It’s always frustrating when your fellow Americans laugh and play along with a president who mocks people with disabilities. Donald Trump mocked and ridiculed a disabled news reporter, but the more important thing for me is the cycles of change.
By this, I mean that most of the major disability rights legislation that I use came from a Democratic House and Senate and was signed by a medium flavor conservative president. The Rehabilitation Act of 1973 came from a Democratic House and Senate and was signed by President Nixon.
The ADA emerged from a Democratic House and Senate and was signed by a moderate Republican, George H. W. Bush in 1990. The federal courts in their constant interference with disability rights made it very difficult to prove one has a disability. The ADA Amendments Act of 2008 was passed by a Democratic House and a Democratic Senate.
When there has been no Democratic majority in the Congress, very little disability rights legislation passed. If the president is too conservative, even a Democratic House and Senate will be unable to pass meaningful and powerful legislation.
With President Obama in office and a Democratic Congress to write legislation, we had a national attempt at universal health coverage and people with disabilities benefited from Obamacare disproportionately. Abolishing pre-existing condition limits on coverage and other provisions were fantastic advances.
If I were in the House and could be part of a liberal majority that cares about disabilities and other civil rights, I would push for strong legislation to enact these values. Here are my choices:
PACER.GOV ACCESS & E-FILING FOR THE POOR AND DISABLED
28 U.S.C. §1915 should have a new subsection that mandates free access to the Pacer.gov federal court document database.Such legislation has been introduced before. This would allow poor people and those with disabilities to follow their own cases. Those who use the courts as poor people should only need to be granted this status once and then it should be automatically applied on every appeal.
No additional application should be needed.
I also believe this section should force the federal courts to give any person granted in forma pauperis (poor person status, or IFP) the ability to make filings online using the CM/ECF system. If a disabled lawyer wants this, IFP should not even be needed for either the PACER or the CM/ECF access. If a person has been granted this status, all federal courts must be required to grant this e-filing permanently to such a person no matter where theirin forma pauperiswas granted. The same PACER username should be used for all CM/ECF filings.
42 U.S.C. §12203 is the ADA section that is supposed to prevent retaliation, but it is poorly enforced by the federal courts, which make all manner of excuses to allow retaliation. This section needs a new subsection to say that no ADA coordinator may ever retaliate in any way and for any reason against any ADA complaint. This includes making any disciplinary complaint against a disabled lawyer who has just made an ADA complaint to a state court.
There is no excuse for such betrayal of a disabled person who made an ADA complaint. Any kind of action that injures a disabled person in any manner is strictly prohibited. If the federal courts will not enforce this provision, then the FTCA must include such clear error by the federal court that allows and protects retaliation. The disabled person who must live with a betrayal must have compensatory damages, $100,000 at a minimum when a federal court will not do its duty.
Congress has left the issue of damages so wide open that courts are deciding what is reasonable and what is not. Congress needs to fill this gap by rejecting what courts have decided and make the compensatory damages into a schedule that must be applied. This is the only way for disabled people to get the damages that Congress wants to give them when they are discriminated against.
When the Courts will not impose what Congress decides, the United States must pay instead. I think leaving a large pile of snow in a public handicap parking space should result in $5,000 in compensatory damages for the first person who complains. If a second person complains, that person will get $4,000 and so on. The ADA must state that every public sidewalk and handicap space must be cleared of snow and if it is not, any disabled person has the right to file a federal lawsuit and get statutory damages. There is no standing obstacle that can defeat a disabled person objecting to an ADA violation.
