stated by the United States Supreme Court in Colorado v. New Mexico, 467 U.S. 310(1984), as explained by the Supreme Court of Maine in Taylor v. Commissioner of Mental Health, 481 A.2d 139 (Me. 1984). The Kansas court quoted the United States Supreme Court for the underlying definition:

Last term, the Court made clear that Colorado's proof would be judged by a clear-and-convincing-evidence standard. [Citation omitted.] In contrast to the ordinary civil case, which typically is judged by a `preponderance of the evidence' standard, we thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are `highly probable.' See C. McCormick, Law of Evidence § 320, p. 679 (1954). This would be true, of course, only if the material it offered instantly tilted the evidentiary scales in the affirmative when weighed against the evidence New Mexico offered in opposition. See generally McBaine, Burden of Proof: Degrees of Belief, 32 Calif. L.Rev. 242, 251-54 (1944)." (Emphasis added.)

In re BD-Y, 187 P.3d at 600, quoting Colorado, 467 U.S. at 316.

At first blush, this appears to substitute the U.S. Supreme Court's test that the quantum of evidence must be such as to "create an abiding conviction that the truth of its factual contentions are highly probable" in place of Kansas' prior rule that the evidence must be of a "clear and convincing" quality. However, that is not what was accomplished by the clarification of the standard in BD-Y. Rather, all BD-Y accomplished was to substitute the "highly probable" quantum of evidence for the previous "preponderance of the evidence" quantum. Thus, where before BD-Y, a "clear and convincing" burden of proof required proof by a mere preponderance of the evidence, but that evidence had to be high-quality ("clear and convincing") evidence, now a proof by "clear and convincing evidence" requires that the high-quality evidence presented must show the fact to be proven to be "highly probable." That all that changed was the quantum of evidence is shown by the following passage, quoted with approval by BD-Y from Taylor (rejecting Horner v. Flynn, 334 A.2d 194 (Me.1975), in which Maine had previously adopted a definition analogous to Kansas' old definition):

"For example, there are many instances in which the evidence on both sides might be deemed of `high quality.' In such instances, Horner permits the party bearing the burden of proof to prevail despite having only a bare preponderance of the evidence. Although the introduction of high quality evidence may well be an important element in meeting the intermediate standard of proof, that alone would not suffice. The factfinder must be persuaded, on the basis of all of the evidence, that the moving party has proved his factual allegations to be true to a high probability. That degree of confidence effectuates the policy purposes for which we have, in this case and others, adopted the `clear and convincing evidence' standard." (Emphasis added.)

BD-Y, 187 P.3d at 601 (emphasis as in Kansas' opinion), quoting Taylor, 481 A.2d at 154.

Thus, the use of "high-quality evidence" such as that described in In re Rausch, 272 Kan. at 320, previously quoted, is still "an important element" of a proof by "clear and convincing evidence," it is simply no longer enough. Now, there must be enough "high quality," clear,uncontradicted and unquestioned, evidence introduced on the question to be proven to make its proponent's position appear "highly probable."

BD-Y's formulation of the definition of proof by "clear and convincing evidence" was quickly adopted by the Kansas Supreme Court in an attorney discipline case, In re Dennis, 286 Kan. 708, 188 P.3d 1, 14-15 (2008). BD-Y and Dennis have been consistently cited in Kansas attorney discipline cases ever since. Thus, the new, and more rigorous, BD-Y definition undoubtedly applies in attorney admission cases as well. As will be shown in the next few postings, it makes licensure logically impossible for any applicant whose application has been "red flagged" due to a "major" mental illness (as defined in the Kansas application form) that is still under treatment.

Part 3. The Initial Screening

2010-08-06T07:56:00.000-07:00

According to new Rule 721 of the Kansas Rules Relating to Admission of Attorneys, paragraphs (a), (b) and (d):

(a) The Board, through the Disciplinary Administrator and the Clerk of the Appellate Courts, shall review all applications and conduct investigations to determine whether each applicant possesses good moral character and current mental and emotional fitness to engage in the active and continuous practice of law.

(b) The Board may also call on any state or local bar association, or one or more members of the bar of the judicial district where the applicant resides, to make such investigation and report the results to the Board...

(d) In no event will permission be granted to sit for the bar examination pursuant to Rule 709 or a license to practice law be issued pursuant to Rules 708 or 712 until the investigation as to good moral character and current mental and emotional fitness to engage in the active and continuous practice of law has been satisfactorily completed.

To this point, the requirements are pretty much what every other state does and has always done, except for the requirement to pass the character and fitness process before being permitted to even sit for the bar examination. See also Rule 721(i), which states this. (Many states permit applicants whose character or fitness is in doubt to take the examination while hearings are still pending, then withhold the license until character and fitness has been certified.) However, new Kansas Rules 721 (e), (f) and (g) then give the Disciplinary Administrator and the Chairman of the Board of Law Examiners the authority to determine that an applicant does not appear to be qualified, and to refer the matter to the Board:

(e) Following the investigation, the Disciplinary Administrator shall certify to the Board the names of those applicants who appear to be qualified for admission.

(f) The applicants not certified by the Disciplinary Administrator shall be referred to the Chairman of the Board. The Chairman, or his or her designee, shall review the applications, along with additional materials discovered during the investigation and determine whether the applicant appears to be qualified for admission or whether a hearing before the Board is warranted.

(g) If the Chairman determines that a hearing is warranted, he or she shall inform the Clerk of the Appellate Courts that a hearing is to be scheduled. Thereafter, the Clerk of the Appellate Courts shall inform the applicant of the date, time, and location of the hearing.

(Kansas Rules Relating to Admission of Attorneys, Rule 721(e) (f) & (g).)

Once the Disciplinary Administrator and the Board Chairman agree that the applicant is not sufficiently perfect to be admitted without a hearing, the Disciplinary Administrator prepares a notice of hearing that becomes the source of the "factual allegations" that the applicant must overcome by "clear and convincing evidence" at the hearing:

(l) The Disciplinary Administrator shall file and serve a notice of hearing on the applicant not less than forty-five days prior to a formal hearing. The notice of hearing shall include factual allegations that generally inform the applicant of issues that appear to bear on the applicant’s character and fitness. The notice must adequately inform the applicant of the nature of the evidence against the applicant, although the Disciplinary Administrator need not list every item and source of information to be presented at the hearing. A copy of the notice of hearing shall be served on the applicant. The original and fifteen copies of the notice of hearing shall be served on the Clerk of the Appellate Courts who shall forward the notice of hearing to each member of the Board.

(Kansas Rules Relating to Admission of Attorneys, Rule 721(l), emphasis added.)

As emphasized by the italicized language above, the notice of hearing does not need to fully inform the applicant of the charges being made against his or her character and fitness. Instead, it must only "generally" inform the applicant of the "issues" and "adequately" inform the applicant of the "nature" of the evidence (with the Disciplinary Administrator having final and unreviewable discretion to determine how much disclosure is "adequate," as will be shown in a later posting).

Moreover, as has already been shown, the burden is always on the applicant to prove his or her own eligibility by "clear and convincing" evidence. The Disciplinary Administrator carries no burden of proof as to any of the charges "generally" disclosed, without detail, in the notice of hearing. Therefore, the notice of hearing itself serves as a particularly strong kind of prima facie evidence of the charges stated in it, as the Board of Law Examiners is free to find against the applicant as to any charge stated in the notice of hearing unless the applicant's evidence at the hearing disproves the charge beyond any doubt. The Disciplinary Administrator need not present at the hearing any evidence in support of a charge stated in the notice of hearing in order for the Board to credit the charge and base an adverse decision on it.

This conclusion is further demonstrated by new Rules 721(m) and (n), which, read together, give the applicant the responsibility of specifically admitting or denying in writing each of the charges stated in the notice of hearing, and then of proving any denials at the hearing in the matter by "clear and convincing evidence:"

(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. A copy of the response to the notice of hearing shall be served on the Disciplinary Administrator. The original and fifteen copies of the response to the notice of hearing shall be served on the Clerk of the Appellate Courts who shall forward the response to the notice of hearing to each member of the Board.

(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(m)and (n).)

That the Disciplinary Administrator's notice of hearing is permitted—indeed, expected—to function in this way is also demonstrated by the new rule that dispenses with all of the ordinary rules of evidence, at least when the application of them would benefit an applicant. This conclusion is also supported by the new rules that expressly permit the Board to consider secret evidence that is kept confidential from the applicant, and expressly permitting the Disciplinary Administrator to use surprise evidence at a hearing. These rules will be discussed in later postings.

Part 4. No Rules of Evidence Apply to the Board

2010-08-05T10:42:00.000-07:00

According to new Rule 723 of the Kansas Rules Relating to Admission of Attorneys, the Board is not bound by any of the rules of evidence in receiving evidence it believes to defeat an applicant’s "clear and convincing" showing of his or her mental and emotional fitness to practice law, and the applicant has no realistic redress in the event unreliable evidence that would ordinarily be inadmissible is considered against him or her:

(b) Except as otherwise provided, the Rules of Civil Procedure apply generally in admissions cases before the Board. The Board shall not be bound by the formal rules of evidence.

(c) Any deviation from the rules and procedures set forth herein shall not be grounds for any relief absent a showing of actual prejudice. The burden of showing actual prejudice must be made by clear and convincing evidence.

(Kansas Rules Relating to Admission of Attorneys, Rule 723, emphasis added).

Thus, the new Rules explicitly authorize the Board to rely without limitation upon evidence that would be considered too unreliable to be admissible in other kinds of proceedings under the rules of evidence, if this ordinarily inadmissible evidence tends to negate the applicant’s "clear and convincing" showing of his or her mental and emotional fitness to practice law. Specific types of ordinarily inadmissible evidence that are apparently authorized to be used against an applicant for licensure as an attorney include lay testimony regarding an applicant’s medical or psychological diagnosis and prognosis, hearsay evidence regarding the effects of an applicant’s disability, speculation regarding an applicant’s diagnosis or the effects of an applicant’s disability, and societal myths, fears and stereotypes regarding an applicant’s disability. Indeed, the Board is apparently authorized to receive its individual members' prejudices, or perceptions concerning social prejudices and reactions to a disability, as evidence against an applicant's fitness. In other words, the Board is at least given express license by Rule 723(b) to enforce society's fears about particular disabilities against applicants who have those disabilities, contrary to the whole purpose of the ADA.

A past example of these kinds of evidence being relied upon by the Board can be found in the Board's reports in my case in 2007, which may be found in my collection of my personal Relevant Communications with the Kansas Board of Law Examiners, on another site. However, reliance on such evidence was not explicitly authorized by any written Rules at the times when my 2006 application was decided. Relaince upon such evidence against an applicant is now explicitly authorized by a written Rule.

Moreover, it should be noted that, under Rule 723(b), there is redress against a decision by the Board to admit even the most absurdly unreliable and prejudicial evidence only if the applicant can demonstrate to the Kansas Supreme Court by "clear and convincing evidence" that the ordinarily inadmissible evidence that was incorrectly admitted was the determining factor in the decision against the applicant. This requires a "clear and convincing" proof of what the Board members were thinking during their private deliberations after the hearing. Such a proof is likely to be impossible, unless the Board is foolish enough to say in its report "we are recommending against applicant solely because of x," where "x" is the precise piece of ordinarily inadmissible evidence challenged. And even in this instance, the challenge might not work!

Part 5. Secret Evidence is Explicitly Authorized and Surprise Charges at Hearing are Permitted

2010-08-05T06:42:00.000-07:00

Another problem with the new Kansas Rules Relating to Admission of Attorneys that these new Rules now explicitly authorize the Board of Law Examiners to consider, and even to base its decisions primarily upon, evidence that is received confidentially and is kept entirely secret from the applicant, or that is kept secret until it is sprung upon the applicant as an unanswerable surprise at a hearing. This creates a rather large potential Fourteenth Amendment due process problem. It also creates a particularly large problem for applicants who have stigmatized disabilities, because it fairly invites the Board to receive and consider confidential information about other people's fears regarding the disability and to treat that information (which the applicant will never be permitted to confront) as determinative.

Rule 702 of the new Kansas Rules states:

(a) The Board shall maintain such records as are generated in the course of accepting and processing applications for admission to the bar and results of taking the bar examination. The following records, and no others, shall be maintained as public records:

   (1) With respect to application for admission to the bar, the name, address, and educational achievement of each applicant.

   (2) With respect to each written examination required for admission to the bar:

      (i) The names and addresses of persons who passed the examination and have met all the requirements for admission to the bar.

      (ii) Such statistical summaries as may be specifically authorized by the Supreme Court.

(b) Except as otherwise specifically provided herein, all other information provided by or obtained with respect to an applicant, including examination results, shall be deemed confidential and privileged communications, and as such shall not be released to any person or agency.

(c) Notwithstanding the foregoing restrictions, applications and other information required incident to an application for admission to the bar may be released to:

   (1) the National Conference of Bar Examiners and to the bar admissions authority of any United States jurisdiction where the applicant has applied for admission to the practice of law, provided the applicant shall have made written request for such release and the receiving authority has agreed not to give the information to the applicant;

   (2) the Attorney General of Kansas, the office of the Disciplinary Administrator, and Clerk of the Appellate Courts, for purposes of investigations and hearings as to moral and educational qualifications, for disciplinary purposes, or for administrations of bar examinations; and

   (3) such other parties and in such instances as shall be provided by order of the Supreme Court.

(Kansas Rules Relating to Admission of Attorneys, Rule 702, emphasis added).

What is noteworthy about this rule is that it forbids the release to the applicant of any information collected about the applicant unless release of that information is specifically authorized in the Rules or by an order of the Supreme Court. Thus, it plainly authorizes the Board to collect and maintain confidential information that is kept secret from the applicant to which it pertains.

Strictly as a matter of logic, evidence that is introduced at a hearing at which the applicant is physically present is “given” to the applicant by the act of formally introducing it into evidence in the applicant’s presence. Therefore, the only way in which a jurisdiction receiving information from Kansas under Rule 702(c)(1) may use the information it is given and still keep its agreement with Kansas is to use the information secretly without giving the applicant any opportunity to challenge the information at a hearing. Rules 702(b) and (c), when read together, also appear to authorize the Board itself to consider against an applicant secret evidence which it does not release to the applicant or permit the applicant to challenge at a hearing. Rule 702 thus authorizes the Board to conduct sham hearings, and requires other jurisdictions receiving information from Kansas to conduct sham hearings. Such sham hearings, in which the applicant is not permitted to even become aware of some of the evidence relied upon in denying his or her application, violate not only Fourteenth Amendment due process but also the ADA when the information withheld from the applicant but nevertheless used against him or her involves a disability.

New Rule 721(w) then reiterates the confidentiality prescribed in Rule 702 in a form that strongly implies that the Board may consider items of confidential information ("investigations") that are not introduced at any hearing:

(w) All investigations and hearings into an applicant’s good moral character and current mental and emotional fitness to engage in the active and continuous practice of law, and the records thereof, shall be confidential and such records shall be subject to release only as provided in Rule 702. However, if the applicant requests, the Board may hold any hearing, or any portion thereof, as an open hearing.

(Kansas Rules Relating to Admission of Attorneys, Rule 721(w), emphasis added).

Moreover, the potential for the consideration of secret evidence continues during the proceedings before the Kansas Supreme Court after the Board reaches its decision. After a Board decision, only the Board's decision and the transcript of the formal hearing before the Board are to be released to the applicant:

(a) An original and ten copies of the Board’s written decision following a character and fitness hearing shall be filed with the Clerk of the Appellate Courts who shall mail a copy to the applicant.

(b) Upon the filing of the written decision, the Clerk shall forthwith order a copy of the transcript of the hearing before the Board which shall be mailed to the applicant, upon receipt in the Clerk’s Office.

(Kansas Rules Relating to Admission of Attorneys, Rule 722(a) and (b)).

According to Rule 722, paragraph (c), after the applicant receives the decision and transcript, he or she may file exceptions to the Board's findings, and any finding "that is not specifically excepted to shall be deemed admitted." But Query: if the Board is authorized to utilize secret evidence, how is a meaningful exception to any Board finding possible? Even though the finding objected to may not be supported by any evidence reflected in the transcript, the Board may have been relying upon secret evidence in making the finding.

In any event, if the applicant files exceptions to the Board's decision, the Board is then permitted to file a response. After that has occurred, or in the event the applicant doesn't file exceptions, the Board's entire file, including any secret evidence not formally admitted at the hearing, is forwarded to the Kansas Supreme Court for a final decision:

(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.

(Kansas Rules Relating to Admission of Attorneys, Rule 722(f), emphasis added).

The key operative language in this rule is "all other evidence admitted before the Board." This rule does not limit its scope to evidence formally admitted "at the hearing before the Board," as reflected in the transcript sent to the applicant. Instead, it prescribes that all evidence admitted "before the Board"—i.e, all evidence the Board chose to consider, whether or not formally admitted at the hearing—should be submitted to the Court. The Court also, therefore, has the benefit of any secret evidence when it decides whether the Board's findings are supported by the evidence. Only the applicant is kept in the dark!

Moreover, even when all of the evidence regarding an applicant’s disability is, in fact, openly introduced at the applicant’s hearing before the Board, the Rules explicitly authorize the Disciplinary Administrator to withhold all disclosure of that evidence until the hearing, and to spring it upon the applicant as an unanswerable surprise. Rule 721 of the new Rules clearly authorizes the Disciplinary Administrator to surprise an applicant at a hearing with evidence not previously disclosed to the applicant and with issues not previously raised:

(l) The Disciplinary Administrator shall file and serve a notice of hearing on the applicant not less than forty-five days prior to a formal hearing. The notice of hearing shall include factual allegations that generally inform the applicant of issues that appear to bear on the applicant’s character and fitness. The notice must adequately inform the applicant of the nature of the evidence against the applicant, although the Disciplinary Administrator need not list every item and source of information to be presented at the hearing. A copy of the notice of hearing shall be served on the applicant. The original and fifteen copies of the notice of hearing shall be served on the Clerk of the Appellate Courts who shall forward the notice of hearing to each member of the Board.

(Kansas Rules Relating to Admission of Attorneys, Rule 721(l), emphasis added).

Once the Disciplinary Administrator has elected to proffer surprise evidence, an applicant will be able to prevent its consideration only by proving the surprise to be prejudicial "by clear and convincing evidence." (Rule 723(b)).

In the setting of a character and fitness hearing, surprise evidence may be used in one of two ways, either: 1) as an actual surprise at the hearing, to prevent the applicant from preparing any effective response; or 2) as a threat or bluff before the hearing, to induce the applicant to withdraw his or her application without a hearing. Either use raises due process questions, and should raise some statutory questions under ADA or the Rehabilitation Act when the surprise evidence pertains to an applicant's disability.

Part 6. Must Reject Any Disability that "Could, if Untreated" Affect Law Practice

2010-08-04T10:08:00.000-07:00

The last five postings dealt with the procedural and burden of proof aspects of attorney licensure under the new "Kansas Rules Relating to Admission of Attorneys," effective July 1, 2009. The next seven postings will deal with the provisions that set forth substantively what an applicant who is "red flagged" due to a past or current mental or emotional condition must prove (by "clear and convincing evidence") to be counted worthy of licensure. I will show that the proof required is, in fact, impossible. They will also show that the substantive proof required of a new applicant who is “red flagged” due to a stigmatized disability is not required of licensed attorneys who develop the same disabilities after licensure, and that there are some practical ways around the federal court jurisdictional problems created by the new Kansas rules’ decision to leave applicants no opportunity to raise issues under Federal statutes and obtain a decision on those issues at any point in the state application process.

