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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,
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
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
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.
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.
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
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
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."
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.
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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