Hindel v. Husted

• Decision Date: 13 November 2017
• Docket Number: No. 17-3207,17-3207
• Citation: 875 F.3d 344
• Parties: Shelbi HINDEL; Barbara Pierce ; Marianne Denning; The National Federation of the Blind, Inc., Plaintiffs-Appellants, v. Jon HUSTED, Ohio Secretary of State, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

875 F.3d 344

Shelbi HINDEL; Barbara Pierce ; Marianne Denning; The National Federation of the Blind, Inc., Plaintiffs-Appellants,

v.Jon HUSTED, Ohio Secretary of State, Defendant-Appellee.

No. 17-3207

United States Court of Appeals, Sixth Circuit.

Argued: October 12, 2017

Decided and Filed: November 13, 2017

ARGUED: Jessica P. Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellants. Nicole M. Koppitch, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Jessica P. Weber, Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, Jason C. Boylan, Kristen Henry, DISABILITY RIGHTS OF OHIO, Columbus, Ohio, for Appellants. Nicole M. Koppitch, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. Claudia Center, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., San Francisco, California, Sophia Lin Lakin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York, Daniel R. Walfish, Andrea G. Hood, Benjamin J. Reed, Michael E. Mirdamadi, MILBANK, TWEED, HADLEY & MCCLOY LLP, New York, New York, for Amici Curiae.

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.

GRIFFIN, Circuit Judge.

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. , provides important safeguards protecting the rights of the disabled. In this appeal, plaintiffs claim Ohio's paper-ballot absentee voter system discriminates against the blind, in violation of Title II of the ADA. Under the Ohio scheme, blind voters must seek the aid of a sighted person in order to vote absentee, thus depriving them of the ability to vote anonymously. Plaintiffs propose that the State of Ohio provide blind voters with an online absentee ballot in lieu of a paper one, and adopt online ballot marking tools used in other states for blind voters. The district court granted judgment on the pleadings in favor of defendant Ohio Secretary of State, ruling that plaintiffs' proposed accommodation would fundamentally alter Ohio's voting program. Because the district court based its ruling on defendant's mere allegation of an affirmative defense without any evidentiary support, we reverse and remand for further proceedings consistent with this opinion.

I.

Plaintiffs allege Ohio's absentee voter system violates the ADA by failing to provide reasonable accommodations for the blind. A paper ballot is generally the only available means for an absentee voter to vote.¹ Because blind voters must seek assistance from sighted individuals to fill out their paper ballots, plaintiffs allege Ohio deprives them of their equal opportunity to vote privately and independently.

Plaintiffs contend that the deprivation is not intractable. On the contrary, they claim that multiple auxiliary aids and services exist that could afford plaintiffs the ability to vote privately. For example, Maryland developed its own online ballot marking tool specifically designed to be compatible with screen readers that allows blind voters to vote without assistance from others. Maryland has offered to share its online ballot marking tool with other states free of charge. Oregon, Wisconsin, New Hampshire, and Alaska use substantially similar systems. On the basis of these allegations, plaintiffs' complaint raises one count alleging a violation of the ADA, requesting a permanent injunction prohibiting defendant from violating the ADA, and requiring a private and independent method of absentee voting for the blind.²

Defendant raised the affirmative defense of "fundamental alteration" under the ADA in his answer and, concurrently, filed a Rule 12(c) motion for judgment on the pleadings based upon this defense. See Fed. R. Civ. P. 12(c). He argued, contrary to plaintiffs' allegations, that he has not refused to implement the absentee voting technology plaintiffs have requested; instead, it would violate state law for defendant to do so in light of Ohio's certification requirements for voting equipment. According to defendant, plaintiffs' attempt to circumvent Ohio's election laws and force through untested and uncertified voting tools—which are neither appropriate nor necessary auxiliary aids under the ADA—would fundamentally alter Ohio election law.

