Barber ex rel. Barber v. Colorado Dept. of Revenue

• Decision Date: 15 April 2009
• Docket Number: No. 08-1032.,08-1032.
• Citation: 562 F.3d 1222
• Parties: Julianna BARBER, by and through her next friend, Marcia BARBER, Marcia Barber, Plaintiffs-Appellants, v. State of COLORADO, DEPARTMENT OF REVENUE; State of Colorado, Department of Revenue, Division of Motor Vehicles; M. Michael Cooke, in her individual and official capacity as Executive Director of the Colorado Department of Revenue, and Joan Vecchi, in her individual and official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

562 F.3d 1222

Julianna BARBER, by and through her next friend, Marcia BARBER, Marcia Barber, Plaintiffs-Appellants, v. State of COLORADO, DEPARTMENT OF REVENUE; State of Colorado, Department of Revenue, Division of Motor Vehicles; M. Michael Cooke, in her individual and official capacity as Executive Director of the Colorado Department of Revenue, and Joan Vecchi, in her individual and official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants-Appellees.

No. 08-1032.

United States Court of Appeals, Tenth Circuit.

April 15, 2009.

Amy F. Robertson of Fox & Robertson (Timothy P. Fox of Fox & Robertson; Kevin W. Williams and Carrie Ann Lucas of Colorado Cross Disability Coalition, on the briefs), Denver, CO, for Plaintiffs-Appellants.

James X. Quinn, Assistant Attorney General (John W. Suthers, Attorney General, Elizabeth H. McCann, Deputy Attorney General, on the brief) of Civil Litigation and Employment Law Section, Denver, CO, for Defendants-Appellees.

Before KELLY, EBEL, and GORSUCH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiffs-Appellants, Julianna Barber and Marcia Barber, appeal from the district court's grant of summary judgment in favor of the Defendants-Appellees, Colorado Department of Revenue, Colorado Division of Motor Vehicles, M. Michael Cook in her official capacity as executive director of the Colorado Department of Revenue, and Joan Vecchi in her official capacity as Senior Director of the Colorado Division of Motor Vehicles (collectively, "DMV"), and the district court's subsequent denial of the Barbers' motion to reconsider and to alter judgment.

This appeal arises out of the Barbers' claim that the DMV violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and intentionally discriminated against Marcia Barber when it required a "parent, stepparent, or guardian" with a valid driver's license to supervise Julianna Barber's driving practice, as required by her minor's instruction permit.¹ See Colo. Rev.Stat. § 42-2-106 (2004) (amended 2005). The district court granted summary judgment, concluding that the Barbers failed to present a genuine issue of material fact as to their claim that the DMV acted intentionally or with deliberate indifference with respect to a federally protected right. Barber ex rel. Barber v. Colo., Dep't of Revenue, No. 05-cv-00807-REB-CBS, 2007 WL 1430103, at *2 (D.Colo. May 14, 2007) (unpublished). The district court further denied the Barbers' motion to reconsider and to alter judgment, concluding that the Barbers failed to establish any basis for such a motion. Barber ex rel. Barber v. Colo., Dep't of Revenue, No. 05-cv00807-REB-CBS, 2008 WL 207691, at *1 (D.Colo. Jan.24, 2008). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background

Julianna Barber turned fifteen on September 8, 2004. Under Colorado law at that time, any minor age fifteen who was enrolled in an approved driver education course could apply for a minor's driving instruction permit. Colo.Rev.Stat. § 42-2-106(1)(b) (2004) (amended 2005). Julianna obtained her minor's permit on October 13, 2004. To qualify for a driver's license, persons under the age of eighteen were required to hold a permit for at least twelve months, complete fifty hours of supervised driving, and be at least sixteen years old. See Colo.Rev.Stat. § 42-2-104(4)(a) (2004). Therefore, the earliest date upon which Julianna was eligible to apply for a driver's license was October 13, 2005. After meeting all of Colorado's requirements, Julianna obtained her driver's license on November 14, 2005.

Under the 2004 Colorado statute, a driver under the age of sixteen could practice driving only "under the supervision of the parent, stepparent, or guardian who cosigned the application for the minor's instruction permit if such parent, stepparent, or guardian holds a valid driver's license." Colo.Rev.Stat. § 42-2-106(1)(b) (2004) (amended 2005). We note that, on its face, the statute does not address what type of guardianship is required under the "guardian" option. When a minor reached the age of sixteen, those restrictions eased to allow supervision by "a licensed driver, twenty-one years of age or over." Colo. Rev.Stat. § 42-2-106(1)(a) (2004). Thus, Julianna was required by statute to drive under the supervision of a parent, stepparent, or guardian until she reached age sixteen on September 8, 2005. Because Julianna's mother, Marcia Barber, suffers from retinitis pigmentosa and is blind, she cannot hold a driver's license. Therefore, under the statute, she could not supervise Julianna's driving during the period October 13, 2004, through September 8, 2005. In addition, Julianna's father does not have a driver's license, does not have custody of Julianna, and does not live in Colorado.

