Friday, March 23, 2007

Ninth Circuit on Molski

Today, the Ninth Circuit issued an opinion in a case brought by Jarek Molski, who should be familiar to readers of this blog. Molski is a well-known serial ADA public accommodations litigant in Southern California, who has been declared a "vexatious litigant" by one court. The case the court decided today, Molski v. M.J. Cable, Inc., involved Molski's suit under the ADA and California's Unruh Civil Rights Act against a restaurant in Woodland Hills. The evidence at trial made clear that the restaurant was inaccessible in violation of Title III of the ADA, but the jury found no violation. Rejecting a motion for a new trial, the district judge concluded that the jury could have properly found that Molski was not an "individual" entitled to protection under the ADA but instead was a business (who makes money bringing accessibility suits).

In today's opinion by Judge Ferguson, the Ninth Circuit reversed. The court concluded that the evidence compelled a finding that the restaurant violated the ADA. As for the notion that Molski wasn't an "individual," the court found no basis in the statute for that reading. These holdings seem to me quite correct. And I have to love that the court cited my UCLA piece in support of its holding!

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2 Comments:

Blogger Mary K Day-Petrano said...

I know I will probably get flamed for this, but I'm a big fan of Molski. He is like Paul Newman fighting in the pit in Cool Hand Luke.

What so many people who *don't like* the ADA fail to realize is the willful resistance everywhere of those subject to the ADA to (1) want to even hear mention of the ADA, (2) want to know about the ADA, (3) learn about the requirements and objectives of the ADA, (4) actually assist the disabled to be independent and self-sufficient by enforcing the ADA, and (5) recognize people with disabilities would not bring so many lawsuit for ADA compliance now some 16 1/2 years after passage of the ADA if those subject to this law would *get with it* and obey their obligations to comply.

Although I am not in a wheelchair like Molski, I can understand what it is like to continually encounter insurmountable barriers at critical junctures preventing accessability and usability of the places and services he wants to participate in just like everyone else.

Maybe no one understands what it is like to have autism and be able to pretty much only effectively communicate in an understandable way through an electronic internet assistive technology format (referred to as e-AT), when the rest of society structured communication to occur while autistics were still locked up in institutions and had no say in the matter (Ovar Lovaas circa 1965) through regular telephones or TTYs that operate with manual keyboarding, filling out hard paper copy or pdf forms with certain sized boxes that require manual keyboarding, and by manually keyboarding or handwriting on hard paper in multiple collated copies that have to be physically sent through the snail mail.

Wheelchairs and e-AT have in common problems akin to curbs and stairs and doorways that are the wrong configuration and escalators that operate by the wrong gears -- structures built by uninformed people who *don't get it* that the advancing scientific technological machinery won't operate upon.

It is sort of like becoming a new attorney in the modern law school where all sorts of electronic computers are used to perform the work, and then graduating to the real world only to discover all the employer law firms still finger-peck on manual typewriters with triplicate copy paper.

To maybe describe the problem more like Justice Alito's baseball example at the Tampa Federal Bar Association Gala Honoring his love for baseball, there are those old-timer players who learned to play by the old strike out rules and then there are the newly minted players who learned under the new strike out rules, and both strike out rules the two different groups of players need to play by both have to fit into the strike out zone, or one group or the other of the qualified players won't be able to play in the game. As Justice Alito explained, none of the qualified players should be shut out from playing the game just because the rules are not capable of accommodating both groups of qualified players who both love the game and have worked many long hard hours just to be there.

And so we have those law school graduates who learned to litigate in the Courthouse one way under the old rules and another newer disabled group of law school graduates who learned how to play the litigation game another way in an e-virtual Courthouse under the new rules of e-AT internet paperless electronic assistive technology entrance -- both groups are qualified.

In PGA Tours, Inc. v. Martin, dissenting Justices Scalia and Thomas, with a great deal of insight of the kind possessed by Justice Alito at the Tampa Gala, observed the similarities between the golfers' "Q-school" and the open-tryouts of baseball and the California Bar Examination by which those qualified can demonstrate their ability to perform the essential functions necessary to work and participate in the State and Federal Courts.

Similar to Justice Alito's analogy to baseball, the strike zone of Courthouse access must contain some sort of mechanism, like curbcuts, ramps, and elevators are to wheelchair users or TTY is to the deaf, for the old rules and the new rules in baseball to allow both groups of qualified baseball players to participate in the strike zone activity at the same time.

The new frontier of trailblazers who want to play baseball and enter the strike zone would not have been able to participate in the privilege of strike zone activity in the Courthouse under the old rules because those rules posed insurmountable structural barriers -- these trailblazers are blind and low vision people; people who have been in car accidents or suffered sports injuries or the perils of war and now have no arms, are paraplegic, quadrapelgic, have multiple sclerosis, cerebral palsy, or lou gerigs disease; and people with genetic and developmental disabilities like learning disabilities, autism, epilepsy, and soldiers who have come home from Iraq with frontal lobe head injuries or traumatic brain damage, all who have qualified to play baseball in the Courthouse with their leading-edge technology, gagitry, and the use of devices with strange names like Blackberries allowing them to overcome their functional limitations and enter the strike zone of the Courthouse when the strike zone is wider but not as high.

The qualified old-time baseball players who still use wooden bats and baseball diamonds just feel uncomfortable with the oddities and *different* ways of this new group with their e-AT technology, Dragon Dictate Naturally Speaking, screen readers, and Blackberries, and this is why the old-timers like the strike zone of the Courthouse the way it has always been, with the higher but not wider curbs, stairs, and escalators, and this way by not changing the rules, they can have the added benefit of segregating the *different* ones by screening them of of sight, out of mind, so it is like they don't exist.

Even though the new group is equally qualified, the old-time baseball players just don't like change, want to keep things the way they always have been, what is familiar, and therefore have organized a resistance against removing the architectural and communication barriers to the e-virtual Courthouse to let the newcomers into the strike zone. Many of these old-time baseball players spend a lot of time in the dugout complaining alot about Molski, without considering the benefits of configuring the strike zone rules to accommodate both groups of qualified players so they can have a stronger team with a greater possibility of making the playoffs.

What is needed, as Justice Alito says Chief Justice Roberts likes to explain, is an umpire, who can make the strike zone rules grandfathered for each qualified groups of players to accommodate all of their access to play and can call the strike violations.

But there is still resistance in the ranks, and the clamor of this organized resistance can be heard among the complainers about Molski because they would rather leave him in the dugout instead of letting him play the game -- despite a batting average of .3664.

And so Molski and America's e-AT disabled, like Paul Newman in the pit of Cool Hand Luke, fight on among the ranks looking for the umpire who can recognize and call it -- that they have qualified for the privilege of opportunity to enter the strike zone.

11:59 PM  
Blogger zak822 said...

Congratulations on being mentioned!

Could you give us a few words on how the previous jury could have found no violation of Title III?

This is an amazing thing to me. The presence of an architectural barrier would seem to be incontestable. It may not have been feasible to remove the barrier in a pre-1992 building, but it would seem to be clear that the barrier exists. And in a post-1992 building I thought it would be a slam-dunk.

12:03 PM  

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