SR-106-040-02 (2)
F:\HSD\SHARE\COMMISSIONS-ADVISORY BOARDS\Disabilities Commission\Staff Reports\Barden v. Sacramento.doc
City Council Meeting February 25, 2003
Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Request From Disabilities Commission that the City Council Pass a
Resolution Refusing to Support the City of Sacramento’s Position in
the Lawsuit Barden v. City of Sacramento
Introduction
This report transmits a proposed resolution drafted by the City’s Disabilities
Commission, which, if approved by City Council, would state that the City of
Santa Monica refuses to support the City of Sacramento’s appeal to the U.S.
Supreme Court in Barden v. City of Sacramento (Attachment).
Background
In 1999 eight residents with disabilities of the City of Sacramento filed suit
against the city, claiming that public city sidewalks are subject to the accessibility
requirements under ADA Title II and, therefore, that the city was responsible to
install curb ramps in newly constructed or altered sidewalks and to remove
barriers in existing sidewalks. The plaintiffs and the city agreed to an injunction
regarding the need for the city to install curb ramps. However, they did not agree
on the city’s obligation to remove other barriers to sidewalk accessibility such as
benches, sign posts and wires. Before the federal District Court, the City of
Sacramento’s position was that sidewalks were not a service, program or activity
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within the meaning of the ADA, and therefore the City was not required to make
its sidewalks accessible. The District Court agreed with Sacramento and
plaintiffs appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit reversed the District Court. The Court of Appeal concluded that
the ADA’s “prohibition of discrimination in the provision of public services applies
to the maintenance of public sidewalks, which is a normal function of a municipal
entity.” The Court remanded the case back to the District Court. As stated by
the Ninth Circuit ‘’at trial, the City will have the opportunity to present evidence
concerning any ‘undue financial and administrative burdens’”.
In November 2002, the City of Sacramento requested review by the U.S.
Supreme Court. The U.S. Supreme Court has yet to decide whether it will accept
the case. Amicus curiae briefs have been filed on behalf of both sides.
Discussion
At this stage, the primary issue in this lawsuit is whether sidewalks fall within
ADA requirements. If they do, it is unclear whether or not the City of Sacramento
has violated the ADA and if it has, what the remedy will be. Obviously many
issues have been left open and are yet to be decided. Similarly, if the Supreme
Court accepts review and reverses the Court of Appeals many issues may be left
undecided, including whether Sacramento or any other city has to install curb
ramps. The Sacramento Public Works Director has stated in an October 16,
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2002 letter to other cities that the lawsuit claims “that under the ADA, a city’s
sidewalks must be made ‘accessible’ by the removal and replacement of
displaced or broken concrete, by the removal of telephone poles and other
‘obstructions’ in the sidewalk; and by the removal and replacement of all
sidewalks with ‘excessive’ cross slope… The financial implications for cities,
counties, telecommunications and utilities companies if this decision is permitted
to stand are enormous.”
One of the plaintiffs states that this is not accurate and that the ADA itself already
protects cities against undertaking renovations that would cause “undue
hardship.” The plaintiffs in the lawsuit ask “only for a plan to remove barriers in
the sidewalk” similar to those plans used by most cities to address the installation
of curb cuts over the course of several (up to 15 in some cases) years, and that
the plaintiffs and other disability activists have always been willing to have it done
incrementally. They were “willing to agree that the city could take up to 40 years
to complete the project,” a plan that was presented to the City of Sacramento in
failed settlement negotiations.
The City of Sacramento states that more than 75 cities, including Phoenix,
Denver and New York City, have voted to support the City of Sacramento and
many of them have joined an amicus brief in support of Sacramento’s position.
The National League of Cities and the California League of Cities have joined in
an amicus curiae brief filed on behalf of the City of Sacramento, which urges the
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Supreme Court to accept review of the case. However, a number of local
government bodies have refused to support the City of Sacramento and have
instead supported the plaintiffs, including the City and County of San Francisco,
the County of Los Angeles and the Cities of Los Angeles, Oakland, Berkeley and
Chico.
On December 12, 2002, the Disabilities Commission voted unanimously to
request that the City Council pass the attached proposed resolution stating its
opposition to the City of Sacramento’s position in the case Barden v. City of
Sacramento. The Disabilities Commission also voted to request that City Council
join an amicus curiae brief on behalf of the plaintiff.
Budget/Financial Impact
Approving the resolution does not have any budget impact. If the appellant does
not prevail, the financial impact potentially ranges from none if the City is already
compliant with any time and condition standards which may be set by the court to
a high cost if time and condition standards exceed those the City observes. At
present it is not possible to determine whether there will be any long-term
financial impact on the City as a result of the outcome of the case.
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Recommendation
Staff recommends that City Council receive the draft resolution and consider the
Commission’s request.
PREPARED BY: Barbara Stinchfield, Director
Julie Rusk, Human Services Manager
Tracy Scruggs, Human Services Supervisor
Janet Hand, Sr. Administrative Analyst, Human Services
Division
Community and Cultural Services Department
Joe Lawrence, Assistant City Attorney
ATTACHMENT: Proposed Resolution from Disabilities Commission
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RESOLUTION NUMBER __________________ (CCS)
(City Council Series)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA,
CALIFORNIA REFUSING TO SUPPORT THE CITY OF SACRAMENTO’S
POSITION IN THE LAWSUIT BARDEN V. CITY OF SACRAMENTO
WHEREAS the City of Santa Monica values the contribution of people with
disabilities to society and supports the efforts of the disability community to
overcome long-entrenched social, institutional, and physical barriers to equal
access for people with disabilities; and
WHEREAS, the City of Santa Monica believes that, as a matter of law and
as a matter of sound public policy, cities have an obligation to make ongoing,
reasonable efforts to ensure that sidewalks are accessible to people with
disabilities; and
WHEREAS, the City of Sacramento, in its appeal to the United States
Supreme Court in Barden v. City of Sacramento, argues that the Americans with
Disabilities Act does not require cities to maintain accessible sidewalks; and
WHEREAS, the City of Sacramento has asked other cities to support the
appeal,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
HEREBY RESOLVES THAT:
Section 1. The City Of Santa Monica joins the City and County of San
Francisco, the County of Los Angeles, and the Cities of Los Angeles, Oakland,
Berkeley, and Chico, in respectfully refusing to support the City of Sacramento’s
appeal to the United States Supreme Court in Barden v. City of Sacramento.
Section 2. The City Clerk shall certify to the adoption of this Resolution;
and thenceforth and thereafter the same shall be in full force and effect.
APPROVED AS TO FORM:
______________________________
Marsha Jones Moutrie, City Attorney