Popovich v. Cuyahoga

• Decision Date: 26 April 2000
• Docket Number: Nos. 98-4100,98-4540,s. 98-4100
• Citation: 227 F.3d 627
• Parties: (6th Cir. 2000) Joseph M. Popovich, Plaintiff-Appellee/ Cross-Appellant, v. Cuyahoga County Court of Common Pleas, Domestic Relations Division, Defendant-Appellant/Cross-Appellee, Cuyahoga County, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 627

227 F.3d 627 (6th Cir. 2000)

Joseph M. Popovich, Plaintiff-Appellee/ Cross-Appellant, v. Cuyahoga County Court of Common Pleas, Domestic Relations Division, Defendant-Appellant/Cross-Appellee, Cuyahoga County, Defendant-Appellee.

Nos. 98-4100, 98-4540

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 26, 2000

Decided and Filed: September 18, 2000

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 95-00684--James S. Gallas, Magistrate Judge. [Copyrighted Material Omitted] Richard C. Haber, Brian D. Sullivan, REMINGER & REMINGER, Cleveland, Ohio, for Appellee.

Bruce B. Elfvin, Barbara Kaye Besser, Amy S. Glesius, ELFVIN & BESSER, Cleveland, Ohio, for Appellant.

Before: RYAN and BOGGS, Circuit Judges; DUGGAN, District Judge.^*

OPINION

RYAN, Circuit Judge.

This case presents a question of first impression in this court: whether Congress validly abrogated Eleventh Amendment immunity by applying Title II of the Americans with Disabilities Act (ADA) to the States. We hold that it did not and that, as a consequence, we must reverse the district court's judgment for the plaintiff.

Joseph M. Popovich brought three federal claims against the Domestic Relations Division of the Cuyahoga County Court of Common Pleas (DRD), an arm of the State of Ohio, alleging: (1) failure to accommodate his hearing disability, in violation of Title II of the ADA; (2) retaliation, in violation of the ADA; and (3) a 42 U.S.C. § 1983 claim. Popovich's claims arise out of the DRD's alleged failure to provide him with an adequate hearing aid in the course of a prolonged child custody dispute. A jury awarded Popovich $400,000 in compensatory damages and the district court awarded injunctive relief. Despite myriad issues raised on appeal, we need reach only one: whether Congress exceeded its authority in purporting to abrogate Eleventh Amendment immunity under Title II. As we have said, we hold that it did and therefore we will REVERSE the district court's judgment.

I.

A. FACTUAL BACKGROUND

Popovich was divorced in 1985. On August 9, 1990, Popovich's ex-wife Norma Jeell Whisenant filed a motion with the DRD to enforce her right of companionship with her daughter, a child of her marriage to Popovich. During a hearing on the motion in August 1992, Popovich informed the hearing referee that he was having trouble hearing the proceedings making his participation difficult. The referee postponed the proceedings to resolve Popovich's concern and ordered him to undergo an audiological examination at his own expense. The exam confirmed that Popovich had mild to moderate hearing loss with no sign of an ear infection or other disease. Based on her examination of Popovich, the audiologist recommended that the court provide an FM amplification system with a pass-around microphone and headphones.

On August 24, 1992, while the custody action was still pending, Whisenant filed a petition of domestic violence requesting a temporary restraining order against Popovich. The next morning, the DRD held an ex parte hearing and granted the mother temporary custody of her daughter. The daughter was removed from Popovich's home, and Popovich was prohibited from having any contact with her. On the same day, the DRD held a hearing to consider the results of Popovich's audiological exam. The parties stipulated that Popovich suffered from a hearing impairment that required "speech augmentation equipment." The DRD adopted most of the audiologist's recommendation, agreeing to use an FM amplification system to accommodate Popovich's hearing loss. For security reasons, however, the DRD decided to use a conference-style microphone rather than a so-called "pass-around" microphone. Popovich's counsel acknowledged at the time that this accommodation was satisfactory, and Popovich has not challenged the DRD's decision to use a conference-style microphone rather than a pass-around microphone.

The DRD declared a mistrial in the custody case on August 27, 1992, and reassigned the case to another judge. Between September 2 and October 23, a referee held hearings on the domestic violence petition. During these hearings, the DRD used the FM amplification system with the centrally located microphone, and Popovich wore headphones.

