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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 08-184-KSF TERI MOSIER PLAINTIFF

v.

AMENDED OPINION AND ORDER

THE COMMONWEALTH OF KENTUCKY. et. al. *******

DEFENDANTS

This matter is before the Court on cross motions of the parties for summary judgment. The motions have been fully briefed and are now ripe for consideration. Plaintiff, Teri Mosier, filed this action against Defendants, the Commonwealth of Kentucky (the "Commonwealth"), Administrative Office of the Courts ("AOC"), Chief Justice John D. Minton, Jr. and Laurie K. Dudgeon,1 (collectively, "Defendants"), seeking injunctive relief and compensatory damages pursuant to the Americans with Disabilities Act and the Rehabilitation Act. Plaintiff claims she requested that Defendants provide interpreter services for her so that she is able to participate fully in court proceedings, and Defendants refused to do so which makes her unable to represent clients in Defendants' courts. I. FACTUAL BACKGROUND Plaintiff is an attorney licensed to practice law in Kentucky since 1999. She is deaf and is substantially limited in the major life activities of hearing and speaking and is unable to participate

Plaintiff originally filed this action against Jason Nemes in his official capacity as director of the AOC. Mr. Nemes is no longer the director of the AOC and Ms. Dudgeon is his successor. 1

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fully in court proceedings without appropriate auxiliary aids or services, but she alleges that she is able to participate fully when auxiliary aids or services, such as a qualified sign language interpreter, are provided. Defendants do not contest these claims for purposes of this motion. By way of affidavit, Plaintiff claims that in February 2007, she went to the Jefferson County District Court to determine whether Defendants would provide her with interpreter services as a litigant and as an attorney. Reese Greer, the court clerk, told her to contact the AOC. On March 5, 2007, Mr. Greer told her that the AOC would provide her with an interpreter in her capacity as a litigant and as an attorney. Later that month, Plaintiff began working for the Department of Public Advocacy ("DPA") and the DPA contacted the AOC to confirm that the AOC would provide interpreter services for her appearances in court. On March 28, 2007, Scott Furkin, general counsel for the AOC, informed the DPA that the AOC had not yet opined on whether it must provide her with an interpreter when she appeared in court as an attorney, but that he suspected it would need to do so. Over the next three months, the Kentucky Office of Vocational Rehabilitation ("OVR") agreed to provide interpreter services for Plaintiff's court appearances, until July 15, 2007. On July 3, 2007, Plaintiff sent an email to Jean-Joseph Saulnerond, assistant unit supervisor in the AOC's Pretrial Services/Interpreting Division, asking that interpreters "be provided in the Johnson County District Court" for her after July 15th. On July 5, 2007, Mr. Saulnerond responded that the AOC does not provide interpreters for the DPA or other agencies but only for the Kentucky Courts of Justice, and the AOC would need to receive a formal request from the Johnson County District Court to provide an interpreter for her. Plaintiff went to the Johnson County District Court to request interpreter services and was told that she needed to contact the AOC. Soon thereafter, the clerk told Plaintiff that the AOC would not provide interpreter services for attorneys. Plaintiff has presented affidavits from potential clients that have been unable to engage 2

Plaintiff as their attorney, and she has submitted an affidavit stating that she has refused a number of requests for representation and has not been able to advertise that she can represent clients in court because Defendants will not provide her with an interpreter for court appearances. Through an affidavit by Ervin Dimeny, Defendants assert that all interpreting services are coordinated through the Court Interpreting Services Division of the AOC and that they have a policy that they do "not provide interpreting services for attorneys, public defenders, law enforcement officers, jail officials, other state agency employees, social workers or mental health workers." This policy became effective on October 1, 2004. Dimeny's affidavit states that the AOC, on occasion, receives requests from attorneys for interpreting services and the standard procedure is to explain that the AOC policy does not allow for the provision of interpreters to attorneys. II. ANALYSIS A. Defendants' Cross-Motion for Summary Judgment

In their cross-motion for summary judgment, Defendants argue that the Plaintiff's ADA and Rehabilitation Act claims fail because: (1) Plaintiff lacks standing to pursue her federal claims and to obtain injunctive relief; and (2) Plaintiff's claims are time-barred. Defendants also argue that Plaintiff's Rehabilitation Act claim fails because Plaintiff cannot demonstrate that Defendants' policy of not providing interpretive services to attorneys is based solely on disability and that her ADA claim fails because it is barred by sovereign immunity. 1. Standing