In reading what follows, it should be remembered that it applies only to applicants who have been "red flagged" as visibly imperfect during the Rule 721 (a)-(g) screening process. Most applicants will appear to have no relevant imperfections, and will be nearly automatically approved on the basis of their applications alone, without ever having to prove anything. But those who are "red flagged" during the initial screening because of a mental or emotional imperfection face a totally impossible burden.

New Rule 707(a) has previously been discussed in the context of the burden of proof. But it also states that the "fitness" that a "red-flagged" applicant must prove is fitness "to engage in the active and continuous practice of law." (New Rule 707(a).). The old Kansas Rules in effect until June 30, 2009, contained a similar requirement of proof, by clear and convincing evidence, of "mental and emotional fitness to engage in the active and continuous practice of law." (See, old Rules 702(a)(1) and 704(c), posted on my website).

Rule 707(d) of the new Rules, a section which has no parallel in the old Rules, then attempts to define mental and emotional fitness first in terms of the applicant’s current fitness, but also clarifies that any mental condition that merely "affects the applicant’s competence to practice law" is grounds for denial and that a prior illness (a "history of a disability," in ADA terms) is grounds for denial if it "indicates the existence” of such a present condition that merely "affects" the ability to practice law:

(d) Current mental and emotional fitness to engage in the active and continuous practice of law involves an assessment of mental and emotional health and condition as it affects the applicant’s competence to practice law and carry out duties to clients, courts, and the profession. An applicant may be of good moral character but unable to discharge his or her duties as an attorney due to a mental or emotional illness or condition. The fitness required is a present fitness, and a prior mental or emotional illness or condition is relevant when it indicates the existence of a present lack of fitness.

(kansas Rules Relating to Admission of Attorneys Rule 707(d), emphasis added.).

Thus, new Rule 707(d) strongly supports the implication of the language of the application form (as previously discussed in detail) that any medical or psychological condition that is still under treatment, and that merely "might" in any way "affect" the ability to practice law, "if untreated," is an adequate grounds to deny licensure, regardless of the success of the treatment or the objective medical prognosis of the applicant. Objective medical evidence is discounted when compared to the stereotypical fear that any mental condition that still requires treatment is not fully "cured" and might possibly recur. This fear is now explicitly written into the rules.

Rule 707(e)(1) of the new Rules, which also has no parallel in the old Rules, then clarifies even more strongly the point that any condition that merely "may impair" the applicant’s ability to practice is grounds for denial:

(e) In determining whether an applicant is currently mentally and emotionally fit to engage in the active and continuous practice of law, the Board shall consider:

(1) evidence of mental or emotional instability that may impair the applicant’s ability to practice law…

The facts from my own past licensure applications further clarify the meaning of two of the phrases used in the new Rules, namely: 1)what it means that any present or past condition that "may impair" or "might... affect" the practice of law is grounds for denial and 2)what it means that the applicant must be fit to engage in the "active and continuous practice of law."

The meaning of the "may impair" or "might affect" language in the new Rules is actually a formal codification in the Rules of an informal policy that has existed since sometime before 1989. For many years the application form has contained language similar to that contained in the present application form requiring the self-reporting of any condition that "affects, or if untreated could affect" the applicant's ability to practice law, but until July 1, 2009, the policy governing applicants who self-reported such a condition, though uniform, remained informal and unwritten. However, this informal policy was stated to me orally by the Disciplinary Administrator in both 1989 and 1992, as the Federal district court found in granting summary judgment against me in my 1994 ADA suit:

10. In the fall of 1989, the Disciplinary Administrator told Johnson that he believed the Kansas Supreme Court would not admit any applicant having a history of a serious mental disorder, including plaintiff, unless that applicant could prove his or her condition to be "cured"—i.e., could present psychiatric expert testimony that the condition had been asymptomatic without treatment for at least two years and was, with reasonable medical certainty, expected to continue asymptomatic without treatment indefinitely in the future.

11. On August 28, 1992, in an attempt to encourage Johnson to withdraw his application without a hearing, the Disciplinary Administrator reiterated his belief that it is the Kansas Supreme Court’s practice to require applicants who have a history of bipolar disorder to prove a "cure" as a prerequisite to admission.

Johnson v. State of Kansas, Kansas Supreme Court, 888 F.Supp. 1073, 1078, Court's Statement of Uncontroverted Facts, paragraphs 10 & 11 (D.Kan. 1995).

The Kansas Supreme Court never bothered to attempt to controvert that they had an unwritten policy of requiring applicants with histories of mental illness to prove a "cure," defined as stated above. They basically admitted that I had been told this was the policy. Having an unwritten policy was adequate for the purpose of discouraging and intimidating applicants the Disciplinary Administrator deemed unworthy, as was attempted in my case. An unwritten policy could also be enforced by the Board against any applicant who wasn't intimidated, as was actually done to me, TWICE. But, pursuant to the Rooker-Feldman doctrine, as applied by the courts in 1995 (a matter to be discussed at length in a later entry), an unwritten policy could not be challenged in Federal court simply because it was not formally promulgated in writing (as the Federal District Court held in Johnson, cited above). Now, with the promulgation of the new Rules, it is clear why the Kansas Supreme Court didn't try to controvert these facts about the unwritten policy—the requirement of a "cure" really was their policy all along. They just didn't bother to put it in writing until July 1, 2009.

With regard to the meaning of the requirement that an applicant must prove the ability to engage in the "active and continuous practice of law," the facts of my case show that what this requirement means is that, once challenged, an applicant must prove that he or she will be able to not only work full-time and continuously as an attorney, but will be able to work more hours than most attorneys actually work and work those hours under inhuman levels of stress continuously for long periods of time without exhibiting any psychological symptoms that "might" theoretically interfere with legal practice.

When I applied for admission in 1992, my psychiatrist testified and the Board found that my psychiatric condition was "in remission" and had not resulted in questionable behavior in the last 7 years, that I had been compliant with treatment, and that the likelihood of future problems was "low" if I continued treatment. Nevertheless, I was denied admission in 1992 largely because my continuing need for treatment was felt to show too much risk (this result represented an enforcement of the unwritten policy discussed above). When I came again before the Board in 2006, both my psychiatrist and the Board's retained independent forensic psychologist agreed that my condition was still in "full and stable remission" (and had been there since before 1992), and the Admissions Attorney stipulated that she had no evidence of any further improper behavior since 1985 (a period of 21 years). (See the supporting documents at My licensure application and ADA complaint documents.) However, the Board saw that I was still receiving treatment, and read a finding of excessive risk into the need for continued treatment. In addition, the Board was concerned that their retained psychologist could not testify that, if placed into law practice, I would be totally immune from the effects of stress, as they said in their formal Report to the Kansas Supreme Court:

9. Testimony from Mr. Weathers, Dr. Urdaneta, and Dr. Hough acknowledged the supportive and protected environment in which Mr. Johnson has worked as a paralegal. That environment does not parallel the stress placed on a practicing attorney. Dr. Urdaneta testified that stress exacerbates the applicant's symptoms. Dr. Hough testified that increased stress would affect his evaluation of protective and risk factors for the applicant.

10. Dr. Hough recommended that the applicant continue individual maintenance therapy with Dr. Urdaneta and seek group therapy, concluding "I think he [Mr. Johnson] is rehabilitated to the best that can be expected at this point. But I think it would be a mistake to assume that therefore he's free to walk out the door without ongoing monitoring and treatment."

(Board's 2007 Majority Report in my case.)

However, the dissenting member of the Board, near the beginning of his dissent, explained this rather cryptic pair of the Board Majority's findings as follows:

I further point out that the majority has created a standard which many successful applicants to take the Kansas bar would fail—i.e., a prediction that stress would at some point disable an applicant from the "active and continuous practice of law." The majority has ignored the counsel of the "expert witnesses" and engaged in pure speculation as to the effect of the stress of the "active and continuous practice of law" would have on the applicant.

(Board's 2007 Minority Dissenting Report in my case, pp. 1-2).

Later in the Dissenting Report, it was noted that the stress level in the office in which I work as a paralegal is sometimes "very high" (Minority Report, p.6), and then the effect of the licensure proceeding itself on my stress level was discussed as follows:

It must be recognized that the applicant represented himself throughout this proceeding and while he was not a "Super Lawyer" in terms of his trial skills, it was observed that he handled the matter adequately in what had to be an extremely stressful situation. Indeed, Dr. Hough testified that the applicant's preparations for this proceeding were a significant stressor and that he, Dr. Hough, saw no indication that the stressor had caused a relapse.

(Board's 2007 Minority Dissenting Report in my case, p 7).

The Dissent then goes on to explain that, apparently, the Majority had imposed a requirement that I must prove that no relapse would result from a "worst case scenario" with regard to stress:

Perhaps the conclusion about the stress on a practicing lawyer alluded to in the Majority Report , comes about as a result of describing a worst case scenario. That, of course, does not apply to all lawyers, and is not a standard by which we determine eligibility to take a bar examination.

The Dissent further explains in a footnote:

Consider and compare the wording of the question of Dr. Hough by one examiner who said "...I think we have to assume that a practitioner, as opposed to a paralegal, is going to be facing a number of these interactions with the public, period of high stress, sometimes, prolonged high stress, periods of sleep deprivation, sometimes prolonged deprivation. And would those circumstances or changes in circumstances potentially affect your assessment of a low threat of reoffense?" (Transcript of Hearing, p. 249) and "And you recognize that not all lawyers do the same thing. We're not all litigators. We're--some of us are maybe CPA's or somebody in the office. We have some people in our office that I would call nerds that we never let out, but they're great in the books and arguing things. You recognize that... And he would fit within some of those abilities wouldn't he?" (Transcript of Hearing, p. 261).

(Board's 2007 Minority Dissenting Report in my case, p. 7 and p. 7 fn 8.).

Thus, at least some of the Bar examiners in my case were willing to simply assume that, if admitted to the Bar, I would ignore medical advice and gravitate to the highest-stress litigator position in the entire state—and to declare me unfit to practice law at all, in any capacity, if I theoretically might collapse under the stresses of that worst-case position. The Dissent then concluded that this "worst case scenario" stress test was fundamentally unfair:

Of equal importance to this case, is the lack of evidence of what is required in the way of stress as an eligibility requirement for taking the bar. It is certainly unfair to use a worst case scenario to make that determination.

(Board's 2007 Minority Dissenting Report in my case, p 8).

The dissenting Board member in my 2006 application proceeding was right. It is quite unfair (not to mention in violation of the ADA) to use a "worst case" stress scenario to judge the eligibility of a license applicant with a disability. But that is exactly the test that has now been written into the formal, published Bar admission rules of the State of Kansas.

Part 7. Must Prove Total Rehabilitation FROM Stigmatized Disabilities

2010-08-04T06:41:00.000-07:00

Rule 707(f) of the new Kansas Rules Relating to Admission of Attorneys further clarifies that evidence of an applicant’s mental or emotional condition that may interfere with his or her competency to practice law (his or her "mental or emotional fitness") is to be treated under precisely the same standard of "rehabilitation" as evidence of past conduct adversely reflecting on moral character:

(f) In determining whether an applicant possesses good moral character and current mental and emotional fitness to engage in the active and continuous practice of law, the Board shall also consider:

(1) the applicant’s age at the time of the conduct;

(2) the recency of the conduct;

(3) the reliability of the information concerning the conduct;

(4) the seriousness of the conduct;

(5) the factors underlying the conduct;

(6) the cumulative effect of the conduct or information;

(7) evidence of rehabilitation;

(8) the applicant’s social contributions since the conduct;

(9) candor in the admissions process; and

(10) materiality of any omissions or misrepresentations.

(Kansas Rules Relating to Admission of Attorneys, Rule 707(f), emphasis added).

Specifically, it will be noted that, as to subparagraph (f)(1), the Rule requires the Board to consider the applicant's age "at the time of the conduct" constituting the disqualifying mental illness. Thus, if the illness is still present, even under excellent medical control, at the time of the hearing, it is just as disqualifying as if the applicant was still committing murders, or rapes, or frauds, or larcenies on the date of the hearing. An illness that merely might, if untreated, adversely affect law practice is just as disqualifying as current criminal behavior.

This is made even more clear by subparagraph (f)(2), which requires the Board to consider the "recency of the conduct," constituting the mental illness. That the word "conduct," in this context, means the illness itself and NOT wrong conduct symptomatic of the illness is demonstrated by the facts in my case. In my 2006 licensure proceeding, the Admissions Attorney stipulated, and the Majority of the Board found, that there was no evidence of any additional wrong conduct evidencing my illness since 1985. (See, (Majority) Report of the Board, in my case, p.2 , numbered paragraph 5). Nevertheless, the Board recommended against my admission because I was still receiving treatment for the illness and because the Board speculated that the stress of legal practice might cause a relapse. (Board's Majority Report, p. 2, paragraphs 9-10). However, as the dissenting member of the Board explained, these expressed fears were nothing but a determination that mere "management" of a mental illness, even very good long-term management, simply isn't enough:

This writer has searched the record to see if any witness testified that the applicant is not emotionally fit to engage in the continuous, full-time practice of law and can find none. The Majority Report seeks to make much of Dr. Hough's recommendation that the applicant continue therapy—apparently not realizing that he was only seeing Dr. Urdaneta three to four times per year... [Dr. Hough's] testimony, when seen in its complete light, indicates not a reflection solely on the applicant, but on any applicant who has a history of substance abuse, problems, or mental illness in general and has achieved management of that disability. No other applicant is subject to denial of the opportunity to take a bar examination who has achieved the level of maintenance of this applicant.

(Minority Dissenting Report of the Board of Law Examiners in my case, p. 5, on my website.)

In other words, an applicant must prove more than "management." An applicant must prove that the illness itself is not too "recent," but has been completely gone for some time, just as new Rule 707(f)(2) says.

Along the same lines, Rule 707(f)(4) requires the Board to consider the "seriousness of the conduct." When applied to "mental and emotional fitness" issues, this subparagraph seems to expressly instruct the Board to consider the "seriousness" of a diagnosis in much the same way it considers the "seriousness" of a criminal history—i.e, based on public perception of its seriousness, on public fears or moral revulsion. Just as there are some crimes that are so morally reprehensible that they preclude ever being admitted to the bar, so it would appear that there may be some mental illnesses that are so morally reprehensible as to likewise preclude admission—hence the list of mental illnesses specifically inquired about in Question 32 of the the Petition for Admission form ("bi-polar disorder, schizophrenia, paranoia or other psychotic disorder").

Rule 707(f)(5) instructs the Board to consider the "factors underlying the conduct," obviously to see if any of them are still present. Its application in cases involving mental illnesses is, once again, demonstrated by my case—the Board admitted (as it had to) that the behaviors had been under control for a long time, but observed that the illness was still present (being chronic) and speculating contrary even to its own expert's testimony that "stress" might exacerbate it dangerously at any time.

Rule 707(f)(7) instructs the Board to consider "evidence of rehabilitation." However, as previously noted, "rehabilitation" cannot be proved while the illness constituting the wrong "conduct" is still present, even under medical control. The facts of my case demonstrate this.

Rule 707(f)(8) instructs the Board to consider the applicant's "social contributions since the conduct." When applied to mental illness as a form of disqualifying "conduct," this Rule is nonsensical. Not only must the illness have been totally gone for some time, but the Board must consider whether, in the time since the illness was fully cured, the applicant has made sufficient social contributions to demonstrate full repentance for the crime of being sick! Adequate penance must be made for an illness!

Finally, Rules 707(f)(9) and (10) require an applicant to not only fully disclose his or her illness, or history of illness, as the applicant and his or her medical providers perceive it to be, but also to anticipate how the Board will view it and disclose it in that way. Disclosing an illness which is merely under medical control (even under very good medical control), but not "cured," as only a past illness, may lead to rejection for "omissions and misrepresentations."
The point of all of this is that treating mental illnesses as a form of disqualifying "conduct," as the new Kansas Rules do, leads to absurd results. But these absurd results appear to be intended, as they make admission impossible for any applicant who is "red flagged" due to a mental illness!

Part 8. Total Absence of Any Mental Illness or Addiction is NOT an Essential Qualification to PRACTICE Law in Kansas

2010-08-03T11:29:00.000-07:00

Previous postings have shown that the total absence of any "major" mental disorder or any other disorder that "could if untreated affect" an applicant's ability to practice law is a FORMAL requirement for INITIAL licensure in Kansas. However, the following authorities show that the total absence of such a disorder is NOT a requirement to RETAIN a law license once it has been granted. Attorneys who manifest serious, but treatable, mental illnesses AFTER being admitted to the Bar are often permitted to continue to practice their profession while still under treatment for their conditions. These authorities are critical to two arguments for which authorities are cited later: 1) the applicability of the Americans with Disabilities Act and the Rehabilitation Act of 1973, because these authorities show that absolute freedom from such illnesses is NOT an "essential eligibility requirement" to PRACTICE law for purposes of these statutes; and 2) the equal protection argument that licensure regimes such as that which exist in Kansas create an irrational classification within the class of persons afflicted with these illnesses based solely on the dates on which the illnesses first manifested (i.e., “before” versus “after” licensure).

First, it should be noted that Kansas' Rules Relating to Discipline of Attorneys contain no requirement that an attorney who is diagnosed, AFTER admission to the Bar, with one of the conditions named in Questions 32 and 33 of the Application for Admission form, or with any other condition that "could if untreated" adversely affect his or her law practice, must surrender his or her license or self-report his or her condition to the disciplinary administrator. Moreover, while Rule 207 requires all attorneys to report a fellow attorney's professional misconduct, the rule does not intimate that diagnosis or treatment for a mental illness, in itself, is misconduct that must be reported. As long as a mental illness is successfully treated and does not result in any actual impairment in the attorney's ability to practice ethically, it need not be reported to anyone. Moreover, even when a mental illness causes an actual impairment, the preferred procedure is referral to the Kansas Lawyer Assistance Program established under Supreme Court Rule 206, not disbarment.

Kansas Supreme Court Rule 206: Lawyer Assistance Program, which shows that lawyers who, sometime after licensure, develop "physical or mental disabilities that result from disease, addiction, disorder, trauma, or age and who may be experiencing difficulties in their ability to perform their professional duties" may voluntarily seek assistance through the Kansas Lawyer Assistance Program on a totally confidential basis, without any risk of being referred for disciplinary action as a result of their condition. Paragraph (f)(3) of the rule also permits the Lawyer Assistance Program to assist lawyers and their firms "against whom disciplinary complaints are pending."

Furthermore, if an attorney is accused of misconduct (including misconduct in which a mental illness is involved), the Disciplinary Administrator must prove the case against that attorney by “clear and convincing evidence” before any disciplinary action will be taken. See, e.g., In re Rausch, 272 Kan. 308, 320, 32 P.3d 1181 (2001). It is noteworthy that this is precisely the same standard of proof that is placed upon an applicant for original licensure with a disability, in a proceeding in which the Disciplinary Administrator has no burden of proof whatever. Thus, an applicant with a stigmatized disability must prove “by clear and convincing evidence” that his or her disability will not “if untreated” “affect” his or her practice in any way, whereas, if a licensed attorney develops the very same disability after licensure and is drawn into question for specific misconduct, the Disciplinary Administrator will be required to prove the likely future effect of that disability “by clear and convincing evidence.”