Standing law needs to be changed. There is no section in the ADA that explains and mandates when disabled people have standing to pursue a case. 42 U.S.C. §12133 says that a disabled person needs to merely “allege discrimination on the basis of disability.” This is a very low standard and rightly so, but it has been defeated. Federal courts have tightened the noose on disability rights lawsuits by falsely stating that a person did not have standing when they did have standing. The FHWA said to me that piles of snow in municipal sidewalks is discrimination and not allowed. But when I tried to enforce this law, the 7th Circuit said that I did not have standing even with my two broken legs and crushed pelvis. Straw v. Streamwood, et. al., 17-1867 (7th Cir. 2018)
The U.S. Supreme Court has already settled this issue for civil rights acts in 1972. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). However, courts like the conservative 7th Circuit make up their own law. This is why the legislation needs to specifically excoriate the 7th Circuit and its conservative bad attitude that undermines the ADA. The new legislation should add to 42 U.S.C. §12133 a subsection about standing. Standing under the ADA should consist of a person being adjudicated as a person with a disability under the Act, and then that person opposes any ADA violation. Nothing further should be asked regarding standing because disabled people have the right to defend their own ADA rights and those of other people with disabilities. The anti-retaliation provisions make this very clear indeed. 42 U.S.C. § 12203 & 28 C.F.R. § 35.135 & http://www.ada.gov/reg2.htm
Further, if a federal court is so stubborn that it will not enforce the ADA, there needs to be a new section of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), that gives compensatory damages to people who were denied 5th Amendment due process or ADA or Rehab Act rights in a manner that was clear error on the part of the federal court. The defendant should not be the original defendant, but the United States instead.
It is beyond dispute that federal judges abuse the word frivolous to defeat valid ADA and Rehab Act claims because judges like to abuse those “below them.” Disabled people are often considered lower than the rest of the population. This despite the many fantastic accomplishment done by disabled people. In any event, the word frivolous needs to be removed from the Federal Rules of Civil Procedure, the in forma pauperis Act at 28 U.S.C. § 1915, and other areas.
The ADA can say in one sweep under the retaliation section of the statute, 42 U.S.C.§ 12203 that frivolous means discrimination. The new language needs to say that no person, including any judge or attorney, may claim that an aspect of an ADA or Rehab Act lawsuit is frivolous. Nothing any disabled person or disabled lawyer or lawyer for such person does in an ADA or Rehab Act lawsuit may be labeled as frivolous or malicious under any conditions.
Further, the ADA Titles II and V must stated clearly that no state court may discipline any lawyer for what they did in any ADA or Rehab Act lawsuit. It must be simply impossible to retaliate in any fashion against a disabled person or their lawyer for seeking these rights.
STATUTE OF LIMITATIONS
Because the ADA does not set a specific statute of limitations (time in which to file), the statute of limitations in ADA cases shall be 6 years, but equitable analysis may extend this time limit if the facts warrant.
There needs to be a national circuit court to which any disability lawsuit (state or federal) can be appealed.These cases should not have to go through any other circuit, but instead such a case would be automatically sent here on appeal. Every judge on the Disability Circuit must have a disability, either mental or physical. All disability organizations shall have the right to comment on the disability background of each appointment to this Court. This is an administrative court and any member may be removed with or without cause by the president, but only one such removal shall be made per 2-year Congress session. There shall be 21 members of the Court and a maximum of 3 judges may be appointed per 2-year Congress. Beyond this, if any judge on this administrative court for disability rights uses the word frivolous or malicious to abuse any litigant, that judge shall be removed by the Chief Judge of the Disability Circuit.
Once standing is established, this removes the roadblock for disabled people to defend their own rights and those of others with disabilities. Once the statutory damages are set, there will be no haggling and denying these rights with unreasonable low damage awards. Disabled court users need free access to all of the services of the courts, and this includes PACER and CM/ECF. To make disabled and poor litigants struggle getting critical information about their cases is discrimination and those practices need to end. Finally, the federal courts and state courts for that matter use the word frivolous to deny all sorts of rights and benefits and privileges. The word frivolous is used to discriminate and if I were in Congress, I would strip that word every time I come to it.
The ADA wants us to break down barriers, but the first barriers to be crushed are those in the legislation and the courts themselves. When the ADA and Rehab Act can be used to expand democratic inclusion, that’s the moment when people with disabilities can make that great leap forward into public office, even if they are poor and disabled.