The district court granted defendant's motion for judgment on the pleadings. Relying in part on National Federation of the Blind v. Lamone , 813 F.3d 494 (4th Cir. 2016), the district court held that plaintiffs had alleged a prima facie case of discrimination under the ADA. However, the court diverged from Lamone 's reasoning in ruling that the modifications, accommodations, or auxiliary aids proposed by plaintiffs did not meet the ADA's requirements that the proposals be reasonable and not fundamentally alter Ohio's voting laws.

The district judge noted that while the proposed ballot marking software met the regulatory definitions of "auxiliary aids and services," it would not afford plaintiffs and other blind voters with the complete voting independence they desired because third parties would still need to assist blind voters in completing and returning the ballot by mail. Moreover, plaintiffs were asking the court to order the implementation of new software throughout the state before its compatibility with all of the different voting systems currently used in Ohio's 88 counties was established. Because plaintiffs' proposed accommodation would essentially waive Ohio's existing laws regarding pre-implementation review of election tools, the purpose of which are to protect the validity of elections in Ohio, the district court refused to impose the requested accommodation on the state. Therefore, the court granted judgment on the pleadings in favor of defendant.

Plaintiffs now appeal.

II.

"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). We review de novo an order dismissing an action under Rule 12(c) of the Federal Rules of Civil Procedure, W.J. O'Neil Co. v. Shepley, Bulfinch, Richardson & Abbott, Inc. , 765 F.3d 625, 629 (6th Cir. 2014), and apply the same review standard as for review of a Rule 12(b)(6) motion to dismiss. Barany-Snyder v. Weiner , 539 F.3d 327, 332 (6th Cir. 2008). "[A]ll well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment" as a matter of law. JPMorgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 581–82 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 479 F.2d 478 (6th Cir. 1973) ). To survive a Rule 12(c) motion, "a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory." Commercial Money Ctr., Inc. v. Ill. Union Ins. Co. , 508 F.3d 327, 336 (6th Cir. 2007) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (citations omitted) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) )).

III.

A.

Plaintiffs challenge the district court's decision both procedurally and on the merits. We focus on their procedural argument—the court erred in making a fact-specific determination on the basis of the pleadings alone that plaintiffs' proposed accommodation would fundamentally alter Ohio's voting system. Instead, they argue this determination should have been made only after discovery, expert testimony, an evidentiary hearing, or trial. We agree.

"Fundamental alteration" is an affirmative defense under the ADA providing that governmental entities need not accommodate disabled individuals if doing so "would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.164.³ Affirmative defenses to ADA claims such as this are typically fact-based and not capable of resolution on the basis of the pleadings alone. See Mary Jo C. v. N.Y. State & Local Ret. Sys. , 707 F.3d 144, 153 (2d Cir. 2013) ("It is a factual issue whether a plaintiff's proposed modifications amount to 'reasonable modifications' which should be implemented, or 'fundamental alterations,' which the state may reject." (alterations & citations omitted)); Radaszewski ex rel. Radaszewski v. Maram , 383 F.3d 599, 609–14 (7th Cir. 2004) (discussing the difficulty in resolving the fundamental alteration question on the pleadings); cf. Anderson v. City of Blue Ash , 798 F.3d 338, 356 (6th Cir. 2015) (describing the " 'highly fact-specific' nature of the [ADA] reasonableness inquiry").

In the present case, the district court acknowledged as much:

Although ... the fundamental alteration analysis is normally a fact-intensive inquiry, Plaintiffs are asking this Court to judicially certify an election tool that has never been used in Ohio or even presented to the Ohio Board of Elections for review. Regardless of any factual findings the Court may make at a later hearing, there are no allegations before this Court like the factual findings in Lamone . Namely, neither of the suggested tools have been presented to the Board of Elections for certification, testing, or a vote, nor have the tools been used in an Ohio election before.

However, the district court erred in merely accepting defendant's affirmative defense without requiring facts and evidence to support it. Throughout these proceedings, plaintiffs have alleged that Ohio discriminates against them on the basis of their visual impairments. Their proposed remedy is to require the state to provide online ballots and allow the use of online ballot marking...