Moreover, numerous published disciplinary opinions of the Kansas Supreme Court have demonstrated that Court’s willingness to permit attorneys who commit even fairly serious misconduct under the influence of a stigmatized mental illness, but who come to Court under treatment with a good report from their medical providers, to continue practicing law on condition of continued successful treatment. Thus, ,In re Herman, 254 Kan. 908, 869 P.2d 721 (1994) involved an attorney who developed bipolar disorder and committed some fairly serious disciplinary offenses, but was allowed to continue practicing law on probation while still under treatment (continuing treatment was a condition of his probation). Furthermore, he was released from probationary licensure, 266 Kan. 497, 974 P.2d 517 (1999) while still under treatment.

Similarly, In re Ketter, 268 Kan. 146, 992 P.2d 205 (1994) a case involving an attorney who developed obsessive compulsive disorder and was convicted of indecent exposure on several occasions, who was permitted to continue practicing law on probation with continued treatment a condition of probation. He was released from probationary licensure, 276 Kan. 2, 72 P.3d 552 (2003), while presumbly still under treatment for his chronic condition.

In re Holmberg, 281 Kan. 1218 (2006), an attorney against whom disciplinary charges were proved was allowed to continue practicing law on probation; the conditions of his probation included continued psychotherapy, random drug and alcohol testing, and regular Alcoholics Anonymous attendance, all of these monitored by the Kansas Lawyer Assistance Program. Likewise, In re Johanning, 279 Kan. 950 (2005), an attorney with clinical depression who committed disciplinary offenses was permitted to continue practicing law on probation; one condition of probation was that he submit to any testing, counseling or treatment for his depression recommended by the Kansas Lawyer Assistance Program.

The key point here, however, is that simply having or being diagnosed with a stigmatized disability that a new applicant would have to report in response to Questions 32 through 34 of the Application for Admission form is not even a reportable event, let alone a cause for disciplinary action, for an already-licensed attorney. Therefore, the total absence of such a disability is plainly NOT an “essential eligibility requirement” for the PRACTICE of law.

Part 9. Purgatory is in Kansas

2010-08-03T11:18:00.000-07:00

Rule 718 of the new Kansas Rules Relating to Admission of Attorneys states:

(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, and to charge the applicant fees for the administration of this fishing trip. The implication of this rule is that the impairment for which the applicant is referred—whatever it is, and regardless of whether it also constitutes an ADA "disability"— must be a temporary impairment and must be completely gone before a license will be granted. Otherwise, the outome of months or years of counseling supervised by a court officer at great expense will be rejection on the basis of the impairment.

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.

Part 10. No Federal Issues Welcome and No Recourse

2010-08-03T08:12:00.000-07:00

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 might have the undesired effect of encouraging the lower Federal courts to entertain challenges. 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 make any recourse to Federal law in attorney licensure proceedings very difficult, 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:

(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 permitted, 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. (Relevant excerpts of these communications are posted here.) Te Admissions Attorney’s agreement that the ADA should be considered 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 in my exceptions. 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 then have considered my Federal 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. Subsequently, after the promulgation of the new Bar admission rules in July 2009, I submitted a Title II ADA and Rehabilitation Act Complaint, challenging only the application form and the new rules, on their face and as applied to me. I mailed this to the United States Department of Justice on September 21, 2009. Note carefully that this Complaint indicates repeatedly that is a complaint under TITLE II of the ADA, and that it never mentions Title III. Also note that it is presented as a complaint against the Kansas Supreme Court, the agency that promulgated the written rules that I challenged, and NOT as a complaint against the Kansas Board of Law Examiners (an agency that has no authority to promulgate rules). Thus, this administrative Complaint fit exactly the requirements for federal jurisdiction expained in Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995) and other cases applying the Rooker-Feldman doctrine to attorney licensure cases. Nevertheless, the Justice Department on May 19, 2010, sent me a form letter declining to take any action on my Title III ADA complaint against the Kansas Board of Law Examiners. They thus demonstrated that they had refused to read my complaint--or even the BOLD 16-POINT CAPTION of my complaint--in enough detail to see that it was brought under Title II NOT Title III, before summarily denying it with an insulting unresponsive form letter. Thus, there is no Federal administrative recourse when a state attorney licensing board consciously ignores the ADA.

Furthermore, 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, unless one of the solutions to the Rooker-Feldman problem discussed in the next posting is applied to bring the issue before a Federal district court before a final judgment is entered denying an application.

Part 11. Solutions to the Rooker-Feldman problem

2010-08-02T14:15:00.000-07:00

See the Index for other parts of the argument completed to date.

As I stated in the previous posting, the doctrine set forth in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and expanded in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (commonly referred to as the “Rooker-Feldman doctrine) in effect prohibits lower Federal courts from hearing appeals from the judgments of state courts. Instead, only the United States Supreme Court may hear such appeals. As Feldman explained, this includes judgments denying applicants admission to a state bar, for whatever reason. Further, as the district court explained at some length in my case ( Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995), aff’d 81 F.3d 172 (10th Cir. 1996)(table)), it also doesn’t matter that the state court was presented with ,and chose to ignore, issues under the ADA or the Constitution itself. There is, essentially, no recourse from a state court decision to ignore a Federal issue in such circumstances.
However, there are now three viable approaches to avoiding the Rooker-Feldman bar in some cases.

First, as was held by the Feldman court itself, the Rooker-Feldman doctrine does not bar Federal courts from taking jurisdiction of suits alleging that state bar rules violate federal law. This was explained by the district court in my case, Johnson, 888 F.Supp. at 1083, quoting Feldman, 460 U.S. at 486, and has been more recently explained by the Tenth Circuit in Bolden v. City of Topeka, Kan., 441 F. 3d 1129 (10th Cir. 2006). In explaining why Rooker-Feldman did not bar Bolden’s federal claims involving the destruction of two houses, even though these claims involved the same two houses as were at issue in a state condemnation proceeding, the Bolden court first explained that:

The Rooker-Feldman doctrine prohibits federal suits that amount to appeals of state-court judgments. When the state-court judgment is not itself at issue, the doctrine does not prohibit federal suits regarding the same subject matter, or even the same claims, as those presented in the state-court action. The doctrine that governs litigation of the same subject matter or the same issues is res judicata—specifically, claim preclusion and issue preclusion. Confusion on this matter is unsurprising, because whenever Rooker-Feldman bars a federal suit, the state suit must have concerned the same subject matter as the federal suit (after all, the federal suit is challenging the state judgment), a precondition for invocation of preclusion doctrine. But the distinction between Rooker-Feldman and res judicata must be preserved.

Bolden, 441 F.3d at 1139. Then, after explaining the facts and holdings of both Rooker and Feldman, the Bolden court notes that the Feldman court itself drew a distinction between Feldman’s claims that the denial of his own application for a waiver of the accredited law school graduation requirement was unconstitutional (which was barred) and his claims that the D.C. Court of Appeals’ rule regarding such waivers was unconstitutional (which was not barred), and quotes Feldman concerning permitted challenges to rules:

The remaining allegations in the complaints, however, involve a general attack on the constitutionality of Rule 46I(b)(3). The [plaintiffs'] claims that the rule is unconstitutional because it creates an irrebuttable presumption that only graduates of accredited law schools are fit to practice law, discriminates against those who have obtained equivalent legal training by other means, and impermissibly delegates the District of Columbia Court of Appeals' power to regulate the bar to the American Bar Association, do not require review of a judicial decision in a particular case. The District Court, therefore, has subject-matter jurisdiction over these elements of the [plaintiffs'] complaints.

Bolden, 441 F.3d at 1141, quoting Feldman, 460 U.S. at 487.

Bolden then concludes that the only claims barred by Rooker-Feldman are claims that assert injury based on a state court judgment, not claims that merely assert that a rule underlying that judgment violated federal law:

"[T]he phrase "inextricably intertwined' has no independent content," id. at 87, but merely "states a conclusion," id. at 86. "Rooker-Feldman bars a federal claim, whether or not raised in state court, that asserts injury based on a state judgment and seeks review and reversal of that judgment; such a claim is `inextricably intertwined' with the state judgment." Id. at 86-87. Thus, it was unnecessary for the Feldman court to discuss whether the challenge to the accredited-law-school rule was inextricably intertwined with the D.C. court's judgments denying waiver, because the challenge to the rule itself was not a challenge to the judgment (even though overturning the rule would undermine the D.C. court's waiver ruling by mooting the denial of the waiver, since a waiver would no longer be necessary).

Bolden, 441 F.3d at 1141, quoting Hoblock v. Albany County Board of Elections, 422 F.3d 77 (2nd Cir. 2005); accord,Mothershed v. Justices of Supreme Court, 410 F. 3d 602, 606-607 (9th Cir. 2005).

In my 1995 federal case, the district court also held that, in order to avoid the Rooker-Feldman bar, a plaintiff attacking state Bar admission rules or policies must complain of written bar rules formally “promulgated” in non-judicial proceedings, and that complaints concerning unwritten policies transmitted orally are not sufficient. At least one published commentator has subsequently viewed the District of Kansas' conclusion that it lacked jurisdiction under the Rooker-Feldman doctrine over my challenge to an openly orally declared but unwritten discriminatory policy as "erroneous," see Lauren Chanatray, "Professional licensing issues: Title II of the ADA applied to state and local professional licensing,," and I have been unable to find any subsequent cases that have followed my 1995 case on this exact issue (or that have been called upon to decide this issue).

However, the issue of whether a federal court may take jurisdiction of a challenge to an unwritten Bar admission policy or practice need no longer be asked in Kansas, because the Kansas Supreme Court has now formally promulgated openly discriminatory written rules in non-judicial rulemaking proceedings.

Second, as the Court held in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), the Rooker-Feldman bar does not attach until a final judgment is rendered in state court. Suit may be filed in Federal court dealing with the same matter as a pending state court action, so long as no final judgment has been entered in the state action. If judgment is subsequently entered in the state action, normal claim and issue preclusion law will apply, but there will be no Rooker-Feldman jurisdictional bar.

This principle was explained by the Tenth Circuit in Guttman v. Khalsa, 446 F. 3d 1027, 1032 (10th Cir. 2006), in which the court allowed a medical doctor to proceed with that portion of his federal suit that alleged the procedures used by the New Mexico medical board in revoking his license violated Title II of the ADA. Dr. Guttman brought his federal suit after a state trial court had affirmed the state medical board’s decision, but while his petition for certiorari to the New Mexico Supreme Court was still pending. The federal district court followed prior circuit precedent in dismissing Guttman’s claim under the Rooker-Feldman doctrine. However, the Supreme Court decided ExxonMobil while Guttman’s federal appeal was pending. The Tenth Circuit overruled its own precedents and reversed the district court in reliance on ExxonMobil. In explaining that Rooker-Feldman now “applies only to suits filed after state proceedings are final,” the Tenth Circuit quoted ExxonMobil:

Rooker and Feldman exhibit the limited circumstances in which this Court's appellate jurisdiction over state-court judgments, 28 U.S.C. § 1257, precludes a United States district court from exercising subject-matter jurisdiction in an action it would otherwise be empowered to adjudicate under a congressional grant of authority. . . . In both cases, the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.

Guttman, 446 F.3d at 1032, quoting ExxonMobil, 125 S.Ct. at 1526. The

Guttman court then held that the Rooker-Feldman doctrine applies only in such circumstances. Since ExxonMobil, five other circuits have also reached conclusions similar to those expressed in Guttman: Federacion de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17 (1st Cir. 2005); Hoblock, 422 F.3d at 85; McCormick v. Braverman, 451 F.3d 382 (6th Cir. 2006); Dornheim v. Sholes, 430 F. 3d 919, 923-924 (8th Cir. 2005); Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009).

InGlatzer v. Barone, 614 F. Supp. 2d 450, 462-463 (S.D. N.Y. 2009), a district court summarized the following four elements that must be found in order to invoke the Rooker-Feldman bar, at least in the Second Circuit (and, on this point, the Second Circuit appears to be in agreement with the majority of circuits, as cited above):

To guide the application of Rooker-Feldman as clarified by Exxon Mobil, the Circuit Court identified four requirements, two which it characterized as procedural and two as substantive. Procedurally, the plaintiff in the federal action (1) must have been the losing party in the prior state court proceeding, and (2) the state court judgment "must have been `rendered before the district court proceedings commenced'". See id. at 85; see also McKithen v. Brown, 481 F.3d 89, 97 (2d Cir.2007) (stating the two procedural requirements consistent with this formulation in Hoblock). Substantively, the federal plaintiff (1) "must complain of injury from a state-court judgment" and (2) "seek federal-court review and rejection of the state-court judgment." Hoblock, 422 F.3d at 85.

Glatzer, at 462-463.

Thus, after ExxonMobil it should be possible for an applicant confronted with discriminatory Bar admission rules or policies to file a federal suit at any time prior to the final judgment denying his or her application. If the discriminatory intent of the rules or policies is obvious and they are certain to be applied against the applicant, a federal suit may still be pursued before filing an application. On the other hand, if the rules or policies appear discriminatory, but the applicant is not sure they will actually be applied against him or her, it may often be more judicious to apply first, but to withhold filing the federal suit until some document or event in the application process makes it clear that the discriminatory rule or policy is being applied. This could take a number of different forms, including the occurrence of certain types of medical inquiries, the issuance of a “notice of hearing” or “notice of charges” that clarifies that the illegally discriminatory criteria suggested by the rules are in fact being used, or a licensing board recommendation applying discriminatory criteria suggested by the rules (in states in which licensing board action is not final until approved by a court). At that point, the affected applicant must promptly pursue a federal remedy—but must in no event wait until after a final judgment has been entered denying his or her application.

Third, as the Court held in Lance v. Dennis, 546 US 459 (2006), even where there has been a final judgment in state court, only the party that actually lost that judgment is barred by the Rooker-Feldman from bringing the claim determined by the state court into Federal court. Any other party, including a party in privity with the state court loser (but not the actual party to the state court suit suing in the same capacity), may bring the claim in Federal court. Indeed, in Lance, a challenge to an electoral redistricting plan, several of the representative members of the class suing in the federal court had previously sued in state court—in their individual capacities—and had lost. In Lance, the Supreme Court held that their claims were not barred by the Rooker-Feldman doctrine, but that ordinary preclusion principles should be applied. Thus, it would be possible for even an applicant who has been denied licensure pursuant to a discriminatory rule and has had the denial entered as a final judgment to participate in a challenge to the rule in a different capacity—for instance, as a member of a class of affected potential applicants. In fact, including in a class in a federal class action challenging certain state Bar admission rules some rejected past applicants whose rejections have facts that illustrate the discriminatory way in which the rules are actully implemented might be a wise thing to do. These past applicants cases would be very difficult to obtain through discovery once the suit is filed without them, due to the extreme secrecy ("confidentiality") with which such records are held. But they would be both available and admissible if the rejected applicants are included in the class challenging the rules. Care would simply have to be taken that all of the rejected applicants included in the class have at least a formal right to reapply at some time in the future, and that the class also includes some potential or current applicants whose applications have not yet been finally denied.

Part 12. More Onerous the Second Time Around

2010-07-30T10:09:00.000-07:00

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(b)(6)-(b)(8) and 35.130(f). 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. This enhanced fee “may not be waived and shall not be refunded” ( Rule 704(a), preamble), even in cases in which the only grounds for a previous rejection was a “disability” as defined under the ADA.

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.

Part 13. A Medical or Psychological Condition that Formally Disqualifies from Practice of a Profession is a "Disability"

2010-07-30T09:36:00.000-07:00

Even prior to the enactment of the ADA Amendments Act of 2008 (“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). Similarly, in Hason v. Medical Board of California, 279 F.3d 1167, 1173 (9th Cir. 2002), the Ninth Circuit held, among other things, that an academically qualified applicant for a medical license who pled that he had a successfully treated mental illness and had been denied licensure because of that illness had adequately pled his status as a “qualified individual with a disability” under the pre-amendment ADA to survive a motion to dismiss for failure to state a claim, although the Hason court did not directly address the question whether the denial of a license because of a condition would always be enough to render the condition a “disability.” 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.

Part 14. Applicability of the Rehabilitation Act as a Source of Federal Jurisdiction arising from the Spending Clause

2010-07-29T10:49:00.000-07:00

See the Index for other parts of the argument completed to date.

Section 504(a) of the Rehabilitation Act of 1973, 29 U.S.C. 794(a), 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. 794(b).

Moreover, 42 U.S.C. 2000d-7 on its face states that recipients of Federal financial assistance waive their Eleventh Amendment immunity to private suit under the Rehabilitation Act by accepting Federal funds:

A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], title IX of the Education Amendments of 1972 [20 U.S.C. § 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. § 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

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.

In one case, the Rehabilitation Act has been applied by a Federal court to a state board of bar examiners that was an indirect recipient of Federal funds. In Bartlett v. New York State Board of Law Examiners, 970 F.Supp. 1094, 1118-1119 (S.D. N.Y. 1997), a case involving bar examination accommodations for applicants with specific learning disabilities, Judge Sotomayor of the U.S. District Court for the District of New York held, inter alia, that the Board’s decision to receive from some disabled applicants application fees paid in part through a federally-funded program administered by state vocational rehabilitation agencies created a sufficient nexus between the Board and the federal funding source to bring the Board within the purview of the RA. This aspect of the district court’s opinion in Bartlett was specifically affirmed by the Second Circuit in Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 at 329-330 (2nd Cir. 1998), although the appellate court’s major focus was on the ADA.

This holding in Bartlett, though unique as applied to law licenses, is not an anomaly. The RA has been applied to licensure-related decisions of entities receiving federal funding on at least two occasions. In Pandazides v. Virginia Board of Education, 946 F.2d 345 (4th Cir. 1991), the Fourth Circuit reversed the dismissal of the RA claim of a learning-disabled applicant for a teaching certificate, who had claimed that the Virginia Board of Education was required to accommodate her disability in the administration of the written certification examination. Somewhat analogously, Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir. 1981), held , inter alia, that a medical doctor could properly bring private suit under RA against a state university that received federal funds that had denied him admission to a psychiatric residency program (which was a step in obtaining a medical license) on account of his multiple sclerosis. Moreover, numerous cases outside of the professional licensure context have held that voluntary receipt of Federal funds by a state entity, either directly or indirectly, subjects all of the activities of that state entity to regulation under RA and acts as a waiver of the state’s Eleventh Amendment immunity from suit under RA as to those activities.

For instance, in Jim C. v. U.S., Atkins School District, 235 F.3d 1079 (8th Cir. 2000) (en banc), the full bench of the Eighth Circuit explained that the Arkansas Department of Education waived its sovereign immunity to suits under the RA as to all of its programs, but not as to all of the programs of the entire Arkansas state government, by accepting Federal education funding to finance some of its programs. This was said to be an example of the “ordinary quid pro quo the Supreme Court has repeatedly approved” for the receipt of Federal funds. Likewise, the full Fifth Circuit recognized in Pace v. Bogalusa City School Board, 403 F.3d 272 (5th Cir. 2005) (en banc), that the Fifth Circuit that Congress could validly declare that “knowing” and “voluntary” receipt of Federal funds by a state agency would constitute a waiver of the agency’s Eleventh Amendment immunity in suits under the RA. The Eleventh Amendment issue arose as to claims against Louisiana State Board of Education. The full bench of the Fifth Circuit considered this issue again in Miller v. Texas Tech. Univ. Health Sciences Center, 421 F.3d 342 (5th Cir. 2005) (en banc), but followed their previous holding in Pace, and gave a particularly interesting explanation of the “relatedness” prong of the 11th Amendment waiver analysis. The federal funding involved in Miller apparently flowed directly to a Louisiana state agency, and from there to Texas Tech Health Sciences Center. The funding was not for any purpose “related to” the elimination of discrimination. Nevertheless, the full Fifth Circuit held that both the Louisiana state agency defendant and Texas Tech had accepted federal assistance and were amenable to suit under RA.

