Crowder v. Kitagawa

• Citation: 81 F.3d 1480
• Decision Date: 30 April 1996
• Docket Number: No. 94-15403,94-15403
• Parties: , 5 A.D. Cases 810, 15 A.D.D. 1, 8 NDLR P 27, 96 Cal. Daily Op. Serv. 2980, 96 Daily Journal D.A.R. 4956 Vernon CROWDER; Stephanie Good, Plaintiffs-Appellants, v. Yukio KITAGAWA, Chairman, Board of Agriculture, State of Hawaii; Calvin Lum, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1480

81 F.3d 1480

64 USLW 2694, 5 A.D. Cases 810, 15

A.D.D. 1, 8 NDLR P 27,

96 Cal. Daily Op. Serv. 2980,

96 Daily Journal D.A.R. 4956

Vernon CROWDER; Stephanie Good, Plaintiffs-Appellants, v. Yukio KITAGAWA, Chairman, Board of Agriculture, State of

Hawaii; Calvin Lum, et al., Defendants-Appellees.

No. 94-15403.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 6, 1995.

Decided April 30, 1996.

Michael A. Lilly, Honolulu, Hawaii, for plaintiffs-appellants.

Heidi M. Rian and Sonia Faust, Deputy Attorneys General, Honolulu, Hawaii, for defendants-appellees.

Burton J. Rubin, Alexandria, Virginia, for amicus curiae American Society of Travel Agents, Inc.

Jessica Dunsay Silver and Rebecca K. Troth, United States Department of Justice, Washington, DC, for amicus curiae United States of America.

Appeal from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding, D.C. No. CV-93-00213-DAE.

Before: HUG, Jr., Chief Judge, THOMPSON and O'SCANNLAIN, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

The plaintiffs are a class of visually-impaired persons who use guide dogs. They seek exemption from Hawaii's imposition of a 120-day quarantine on carnivorous animals entering the state. They contend Hawaii's quarantine, designed to prevent the importation of rabies, violates the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and their constitutional rights of travel, equal protection and substantive due process. The district court rejected all these claims and entered summary judgment in favor of Hawaii. The class plaintiffs appeal.

We have jurisdiction under 28 U.S.C. § 1291. We hold that without reasonable modifications to its quarantine requirement for the benefit of visually-impaired individuals who rely on guide dogs Hawaii's quarantine requirement effectively prevents such persons from enjoying the benefits of state services and activities in violation of the ADA. We conclude there is a genuine dispute of a material fact as to whether the plaintiffs' proposed alternatives to Hawaii's quarantine for guide dogs are "reasonable modifications" under the terms of the ADA and implementing regulations. We reverse the district court's summary judgment in favor of Hawaii, and remand the case to the district court for further proceedings. We do not reach the plaintiffs' contentions that Hawaii's quarantine requirement violates their constitutional rights of travel, equal protection and substantive due process.

FACTS

Hawaii is one of the few places in the world which is completely free from rabies. To protect the state from the importation of the rabies disease, the Hawaii legislature enacted Hawaii Revised Statute § 142-2. This statute allows the Hawaii Department of Agriculture to make rules for the quarantine of animals upon their arrival in Hawaii.

Pursuant to section 142-2, the Hawaii Department of Agriculture established a 120-day quarantine in a quarantine station for Upon written request, a disabled person seeking to bring a guide dog into the state may stay free of charge for the 120-day quarantine period in one of two apartments and a cottage at the quarantine station. The station is located in Halawa Valley, a somewhat remote area approximately seven miles from central Honolulu.

                dogs, cats and other carnivorous animals entering Hawaii from the United States mainland or from any other country that is not considered rabies free.   Haw.Admin.R. § 4-29-9(a)
                

After an initial 10-day observation period, a guide dog may train with its owner on the station grounds, Haw.Admin.R. § 4-29-15(b)(1)-(2), and may train off the station grounds for up to four hours a day, three days a week, if accompanied by a department inspector. Haw.Admin.R. § 4-29-15-(b)(3). During the time a guide dog is outside the quarantine station, however, it may have no contact with other animals or humans. Haw.Admin.R. § 4-29-15(b)(5). After the 120-day quarantine period, if the guide dog is found not to have rabies, the dog is released to its owner.

