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GREGORY v. ADMINISTRATIVE OFFICE OF THE COURTS

October 18, 2001

STEPHEN A. GREGORY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ADMINISTRATIVE OFFICE OF THE COURTS OF THE STATE OF NEW JERSEY, DEFENDANT.



The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge

  OPINION

This case presents the Court with novel questions regarding what remedies remain available to private disabled individuals to enforce the provisions of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 ("ADA")*fn1, against state governmental agencies. Plaintiff is a hearing-impaired man who seeks relief for what he alleges is discriminatory treatment by the courts of the State of New Jersey. Plaintiff's initial complaint has been buffeted by the Supreme Court's evolving jurisprudence on the issue of when Congress may validly abrogate the States' immunity from suit under the Eleventh Amendment. In its last term, the Supreme Court decided Board of Trustees v. Garrett, 121 S.Ct. 955 (2001), the most recent in a long line of cases which have substantially expanded the States' immunity from suit brought by individuals. In Garrett, the Supreme Court found that Congress's abrogation of the States' Eleventh Amendment*fn2 immunity from suit by individuals for money damages under Title I of the ADA*fn3 was unconstitutional. Anticipating that Garrett's holding would be extended to Title II of the ADA, Plaintiff seeks to amend his Original Complaint to plead his Title II claims under the doctrine of Ex parte Young, 209 U.S. 123 (1908), as well as to plead a separate cause of action under the Rehabilitation Act of 1973, 29 U.S.C. § 794(a)*fn4. The State of New Jersey asks this Court not only to extend Garrett's reasoning to Title II, but also to declare alternative causes of action, expressly mentioned by the Court in Garrett, unavailable to disabled individuals under Title II. For the reasons set forth below, I conclude that Plaintiff may amend his complaint to pursue his claims under the doctrine of Ex parte Young and Section 508 of the Rehabilitation Act, in accordance with the Supreme Court's decision in Garrett.

I. PROCEDURAL BACKGROUND
Plaintiff, Stephen A. Gregory, filed his Original Complaint on April 16, 1999. The Complaint alleged that the Administrative Office of the Courts of the State of New Jersey had violated Title II of the ADA by failing to provide equal services to enable him and other hearing-impaired individuals to record court proceedings. Gregory's Original Complaint asked this Court to: (1) certify the case as a class action; (2) enter an order "requiring defendants to make available to Plaintiff and all deaf or hard of hearing persons who appear in court a copy of the printed CART record at a cost equal to that charged to those obtaining a copy of an audiotape or videotape of court proceedings"; (3) award damages to Plaintiff and the Plaintiff class for expenses incurred as a result of the alleged discrimination; and (4) award Plaintiff reasonable attorneys' fees and other reasonable costs. See Orig. Compl. at 11.
On October 15, 1999, Defendant, the Administrative Office of the Courts of the State of New Jersey, moved to dismiss, or in the alternative, for summary judgment. Gregory filed a cross-motion for summary judgment. On April 17, 2000, the Supreme Court granted certiorari in University of Alabama Board of Trustees v. Garrett, 121 S.Ct. 955 (2001)*fn5, to address the constitutionality of Congress's abrogation of the States' Eleventh Amendment immunity from suit under both Titles I and II of the ADA.
On August 8, 2000, the United States Court of Appeals for the Third Circuit filed its decision in Lavia v. Commonwealth of Pennsylvania, 224 F.3d 190 (3d Cir. 2000). In Lavia, the Third Circuit construed the Supreme Court's decision in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), which had held that Congress had unconstitutionally abrogated the States' Eleventh Amendment immunity from suit under the Age Discrimination in Employment Act, to compel the conclusion that Congress had similarly exceeded its power under section 5 of the Fourteenth Amendment*fn6 in enacting Title I of the ADA. The Court of Appeals held, therefore, that the States were immune from suits by individuals for money damages under Title I of the ADA.
On August 18, 2000, this Court issued an Order to Show Cause why this case should not be dismissed in light of the Third Circuit's holding in Lavia. This Court also certified the fact that the constitutionality of the ADA had been drawn into question to the Attorney General of the United States and extended to the United States Department of Justice the opportunity to intervene, see August 18, 2000 Letter to The Honorable Janet Reno, Attorney General of the United States, pursuant to Local Civil Rule 24.1(a) and 28 U.S.C. § 2403(a)*fn7. In response to this Court's certification, the Justice Department stated that it was unnecessary for it to participate in this matter because the Supreme Court's decision in Garrett would "control the disposition of this case with regard to the question raised in the Court's letter," see September 4, 2000 Letter from M. Christine Fotopulos, Esq., Trial Attorney, to The Honorable Stephen M. Orlofsky. On September 11, 2000, this Court administratively terminated this case on the docket without prejudice, pending the outcome of Garrett.
On February 21, 2001, the Supreme Court held in Garrett that Congress had improperly abrogated the States' immunity from suit under the Eleventh Amendment by individuals for money damages under Title I of the ADA, but did not reach the identical issue under Title II of the ADA. Indeed, the Supreme Court dismissed the grant of certiorari on the Title II issue as improvidently granted. Garrett, 121 S.Ct. 955, 960 n. 1 (2001).
On March 27, 2001, Gregory filed a motion to reopen this case and a motion for leave to file a first amended complaint, pursuant to Fed.R.Civ.P. 15(a), in order to conform his complaint to the Supreme Court's holding in Garrett. Specifically, in his Amended Complaint, Gregory seeks to: (1) name two New Jersey State Administrative Office officials in their official capacities as Defendants; (2) withdraw his request for damages; and (3) plead a cause of action under Section 504 of the Rehabilitation Act of 1974. See Amended Compl. at ¶¶ 8, 9, 42. In support of his Motion to Amend, Gregory points to footnote 9 in Garrett which states that: "[Title I's] standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young."
The State of New Jersey argues that Gregory's Motion to Amend should be denied because the proposed Amended Complaint is futile, that is, it would not survive a Motion to Dismiss. The State further claims that the action is barred by the Eleventh Amendment and that the doctrine announced in Ex parte Young does not allow Mr. Gregory to plead claims under Title II of the ADA or under the Rehabilitation Act of 1973.
II. FACTUAL BACKGROUND