The Third Circuit in Koslow v. Com. Of Pennsylvania, 302 F.3d 161 (3rd Cir. 2002), held that Pennsylvania waived its sovereign immunity as to suits under the RA pertaining to all operations of its Department of Corrections by accepting Federal financial assistance for some of them, even though the funds were disbursed directly to the Commonwealth of Pennsylvania and only indirectly to its Department of Corrections or any particular prison facility, and even though the plaintiff could not show that the specific facility in which he was employed received any Federal funds differentiated from its general state budget. Similarly, Garrett v. University of Alabama at Birmingham Board of Trustees, 344 F.3d 1288 (11th Cir. 2003), after remand from Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the Eleventh Circuit held that, although the plaintiffs’ suit against the University under Title I of ADA was barred by the Eleventh Amendment, the University (the entire University) had waived its Eleventh Amendment immunity as to suits under the RA by voluntarily continuing to receive Federal funds.

Likewise, in Bentley v. Cleveland County Board of Commissioners, 41 F.3d 600, 602-604 (10th Cir. 1994), the Tenth Circuit held that a county government which applied for and received federal transportation funds indirectly by way of the Oklahoma Department of Transportation, though with knowledge that the ultimate source of of the funds was the U.S. Department of Transportation, was an entity regulated by the RA. Subsequenly, the same court, in Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002), held, among other things, that the Eleventh Amendment waiver provision contained in 42 U.S.C. 2000d-7(a)(1) is constitutionally valid and constitutes an unequivocal, voluntary waiver of immunity to suit under the RA by a state entity that actually receives federal assistance. This waiver is to be distinguished from a congressional abrogation of sovereign immunity (a concept discussed at length in a later posting), in that the state entity must actually do something—namely, elect to receive federal assistance—in order to waive its immunity under this statute. Similar holdings are also found in Constantine v. Rectors, George Mason University, 411 F.3d 474, 496-498 (4th Cir. 2005), Lovell v. Chandler, 303 F.3d 1039, 1050-1052 (9th Cir. 2002), and Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161 (D.C. Cir. 2004).

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 voluntarily received Federal funds, either directly or indirectly, 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 many 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. The FY 2011 Governor’s Budget Report shows that funds actually were received in FY 2010, the fiscal year during which the July 1, 2009 revision of the Rules Relating to Admission of Attorneys was formally promulgated. Finally, a table on a web page on the Kansas Governor’s Office website, entitled “WHERE IS YOUR MONEY GOING? RECOVERY ACT FUNDS IN KANSAS: JUSTICE AND PUBLIC SAFETY PROJECTS,” shows that the Kansas Supreme Court, specifically, received $830,557 in Recovery Act funding, over and above the regular budget. Thus, the Kansas Judiciary's consumption of Federal funds has more than tripled in the last five years. Neither the Kansas Supreme Court, viewed separately, nor the unified Judiciary of Kansas can assert that they are 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, except where the only issue is a physical accommodation on a licensing examination, 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 a suit that alleges that a Federally-funded licensing court's or board of law examiners’ 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.

Part 15a. Private Enforcement of the ADA Against State Governments Under Ex parte Young

2010-07-27T10:17:00.000-07:00

In 42 U.S.C. 12101, Congress declared that the purposes of the ADA are:

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

42 U.S.C. 12101(b). This subsection was contained in the ADA as originally enacted and has never been subsequently amended. Thus, Congress has consistently asserted both that the ADA is intended to give the Federal government a central role in addressing disability discrimination. Congress has also consistently declared that the ADA represents both an attempt to regulate interstate commerce for the purpose of creating greater equity toward the disabled in commerce and an attempt to enforce the due process and equal protection clauses of the Fourteenth Amendment.

The ADA has also, from the start, regulated the activities of state governments. As originally enacted, ADA contained the section presently codified as 42 U.S.C. 12132, which reads as follows:

Subject to the provisions of this subchapter, 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. The term “public entity” was defined in the original ADA so as to include “any state or local government,” and still includes state governments. 42 U.S.C. 12131(1)(A) The original ADA gave the Attorney General express authority to promulgate regulations implementing Title II of the ADA, except for matters within the jurisdiction of the Secretary of Transportation. 42 U.S.C. 12134. This regulatory authority was clarified and expanded by the ADA Amendments Act of 2008. 42 U.S.C. 12205a.

The Attorney General exercised this regulatory authority by issuing a set of regulations, codified at 28 C.F.R. pt. 35. Those regulations include, inter alia, regulations prohibiting discrimination on the basis of a disability in the administration of licensure or certification programs by public entities:

(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…

(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.

(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)(6)-(b)(8).

It is intuitively obvious that the licensure of individuals to practice professions that operate in interstate commerce is itself an activity that affects interstate commerce. Indeed, in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 279-281 (1985), views the practice of law as both “fundamental right” for Fourteenth Amendment purposes (at least under the Privileges and Immunities Clause) and as an activity in commerce. Thus, Title II of the ADA may validly regulate state professional licensure activities, and 28 C.F.R. 35.130 is a valid extension of Federal power, regardless of whether it may be enforced by way of a private suit or may be enforced only by the United States in its sovereign capacity.

However, the Eleventh Amendment creates an obstacle to private suits against the States, as such. Moreover, although Congress included a provision in the ADA abrogating the States’ Eleventh Amendment immunity in private suits under the ADA (42 U.S.C. 12202), the Supreme Court has subsequently held that Congress lacks the power to abrogate Eleventh Amendment immunity by way of legislation enacted to regulate interstate commerce. See, Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). Instead, Congress’ power to legislatively abrogate the states’ Eleventh Amendment immunity is limited to legislation enacted under specific Congressional powers granted by constitutional amendments ratified after the Eleventh Amendment—most notably the Fourteenth Amendment—and must be exercised in a way which is both "congruent" and "proportional" to the constitutional violations found by Congress. City of Boerne v. Flores, 521 U.S. 507 (1997). This does not imply that Congress may not regulate the activities of the States that affect interstate commerce; it certainly may. This also does not necessarily imply that Congress may not regulate states pursuant to its Fourteenth Amendment enforcement powers in areas that are broader than those in which it may abrogate their Eleventh Amendment immunity (this question will be discussed in a later posting). It is only certain to mean that Congress may not authorize private suits for damages against states under the commerce clause, or under its Fourteenth Amendment enforcement powers in fields outside the Supreme Court’s congruence and proportionality test.

The question whether Title II of the ADA, viewed as Fourteenth Amendment legislation, will support suits directly against states in spite of the Eleventh Amendment bar is considered at length in Parts 15b through 19 of this series of posts, below. However, even if Title II of the ADA as 14th Amendment legislation will not support a suit for damages or other retrospective relief against a state or a state court, per se, due to the effect of the 11th Amendment or the doctrine of sovereign immunity, it should nevertheless support a suit for prospective injunctive or declaratory relief against the responsible officials of a state court or state board of law examiners, in their official capacities, under the venerable doctrine of Ex Parte Young, 209 U.S. 123 (1908). This is so for two reasons. First, the ADA (including Title II) was enacted pursuant to Congress’ powers under both the Commerce Clause in Article I and the enforcement power under section 5 of the 14th Amendment. While Congress may not waive the states’ 11th Amendment immunity to private suits for damages pursuant to its commerce power, Congress may regulate state government activities affecting interstate commerce. When Congress regulates a state activity affecting commerce and allows private remedies, the remedies that remain available despite the 11th Amendment bar are prospective injunctive and declaratory relief under Ex Parte Young, which has been said to give Congress’ constitutional powers "teeth" in such situations.

The second reason is simply that Congress’ power to regulate state activities under the 14th Amendment and its power to waive state 11th Amendment immunity to suits for damages under the 14th Amendment apparently are not commensurate. Congress may regulate states under the 14th Amendment in some situations—apparently including at least disability discrimination in public employment, to which Title I of the ADA applies—in which it may not give the affected individuals a monetary remedy. In these situations also prospective relief under Ex Parte Young is available, provided the effect on the state fisc is relatively insignificant.
Indeed, in its landmark case rejecting a private suit for damages against a state under Title I of ADA, which regulates employment, the Supreme Court recognized in a footnote that prospective enforcement of Title I remains available under Young:

Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908).

Board of Trustees of Univ. of Ala. v. Garrett, 531 US 356 at 374 n.9 (2001) (“Garrett”).

Since Garrett, the lower Federal courts have generally permitted private litigants to enforce both Title I and Title II of the ADA by way of suits for prospective relief against state officials challenging discriminatory state policies or practices under the doctrine of Ex parte Young. For example, even though Garrett held that the Eleventh Amendment barred suits for damages against states under Title I of the ADA, in Walsh v. Nevada Dept. of Human Resources, 471 F. 3d 1033 (9th Cir. 2004), an employment-related suit under Title I of the ADA, the Ninth Circuit expressly recognized that, although Garrett barred private suits for damages under Title I, “sovereign immunity, however, does not bar Title I suits against state officials for prospective injunctive and declaratory relief.” Walsh, 471 U.S. at 1036, citing Ex parte Young. However, the appellate court affirmed the dismissal of Walsh’s suit because she had not timely or adequately pled her claim for injunctive relief under Ex parte Young and because her pleadings failed to demonstrate her standing to sue.

There is no Supreme Court case law like Garrett under Title II of the ADA, holding that all private suits for damages against states under Title II are barred by the Eleventh Amendment. Indeed, as will be further discussed in the next posting, there is case law holding that damage remedies may be permitted under Title II under some circumstances. See, e.g., Tennessee v. Lane, 541 U. S. 509 (2004). Therefore, it should be no surprise that there is also case law approving of private suits for declaratory and injunctive relief against state officials under Title II pursuant to the doctrine of Ex parte Young. See, e.g., Henrietta D. v. Bloomberg, 331 F. 3d 261, 287-290 (2nd Cir. 2003), for an extensive discussion of the availability of Ex parte Young declaratory and injunctive relief under Title II; Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F. 3d 906, 912-913 (7th Cir. 2003); Carten v. Kent State University, 282 F. 3d 391, 395-397 (6th Cir. 2002); and Randolph v. Rodgers, 253 F. 3d 342, 345-348 (8th Cir. 2001) ; Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-1189 (9th Cir. 2003).

Indeed, one Federal appellate court has specifically permitted a Title II ADA challenge to bar application questions to proceed as a suit against a responsible state official under Ex parte Young. In Roe No. 2 v. Ogden, 253 F. 3d 1225 (10th Cir. 2001), the Tenth Circuit reversed a district court order dismissing the Title II ADA suit of a group of law students seeking to enjoin the Chairman of the Colorado Board of Law Examiners from requiring them to answer a series of questions on the Colorado bar application form dealing with mental health. The appellate court held, inter alia, that the students had standing to raise the issue and could seek injunctive relief pursuant to Ex parte Young. Roe No. 2, 253 F.3d at 1233-1234. Interestingly, Roe No.2 was followed by the Sixth Circuit in Dubuc v. Michigan Bd. of Law Examiners, 342 F. 3d 610, 616 (6th Cir. 2003), a non-ADA case in which a plaintiff was challenging several bar disciplinary rules under the Constitution and 42 U.S.C. 1983.

Also noteworthy in this context is the pair of 2006 Eighth Circuit opinions in the case of Klingler v. Director of Revenue, State of Missouri. In the first of these opinions, Klingler, 433 F.3d 1078 (8th Cir. 2006), the appellate court, acting on remand from the Supreme Court following Tennessee v. Lane, 541 U. S. 509 (2004), held that Missouri’s charge of $2 for a handicapped parking placard, violated 28 C.F.R. 35.130(f), a regulation implementing Title II of the ADA, and granted prospective declaratory and injunctive relief. Simultaneously, however, the Eighth Circuit held that Title II of ADA did not validly abrogate Missouri’s Eleventh Amendment immunity in this context, and dismissed the plaintiffs’ claims for refund of the placard fees. The Supreme Court then again remanded the case for reconsideration in light of U.S. v. Georgia, 546 U.S. 151 (2006). On this second remand, in Klingler, 455 F.3d 888 (8th Cir. 2006), the Eighth Circuit reaffirmed both its former grant of prospective declaratory and injunctive relief and its former denial of a damages remedy, holding that, when the specific regulation in question, when applied in the context of Missouri’s placard fees, failed the “congruence and proportionality” prong of the test of Congressional power to abrogate states’ Eleventh Amendment immunity. Thus, it is clear that Title II of the ADA will support declaratory and injunctive relief under Ex parte Young even in contexts in which awards of damages under that statute are barred by the Eleventh Amendment.

As a practical matter, if potential Bar applicants suing under Title II of ADA are limited to prospective declaratory and injunctive relief, such suits will seldom happen for purely economic reasons. Most law students and recent, but as yet unlicensed, graduates have small incomes and much more debt than assets. This will be particularly true if they have already gone through part or all of an unsuccessful Bar application process. The unavailability of an award of attorney’s fees, or of money damages from which a contingent fee might be paid, in suits brought pursuant to Ex parte Young, will make proper legal representation very difficult for such potential plaintiffs to obtain. The alternatives are to proceed pro se, which essentially dooms the claim to be ignored from the very beginning, or to recruit a group of other affected applicants or an organization to contribute to the legal representation in the case (as apparently happened in Roe No. 2, cited above).

Still, even though they may be difficult to finance, suits to enforce Title II of ADA against state licensing bodies pursuant to Ex parte Young are theoretically viable.

See the Index for other parts of the argument completed to date.

Part 15b. The Scope of the ADA as Fourteenth Amendment Legislation and Eleventh Amendment Immunity Generally

2010-07-26T22:00:00.000-07:00

In 42 U.S.C. 12202, Congress declared that

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

Thus, Congress has unequivocally attempted to abrogate sovereign immunity for a state’s violations of the ADA. However, as previously noted, the Supreme Court has held that Congress did not validly abrogate state sovereign immunity with regard to employment discrimination prohibited by Title I of the ADA. Board of Trustees of Univ. of Ala. v. Garrett, 531 US 356 (2001). (“Garrett”). On the other hand, since Garrett, the Supreme Court has held on two occasions that Congress had validly abrogated state sovereign immunity and Eleventh Amendment immunity, at least with regard to the specific subject matter in view in those cases. See, Tennessee v. Lane, 541 U. S. 509 (2004) (Lane); U.S. v. Georgia, 546 U.S. 151 (2006) (Georgia). This posting will discuss the conditions under which Lane and Georgia, and several lower court opinions following them, have indicated that Title II should be found to have validly abrogated state immunity. Highly summarized, the developing rule appears to be that Title II effect a valid abrogation of immunity, on a case by case basis, in any case in which an actual systematic violation by a state (or states) of a recognized fundamental right or Fourteenth Amendment interest is shown, and may also do so prophylactically if to do so is a "congruent and proportional" response to a historical pattern of unconstitutional unequal treatment. Then the next four postings after this one will then expound specific Fourteenth Amendment interests of persons with stigmatized disabilities that are systematically infringed by Bar application regimes such as that in Kansas.

There can be no doubt that, where an actual violation of the Fourteenth Amendment exists, rather than merely a potential violation, Congress has plenary power to provide remedies by statute. This is also true of the remedies provided for actual violations of the Fourteenth Amendment rights of persons with disabilities provided by Title II of ADA. The Supreme Court explained this in U.S. v. Georgia, 546 U.S. 151 (2006), in reversing the dismissal of a Title II case brought by a paraplegic prisoner. After first pointing out that the individual plaintiff’s “claims for money damages against the State under Title II were evidently based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment,” and therefore distinguishing the case from Lane (which involved only prophylaxis of potential violations), 546 U.S. at 157, the Court said:

While the Members of this Court have disagreed regarding the scope of Congress's "prophylactic" enforcement powers under § 5 of the Fourteenth Amendment, see, e. g., Lane, 541 U.S., at 513 (majority opinion of Stevens, J.); id., at 538 (Rehnquist, C. J., dissenting); id., at 554 (Scalia, J., dissenting), no one doubts that § 5 grants Congress the power to "enforce . . . the provisions" of the Amendment by creating private remedies against the States for actual violations of those provisions. "Section 5 authorizes Congress to create a cause of action through which the citizen may vindicate his Fourteenth Amendment rights." Id., at 559-560 (Scalia, J., dissenting) (citing the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13); see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) ("In [§ 5] Congress is expressly granted authority to enforce . . . the substantive provisions of the Fourteenth Amendment" by providing actions for money damages against the States (emphasis added)); Ex parte Virginia, 100 U.S. 339, 346 (1880) ("The prohibitions of the Fourteenth Amendment are directed to the States . . . . It is these which Congress is empowered to enforce . . ."). This enforcement power includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. See Fitzpatrick, supra, at 456. Thus, insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. The Eleventh Circuit erred in dismissing those of Goodman's Title II claims that were based on such unconstitutional conduct.

Georgia 546 U.S. at 158-159.

Where there is no actual, independent Fourteenth Amendment violation, but Congress is exercising its power to enact prophylactic legislation to deal with an historic pattern of Fourteenth Amendment violations, a “congruence and proportionality” test applies to the determination whether Congress may provide an individual monetary remedy against an offending state government. Congress’ prophylactic power is still very “broad,” but limited by the purpose of the Fourteenth Amendment, as the Court said in Lane:

In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we held that Congress can abrogate a State's sovereign immunity when it does so pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment. Id., at 456. This enforcement power, as we have often acknowledged, is a "broad power indeed." Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732 (1982), citing Ex parte Virginia, 100 U. S. 339, 346 (1880). It includes "the authority both to remedy and to deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, 528 U. S., at 81. We have thus repeatedly affirmed that "Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 727-728 (2003). See also City of Boerne v. Flores, 521 U. S. 507, 518 (1997). The most recent affirmation of the breadth of Congress' § 5 power came in Hibbs, in which we considered whether a male state employee could recover money damages against the State for its failure to comply with the family-care leave provision of the Family and Medical Leave Act of 1993 (FMLA), 107 Stat. 6, 29 U. S. C. § 2601 et seq. We upheld the FMLA as a valid exercise of Congress' § 5 power to combat unconstitutional sex discrimination, even though there was no suggestion that the State's leave policy was adopted or applied with a discriminatory purpose that would render it unconstitutional under the rule of Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979). When Congress seeks to remedy or prevent unconstitutional discrimination, § 5 authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.

Congress' § 5 power is not, however, unlimited. While Congress must have a wide berth in devising appropriate remedial and preventative measures for unconstitutional actions, those measures may not work a "substantive change in the governing law." Boerne, 521 U. S., at 519. In Boerne, we recognized that the line between remedial legislation and substantive redefinition is "not easy to discern," and that "Congress must have wide latitude in determining where it lies." Id., at 519-520. But we also confirmed that "the distinction exists and must be observed," and set forth a test for so observing it: Section 5 legislation is valid if it exhibits "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520.