Defendants' argument that Plaintiff lacks standing because she has not suffered an injury as a result of Defendants' policy fails. Plaintiff must demonstrate three things to establish standing under Article III of the Constitution: (1) she must show that she suffered an "injury-in-fact;" (2) she must demonstrate a causal connection between the asserted injury-in-fact and the challenged action 3

of the defendant; and (3) she must show that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). First, Defendants argue that Plaintiff has not suffered injury-in-fact. Defendants argue that Plaintiff's claim that their policy has prevented her from being able to build her law practice is completely speculative and cannot constitute injury-in-fact. An "injury-in-fact" is a harm that is "concrete and particularized" and "actual or imminent." Id. at 560. The plaintiff must show that she sustained or is immediately in danger of sustaining some direct injury as the result of the challenged conduct and that the injury or threat of injury is both real and immediate. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Plaintiff argues that she has and continues to suffer harm as a direct result of Defendants' discriminatory policy of not providing interpreter services to deaf attorneys because it means that she cannot appear in court. As a result of Defendants' discriminatory policy, she: (1) has been unable to accept cases for representation that would require her to make court appearances; (2) suffers imminent harm in that she must turn away future cases for representation in court; (3) is unable to advertise that she accepts cases for representation in court; and (4) has been unable to build her practice through word of mouth. This is sufficient to establish injury-in-fact for purposes of standing. Further, Plaintiff was not required, as Defendants argue, to make formal requests for interpreter services after she left the DPA and began working as a solo practitioner, because such requests were futile. Since Defendants refused her request for interpreter services while she was at the DPA and continue to refuse to acknowledge any obligation to provide auxiliary aids or interpreter services, such a request would have been futile and she is not required to make such a request. The futile gesture doctrine was recognized by the Supreme Court in International Board of Teamsters v. United States, 431 U.S. 324 (1977), when it affirmed a finding that a common carrier and union 4

discriminated in hiring and promotions in violation of Title VII. Although many of the defendants' employees applied for, and were discriminatorily rejected from, promotions, other plaintiffs had not applied because of the defendant's well-known discriminatory policies. The company argued that the non-applicants were barred from recovery because they did not experience discrimination directly. The Supreme Court rejected the argument and held that those that would have applied but for the company's practices satisfied the prima facie case. Here, Defendants acknowledge that it is "standard procedure" to tell attorneys requesting interpreter services that such services are not available to them. Plaintiff was aware of this policy because she made a request for services and was denied those services. It is reasonable that she did not make another request because she believed that such a request would be futile as a result of Defendants' policy. Second, Defendants argue that Plaintiff has not shown that she meets the redressability requirement because there is no evidence that providing Plaintiff with sign language interpreters for in-court appearances will allow her to build her law practice. Plaintiff argues that any harm that she has suffered is traceable to Defendants' policy of not providing qualified interpreters to deaf attorneys. If Defendants were ordered to provide qualified interpreters when necessary to ensure effective communication with deaf attorneys, Plaintiff would be able to advertise that she can take cases for representation in court and would be able to accept such cases. In support, Plaintiff presents affidavits from two potential clients that were not able to retain Plaintiff because she cannot accept cases that require court appearances but would retain her if she could do so. This is sufficient evidence to show that the alleged harm may be redressed by a favorable decision in this action. Alternatively, Defendants argue that Plaintiff is not entitled to injunctive relief because she lacks standing to seek future relief. Plaintiff argues that she has standing to seek future relief because as long as Defendants' policy is in place, she will not be able to accept cases or advertise 5

that she accepts cases. Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges a real and immediate - as opposed to a merely conjectural threat of future injury. Wooden v. Bd of Regents University System of Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001). As long as Defendants' policy is in place, Plaintiff must turn away clients whose cases require court appearances. This harm is real and immediate. Since Plaintiff is more than likely to suffer harm in the future as a result of Defendants' policy, she has standing to seek injunctive relief. 2. Statute of Limitations

Defendants argue that Plaintiff's claims are time-barred because her claims accrued in 2004 when Defendants implemented a court interpreting services program that provides interpreters for only parties, jurors and witnesses. For the reasons explained below, this argument fails. Neither the ADA nor the Rehabilitation Act contain a statute of limitations. Thus, the most appropriate or analogous statute of limitations derived from the state law most applicable to the federal statute is to be used. DelCostello v. Teamsters, 462 U.S. 151, 158-59 (1983). Most civil rights actions are essentially claims to vindicate injuries to personal rights. See Goodman v. Lukens Steel Co., 482 U.S. 656, 661 (1987)(action for discrimination is one for "fundamental injury to the individual rights of a person"); Wilson v. Garcia, 471 U.S. 261, 276 (1985)(claims which allege discrimination are best characterized as personal injury actions). Based on this guidance from the Supreme Court, most circuits have adopted a statute of limitations for ADA or Rehabilitation Act claims and have looked to the state's limitations period for personal injury actions. See Everett v. Cobb County School District, 138 F.3d 1407, 1409-10 (11th Cir. 1998)(listing circuits which have adopted the state's limitations period for personal injury actions). The most closely-analogous

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Kentucky statute gives Plaintiff one year to commence suit. Ky. Rev. Stat. Ann.

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