Stephen Gregory has chronic hearing loss, and, although he retains some residual hearing, he is considered "functionally deaf," see Compl. at ¶ 4, which places him within the ADA's definition of "disabled." See 42 U.S.C. § 12102 (2).*fn8

Gregory's suit arises out of his appearances before the Superior Court of New Jersey to resolve ongoing disputes involving the custody and support of his three children. See Compl. at ¶¶ 11, 12. The general practice of the Courts of the State of New Jersey is to audiotape or videotape court proceedings, rather than employ a court reporter. Litigants are given the opportunity to purchase a copy of the audio or videotape for a ten dollar fee. Id. at ¶¶ 19, 20. Because of his disability, Mr. Gregory requires "real-time" translations of court proceedings, which are rendered by a court-provided system known as "Computer Aided Realtime Translation" ("CART"). Id. at § 14. The CART system works by having a court reporter "translate" spoken words into written form; the words are then scrolled on a screen which can be viewed by the hearing-impaired person. Id. at ¶ 17.
Gregory contends that because the CART system scrolls the spoken words and because words are often improperly translated, it is "difficult for the hard-of-hearing or deaf person to be sure that he or she has properly taken in, or correctly responded to, everything that has been said and processed." Id. at ¶ 17. As a result, Gregory has, on several occasions, requested a written print-out of the CART record from the Courts of the State of New Jersey, so that he might review the proceedings afterward to determine the accuracy of his comprehension. Id. at ¶ 18. Gregory has offered to pay the same ten dollar fee for this CART print-out as hearing litigants pay for copies of the audio or video tapes of standard court proceedings. Id. at ¶ 23.
The Administrative Office of the Courts of the State of New Jersey has responded to Gregory's request by saying that a CART print-out could not be purchased for ten dollars; rather, Gregory would have the choice of purchasing an official transcript at a cost of $1.50 per page, or coming to court to review the computer hard disk in person. Id. at ¶¶ 25, 26, 27. Because proceedings which employ a court reporter are not also audio or video taped, it is impossible for Gregory to purchase an audio or video tape in lieu of a CART print-out. Id. at ¶ 21.
Gregory contends that the Administrative Office's refusal to provide him with a CART print-out for the same fee that is charged for the video or audio tapes of court proceedings which are made available to hearing litigants is a violation of Title II of the ADA. Regulations promulgated under Title II prohibit public entities from "provid[ing] a qualified individual with a disability with an aid, benefit or service that is not as effective in affording equal opportunity . . . to gain the same benefit . . . as that provided to others." 28 C.F.R. § 35.130.
III. DISCUSSION
A. Motion to Reopen
Mr. Gregory has moved to reopen this case pursuant to this Court's September 11, 2000 Order which administratively terminated this case without prejudice. Defendant does not oppose Mr. Gregory's application to reopen this case, see Def.'s April 4, 2001 Letter Br.; therefore, ...

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