Popovich v. Cuyahoga Cnty Court Common Pleas

Citation276 F.3d 808
Decision Date06 June 2001
Docket NumberPLAINTIFF-APPELLEE,CROSS-APPELLE,CUYAHOGA,DEFENDANT-APPELLANT,Nos. 98-4100,98-4540,CROSS-APPELLANT,DEFENDANT-APPELLEE,s. 98-4100
Parties(6th Cir. 2002) JOSEPH M. POPOVICH,/, v. CUYAHOGA COUNTY COURT OF COMMON PLEAS, DOMESTIC RELATIONS DIVISION,/COUNTY, Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 95-00684--James S. Gallas, Magistrate Judge.

Brian D. Sullivan (briefed), Richard C. Harber (argued and briefed), Reminger & Reminger Co., LPA, Cleveland, Ohio, for Plaintiff-Appellee/Cross-Appellant.

Bruce B. Elfvin (argued and briefed), Barbara Kaye Besser (briefed), Amy S. Glesius (briefed), Elfvin & Besser, Cleveland, OH, for Defendants-Appellants/ Cross-Appellese.

Seth M. Galanter (briefed), United States Department OF Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Intervenor.

Michael Kirkman (briefed), Sky Pettey (briefed), Ohio Legal Rights Service, Columbus Ohio, Stephen P. Carney (briefed), Office OF The Attorney General OF Ohio, Columbus, Ohio, Richard N. Coglianese (briefed), Office OF The Attorney General, Employment Law Section, Columbus, Ohio, Kirk A. Lindsey (briefed), Office of the Attorney General, Columbus, OH, Mary M. Collier (briefed), Assistant Attorney General, Nashville, Tennessee, Michael E. Moore (briefed), Solicitor General, Nashville, Tennessee, for Amici Curiae.

Before: Martin, Chief Judge; Merritt, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, and Gilman, Circuit Judges

MERRITT, J., delivered the opinion of the court, in which seven of the thirteen judges of the en banc court joined in Sections II and III and in the judgment of the court reversing the judgment of the district court and remanding for a new trial; namely, MARTIN, C. J., MERRITT, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN. Six judges, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, would reverse the judgment of the district court and dismiss the case. MARTIN, C. J., MERRITT, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., concur in Section I of Judge Merritt's opinion for the court. MOORE, J. (pp. 17-22), delivered a separate concurring opinion, in which DAUGHTREY, COLE, CLAY, and GILMAN, JJ., joined. RYAN, J. (pp. 23-38), delivered a separate opinion concurring in part and dissenting in part, in which BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. GILMAN, J. (pp. 39-43), delivered a separate opinion concurring in the judgment and dissenting from the composition of the en banc court.

OPINION

MERRITT, Circuit Judge.

The state sovereign immunity provision of the Eleventh Amendment, ratified in 1795 to overrule Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), prohibits Congress from directing the federal courts to hear suits by citizens against a state or its executive, legislative or judicial departments.1 On the other hand, the Fourteenth Amendment in Section 5, ratified 73 years later, partially abrogates this state immunity from suit in federal courts by giving Congress the "power to enforce [Section 1 of the Amendment] by appropriate legislation," including the creation of federal causes of action against states in federal court.2 How exactly to reconcile these two conflicting provisions has in recent years divided constitutional scholars, the federal courts, and the Supreme Court.3 This appeal to the en banc court asks us to examine further the relationship between these two constitutional amendments. The case arises under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, which 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" (emphasis added). The statute does not define "excluded from participation" or "discrimination."