Lane 541 U.S. at 518-520.

The Lane court then distinguished Title I of the ADA (at issue in Garrett) from Title II observed that, where Title I of the ADA regulates employment seeking only to prevent “irrational disability discrimination,” discrimination which is subject to only “rational basis” review under the Fourteenth Amendment, Title II “also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review.” Lane, 541 U.S. at 522-523. The Court then held the right of access to the courts at issue in Lane to be one of these “basic” rights of which alleged infringements are subject to “more searching judicial review” under section 1 of the Fourteenth Amendment.

After reaching the conclusion that the right of access to the courts is a “basic” right, the Lane court analyzed whether there was an historic pattern of discrimination by state governments in the provision of “services and programs” (in the language of 42 U.S.C. 12132), including access to justice, and concluded that there was:

It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, "[a]s of 1979, most States . . . categorically disqualified `idiots' from voting, without regard to individual capacity." The majority of these laws remain on the books, and have been the subject of legal challenge as recently as 2001. Similarly, a number of States have prohibited and continue to prohibit persons with disabilities from engaging in activities such as marrying and serving as jurors. The historical experience that Title II reflects is also documented in this Court's cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, e. g., Jackson v. Indiana, 406 U. S. 715 (1972); the abuse and neglect of persons committed to state mental health hospitals, Youngberg v. Romeo, 457 U. S. 307 (1982); and irrational discrimination in zoning decisions, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985). The decisions of other courts, too, document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting. Notably, these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice.

This pattern of disability discrimination persisted despite several federal and state legislative efforts to address it. In the deliberations that led up to the enactment of the ADA, Congress identified important shortcomings in existing laws that rendered them "inadequate to address the pervasive problems of discrimination that people with disabilities are facing." S. Rep. No. 101-116, at 18. See also H. R. Rep. No. 101-485, pt. 2, at 47. It also uncovered further evidence of those shortcomings, in the form of hundreds of examples of unequal treatment of persons with disabilities by States and their political subdivisions. See Garrett, 531 U. S., at 379 (BREYER, J., dissenting). See also id., at 391 (App. C to opinion of BREYER, J., dissenting). As the Court's opinion in Garrett observed, the "overwhelming majority" of these examples concerned discrimination in the administration of public programs and services. Id., at 371, n. 7; Government's Lodging in Garrett, O. T. 2000, No. 99-1240 (available in Clerk of Court's case file).

Lane 541 U.S. at 524-526 (bold emphasis added). Note that, while only the right of access to the courts was directly at issue in Lane, the Court indicated that the same arguments that supported its finding in Lane, the same factually well-supported Congressional findings, and the same group of prior Supreme Court and lower court decisions, “document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities.” Thus, Title II is potentially congruent to the violations found by Congress with regard to a wide range of state government “services, programs or activities.” Note also that the licensure of attorneys is a state government service or program that is a component part of the “administration of justice.”

The court then found that Title II is proportional to the constitutional violations involved as applied specifically to the right of access to the courts:

Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, the dissent's contention that the record is insufficient to justify Congress' exercise of its prophylactic power is puzzling, to say the least. Just last Term in Hibbs, we approved the family-care leave provision of the FMLA as valid § 5 legislation based primarily on evidence of disparate provision of parenting leave, little of which concerned unconstitutional state conduct. 538 U. S., at 728-733. We explained that because the FMLA was targeted at sex-based classifications, which are subject to a heightened standard of judicial scrutiny, "it was easier for Congress to show a pattern of state constitutional violations" than in Garrett or Kimel, both of which concerned legislation that targeted classifications subject to rational-basis review. 538 U. S., at 735-737. Title II is aimed at the enforcement of a variety of basic rights, including the right of access to the courts at issue in this case, that call for a standard of judicial review at least as searching, and in some cases more searching, than the standard that applies to sex-based classifications. And in any event, the record of constitutional violations in this case— including judicial findings of unconstitutional state action, and statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services—far exceeds the record in Hibbs.

The conclusion that Congress drew from this body of evidence is set forth in the text of the ADA itself: "[D]iscrimination against individuals with disabilities persists in such critical areas as . . . education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services." 42 U. S. C. § 12101(a)(3) (emphasis added). This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.

Lane 541 U.S. at 528-529.

The Court then concluded that

Whatever might be said about Title II's other applications, the question presented in this case is not whether Congress can validly subject the States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under § 5 to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further. See United States v. Raines, 362 U. S. 17, 26 (1960).

Congress' chosen remedy for the pattern of exclusion and discrimination described above, Title II's requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in concluding that this "difficult and intractable proble[m]" warranted "added prophylactic measures in response." Hibbs, 538 U. S., at 737 (internal quotation marks omitted).

Lane 541 U.S. at 530-531.

From Lane and Georgia, lower Federal courts have concluded that, in a case seeking remedies against a state under Title II, courts must undertake a two-step process, first determining whether the ADA violation alleged also independently violated the Fourteenth Amendment, and, if not, determining whether the application of Title II to that conduct is “congruent and proportional” under Lane. The Tenth Circuit explained this process as follows in a case involving a medical license shortly after Georgia was decided:

In Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), the Supreme Court held that, as applied to a case alleging discriminatory access to the courts, Title II abrogated sovereign immunity because it was a valid use of the powers granted to Congress under § 5 of the Fourteenth Amendment. Id. at 533-34, 124 S.Ct. 1978. The Court held that, although the conduct that was the basis for the suit was not a direct violation of the Constitution, Title II, in the context of the suit, was valid prophylactic legislation that prevents and deters unconstitutional conduct. Id. at 518, 124 S.Ct. 1978. The Court, however, declined to address whether Title II abrogated sovereign immunity in other contexts where parties allege violations of the law that are not independent constitutional violations.

In Georgia, 126 S.Ct. at 877, the Court explained the procedure by which courts should address Title II cases brought against states. The plaintiff in Georgia, a state prisoner, alleged that prison officials violated both Title II and the Eighth Amendment. Id. at 880-81. It is well-settled that Congress can abrogate sovereign immunity as to actual violations of constitutional rights. However, it was not clear from the pleadings whether the plaintiffs alleged that prison officials engaged in conduct that violated Title II but that was not also a violation of the Eighth Amendment. Id. As such, the Court remanded the case to allow amended pleadings to permit the plaintiffs to make clear whether they allege ADA violations beyond the direct violations of the Eighth Amendment. In doing so, the Court laid out a procedural roadmap explaining how Title II claims against a state should proceed:

“Once Goodman's complaint is amended, the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.”

Id.

Because of our holding in Thompson, the district court did not address whether the plaintiff stated a claim that New Mexico violated Title II of the ADA. Under the Supreme Court's decision in Georgia, we must remand the case to the district court so that it can determine whether Guttman properly alleged violations of Title II. 1036*1036 When doing so, the district court also will be able to determine whether Guttman's claims are otherwise barred because they are precluded by res judicata or collateral estoppel.

If the district court decides that Guttman did state a valid claim under Title II, it must then determine whether Congress abrogated sovereign immunity as applied to the class of conduct at issue in this case. Georgia, 126 S.Ct. at 880-81. If his Title II claims against New Mexico also constitute an independent constitutional violation, Guttman may proceed with those claims against the state. Id. If Guttman has stated a valid Title II claim that is not also an independent constitutional violation, the district court must conduct the Lane analysis to determine whether Title II abrogated sovereign immunity for an as applied challenge.

Guttman v. Khalsa, 446 F.3d 1027, 1034-1036 (10th Cir. 2006).

Part 16. Professional Licensure, Including Attorney Admission, Is Regulated by the Fourteenth Amendment

2010-07-10T13:33:00.000-07:00

This post will demonstrate from the case law the general proposition that state government professional licensure programs and activities, specifically including attorney licensure, is a recognized matter of constitutional concern under the Fourteenth Amendment. Subsequent entries will set forth specific Fourteenth Amendment interests that are infringed by the licensure regime established by Kansas’ new rules for admission to the Bar.
Apparently, the first case to treat licensure to practice law as a matter of Federal constitutional concern was Ex parte Garland, 71 U.S. 333, 4 Wall. 333 (1866), a case which directly involved the constitutional prohibitions on bills of attainder and ex post fact laws and the effect of a presidential pardon on an attorney’s right to retain his license. However, subsequent courts have quoted language out of Garland as stating broad propositions under the Fourteenth Amendment. For example, In re Abrams, 662 A.2d 867, 876 (D.C. Cir. 1995), a bar disciplinary case, quoted Garland, 71 U.S. (4 Wall.) at 377 for the proposition that "exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct." Garland, 71 U.S. (4 Wall.) at 377.
Garland was also cited in Greene v. McElroy, 360 U.S. 474 (1959), revocation of security clearance with automatic effect on private sector employment opportunities requires due process, including disclosure of adverse evidence and confrontation of witnesses. This holding was followed in a subsequent suit by the same plaintiff, Greene v. United States, 376 U.S. 149 (1964), in which the Court held damages recoverable against the United States for deprivation of Greene’s interest in his employability without due process. Cowan v. Corley, 814 F.2d 223, 227 (5th Cir. 1987), then quotes and follows the first Greene opinion, 360 U.S. at 492, regarding the proposition “the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the `liberty' and `property' concepts of the Fifth Amendment." Thus, the right to pursue a profession clearly comes within the protection of Fourteenth Amendment due process.
There is also a series of United States Supreme Court opinions that views admission to a state Bar, specifically, as subject to protection under the Fourteenth Amendment.
Two companion cases in 1957 settled the question that Fourteenth Amendment due process applies to state actions denying licensure to an applicant for admission to the Bar. First Schware v. Bd of Bar Examiners of New Mexico, 353 U.S. 232 (1957), held Due Process Clause of Fourteenth Amendment to apply to character and fitness determinations in attorney licensure proceedings, and to prohibit exclusion of an applicant because of past membership in the Communist Party. Then Konigsberg v. State Bar of California, 353 U.S. 252 (1957), held that disqualification of an applicant because he refused to answer the question whether he had ever been a member of the Communist Party also violates Due Process. These decisions were made at a time of great public concern that disloyal Communists were infiltrating our country during a time of “Cold War.” If the public taint of suspected treason in a time of public hysteria is not enough to overcome the Fourteenth Amendment rights of an applicant for a law license, surely the public taint of suspected danger from a disability should also not be enough to overcome the Fourteenth Amendment!
Then, six years later, Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963), held that in attorney admission cases procedural due process requires, at a minimum, notice of the evidence on which denial of admission is proposed, a fair hearing, an adequate opportunity to rebut that evidence and, in general, the opportunity to confront the witnesses upon which those grounds are based.
Finally, it should be noted that the Court in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 279-281 (1985), viewed the practice of law as both “fundamental right” for Fourteenth Amendment purposes (at least under the Privileges and Immunities Clause) and as an activity in national commerce.

Part 17. Authorization to Consider Secret Disability-Related Evidence is a Fourteenth Amendment Due Process Violation

2010-07-05T13:15:00.000-07:00

As has been set forth at length above, Kansas’ new rules explicitly authorize the Kansas Board of Law Examiners, and, subsequently, the Kansas Supreme Court, to consider secret evidence the applicant is never allowed to confront or answer. The new rules also explicitly authorize the Disciplinary Administrator, in resisting a licensure application, to use evidence received from confidential sources and evidence presented in other forms that do not admit of any possibility of confrontation or cross examination of sources, including simply the Disciplinary Administrator’s bare statement in a written notice of charges that information received from a confidential source is believed to be correct. The new rules also explicitly authorize the use of surprise evidence at Board of Law Examiners’ hearings.

The cases discussed below will show that these new Rules explicitly authorizing the Board of Law Examiners to consider, and even to base its decisions primarily upon, evidence that is received confidentially and is kept secret from the applicant create a rather large potential Fourteenth Amendment due process problem. They also create a particularly large problem for applicants who have stigmatized disabilities, because they fairly invite the Board to receive and consider confidential information about other people's fears regarding the disability and to treat that information (which the applicant will never be permitted to confront) as determinative.

The first case that held that Fourteenth Amendment procedural due process applicable to state Bar admission proceedings was Coleman v. Watts, 81 So.2d 650 (Fla. 1955). Eight years later, in Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963), the Unites States Supreme Court followed Coleman, holding that in attorney admission cases procedural due process requires, at a minimum, notice of the evidence on which denial of admission is proposed, a fair hearing, an adequate opportunity to rebut that evidence and, in general, the opportunity to confront the witnesses upon which those grounds are based. Later, the U.S. Court of Appeals for the Tenth Circuit explained Willner’s holding on this issue as follows:

The constitutional requirements in this context may be simply stated: in all cases in which admission to the bar is to be denied on the basis of character, the applicant, at some stage of the proceedings prior to such denial, must be adequately informed of the nature of the evidence against him and be accorded an adequate opportunity to rebut this evidence. As I understand the opinion of the Court, this does not mean that in every case confrontation and cross-examination are automatically required. It must be remembered that we are dealing, at least at the initial stage of proceedings, not with a court trial, but with a necessarily much more informal inquiry into an applicant's qualifications for admission to the bar. The circumstances will determine the necessary limits and incidents implicit in the concept of a `fair' hearing. Thus, for example, when the derogatory matter appears from information supplied or confirmed by the applicant himself, or is of an undisputed documentary character disclosed to the applicant, and it is plain and uncontradicted that the committee's recommendation against admission is predicated thereon and reasonably supported thereby, then neither the committee's informal procedures, its ultimate recommendations, nor a court ruling sustaining the committee's conclusion may be properly challenged on due process grounds, provided the applicant has been informed of the factual basis of the conclusion and has been afforded an adequate opportunity to reply or explain. Of course, if the denial depends upon information supplied by a particular person whose reliability or veracity is brought into question by the applicant, confrontation and the right of cross-examination should be afforded.

Mattox v. Disciplinary Panel of the U.S. District Court for the District of Colorado, 758 F.2d 1362, 1366 (10th Cir. 1985), quoting Willner, 373 U.S. at 107-108.

Since Willner, several state courts have held that in attorney admission proceedings, a licensing board may not, consistently with the Fourteenth Amendment, rely upon confidential reports concerning disputed facts, or the testimony of witnesses taken without confrontation or cross-examination as to such facts, as providing grounds for denial of an application. See, Re Application of Kellar, 81 Nev. 240, 401 P.2d 616 (1965); Re Application of Dinan, 157 Conn. 67, 72 (1968) citing Willner and Kellar; Matter of Weiss, 20 N.Y.2d 696 (1967); . Other courts appear to continue to permit a confidential report (generally a report from the National Conference of Bar Examiners) to be considered, but only if the applicant is given timely notice of its contents in enough detail to permit a rebuttal, some form of discovery to test its veracity, and the opportunity to rebut or explain the specific charges based on it. See, Re Application of Burke, 87 Ariz. 336, 351 P.2d 169 (1960); Re Application of Warren, 149 Conn. 266, 274 (1962);In re Monaghan, 222 A.2d 665, 670 (Vt. 1966); Application of Feingold, 296 A.2d 492, 498 (Me. 1972). No published cases since Willner have approved unrestricted reliance upon confidential reports or secret information in the manner permitted under Kansas’ new rules.

All of the cases that have considered the question since Willner have held that denial of an application for a license to practice law must be based solely on “competent evidence” and not upon “suspicions or accusations alone.” Matter of Rogers, 253 S.E.2d 912, 919 (1979), citing Coleman; Lubetzky v. State Bar of California, 815 P.2d 341 (1991). This proposition would appear to exclude as a constitutionally-allowed grounds for denial of licensure an admissions board member’s mere suspicion that an applicant’s medical or psychological condition is presently dangerous, particularly when that suspicion is contrary to the facts received in evidence.

There are no published cases that suggest that a board or court in attorney licensure proceedings may use secret evidence, whether that evidence be confidential reports, confidential adverse recommendations, or the Disciplinary Administrator’s or board members’ fears, regarding an applicant’s stigmatized disability, as evidenced that the disability is dangerous. There are certainly no published cases that suggest that such secret evidence may be received as more persuasive than objective medical reports properly and openly received in evidence. But this is exactly what the new Kansas’ rules explicitly invite.

This argument is based on the text of Kansas’ new rules permitting the Board of Law Examiners to receive tangible items of evidence secretly and to use them as a basis for a determination adverse to an applicant. But it could alternatively, and equally well, be grounded on the rather simple observation that, when a state licensing body takes action against an applicant based upon the stereotyped fears or prejudices of some of its members with regard to a disability from which the applicant suffers (or is regarded as suffering), it uses secret "evidence" available only to the members of the licensing body themselves. That is, the members' private fears are treated as evidence. This evidence is not subject to rebuttal, and the witnesses against the applicant—the prejudiced decisionmakers themseves—are not subject to confrontation or cross-examination. This raises some interesting Fourteenth Amendment questions, as the cases discussed above show. It was within Congress' power to provide remedies in Title II of the ADA for the use of personal prejudices regarding certain disabilities as evidence in this context.

See Full list of 14th Amendment due process cases on this point, with additional quotations, and full index of my argument.

Part 18. Violation of 14th Amendment Right to Privacy in Therapy for Medical and Psychological Disorders

2010-07-04T13:03:00.000-07:00

As shown above, Kansas' attorney licensure rules, like those in many states, disqualify applicants who are receiving or have recently received treatment for certain stigmatized physical or mental illnesses, or at a minimum impose an additional burden of proving that treatment has ended and will, with reasonable medical certainty, will never again be required. Such rules that disqualify or place additional burdens upon applicants receiving treatment for disabilities because they have chosen to receive treatment for those disabilities, obviously burden the Fourteenth Amendment right of privacy in medical treatment discussed below. Many states besides Kansas have such rules for licenses of various kinds, including law licenses. Congress could properly enact Title II of the ADA in part to provide remedies for this common, systematic infringement of the privacy rights of disabled applicants.

Even before the United States Supreme Court decided Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 277-279 (1990), state courts had reasoned from earlier federal precedents that the Fourteenth Amendment creates a right of privacy that encompasses the right to decide whether or not to receive medical treatment. Thus, in Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 624 (1987), a case involving the circumstances under which a guardian ad litem of an incompetent patient should be permitted to terminate medical treatment, the Arizona Supreme Court joined a list of other state courts in recognizing a patient's privacy right to determine his or her own treatment, reasoning as follows:

The Supreme Court has yet to hold that the right to privacy encompasses the right to refuse medical treatment. Nevertheless, numerous state courts have reasoned from Supreme Court decisions that the right to privacy is broad enough to grant an individual the right to chart his or her own medical treatment plan. We agree with our sister states. The right to refuse medical treatment is a personal right sufficiently "fundamental" or "implicit in the concept of ordered liberty" to fall within the constitutionally protected zone of privacy contemplated by the Supreme Court."

Rasmussen, 154 Ariz. at 214-215. Those other state court cases are listed in Rasmussen's footnote 8.

