Gary Spencer <mailto:email@example.com>
New York Law Journal <http://www.nylj.com>
July 23, 1999
ALBANY -- Holding that states cannot be sued in federal court for violating the Americans with Disabilities Act, a federal judge yesterday dismissed claims against New York by disabled plaintiffs seeking the right to drive motor vehicles into wilderness areas of the Adirondack Park.
But Northern District Judge Lawrence E. Kahn ruled sovereign immunity does not bar ADA suits against individual state officials for the same relief. And he expressed concern about the State's decision to raise Eleventh Amendment immunity as a defense against what he called "a likely case of a federal civil rights violation."
"All persons in the State of New York should be on notice," he wrote. "Regardless of the merits of their claims, the State may seek to take advantage of a sovereign immunity or states' rights defense to avoid accountability in federal court for violations of federal civil rights laws, environmental laws, and health or safety laws among other areas."
"Not only may the State assert a states' rights defense, but as it does here, that defense may prove in large part availing," he said. His ruling in Galusha v. NYS Department of Environmental Conservation, 98-CV-1117, dismissed claims by three disabled plaintiffs for $2 million in damages against the State and all individual defendants. But it permits them to pursue their suit against individual officials for injunctive relief that would allow them to drive on the same wilderness roads the State allows its own personnel and contractors to use.
An array of environmental groups, including the Adirondack Mountain Club and Adirondack Council, have intervened on behalf of the State, fearing that a decision granting motorized access to the Forest Preserve under the ADA would undermine efforts to protect the wilderness character of the six million acre Adirondack Park.
Several of the preservation groups brought a cross-claim against the State this month, contending the State is violating the "forever wild" clause of the State Constitution by allowing its own vehicles to drive in wilderness areas.
In October, Judge Kahn cited the State's regular use of vehicles in the park when he issued a preliminary injunction in Galusha, 27 FSupp 2d 117, giving the handicapped access to eight roads travelled by state vehicles. He found the policy of allowing "often unnecessary" access to state vehicles while denying it to the disabled "is irrational and unfair."
He also concluded in that preliminary ruling that the ADA required the State to make "reasonable accommodations" for access to the park as it must for access to public buildings. But three months later in an unrelated case, Kilcullen v. NYS Department of Transportation, 33 FSupp 2d 133, he ruled the State could not be sued for violating the employment discrimination provisions of Title I of the ADA.
Although Congress expressly eliminated state immunity from claims of ADA violations, he found in Kilcullen that Congress exceeded its authority to enforce constitutional rights under the Fourteenth Amendment by imposing a duty on states to provide accommodations for disabled employees, since the requirement exceeds the rights they have under the equal protection clause.
The State then raised the same immunity defense in Galusha, which is based on the prohibitions against discrimination in public services in ADA Title II. Title II does not expressly require accommodations for the disabled, but Judge Kahn held yesterday that the scope of its protections is equal to Title I and the rationale of Kilcullem applies. He cited federal regulations requiring "reasonable modifications" of State policy to avoid discrimination under Title II.
"Title II's conferral of an affirmative right to modification, like Title I's right to accommodation, constitutes more than mere enforcement of persons with disabilities' Fourteenth Amendment equal protection rights," he wrote, ruling the State enjoys immunity under both titles.
However, he held the plaintiffs may still pursue claims against individual officials under both the ADA and 42 U.S.C. §1983. On an issue of first impression within the Second Circuit, he ruled that relief is not precluded under §1983 when relief is also sought under the ADA.
The plaintiffs were represented by Joseph T. Baum, of the Albany Law
School Litigation Clinic, and by Alvin O. Sabo, of Donohue Sabo Varley
& Armstrong in Albany. The State was represented by Assistant Attorney
General Lisa M. Burianek, and the intervenors by Douglas H. Ward, of Ward
Sommoer & Moore, and Blair W. Todt, of Carter Conboy Case Blackmore
Napierski & Malony, both of Albany.