Here, a hearing-impaired person brought an action in federal court under Title II against a state court for allegedly failing to provide him with adequate hearing assistance in his child custody case. He obtained a jury verdict in the district court below against the state court for $400,000 in compensatory damages based on an equal protection-type claim of discrimination, a due process-type claim of unreasonable exclusion from participation in the custody proceeding, and a claim of retaliation for filing an administrative complaint for failing to accommodate his disability. The state has asserted it is immune from this suit under the Eleventh Amendment. The questions before us are whether Congress in Title II of the Disabilities Act has validly abrogated the state court's Eleventh Amendment immunity from suit; and, if so, whether the plaintiff has a valid case under the Act. We conclude that the plaintiff's action is barred by the Eleventh Amendment in so far as the action relies on congressional enforcement of the Equal Protection Clause, but it is not barred in so far as it relies on congressional enforcement of the Due Process Clause. As applied to the plaintiff's cause of action, Title II is "appropriate legislation" under section 5 and the Due Process Clause of section 1 of the Fourteenth Amendment. We also conclude that, on the facts, the $400,000 verdict below must be set aside and the case remanded for a new trial under the Disabilities Act.

I. Enforcement of The Equal Protection Clause

The original three judge panel in this case agreed with the state's equal protection argument that it was immune from plaintiff's suit under the Eleventh Amendment, and the Court dismissed the suit without reaching the merits. Judge Ryan's opinion for the Court concluded that Congress had improperly expanded the Equal Protection Clause by imposing "heightened scrutiny" in disability cases when it only requires "rational basis" scrutiny. The Court said that "[i]t is well established that disability is not a suspect class for purposes of equal protection analysis" and so "the State may discriminate on the basis of disability if such classification is rationally related to a legitimate state interest." Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 227 F.3d 627, 637 (6th Cir. 2000). The panel did not reach any question concerning whether Congress had authority under the Due Process Clause to require accommodation of the disabled in state child custody proceedings.

On December 12, 2000, we elected to rehear this case en banc, but delayed consideration until the Supreme Court announced its decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, decided February 21, 2001. In June of 2001, the en banc court heard oral argument. In Garrett, the Supreme Court, 5 to 4, held that the Eleventh Amendment bars federal employment discrimination suits against a state based on disability, as authorized by Title I of the Americans with Disabilities Act. The Court, noting that the Title I legislation is limited to employment discrimination against the disabled, said that "the scope of the constitutional right at issue" is simply "equal protection." Id. at 963. Title I does not encompass claims based on substantive rights under the Due Process Clause, and therefore the scope of the constitutional right Congress is enforcing does not go beyond equal protection liability. The Court then held that Section 5 of the Fourteenth Amendment does not give Congress the power to enforce the Equal Protection Clause by authorizing federal employment discrimination suits against states based purely on disability. Like Judge Ryan's opinion for the panel in this case, the Court reasoned that under equal protection principles, disability -- unlike race -- is not a "suspect category" and does not deserve "heightened scrutiny." Therefore, States may make reasonable employment decisions on the basis of disability. Title I of the Disabilities Act, which addresses discrimination in employment based on disability, may only trigger "minimum rational-basis review," id., and Congress may not enforce the Equal Protection Clause by creating a higher standard of liability and enforcing it against the states in federal court. Sovereign immunity under the Eleventh Amendment forbids heightened state liability in federal courts in disability claims because such claims have never before received more constitutional protection than rational basis review. The Court held that Title I is not "congruent" with the Equal Protection Clause because it greatly expands "discrimination" liability by adding a very large new suspect class of plaintiffs. Id. at 967-68. Thus the Supreme Court followed the same line of reasoning constraining congressional enforcement of the Equal Protection Clause as the panel of this Court suggested in its opinion in this case. It is clear after Garrett that congressional authority under section 5 to enforce the Equal Protection Clause is limited and will not sustain the Disabilities Act as an exception to Eleventh Amendment state immunity.4

II. Title II Appropriately Enforces The Due Process Clause

The Supreme Court indicated, however, that Title II of the Disabilities Act is different from Title I. Although the Court had granted certiorari to consider the appropriateness of Title II as an exception to Eleventh Amendment immunity, the majority in Garrett reserved judgment on the validity of Title II under Section 5. It concluded that Title II, dealing with "services, programs, or activities of a public entity," rather than employment, "has somewhat different remedial provisions from Title I" and is not controlled by the Court's decision restricting equal protection claims against states. Id. at 960 n.1. Title II, unlike Title I, encompasses...

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