The quarantine applies to visually-impaired users of guide dogs without regard to place of residence. A visually-impaired Hawaii resident who travels to the mainland United States on business or pleasure will have his guide dog quarantined for 120 days upon his return. Similarly, a visually-impaired resident of California, or any other place in the world which is not rabies free, who travels to Hawaii for business or pleasure will have his guide dog quarantined.

Vernon Crowder, a resident of California, and Stephanie Good, a resident of Hawaii, are visually-impaired users of guide dogs. They filed suit in March 1993 against the State of Hawaii and various governmental officials (collectively, Hawaii), and were certified as class representatives (collectively, the plaintiffs) by the district court in January 1994.

The evidence produced in support of the parties' motions for summary judgment established that the state's quarantine requirement denies visually-impaired persons the ability to make meaningful use of services the state provides. The plaintiffs rely upon their guide dogs to assist them in negotiating public streets and using transportation systems. Without their dogs to guide them, the plaintiffs are severely restricted in their ability to use state services. The quarantine also renders guide dogs susceptible to irretrievable loss of their training.

The parties agree that the quarantine does not guarantee that rabies will not be imported into Hawaii by quarantined animals. The rabies disease can have an incubation period longer than 120 days. No case of rabies has ever been intercepted by the quarantine, and to the knowledge of the parties, no guide dog has ever been diagnosed with rabies.

In support of their contention that Hawaii's quarantine requirement can be reasonably modified for the benefit of visually-impaired users of guide dogs, the plaintiffs contended that more effective alternative means were available to prevent the importation of rabies by guide dogs. Such alternatives include a vaccine-based system by which "dead" vaccines can be administered to the animals by veterinarians, who can then certify the vaccinations by fitting the animals with identifying microchips. The animals can be tested before admission into Hawaii by use of rabies virus antibody titers to ensure against the disease.

In response to the plaintiffs' evidence of what they contended were effective alternatives to the quarantine requirement, Hawaii produced evidence that its state legislature had recently undertaken a review of the quarantine program. In this review, the legislature had conducted hearings and had considered alternatives such as those proposed by the plaintiffs. The effectiveness of both the state's quarantine requirement and the vaccine-based alternatives were vigorously debated by veterinarians, scientists and academicians during these hearings. In the face of conflicting scientific and medical opinions, the legislature did not enact any changes to the quarantine or the modifications already in place for the visually-impaired.

In granting summary judgment for Hawaii, the district court held that the plaintiffs were not "qualified individual[s] with a disability"

                under the ADA, 42 U.S.C. § 12132, because they were not being excluded from the receipt of state services, programs or activities by reason of their disability.   All public services, programs, and activities were open to them, as well as to all other residents of and visitors to Hawaii.   The district court also held that even if the plaintiffs did fall within the definition of "qualified individuals" under the ADA, the relevant federal regulations require only that "reasonable modifications" be made to avoid discrimination, and the quarantine already had modifications in place for the benefit of the visually-impaired.   The district court granted summary judgment in favor of Hawaii, and this appeal followed
                

DISCUSSION

The ADA was enacted by Congress in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Congress found that "individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices...." 42 U.S.C. § 12101(a)(5).

The plaintiffs allege Hawaii's quarantine system violates section 12132 of the ADA, 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." 42 U.S.C. § 12132.

Section 12131(2) defines "qualified individual with a disability" as "an individual with a disability who, with or without reasonable modifications to rules, policies or practices, removal of architectural barriers, or the provision of auxiliary aides and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."

The linchpin of the district court's summary judgment on the ADA claim, and the state's argument, is that "[t]he quarantine requirement is a public health measure, and not a 'service' or benefit furnished by the state to eligible participants." Crowder v. Kitagawa, 842 F.Supp. 1257, 1267 (D.Hawai'i 1994). Because, according to the district court, the quarantine requirement is not a service or benefit provided by the state, the quarantine does not deny the plaintiffs any benefits, and as a result they have no claim under the ADA.

The flaw in this analysis is the...