On October 23, Popovich complained to the referee of an ear infection, claiming it was due to his use of the headphones. Popovich moved for a continuance to allow the infection to clear up. Attached to the motion was a letter from Popovich's physician stating that he had been under a physician's care for an ear infection that was expected to improve in three to four weeks. The referee granted a continuance and requested that Popovich provide the DRD with information from a physician about the ear infection. The deadline for submission of this information was November 5, and the custody hearing was adjourned to December 1, 1992. Popovich, however, provided no further information to the DRD concerning the ear infection or its prognosis.

On December 1, a few minutes before the hearing was to recommence, Popovich filed a motion requesting real-time captioning in the courtroom to accommodate his hearing deficiency. The referee gave Popovich the choice of proceeding with the custody hearing that day using the FM amplification system, or staying the custody hearing and scheduling a later hearing on the motion for real-time captioning. Popovich chose the latter option. A hearing to determine the appropriate accommodation was scheduled for February 1, 1993, but it was canceled due to the referee's illness.

Although Popovich's counsel initially conceded that the FM amplification system was effective, Popovich apparently had concerns about the DRD's response to his hearing deficiency almost from the beginning. In late August 1992, well before the ear infection, Popovich filed a charge of discrimination with the Department of Justice (DOJ) concerning the DRD's actions to accommodate his hearing deficiency. The DOJ commenced an investigation. The DRD was notified on December 2, 1992, of the discrimination charge and the DOJ's investigation.

On February 19, 1993, and again on March 24, the DOJ recommended to the DRD that it recommence the custody proceedings. On May 28, the DOJ sent a letter to the DRD requesting a response to Popovich's discrimination charge. In its response, the DRD stated that Popovich was free to bring any auxiliary aid to the courtroom at his own expense, but it insisted that the DRD had met its obligation to reasonably accommodate Popovich's condition by providing the FM amplification system.

On June 1, 1993, Whisenant filed a motion requesting that the DRD continue the August 1992 ex parte order. The court granted the motion, extending the order over Popovich's objection.

On March 31, 1994, the DOJ informed the DRD that the DRD could hold an ex parte hearing or an informal hearing to determine the appropriate auxiliary aid. The judge convened a conference four months later to discuss auxiliary aids. At the conference, Popovich presented evidence of his hearing loss and a severe skin condition in both ear canals. On October 7, the DRD agreed to order real-time captioning for Popovich. The DRD judge entered an order shortly thereafter allowing Popovich to visit his daughter. For reasons not apparent to this court, Popovich waited until the summer of 1997 to see his daughter. His daughter moved in with him on October 31, 1997, despite a state court order prohibiting such living arrangement.

B. PROCEDURAL HISTORY

Popovich filed his complaint in federal district court on March 23, 1995, and an amended complaint on September 15, 1995. His amended complaint alleged that the DRD and Cuyahoga County discriminated against him in violation of Title II of the ADA, retaliated against him in violation of the ADA, and violated 42 U.S.C. § 1983. Popovich claimed that as a result of the defendants' conduct, he was prohibited from seeing his daughter for approximately five years, from the time she was 11 years old until she was 16.

On April 6, 1998, a jury returned a verdict for Popovich, finding that the defendants violated Title II of the ADA and/or retaliated against him in violation of the ADA. The jury awarded compensatory damages in the amount of $400,000. The magistrate judge entered the jury's award and, based on the jury's finding, awarded injunctive relief: (1) requiring the defendants to provide real-time captioning for Popovich in the state custody matter; (2) enjoining the defendants from discriminating against him in connection with providing any auxiliary aids; and (3) enjoining the defendants from retaliating against him. The defendants filed timely post-trial motions for new trial, for judgment as a matter of law, and for remittitur. The district court granted judgment as a matter of law in favor of Cuyahoga County, but denied the remainder of the requested relief. The court also denied Popovich's request for pre-judgment interest.

The defendants filed a timely notice of appeal. Popovich cross-appealed the dismissal of Cuyahoga County and the denial of pre-judgment interest. However, at oral argument before this court, Popovich withdrew his cross-appeal against the County and waived his right to appeal the pre-judgment interest issue as a matter of law, because his briefs did not address it. See Buziashvili v. Inman, 106 F.3d 709, 719 (6th Cir. 1997). Therefore, we will consider only the claims against the DRD.

II.

A. JURISDICTION TO CONSIDER ELEVENTH AMENDMENT IMMUNITY

We first address the plaintiff's contention that we lack jurisdiction to consider the DRD's Eleventh Amendment argument. The plaintiff maintains that the DRD waived its right to assert this defense by failing to raise the issue earlier in the proceedings. We disagree.

Although the DRD claimed in its amended answer that it is "immune" from liability, its immunity argument before the district...