Then, in State v. Hughes, 246 Kan. 607, Court’s Syl 2 and at 617, 792 P.2d 1023 (1990), the Kansas Supeme Court recognized on broadly-stated Fourteenth Amendment grounds a “sphere of constitutionally protected privacy which encompasses therapy for medical and psychological disorders” that is broad enough to protect retail sale of vibrator dildos because these devices are sometimes prescribed by sex therapists. The Kansas court reasoned that

Nevertheless, the overbreadth doctrine has been applied by the United States Supreme Court where the operation of a statute infringes on freedoms guaranteed by the Bill of Rights, where those freedoms involve privacy rights and medical matters. In Eisenstadt v. Baird, 405 U.S. 438, 31 L.Ed.2d 349, 92 S.Ct. 1029 (1972), a lecturer was convicted of giving a woman a package of contraceptive foam in violation of a Massachusetts statute prohibiting distribution of contraceptives to unmarried persons. The United States Supreme Court granted the defendant standing to assert the privacy and equal protection rights of unmarried persons. It held the statute overbroad as a health measure in its language prohibiting all contraceptives, regardless of their safety, to all unmarried persons. The Court found the statute violated the equal protection clause of the Fourteenth Amendment and affirmed the order of the United States Court of Appeals for the First Circuit discharging the defendant.

The trial court's decision was made on privacy and medical treatment grounds. The United States Supreme Court has found that a constitutionally protected zone of privacy exists under the First, Third, Fourth, Fifth, and Ninth Amendments to the United States Constitution. Griswold v. Connecticut, 381 U.S. 479, 484-86, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965). The Court has stressed that individuals have a fundamental "right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." Stanley v. Georgia, 394 U.S. 557, 564, 22 L.Ed.2d 542, 89 S.Ct. 1243 (1969). This liberty interest in privacy was held protected by the Fourteenth Amendment's restriction on state action against personal liberty in Roe v. Wade, 410 U.S. 113, 152-53, 35 L.Ed.2d 147, 93 S.Ct. 705, reh denied 410 U.S. 959 (1973). We agree with the opinion in Seven Thirty-Five that a statute is impermissibly overbroad when it impinges without justification on the sphere of constitutionally protected privacy which encompasses therapy for medical and psychological disorders.

Hughes, at 617. Thus, the right to privacy in therapy for medical and psychological disorders recognized by the Hughes court clearly encompassed the right to decide to receive therapy (in that case, by purchasing a vibrator dildo prescribed by a medical provider), NOT just the right to refuse therapy. This makes good sense in terms of the historical expectations of the public at large. Most people have a reasonable expectation that they have a right to consult a physician or psychologist without paying a penalty for doing so. The right to choose to receive medical assistance would certainly appear to be "implicit in the concept of ordered liberty" to fall within the constitutionally protected zone of privacy.

A few months after the Kansas Supreme Court decided Hughes, the United States Supreme Court decided Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 277-279 (1990). Cruzan recognizes and discusses prior case law that found a constitutional right to refuse treatment, but declined to apply it in such a way as to overturn a state law which required clear and convincing proof when others attempt to exercise this right on behalf of an incompetent person. The Court stated, "The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.". This right to refuse treatment appears to be merely the flip side of the right to seek or receive treatment recognized in Hughes.

It should here be noted that there is also a line of cases that began long before Cruzan that recognizes a Fourteenth Amendment right to refuse treatment, other than life-saving treatment. In Washington v. Harper, 294 U.S. 210 (1990) recognized that even a prisoner has a right to refuse treatment with antipsychotic drugs, although the scope of that right is diminished by incarceration. This opinion cited a fairly long line of prior cases recognizing an individual's right to refuse compelled medical treatment. Following Harper, the Third Circuit in White v. Napoleon, 897 F.3d 103, 111 (3rd Cir. 1990), held that an inmate has not only a "right to refuse unwanted medical treatment" but also a right to "sufficient information to intelligently exercise" this right. In Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 2002), the Ninth Circuit followed White, on this point. The relationship of this line of cases to the Hughes line of cases is demonstrated by Doe v. Sullivan, 938 F.3d 1370, 1383 (D.C. Cir. 1991), which presented a facial challenge to a military regulation which permitted the military to administer investigational drugs to soldiers without informed consent. In Doe, the D.C. Circuit recognized that,"In most circumstances, as Doe observes, the Constitution's due process guarantee protects an individual's liberty to decide whether or not to submit to serious medical treatment. See, e.g., Washington v. Harper, 494 U.S. 210..." (emphasis added). Thus, the right involved is a right to choose whether or not to receive treatment, not merely a right to refuse compulsory treatment.

All of the U.S. Supreme Court case law regarding the right of privacy in medical decisions since Cruzan has focused on questions of who possesses the right to refuse treatment on behalf of an incompetent patient and whether a terminally ill patient has a right to physician-assisted suicide. But all of this case law has recognized, in dictum, at least, the existence of a right to determine the course of one's own medical treatment, even though that right has been held not to have any application to the cases before the Court. Thus, in Vacco v. Quill, 521 U.S. 793 (1997), an assisted suicide case, the Court explained that "In Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990), we concluded that '[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions," and we assumed the existence of such a right for purposes of that case, id., at 279." Vacco, 521 U.S. at 807. Similarly, in

Washington v. Glucksberg, 521 U.S. 702, 720 (1997), the Court cited Cruzan for the proposition that “We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment. Cruzan, 497 U. S., at 278-279,” while invalidating a state law prohibiting assisted suicide. The distinction drawn is that, whereas the right to refuse treatment has always been considered fundamental, American states have from the earliest times prohibited suicide. The Court then explains that fundamental privacy rights are those “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation's history and tradition,’ id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) (‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’), and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed,’ Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937).” Glucksberg, at 720-721. The Kansas Supreme Court in Hughes identified the right to privacy in treatment for medical and psychological disorders as just such a right.

The United States Supreme Court has never even hinted in any opinion I have been able to find that the positive right to privacy in therapy for medical and psychological disorders identified in Hughes is not encompassed in the Fourteenth Amendment right to privacy. The High Court has simply never agreed to decide a case in which it became necessary to decide whether such a right exists. The Kansas Supreme Court has never overruled its holding in Hughes, or pablished any opinions in which it cast doubt on its reasoning in that case. And I have not been able to find any published opinions of lower courts that have either criticized Hughes or held that the right to privacy does not encompass the right to choose to receive lawful treatment from a properly licensed medical provider.

Indeed, a number of courts, both in Kansas and in other states, have followed Hughes since Cruzan was decided. Thus, DPR, Inc. v. City of Pittsburg, 24 Kan. App.2d 703, 719, 953 P.2d 231 (1998), quotes with approval relevant passage of Hughes. Similarly, State v. Brenan, 772 So.2d 64, 69 (La. 2000), follows Hughes regarding right to privacy in medical and psychological treatment in Hughes’ original context of allegedly obscene devices. Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 741 n. 13 (5th Cir. 2008), also cites Hughes with apparent agreement in a similar context, as does Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 998 (7th Cir. 2002). Most recently, Abilene Retail #30, Inc. v. Six, 641 F.Supp. 2d 1185, 1189 n. 7 (D.Kan. 2009), cites Hughes as still good law.

Therefore, it would appear that Hughes is still good law and that its holding relevant to the subject of this discussion— i.e., that the Fourteenth Amendment right of privacy encompasses the right to choose to receive treatment for medical or psychological disorders—is authoritative in Kansas and should be received as at least persuasive authority in the rest of the United States. Moreover, it represents a reasonable and quite probably correct inference from the existing federal privacy case law. Congress could properly provide individuals with disabilities remedies to enforce this right.

See the Index to my argument, to which new pieces will be added as they are written.

Part 19. Irrational Classification Based on Licensure Status an 14th Amendment Equal Protection Violation

2010-07-03T12:52:00.000-07:00

As shown in several previous posts on this blog, under the Kansas rules referenced above, illnesses committed (this term is accurate!) before licensure are treated as the equivalent of misconduct and create either an absolute disqualification or a heavy burden of proof of complete rehabilitation before a license may be granted. By contrast, illnesses that are first diagnosed after licensure are regarded with compassion, and usually handled informally and confidentially unless they lead to actual professional misconduct. Thus, Kansas draws a distinction between illnesses committed before licensure and identical illnesses committed after licensure. This distinction is unconstitutionally irrational, violating the Equal Protection clause, as the cases below show.

In Miller v. Carter, 547 F.3d 1314 (7th Cir. 1977), affirmed 434 U.S. 356 (1978), the Seventh Circuit invalidated an ordinance that categorically disqualified all persons convicted of felonies at any time before applying for a chauffeur's license, but permitted some existing licensees who committed felonies after licensure to keep their licenses, as creating an irrational classification. The court noted that "In fact, allowing existing licensees who commit felonies to continue to be eligible for licensing undercuts the reasonableness of the basis for the classification, which is that the felony is per se likely to create a serious risk which cannot be sufficiently evaluated to protect the public through individualized hearings. An applicant for a license who has committed one of the described felonies and a licensee who has done the same are similarly situated, and no justification exists for automatically disqualifying one and not the other." Miller, 547 F.3d at 1316. Kansas' Bar admission and Bar disciplinary rules draw a distinction of exactly this sort between persons who develop mental illnesses or other disabilities that "could if untereated affect" their law practice before applying for a law license and those who develop such a condition after licensure. As in Miller, the rationale supporting the rule disqualifying new applicants with certain disabilities is that certain disabilities, in and of themselves, create an unacceptable risk to clients or to the public from which the licensing courts must protect them. Further, exactly as was true of the felonies in Miller, the fact that the proscribed disabilities are not thought to automatically disqualify existing licensees who develop them after licensure unless and until they can prove themselves cured undercuts the rationality of the classification. If clients and the public must be protected from the unacceptable risks created by certain disabilities, it shouldn’t matter whether the disability developed before or after the license was granted.

Miller is still being followed, although infrequently. Gault v. Garrison, 569 F.2d 993 (7th Cir. 1977), follows Miller, and explains it as follows: "Thus the ordinance created two classes receiving unequal treatment, the distinguishing fact being whether a person was in possession of the license at the time of his conviction, although the members of both classes were similarly situated in that the type of crime was identical. We found this to be an irrational distinction and held it violative of equal protection." Gault, 569 F.2d at 997. Much more recently,U.S. v. Jester, 139 F.3d 1169 (7th Cir. 1998) followed Miller and explained it as follows: "In that case, we held that the City of Chicago violated the Equal Protection Clause through a city ordinance that barred certain felons from obtaining a public chauffeur's license. Jester incorrectly states that our decision stands for the proposition that distinctions among different types of felons violate the Equal Protection Clause. In fact, we struck down the ordinance because it irrationally denied licenses to offenders who committed the enumerated offenses before obtaining a license while making no similar restriction based on a person's conduct after obtaining a license." Jester, 139 F.3d at 1171.

Similarly, in Darks v. City of Cincinnati, 745 F.2d 1040, 1043 (6th Cir. 1984), the Sixth Circuit explains the Seventh Circuit's Miller holding as "In Miller v. Carter, 547 F.2d 1314 (7th Cir.1977) the court held that an ordinance denying chauffeurs' licenses to felons denied equal protection because it was irrational to deny licenses to persons who had been convicted before receiving a license but not to revoke licenses of persons convicted while licensees." Likewise, Lewis v. Alabama Department of Public Safety, 831 F.Supp. 824, 828 (M.D. Ala. 1993), follows Miller and quotes it at length and to similar effect. Thus, subsequent opinions explaining Miller have also emphasized that the irrational classification struck down was a classification based on licensure status at the time an assertedly disqualifying event occurred. Licensure rules that disqualify an applicant for a conviction that would not disqualify a person who already possesses a license create unconstitutionally irrational classifications.

Finally, it should be noted that the Kansas courts have recognized that disuniform application of licensure or certification standards presents a Fourteenth Amendment equal protection issue, though in the context of an administrative certification for an economic benefit and without citing Miller. See, Hallmark Cards, Inc. v. Kansas Dept. of Commerce & Housing, 32 Kan.App.2d 715, 725-726, 88 P. 3d 250 (2004) rev. den., 278 Kan. 844, stating the proposition, “Where disparity in outcome among applicants for administrative certification or licensing is the result of intentional systematic unequal treatment by the agency, the Equal Protection Clauses of the federal and state Constitutions are implicated.”

Thus, Kansas’ distinction between applicants with certain stigmatized disabilities and attorneys who develop comparable disabilities after licensure creates an irrational classification in violation of the Equal Protection clause of the Fourteenth Amendment. Many states make similar distinctions in their professional licensure programs, for attorneys and other licensed professions. This common, systematic violation of equal protection affecting persons with certain disabilities seeking professional licenses is a violation for which Congress could properly provide remedies by enacting Title II of the ADA and authorizing the Justice Department to promulgate 28 C.F.R. 35.130(b)(6).

See the Index to my argument, to which new pieces will be added as they are written.

Part 20. The ADA by its Own Terms and its Implementing Regulations Applies to Attorney Licensure

2010-06-27T12:02:00.001-07:00

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.

Moreover, the ADA, as originally enacted, 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 "licensing" 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) states:

(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).

Although the U.S. Supreme Court has never addressed whether Title II of the ADA regulates, or permits the Justice Department to regulate, professional licensure activities of state governments, three cases at the federal appellate court level suggest that the ADA does apply to professional licensure in general and to attorney licensure in particular. Fore example, in 2000, the U.S. Court of Appeals for the Second Circuit decided in Bartlett v. New York State Board of Law Examiners,226 F.3d 69 (2nd Cir. 2000), that Title III of the ADA is applicable to bar examination testing procedures and requires state boards of law examiners to afford reasonable accommodations in testing to disabled applicants. This case was decided under Title III of ADA, not Title II, but shows that the Second Circuit, at least, found no jurisdictional impediment to Congressional regulation. Bartlett is still good law, and was cited approvingly in the Congressional debates leading to the adoption of the ADA Amendments Act of 2008.

In 2002, the Ninth Circuit in Hason v. Medical Board of California,279 F.3d 1167 (9th Cir. 2002), held, among other things, that medical licensing is a state activity regulated under Title II of the ADA. Therefore, the Hason court also held that an applicant who alleged he was denied a medical license due to a mental illness that had not been considered under standards consistent with the ADA stated a claim for which relief might be granted. Hason is also still good law. Although Hason does not apply to attorney licensure specifically, it does show that Title II of the ADA applies to state professional licensure activities, even when a license is denied on grounds of mental illness and even though the potential for harm from the inappropriate granting of a license is large (as it certainly is where a medical license is involved).

In 2006, in Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006), another case involving a medical doctor with a history of mental illness, the Tenth Circuit overruled its previous precedents that Title II of the ADA did not validly abrogate state sovereign immunity in any context, citing Tennessee v. Lane, 541 U.S. 509 (2004) and U.S. v. Georgia, 546 U.S. 151 (2006). The Tenth Circuit then explained that whether Dr. Guttman had valid claim would depend upon whether he could show 1) that the state's alleged conduct contrary to the ADA also violated the Fourteenth Amendment, and 2) to the extent the state's conduct did not also violate the Fourteenth Amendment, "whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nonetheless valid." The Guttman court reversed the district court's award of summary judgment for the State of New Mexico and remanded the case to the district court to decide whether Dr. Guttman properly alleged violations of Title II and whether Congress validly abrogated sovereign immunity as to the class of conduct at issue.

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). See, 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); Petition of Rubenstein,637 A.2d 1131 (Del. 1994); In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996). Title II has also been applied in a bar disciplinary setting in State ex rel. Oklahoma Bar Association v. Busch,919 P.2d 1114 (Okla. 1996) and in the setting of a challenge to disability-related questions on ab application form for a state judicial nomination in Doe v. Judicial Nominating Commission, 906 F.Supp. 1534 (S.D. Fla. 1995). I am aware of no opinions that have held either state courts or attorney licensure proceedings to be immune from regulation under Title II.

See Resource Cases Applying ADA to Professional Licensure, including attorney licensure. See also index to these posts.

Part 21. Specific Violations of ADA and RA in Kansas' New Rules, Explained

2010-06-23T19:14:00.000-07:00

As shown in the last part, Title II of ADA and its implementing regulations on their face apply to state attorney licensure "programs" or "services." It has also previously been shown that Title II of ADA is valid legislation implementing the Fourteenth Amendment as applied to state occuaptional and professional licensure programs. It has further been shown that the Rehabilitation Act, which now has nondiscrimination standards identical to the ADA, applies to the Kansas Supreme Court, a recipient of federal funds, under Article I's spending clause.

Moreover, it has already been shown that all of the illnesses referred to in Question 32 of Kansas' application form, any illness serious enough to require an affirmative anewer to Questions 33 or 34 of that form, and any other mendical or pychological condition serious enough to result in disqualification from the practice of a profession, beyond question constitutes a proected "disability" as that term is now defined under the ADA and RA, as both were amended in 2008.

Therefore, Kansas’ new Rules, as previously discussed, 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.

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, as has previously been shown. 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).

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).

That the complete absence of any mental illness or addiction is not an essential requirement to be permitted to practice law in Kansas has been previously demonstrated, at length. Many attorneys who develop mental illnesses after they receive their licenses are permitted to continue to practice. See, e.g., Kansas Supreme Court Rule 206. What is required is treatment and adequate control of the condition, not absence or complete cure of the condition. Absence or complete cure of stigmatized disabilities is only required of applicants for original licensure. Relaxing the initial eligibility requirements to match those applied to already-licensed attorneys would plainly not change the "essential nature" of the state's attorney licensure program.

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.

But, most pointedly, Kansas' requirement that an applicant for admission to the Bar must prove total rehabilitation FROM any stigmatized disability named in Question 32 of the application form, or any other disability that "could, if untreated, affect" the applicant's law practice in any way, violates Title II of ADA and section 504 of RA.

See the Index to my argument, to which new pieces will be added as they are written.

My apology to the Justice Department was premature

2010-06-20T15:36:00.000-07:00

It now appears that the apology I posted on this blog, addressed to the United States Department of Justice, was premature. Therefore, I have expanded and recast my fixed web page on this issue as Disability discrimination in attorney licensure in Kansas, Warning and Information for future applicants and their attorneys. This site seeks to provide a warning to law students and other potenntial applicants with mental illnesses who may wish to apply in Kansas, and a fairly complete research resource for their attorneys. It also indicates my willingness to join with them in seeking to change the July 2009 Kansas attorney admission rules through acions in the Federal courts.

Last September, I submitted to Justice Department a Title IIADA and Rehabilitation Act Complaint, challenging only the application form and the new Jully 2009 Kansas rules, on their face and as applied to me. This complaint asserted only that the new Kansas rules violated Title II of the ADA and the Rehabilitation Act. It did not even mention Title III of the ADA, as the new Kansas rules do not speak to testing procedures or physical accomodations to be used at Bar examinations, and I do not believe the new rules implicate Title III in any way.

Starting in January, after I was unable to obtain even a confirmation that my Title II and RA complaint had been received, I started to post material on this blog critical of the Justice Department for choosing to completely ignore me. But I later retracted that criticism and apologized, after I called the Justice Department and was assured that my complaints had been received and were being "considered."

However, the Justice Department on May 19, 2010, sent me a form letter declining to take any action on my Title III ADA complaint against the Kansas Board of Law Examiners. They thus demonstrated that they had refused to read my complaint--or even the BOLD 16-POINT CAPTION of my complaint--in enough detail to see that it was brought under Title II NOT Title III, before summarily denying it with an INSULTING UNRESPONSIVE FORM LETTER!!!!

Thus, it is now obvious that I was really being ignored all along, and that my apology was premature.

The only possible recourse for anyone affected by the new Kansas rules is in the Federal courts. My reformulated web page is a resouce for this, which I will expand in this blog in coming days.