Upon learning of the supervision requirement from Julianna's driving school instructors, Marcia Barber called her local DMV office, "asked for a reasonable accommodation, that [Julianna] be allowed to practice with another licensed driver, such as her grandfather," and was referred to Steve Tool, then senior director of the Colorado DMV. In mid to late October or early November, Marcia Barber and Steve Tool communicated about the Barbers' situation, and he began an investigation. Mr. Tool requested an informal opinion from the State Attorney General's Office "concerning whether a grandparent may act as a guardian to supervise" Julianna's driving. In a letter to Marcia Barber dated November 22, 2004, Mr. Tool reported that the State Attorney General's Office had informed him that the DMV could not permit Julianna's grandfather to supervise her driving, unless he was "a legally appointed guardian." The letter went on to define "guardian" as "`a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding[, or] self-control, is considered incapable of administering his own affairs.'" Mr. Tool further indicated in his letter that legislators had an interest in amending the statute at that time.

On December 2, 2004, Marcia Barber sent Mr. Tool a letter thanking him for his assistance and reiterating her request for an exception to the guardian requirement due to her disability. In that letter, she cited to the Americans with Disabilities Act (ADA)² and requested a "reasonable modification to the guardian requirement [that] would allow [her] to ride in the car with [Julianna] and a licensed driver age 21 or older." See Dep't of Justice, Title II Technical Assistance Manual II-3.6100, http://www.ada.gov/taman2.html (last visited Jan. 30, 2009) ("A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination."). As a result, Mr. Tool communicated with Mr. Robert Dodd of the State Attorney General's Office, and subsequently informed Marcia Barber that her request could not be granted due to the statute.

Marcia Barber then called Colorado Attorney General John Suthers in January 2005. Mr. Suthers testified that during the call he indicated that the legislature needed to address the statute, and that in the short-term he thought the problem could be solved with a limited delegation of authority. Marcia Barber testified that she did not recall Mr. Suthers discussing any solution that did not involve assigning parental rights. Although the testimony conflicts on whether a limited guardianship was discussed, we will assume, consistent with Marcia Barber's version of the call, that it was not, even though this is not a material fact given our disposition. However, during her deposition, Marcia Barber made it clear that she did not consider any form of guardianship a reasonable accommodation, and she voiced that sentiment in clear and unmistakable terms.

On January 21, 2005, Marcia Barber wrote to Mr. Suthers thanking him for his time, expressing her dissatisfaction with the suggestion "that another person might be a more suitable guardian, even temporarily," attaching an excerpt from the ADA that discusses the "reasonable modification" requirement, and reiterating her request for a reasonable modification to the statute that would permit Julianna to practice her driving. Then, on January 25, 2005, Marcia Barber wrote again to Mr. Suthers and also to Mr. Dodd, indicating that she had filed a Title II ADA complaint with the Department of Justice, and once more requesting that the "state simply provide reasonable modification under the statute (i.e.[, a]llowing my daughter to drive with a parent-delegate such as an uncle or grandfather) at the present time." Mr. Suthers did not respond to these letters.

Finally, on February 3, 2005, attorney Chris Méndez of The Legal Center for People with Disabilities and Older People wrote to Mr. Dodd on Marcia Barber's behalf, requesting a reasonable modification to allow an adult family member to supervise Julianna's driving. Mr. Dodd responded on February 23, 2005, indicating that the requested accommodation could not be made and that it was "critical that [minor drivers] be under the direct and immediate supervision of someone with full parental authority." In closing, Mr. Dodd indicated that the pending legislative amendment to the statute might provide Marcia Barber with satisfactory relief.

On May 27, 2005, the statute was amended to allow a grandparent with power of attorney who holds a valid driver's license to supervise drivers under the age of sixteen. Colo.Rev.Stat. § 42-2-106(1)(b) (2005). Finally, effective July 1, 2006, the statute was further amended to allow the appointment of an alternate permit supervisor who holds a valid Colorado driver's license and is twenty-one years or older. Colo.Rev.Stat. § 42-2-106(1)(b) (2006). In the interim, on August 10, 2005, the DMV allowed Marcia Barber to sign a "designation," granting Julianna's...