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September 1, 1999

The Disability Law Forum Committee met on September 1, 1999 in the CBA offices. Present were: Michael Breeskin, Ellen Buckley, Mark Ivandick, Melanie Segal, Mike Serroto, Dan Taubman, Kevin Williams and Claire Williamson.

Agenda:

  1. Bar Convention
  2. Supreme Court and other recent ADA decisions
  3. Colorado Lawyer Article
  4. Planning for this year
  1. Bar Convention:
    • The Bar Convention is under way; written materials have been submitted. The agenda is to talk about U.S. Supreme Court cases and 10th Circuit recent decisions.
    • The convention is in Vail on Saturday, September 25 and our time is from 2:30-5:00.
    • Speakers at the convention will be Kevin Williams, Ellen Buckley and Preston Oade.
    • Kevin can drive people up in the morning and will find out about CLE credit for those coming to participate.
    • Tell everyone to come!!!!
  2. Supreme Court and other recent ADA decisions:
    • Martin v. Kansas- Title II is constitutional in 10th Circuit Court of Appeals;(8th Circuit has gone the other way;7th[Easterbrook] 9th,5th and 4th have all said no) Michael Breeskin wrote a brief for this case; Speculation that this case will go to the Supreme Court; 10th Circuit provides some guidance/analysis. Possible CLE on this topic because it is not a done deal.
    • Mitigating Measures cases-Sutton, Kirkenberg, Murphy: all deal with the question of whether corrective measures are taken into account in determining a disability. There is some discussion in these case involving the "regarded as" prong; Decision in these cases: THE SUPREME COURT IS WRONG!
    • Employment Cases- Colorado Supreme Court case Community Hospital v. Fail and Midland Break case: discuss re-assignment to vacant position as a reasonable accommodation; Anderson (10th Circuit Preston Oade case) who decides the essential functions of the job? Employer decides;
    • Cleveland v. Policy Management Systems- whether filing for S.S.D.I. benefits will preclude you from filing a later claim under the ADA; Not completely precluded from filing a claim BUT it will be used as evidence; Problem: what to advise client to put on application to be able to get benefits while unable to work; The question is yet to be answered. Supreme Court has said that the definition of disability under S.S.D.I.(inability to work) is different from that under the ADA(substantial limitation in one or more major life activities/essential functions of the job)
    • Olmstead- did not address the constitutionality of Title II; Two women(one hospitalized for mental illness more than 20 times) who claim they are capable of living in a group home. Ginsburg said discrimination is (unnecessary)segregation; Dissenters said no discrimination; Ginsburg used language that will pose major problems with people with developmental disabilities, i.e. wait lists. The state could have institutional and non-institutional settings; This causes great difficulty for those working in this field. This case also gives great deference to treating professionals to decide appropriateness of placement. Result: difficulty in getting professionals to say community placement is appropriate because if the individual is not in a community placement than it would be an ADA violation. There is a Title II regulation which mandates that the state must provide services "appropriate to the need of the individual" and now appropriate is being defined by treating professionals; The deference language in this case will cause this issue to be fought for the next 25 years;

    Possible suggestions: If professionals are going to be used, they will have to be brought in at the beginning;

    Olmstead is a great case for mapping defense lawyer strategies!

    • Cedar Rapids- IDEA opinion; says child with a significant disability in the school system entitled to receive these services to stay in school; Facts: needed significant care needs met during the day in school; Parents paid until they ran out of money; Child doing very well in school; Upshot: Schools must pay and Scalia was consistent! This case shows enormous distinction between what is going on with the ADA and IDEA.
  3. Colorado Lawyer article: Dan Taubman is editor of Disability Law Column. Disability law has 2 time slots; Kevin is working on an ADA article and wondering what is more interesting: the constitutionality of Title II or a U.S. Supreme Court decision review?

    There is more interest from readers in Title I and beyond interest, there must be a good educational piece.

    Kevin Williams practice pointer: Don't ever argue "working" as a major life activity!

    Also, there is a law on the books since 1975 which says 1 in every 7 or 8 low income houses built must be accessible per contract between city and builder; There is a group which is trying to re-write this law; Builders are trying to repeal it and the meetings seen to be going nowhere- but be watchful! If the law had been complied with, there would be a lot of accessible housing.(This housing would not be un-accessible to non-disabled persons) Kevin will have a meeting with the home builders association.

  4. Planning for this year: Looking for lunch hour CLE topics….Anyone??? Also we will continue tracking legislation.

Submitted by:

Melanie Segal, Co-chair