New Kansas Governor's Budget, Recovery Act spending, and my 2000 ABA Journal piece

2010-03-03T19:26:00.000-08:00

I have discovered two new facts, and one old fact I had forgotten, relevant to disability discrimination in bar admission and possible Federal remedies for it.

THE NEW FACTS

Governor's Budget Report, Fiscal Year 2011, showing regularly budgeted Federal receipts for the Kansas Judiciary continue to increase (see Schedule 7).

Table:WHERE IS YOUR MONEY GOING? RECOVERY ACT FUNDS IN KANSAS: JUSTICE AND PUBLIC SAFETY PROJECTS, showing that the Kansas Supreme Court, specifically, is receiving $830,557 in funding under the American Recovery and Reinvestment Act of 2009.

THE OLD FACT

My comments on the question of whether bar admission rules and practices should promote treatment or denial of psychological symptoms by law students were published by the American Bar Association as a letter to the editor in the April 2000 ABA Journal: Ian Johnson, Letter, Proof of Sanity, 86 A.B.A.J. 12 (April 2000). I can't provide a link to this copyrighted material but the publication is widely read and held by numerous libraries; it is also available electronically on Lexis.

I have also posted all of this information on my Licensure Application and ADA Complaint Documents Index.

Seeking law students, other rejected applicants, or attorneys interested in challenging the new Bar admission rules

2010-01-09T11:48:00.000-08:00

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.

Kansas' new bar admission rules now formally prescribe disability discrimination

2009-09-01T04:26:00.000-07:00

On July 1, 2009, the Kansas Supreme Court has amended and massively expanded its formally-promulgated Rules Relating to Admission of Attorneys (as found on the Kansas Appellate Courts' website). Kansas' application form still requires disclosure of any condition which "if untreated could affect" an applicant's ability to practice. But the new Rules now explicitly authorize the Board to reject any applicant who presents with a condition, "or prior condition," that merely "affects" his or her competence to practice, or any "mental or emotional instability" that merely "may impair" that ability. See New Rules 707(d) & 707(e)(1). The new rules also require an applicant to prove rehabilitation from a disability that might impair his or her ability in almost exactly the same way an applicant would prove rehabilitation from a crime, starting with a proof that the condition disappeared completely a long time ago ("the recency of the conduct"). New Rule 707(f). The new rules also explicitly authorize the Board to consider and to base its ultimate decision upon evidence (including evidence regarding disabilities) that is kept secret from the applicant, and to spring surprise evidence upon applicants at the hearing. New Rules 721(l), 721(w) and 723. These practices existed previously, but were informal. Now they are formally enshrined in the Rules. However, I suspect we will probably never know the magnitude of the effect these new rules will have on applicants with disabilities. All of that information is enshrouded in great secrecy for the protection of the courts' autonomy in dealing with applicants, as stated in the last posting on this blog.

States With Conditional Admission Rules and the Problems with these Rules

2009-03-28T09:55:00.000-07:00

Now that I've looked more carefully, I have found ten states that have either adopted some kind of conditional Bar admission rule or have admitted applicants conditionally without a rule. These states are listed at the end of this posting, with links to either a rule or a case demonstrating the possibility of conditional admission there.

Before I proceed with this list, however, I have two comments about the ADA problems presented by nearly all of these rules.

The first problem is that, even under a conditional admission rule, applicants with certain disabilities will still be held to a substantially higher standard than applicants without disabilities. That is, under such rules, applicants with certain disabilities, including mental illnesses, can still be held to prove not only that they are presently fit to practice law, like normal applicants, but also that they will with reasonable medical certainty remian fit for the indefinite future. This argument was made at some length, and in better form than I could ever make it, in the Disability Law & Advocacy Center of Tennessee's March 9, 2009, formal Comments opposing the proposed Tennessee conditional Bar admission rule. The Tennessee Disability Law & Advocacy Center's comment also presented the related argument that the proposed rule violates ADA because it would permit the imposition of "costly, invasive and cumbersome conditions on these individuals ability to practice... notwithstanding the fact that the individual currently satisfies all essential eligibility requirements for admission, including fitness requirements."

The second problem is that none of these rules will do anything to open licensure to applicants who have histories of "major" or chronic mental illnesses or autism-spectrum developmental disorders. The application of all of these rules appears to be premised on a finding that the condition from which the question about the applicant's fitness arises will likely be completely gone at the end of the probationary period. For instance, to recommend conditional admission under the ABA proposal and its commentary, an examining board would have to find that an applicant who would otherwise qualify is subject to some specific condition which raises questions about fitness, that the applicant is presently receiving successful help for this condition, AND that the condition will probably resolve completely during the conditional admission period. The commentary appears to clarify that conditional admission is only appropriate if the condition that raises a fitness question will likely be completely gone at the end of the conditional admission. Chronic mental illnesses and developmental disorders almost by definition will not meet this qualification, even if all of the medical evidence is that they have been successfully treated for many years and are very unlikely to cause any problems with continued treatment. Under the ABA's proposal, and the rules in all 10 states hat have adopted conditional admission rules, admissions boards remain free to routinely presume that an applicant with such a disorder will abandon treatment immediately upon licensure and become dangerous (which is exactly the presumption the Kansas Board of Law Examiners applied to me!).

STATES THAT HAVE CONDITIONAL ADMISSION RULES OR CASES

Arizona
Rules for Admission of Applicants to the Practice of Law in Arizona, Rule 36(a)(4)(F).

Illinois
Rules Governing the Legal Profession and Judiciary in Illinois, Rule 7
.

Kentucky
Rules of the Supreme Court of Kentucky, SCR 2.042.

Louisiana
Conditional Bar Admission—Louisiana (Blog entry reporting on a single case).
In re Yarnell, Louisiana Supreme Court, single case.

Minnesota
Minnesota Rules for Admission to the Bar, Rule 16.
Character and Fitness for Admission to the Bar (Minnesota).

Montana
Montana Character and Fitness Rules, Rule 5.

North Dakota
North Dakota Admission to Practice Rules, Rule 8.

South Dakota
Rules for Admission to Practice Law in South Dakota, 16-16-17.1.

Wisconsin
High Court supports conditional Bar admission (Wisconsin).

West Virginia
West Virginia State Bar, July 2001 Amendments to Rules for Admission to the Practice of Law, Rule 7.0(b).

As already noted, Tennessee also apparently has a conditional admission rule proposal pending before its supreme court.

If your state permits conditional admissions, but I have not listed it, please submit a link showing this fact, and I will add it to the above-posted list.

The ABA Resolution on Conditional Admission

2009-03-26T18:25:00.000-07:00

It has been brought to my attention that, on February 11, 2008, a little over a year ago, the Board of Governors of the American Bar Association adopted a resolution recommending that state bar authorities adopt a rule allowing conditional licensure, for a period not in excess of 60 months, of applicants who "demonstrate recent rehabilitation from chemical dependency or successful treatment of mental illness." See the ABA's own press release on the subjectABA OKs Conditional Admission to Bar for Would-Be Lawyers with Addiction, Mental Problems. (A link to the ABA resolution--which is a long MS Word document--is found in the press release.) Such a policy, if adopted throughout the country, would be a step forward.

However, there are two problems with the ABA's proposal.

First, most states aren't rushing to adopt it. Indeed, the only states I was able to find that appear to have rules for conditional admission in place, or in the works, today are Wisconsin and Montana!

Second, in looking at the details of the proposal, it quickly becomes clear that "successful" treatment of a mental illness really means treatment that is expected to completely eliminate the illness within the term of the conditional admission. The proposed rule is clearly not designed to deal with chronic mental illnesses that require lifelong treatment, even if that treatment is (by medical standards) extremely effective.

Looking for Live Examples and Counter-Examples of the Discrimination I Describe

2009-03-18T17:34:00.000-07:00

In this blog, I'm particularly looking for contact with real, live people who fall into four categories:

1. Licensed attorneys in any U.S. jurisdiction who have disclosed a diagnosis of a "major" mental disorder or an autism-spectrum disorder on their original applications for admission to the Bar, and have been admitted to the Bar in spite of that disclosure. The existence of any such attorneys in a jurisdiction would be counter-examples that would tend to show that the kind of discrimination I am challenging in this blog does not occur systematically in their jurisdictions.

2. Licensed attorneys in any U.S. jurisdiction who have disclosed on their original Bar applications recent (within the time period specified on their state's application form) or currently ongoing treatment for any mental illness, other than an illness generally recognized to be "minor" and transitory, and have nonetheless been admitted to the Bar. These would also be counter-examples tending to show that discrimination does not occur systematically in their jurisdictions.

3. Former applicants for Bar admission in any U.S. jurisdiction who have had their applications denied wholly or partly on the grounds that they had disclosed a diagnosis of a "major" mental illness or an autism-spectrum disorder, or on grounds that they disclosed recent or ongoing treatment for any mental illness or developmental disorder, or both. Any such former applicants would be examples tending to support the hypothesis that discrimination of the kind I have described DOES occur systematically in some jurisdictions. They would also be potential allies in approaching the Justice Department, and possible plaintiffs in the kinds of suits I've already outlined.

4. Licensed attorneys or unsuccessful applicants who have explicitly raised the ADA during any stage of their Bar application proceedings and/or who have had the ADA discussed in a formal document (majority or dissenting) issued by a Board of Law Examiners, Bar Examiners, Bar committee, or licensing court.

I note that many states' Bar application forms actually list the "big five" mental disorders by name, unambiguously requiring complete disclosure of them.

I also note that different rules apply to already licensed attorneys who develop, or are first diagnosed with, a mental illness sometime after admission. If a licensed attorney develops even a "major" mental illness, but obtains effective treatment before it leads to illegal or unethical behavior or interferes significantly with the lawyer's practice, the illness need not be reported to anyone. If the symptoms of the illness are sufficient to interfere with the practice, but the lawyer catches the problem and seeks treatment in time, most states also have "impaired lawyer" programs that permit the lawyer to arrange for counseling and supervision informally without reporting the situation for disciplinary investigation. Moreover, most states have case law analogous to In re Herman, 254 Kan. 908, 869 P.2d 721 (1994), discharged from probation, 246 Kan. 497 (1999) and In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999) discharged from probation 276 Kan. 2 (2003) in my home state, case law in which previously-licensed attorneys who have committed moderately serious ethical violations or minor crimes under the influence of "major" mental illnesses have been permitted to continue to practice law, on probation, upon a showing of successful, ongoing treatment. So I'm not particularly interested in knowing about lawyers who are still practicing, even though presently receiving treatment for a mental illness, unless they were also mentally ill at the time of their original admission and disclosed that fact.

I'm pretty sure there are no reported court opinions out there that fit any of these categories, other than the U.S. District Court's 1995 opinion in my own case. I've been looking for them, and have never found any. I'm also pretty sure that there are no decisions that fit any of these categories that, though officially unreported, are publicly available (e.g. on Westlaw). I've been watching for these, too.

If you do e-mail me and tell me that you are in one of these categories, I promise to keep your information confidential. I fully realize how sensitive the information is. I'm looking for friends and allies--and evidence--not to make enemies.

Unreported 1993 Maine Bar admission case sent to me by a reader

2009-03-17T20:52:00.001-07:00

Kathleen Davidson, a reader of my blog or website whom I have never met, had Westlaw send me a copy of an unreported Maine Bar admission opinion yesterday. That opinion, Re Applications of Underwood and Plano, 1993 WL 649283 (Me.), was, in fact, one I had never seen before. But it does not in any way contradict anything I have written.

In that case, two applicants refused to answer two questions on the Maine application for admission. One question was a very broad question asking them if they had ever, at any time, been diagnosed with any "emotional, nervous, or mental disorder," and, if so, demanded complete details. The second question asked if they had received any treatment for any "emotional, nervous, or mental disorder" within the last 10 years, and, if so, again demanded full details. Applicants Underwood and Plano also refused to provide the full release of all medical records required as a part of the Maine application. In refusing to answer these broad mental health questions, or to provide the medical release, Underwood and Plano cited the ADA--which was then a very new statute.

The Maine Supreme Court agreed with Underwood and Plano that Title II of the ADA, and the Justice Department's implementing regulations, prohibited it from asking such broad mental health questions and from requiring every applicant to submit a broad medical records release. In reaching this conclusion, the Maine court quoted 28 C.F.R. sec. 35.130(b)(6) and (b)(8), the same regulations I cited in an earlier entry in this blog. The Maine court then determined that, on future applications, it would ask only about behaviors, not about mental health diagnosis and treatment. . Since the only grounds the Maine Court had for denying the applications of Underwood and Plano was that they had refused to answer the illegal questions, they were admitted to the Bar. It should be noted that the Maine Court did not have any evidence that these applicants had at some time been diagnosed with a "major" mental illness, or that they were presently receiving treatment, and admit them in spite of this information. It merely held that it could not ask.

On this point, Maine took a minority view. Most states have, like my home state Kansas, essentially followed Rhode Island's determination that the ADA permits inquiries about "major" mental illnesses and about treatment within the last 5 or 10 years. See, e.g., In re Petition for Admission to the Rhode Island Bar, 683 A.2d 1333 (R.I. 1996). There is also every indication that states that allow themselves to ask about "major" illnesses or recent treatment believe that they have totally exhausted their obligations under ADA merely by limiting the scope of their application questions. Once an applicant is forced to admit a diagnosis of a "major" mental illness, or of ongoing treatment, the licensing boards and courts believe themselves free to decide based upon their own subjective reactions to the applicant's diagnosis, regardless of any objective evidence concerning the applicant's present condition, and free of any constraint by the ADA. The Underwood and Plano case does not contradict this.

Justice Department addresses and links for use with administrative alternatives

2009-03-16T18:44:00.000-07:00

These addresses are for use with the previously posted Third Approach: Individual Complaints to the U.S. Department of Justice and
Fourth Approach: Group Petition to the United States Justice Department (and others).

Listing for the U.S. Justice Department, Civil Rights Division's, Coordination and Review Section, the functions of which include "regulatory, program and policy review." This office looks like possibly the most appropriate primary recipient of group petitions seeking either individul investigations or policy clarification/policy change. The address listed for this entity on this webpage is not a post office box, but a street address:

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Ave., N.W.

Coordination and Review Section, NYA

Washington, D.C. 20530

The Civil Rights Division is under the jurisdiction of an Assistant Attorney General, office presently (March 16, 2009) vacant, but the address is:

Office of the Assistant Attorney General

Civil Rights Division

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530

The Assistant Attorney General is under the supervision of the Associate Attorney General, Thomas Perrelli, the lowest-ranking political appointee in the chain leading to the Civil Rights Division right now. His address isn't listed on the DOJ website, but is presumably the same street address as the offices previously listed. Within the next few months, there should also be an Assistant Attorney General and a Deputy Assistant Attorney General in this chain of command. See the U.S. Justice Department organization chart with links, and follow the links from it to the Civil Rights Division.

Sixth Approach: Class Action Suits

2009-03-12T19:26:00.000-07:00

In jurisdictions in which there is a rule like Kansas Supreme Court Rule 704(k), which potentially places a discriminatory burden of proof on a number of past applicants rejected because of a condition which is now (after the enactment of the ADAAA) clearly a "disability," a true class action suit may be the best of the litigation approaches. It may also be a good approach in jurisdictions in which several rejected past applicants are able to find each other, cooperate, and in so doing discover persuasive evidence of the operation of a discriminatory unwritten policy in the facts and official decisions in their individual cases.

The advantages of the class action format in this setting are:

. Because a class is not the same party as an individual member of the class, a class that includes previously denied applicants should not be barred from suing under the Rooker-Feldman doctrine. See, Why Rooker-Feldman would not bar a class action suit challenging Bar admissions practice generally, explaining Lance v. Dennis, 126 S.Ct. 1198 (2006).
. It would offer remedies that will reach all affected persons, not just one or a few named plaintiffs.
. It would avoid the need to find everyone affected before beginning the action—a task which would likely be impossible, owing to the confidentiality of Bar admission proceedings.
. It would render the official documents generated during multiple applicants' licensure proceedings available to the federal court and admissible to show the state court's customary interpretation of its rules. This would include documents obtained from, or concerning, any cooperating class member, not just the named representatives.
. It would reduce the federal court's felt need to publish the facts of the individual plaintiffs' application cases in announcing its decision. I'm well aware of the importance of this consideration because, in my previous case as an individual federal plaintiff, the United States District Court felt the gratuitous need to publish the negative details of my past and my diagnosis before it decided it lacked subject matter jurisdiction under the Rooker-Feldman doctrine. See, Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995). Since then, the Rooker-Feldman doctrine has been limited in such a way as to clearly permit a suit challenging a written court rule that is alleged to be illegally discriminatory as customarily applied. However, there remains the possibility that future individual plaintiffs' lives will be published for all to read. The temptation to do this will be much reduced in a class action, wherein individual plaintiffs' facts are relevant only to the degree they collectively tend to show the existence of a larger discriminatory policy.
. It would reduce the number of licensed attorneys that would need to be involved in the effort from potentially many (one for each affected individual) to only one.
. It would make the costs of suit more bearable for all active participants. Both money damages and attorney's fees are available in suits against states under Title II of the ADA, see Tennessee v. Lane, 541 U.S. 509 (2004). Nevertheless, there will be court costs and attorney fees to be borne getting there, and likely no rejected applicant has a lot of money to invest in this effect—or, at least, not a lot of money his or her student loan lender doesn't claim as its own. A true class action, with several named plaintiffs and several other plaintiffs participating in supporting only a single suit and a single attorney, would undoubtedly make these costs more attainable.

For anyone who is interested in taking this approach in Kansas, I would ask--and suggest--that, even though my case is not an ideal test case for a named class representative, you should make the class definition broad enough to include me, as this will permit you to use the documents from my case (posted at documentation of status) in building yours. Some of these documents, particularly the minority and majority reports of the Board of Law Examiners in my case in 2007, you will likely find quite useful in showing the existence of an unwritten policy. Read the minority report FIRST, and you will understand exactly what I mean! I have other suggestions for those taking this approach in Kansas posted at How the Federal Suit Option might be Accomplished in Kansas through a True Class Action. I don't believe there is any chance I will EVER become acceptable, regardless of what a federal court might rule, so being included in the class probably will be of no tangible benefit to me. But at least the documents in my case will be able to help others change the policies of the Kansas courts!

Note that I also believe that the option of collective petitions to the Justice Department, as discussed in an earlier post, should be attempted, and allowed time to work, before resorting to litigation approaches.

Fifth Approach: Individual ADA Suits Challenging State Court Policies

2009-03-09T20:27:00.000-07:00

This approach might, at first, seem obvious. But in most cases it will not work, owing to the continuing, though limited, vitality of the Rooker-Feldman doctrine. This doctrine bars lower Federal courts from hearing what amount to appeals of a state court decision. Specifically, as applied to attorney licensure proceedings in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), a rejected applicant may not bring a suit challenging the result in his or her individual case. Instead, lower Federal courts may hear only challenges to state Bar rules and policies under Federal law.

However, this does not mean that no rejected applicant may ever accomplish anything by bringing an individual suit. First of all, some states, like my home state, Kansas, have formally promulgated, written rules that impose additional proof elements on subsequent applications by applicants who have previously been rejected. In Kansas, for example, Kansas Supreme Court Rule 704(k) adds the requirement that a previously rejected applicant must not only prove good moral character and mental and emotional fitness (like all other applicants), but must also prove that he or she "has been rehabilitated" since the previous rejection. Where the cause, or one of the causes, of the previous rejection was a mental illness or developmental disability, and in light of the 2008 amendment to the "regarded as disabled" prong of the definition of a "disability," it should be possible to argue that the additional formal requirement to prove "rehabilitation" from such a condition is a discriminatory written policy over which the federal courts are able to take jurisdiction. See Why Rooker-Feldman would not bar a challenge to a published court rule providing a discriminatory consequence for a past rejection, explaining the limitation of Rooker-Feldman by Exxon-Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).

As I have stated previously, I believe that I would not be the ideal plaintiff for such an individual suit, in part because I have had an individual ADA suit dismissed under Rooker-Feldman, though this occurred ten years before Exxon Mobil was decided, and I doubt the Federal courts in Kansas would look kindly on my return with another case. (See, Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995)). I have also been rejected in Kansas more than once, and there are some other issues that might also make me a non-ideal test case. However, I put this option forward for someone better situated who is looking for a theory to use.

Fourth Approach: Group petition to the United States Justice Department (and others)

2009-03-07T08:44:00.000-08:00

This proposal involves shifting the emphasis from seeking individual justice through an administrative complaint adjudicatory procedure to seeking policy change through a political process. In contrast to the Judicial Branch of government, the Executive Branch is a political branch of government. The Attorney General and the top several ranks of the Justice Department are appointed by the President, an elected officer, with the advice and consent of the Senate. The Executive Branch will receive, and make at least some response to, a citizen petition for change.

This proposed approach to the problem could take two different forms, which are not mutually exclusive:

1) A joint petition by a group of affected past and prospective licensure applicants from a single state, asking for an investigation of the policies and practices of that state with regard to applicants with mental illnesses, etc., or histories of such illnesses, and setting forth brief summaries of the facts of each petitioner's case. Such petitions should probably be addressed to the Attorney General, but show on their faces that copies were sent to the head of the Justice Department's Civil Rights Division and the President (to make it clear that a political and not merely an individual adjudicatory process is being invoked). The advantages of this approach over simply sending individual civil rights complaints are that a) each individual petitioner's facts will reinforce every other individual's facts in tending to show the actual existence of an (unwritten) general policy or practice that systematically disfavors applicants with these conditions by requiring them to provide impossible proof of a "cure" (a requirement that violates ADA); and b) by coming in a group, the petitioners will show that they have an organization and are not just a lone crackpot applicant who will "go away" if ignored long enough.

2) A mass petition, from affected applicants and any other citizens who are willing to sign, seeking a rulemaking proceeding to clarify the application of the ADA to fitness determinations in professional licensure (including Bar admissions) processes. The petitions, when sent to the President, Attorney General, and key members of Congress, should attach, but not include in their public-signed text, as many individual examples of the problem to be addressed as possible. To be successful, this effort will require a substantial organization, time and money. But it is also the most likely of any of the non-judicial approaches to ultimately succeed. One of the reasons for this is that it need not--indeed, should not--be limited simply to attorney licensure. Other professional licenses--e.g., medicine, accountancy, architecture, engineering--also generally include vague statutory "fitness" requirements administered by licensing boards that have almost total discretion. And there is evidence in the case law that, in other professions as in law, these licensing boards generally take the position that the ADA doesn't apply to professional "fitness" determinations and, therefore, impose impossible burdens on applicants with histories of mental, or related, illnesses. See, for instance, Hason v. Medical Board of California, 279 F.3d 1167 (9th Cir. 2002), in which the California Medical Board argued that the provision of professional licenses is not a "program or service" within the scope of Title II of the ADA, and that in any event an applicant with a mental disability could not prove that he was a "qualified individual with a disability" because he didn't meet the Board's fitness qualifications, but the Ninth Circuit held to the contrary on both points.

Third Approach: Individual Complaints to the U.S. Department of Justice

2009-03-04T19:18:00.000-08:00

A third possible approach to the problem would be for each affected person to make an individual complaint of discrimination to the U.S. Justice Department under Title II of the ADA.

Title II of the ADA, regulating the activities of state and local governments, is generally administered by the Justice Department, which has issued regulations (28 C.F.R. pt. 35) implementing Title II. According to these regulations, the agency designated to receive complaints under Title II with regard to all state and local "programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts..." is the Justice Department. The address listed for receipt of such complaints in the section on Complaints in the "ADA Title II Technical Assistance Manual" is Coordination and Review Section, P.O. Box 66118, Civil Rights Division, U.S. Department of Justice, Washington, D.C. 20035-6118. The ADA.gov website also posts a Title II Complaint Form which is to be submitted to a different address.

Especially now that the ADAAA has been enacted, individual complaints just might work--particularly if the Justice Department were to receive a large number of them from different rejected applicants within a relatively short time. But my personal experience in the past has been that the Justice Department has ignored my complaints, not even bothering to read them carefully (my 2007 Title II complaint was dismissed with a form letter written for Title III complaints.) Moreover, the other Kansan who has recently contacted me, reporting being in a similar situation, also reported that they went to Washington in January--after the ADAAA was enacted--attempting to get the Justice Department interested in their case, and came away empty-handed.

Nevertheless, after I filed with the Kansas Supreme Court a motion for waiver of Kansas Supreme Court Rule 704(k) under the ADAAA, and that motion was denied, I sent the Justice Department another Title II Complaint, containing both a complete specification of why the situation created by my 2007 licensure denial and 2009 waiver denial, taken together, violated the ADA as amended by the ADAAA, AND a reference to the URL of my fixed web site on this subject seeking the active participation of others. I urge all who are in a similar situation to do likewise, even though I sense it will take many complaints to create any interest in the matter at the Justice Department.

Another obvious, nonconfrontational remedy: Asking our lawyer friends to ask for change

2009-03-03T18:56:00.000-08:00

Given that licensed attorneys--people already "in the club," so to speak--do have an officially-recognized interest in court rules and some limited avenues for requesting change in those rules, an obvious potential remedy for discriminatory rules is to lobby our attorney friends to ask for changes in the rules. However, this approach also seems unlikely to succeed for four reasons. One is that our attorney friends are very busy, and subject to inertia just like we are. They will have to be convinced that there is a serious problem before it will be worth the time and effort to do anything about it. A second reason this approach seems unlikely to succeed is that one of the justifications asserted for maintaining qualification standards that discriminate against certain mental and emotional conditions in an automatic fashion, regardless of the facts of individual cases, is that such action is necessary to maintain the public image of the profession. Thus, admitting applicants "tainted" by mental illness might be bad for business for the profession as a whole, regardless of what the objective facts say about the applicant's actual condition. The third reason is that lawyers are at least as sensitive to what they think others in their profession think about them as anyone else is. They do not want other lawyers to think they are stupid, or insensitive to danger, or unconcerned about the reputation of the profession. So vanity will tend to inhibit them from actively seeking to change discriminatory rules, even if they privately believe the discrimination to be wrong. (Recall how long it took for the profession to even recognize that it had a problem with racial and gender discrimination!) Finally, to lobby attorneys to ask for a change in the rules that keep us out, we must ask them to help us get licensed to compete with them. For all these reasons, this nonconfrontational approach seems unlikely to succeed, at least during our lifetimes.

The most obvious remedy--directly petitioning the state courts--is also least likely to work

2009-03-02T17:03:00.000-08:00

The most obvious remedy to licensure policies and practices that discriminate is for the affected individuals to simply petition the licensing courts to change their ways. Affected past and potential future applicants, acting individually or in groups, could petition the courts in their own jurisdictions directly asking them to change their rules. The chief problem with this approach is that there is no procedural mechanism available for doing this in any jurisdiction I know of. Courts are not elected in most jurisdictions, and do not pay attention to citizen petitions, even in matters like attorney licensure over which elected state legislatures have no authority due to the constitutional separation of powers. So, from my own experience, courts will simply ignore our petitions. Only attorneys who are already licensed are believed to have any legitimate interest in court rules, and they are allowed some input into court rules generally through such mechanisms as Bar associations and bench-bar committees. We who are adversely affected by the operation of the attorney licensure rules aren't attorneys and have no legally recognized interest in the rules that preclude our careers. But this is only to be expected, given that a major purpose of the licensure regime itself is to exclude any applicant who might possibly injure the public perception of the profession as a whole. We outsiders just don't matter at all.

The Public Policy Issue: Occupational Licensure Exists to Enforce the Stereotypes the ADA Forbids

2009-03-01T19:16:00.000-08:00

The major reason (beyond simple institutional inertia) that I'm not betting on the courts, in general, starting to permit objective evidence to trump myths, fears and stereotypes surrounding "major" mental illnesses and developmental disabilities is that one of the important functions of any professional licensure regime traditionally has been to enforce myths, fears and stereotypes for the benefit of the profession's public image. This is explained in "The Underlying Policy Question:"

On the one side of the public policy question is the one dominant, underlying purpose of any professional licensing regime—that is, to reassure the public that the entire licensed profession is both competent and may safely be trusted. Stated another way, one of the major purposes of any professional or occupational licensing regime is to ensure that only such persons as those already practicing the occupation believe will be good for its public image are allowed to enter it. This is true whether the license involved is law, medicine, accounting, or plumbing. One element of assuring the public that the profession is safe is the need to assure the public that, when they deal with a licensed member of the profession, they will not be exposing themselves to anyone afflicted with a stigmatized medical or psychological condition that would cause them fear if they knew about it. The public at large (as a collective entity) can safely be assumed to be interested ONLY in its stereotypes about stigmatized individuals collectively and not in objective evidence of the real danger or safety of any individual's actual condition. Stated in the other way, anyone who has a stigmatized condition will be bad for the public image of the profession if admitted to it, by virtue of the stigma alone, regardless of the actual, objective danger posed by their individual condition. Therefore, in a very real sense, all professional and occupational licensing bodies have traditionally had as one of their major purposes the ENFORCEMENT of society's myths, fears and stereotypes about mental illnesses and developmental disorders, for the benefit of their licensed profession's public image.

Of course, on the other side of the public policy question is the policy that underlies the ADA—that is, that individuals with disabilities should be judged on their individual merits, on the basis of objective evidence, and not on the basis of myths, fears and stereotypes about their disabilities. Thus, the dominant policy of enforcing society's myths, fears and stereotypes that underlies professional licensing appears to conflict with the policy of individual determinations based on objective evidence that underlies the ADA.

For the last 19 years, since the ADA was adopted, courts throughout this country have resolved this policy tension by first making changes in their attorney licensure application forms to publicly show that they were satisfying the demands of the ADA, and then by apparently privately ignoring ADA when making individual admission decisions involving applicants with histories of impairments feared by the public that still had to be disclosed on those forms. I used to think the changes many states, including Kansas, had made in their application forms were purely cosmetic. However, after more reading on the subject, I recognize that the changes in the application forms represented a very real and commendable, though insufficient, change in policy. Applicants are no longer required to disclose treatment for situational depression and other generally-recognized minor and/or transitory psychological conditions. An application will no longer even be "red flagged" for more investigation because of a mental condition that was transitory and is now completely gone. However, the forms still ask about treatment for the "major," "chronic" mental illnesses, and licensing courts still obviously (as my case demonstrates) believe they have absolute discretion to deny admission to applicants who have to disclose a mental illness but can't prove it is totally gone beyond any possible need for present or future treatment. Thus, in cases in which the amended application forms still require disclosure of an illness, the tension between the purpose of the ADA to overcome fears and stereotypes and the public relations functions of a licensing regime still exists, and the lack of any published case law strongly suggests the tension is being routinely resolved against the applicants and in the dark. All I am now asking is that the courts come out of their denial and resolve this policy tension openly, explaining plainly what they are doing and giving applicants rejected because of public fears regarding their medical or psychological diagnoses real opportunities to bring the issue before the United States Supreme Court for final determination. That failing, I ask those affected by the policy to start working together to bring the issue to the attention of the U.S. Justice Department and the lower federal courts in ways they will not be able to ignore.

I obviously believe that it would be better for the public image of the courts and the Bar—not to mention demonstrating better compliance with Federal law on the part of the courts (which certainly shouldn't be setting an example of quiet defiance of the law)—if the question were resolved openly and in favor of placing more reliance on objective evidence than on stereotypes. But I invite comment and debate on this!

There is a Federal Law against Disability Discrimination--So What?

2009-03-01T05:48:00.000-08:00

In 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.C. § 12101 and following. As I explained in somewhat greater length at There is a Federal Law against Disability Discrimination--So What?," Title II of the ADA, specifically, 42 U.S.C. § 12132, enshrined in Federal law the principle that state and local government entities—including state courts—ought not discriminate against applicants for their programs or services on the basis of their disabilities. A regulation of the United States Department of Justice implementing Title II, 28 C.F.R. § 35.130(b)(6) clarifies that "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." This clearly brings attorney licensure within the coverage of the ADA. These regulations go on to require reasonable modifications in a regulated entity's policies where such modifications are necessary to avoid discrimination and prohibit the 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 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)(7) and (8).

Furthermore, both the legislative history of the original 1990 ADA and the Department of Justice commentary to its implementing regulations state repeatedly that the determination whether a qualification requirement based on a specific disability (or the absence of some specific disability) is really "necessary" for the provision of the program is to be made on a case by case basis. Moreover, such determinations are to be based on "current medical evidence or the best available objective evidence." 29 C.F.R. § 35.104, Appendix A to "qualified individual with a disability." "Safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about individuals with disabilities." 29 C.F.R. § 35.130, Appendix A to sec. 35.130(b)(8). These regulations are quoted and discussed at greater length at why my situation clearly fell within the definition of "being regarded as having a disability" even before the ADAAA.

Of course, until September 25, 2008, the ADA had a serious weakness. The Supreme Court had interpreted its definition of a "disability" consistently, since 1998, as being so narrow that very few individuals who were employable in most occupations came within the protection of the law. As applied to state government licensure activities and mental or psychological illnesses, this meant that anyone whose condition was sufficiently controlled by treatment that licensing them would present little danger was not sick enough to be considered to have a protected actual "disability" under former 42 U.S.C. § 12102(2)(A). This left persons like myself, whose conditions were under good medical control, to be adjudged too sick to practice law, because we couldn't overcome the stereotype that any mental illness that's not "cured" is still very dangerous, but not sick enough to be protected by the law. It left to be ignored our assertions that the public policy behind the ADA was to require that objective evidence trump "myths, fears and stereotypes."

However, on September 25, 2008, Congress enacted the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 ("ADAAA"), effective January 1, 2009. The ADAAA specifically legislatively overruled the Supreme Court precedents that had limited the definition of a "disability" in the ADA. It also greatly expanded the definition of a "disability." Under the ADA, as now amended by the ADAAA, it is crystal clear that any major mental or psychological illness or developmental disorder is a protected "disability." It is also now clear that successful, ongoing treatment does not render a disabling condition no longer a protected "disability," as the determination whether a condition is a "disability" is to be made based on whether the condition would be disabling if not treated. Finally, it is also now clear that whenever a regulated entity makes a decision against a person because it believes a medical or psychological condition renders them unqualified, it has "regarded" them as disabled by that condition, and the ADA's requirement of individualized assessment of actual risks based on the best available objective evidence applies. (The provisions and legislative history of the ADAAA bearing on this point are explained in more detail in my ADAAA Primer.

As applied to attorney licensure and reportable mental or emotional illnesses, the ADAAA should certainly imply that state courts will start to assess the actual risks posed by such illnesses on an individual basis, relying only on the best available objective evidence, and wil stop listening to myths, fears and stereotypes. But I'm not betting that they will.

Welcome to the Disability Discrimination in Attorney Licensure Blog

2009-02-28T09:44:00.000-08:00

I am looking for others--both among present members of the Bar and among potential applicants and rejected applicants--who will join me in seeking a solution to a problem.

This blog will focus on one narrow problem and the potential remedies for it. That narrow problem is the continuing policy, practice or tendency (I generally won't get bogged down in the argument as to which it is) of courts acting as attorney licensing agencies to discriminate against applicants for new licensure who have mental, emotional or developmental disabilities. When I say we are being discriminated against, I mean that the licensing courts, when faced with new applicants having dissabilities of this type, tend to require us to prove things that they wouldn't tolerate a private employer (or even a purely administrative professional licensing agency)asking an applicant to prove--things like we no longer require treatment for our conditions, or there is absolutely no risk of a future recurrence. The courts defend these requirements, which they would recognize to be illegal if anyone else required them, by saying they are "essential eligibility requirements," absolutely essential for the protection of the public where lawyers (but not doctors or accountants?) are concerned.

I know such discrimination occurs, and likely on some scale, for three reasons. First, it happened to me. See my fixed website, The Hidden Issue of Disability Discrimination in Attorney Licensure for many more details. Second, I have heard from one other person in my home state, Kansas, to which it also recently happened. Third, if all of the jurisdictions that license attorneys in this country are considered, the issue whether the Americans with Disabilities Act applies to individual character and fitness determinations where those determinations are affected by a mental, emotional or developmental impairment is an issue that must have been raised by numerous applicants since 1991. Nevertheless, there is absolutely no published or unpublished case law on this subject anywhere—the closest any of the cases come are Federal district court cases like one to which I was a party in 1995 (Johnson v. State of Kansas, 888 F.Supp. 1073 (D.Kan. 1995)), which avoid the issue of the applicability of the ADA by holding that the Rooker-Feldman doctrine denies lower Federal courts jurisdiction over challenges to individual state Bar admission determinations. I would submit that the absolute lack of any case law results in part from the determination of all of the state courts involved that they are simply going to studiously ignore the issue, secure in the knowledge that, if they don't mention the issue in their decisions, no federal court (not even the Supreme Court) will ever disagree with them. See, The Problem of the Perception of Impunity.

I'm not saying the courts have not made great strides in the area of overcoming disability stereotypes since the ADA was enacted in 1990. There are stories from the "bad old days" in which licenses were denied blind applicants because they couldn't read law books without assistance, to paraplegic applicants because it was feared they would not be able to appear in court normally in non-accessible courthouses, or to epileptic applicants because it was feared the stress of law practice would exacerbate their condition. Since the ADA, such things no longer happen. Indeed, since the mid 1990s, many licensing courts--including the Kansas Supreme Court--have rewritten their application questions regarding mental health issues, limiting the scope of these questions to the last 5 or 10 years and to a list of "major" mental illnesses. So treatment for things like situational depression no longer needs to be disclosed, as long as it ended a number of years ago.

However, in general, current or recent psychiatric or psychological treatment for anything still must be disclosed, and more distant treatment for any major disorder still must be disclosed. Moreover, for the reasons already stated, I believe it likely that, even in most states that have modernized their application forms in this way, the examining boards and licensing courts still pretty uniformly take the position that, if a condition is recent or serious enough that it must be disclosed, proof that treatment has ended with a "cure" is required for licensure.

This, I submit, is discrimination.

I would be very interested in hearing from others who have been denied attorney licensure, in any state, in whole or in part due to a mental or emotional illness or the sequelae of a developmental disorder (in my case, the findings were bipolar disorder, in remission since before 1990, and Asperger's Disorder).

I would also be very interested in hearing from counterexamples--that is, from applicants who have been admitted to the Bar in any state while under treatment for a mental or emotional illness or the sequelae of a developmental disorder. At least in those states in which such counterexamples exist, I will be able to say that the licensing courts are not requiring a "cure.")