Vernon Crowder Stephanie Good v. Yukio Kitagawa, Chairman, Board of Agriculture, State of Hawaii Calvin Lum , 81 F.3d 1480 ( 1996 )

DAVID R. THOMPSON, Circuit Judge:

The plaintiffs are a class of visually-impaired persons who use guide dogs. They seek exemption from Hawaii’s imposition of a 120-day quarantine on carnivorous animals entering the state. They contend Hawaii’s quarantine, designed to prevent the importation of rabies, violates the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and their constitutional rights of travel, equal protection and substantive due process. The district court rejected all these claims and entered summary judgment in favor of Hawaii. The class plaintiffs appeal.

We have jurisdiction under 28 U.S.C. § 1291. We hold that without reasonable modifications to its quarantine requirement for the benefit of visually-impaired individuals who rely on guide dogs Hawaii’s quarantine requirement effectively prevents such persons from enjoying the benefits of state services and activities in violation of the ADA. We conclude there is a genuine dispute of á material fact as to whether the plaintiffs’ proposed alternatives to Hawaii’s quarantine for guide dogs are “reasonable modifications” under the terms of the ADA and implementing regulations. We reverse the district court’s summary judgment in favor of Hawaii, and remand the ease to the district court for further proceedings. We do not reach the plaintiffs’ contentions that Hawaii’s quarantine requirement violates their constitutional rights of travel, equal protection and substantive due process.

FACTS

Hawaii is one of the few places in the world which is completely free from rabies. To protect the state from the importation of the rabies disease, the Hawaii legislature enacted Hawaii Revised Statute § 142-2. This statute allows the Hawaii Department of Agriculture to make rules for the quarantine of animals upon their arrival in Hawaii.

Pursuant to section 142-2, the Hawaii Department of Agriculture established a 120-day quarantine in a quarantine station for dogs, cats and other carnivorous animals entering Hawaii from the United States mainland or from any other country that is not considered rabies free. HawAdmin.R. § 4-29-9(a).

Upon written request, a disabled person seeking to bring a guide dog into the state may stay free of charge for the 120-day quarantine period in one of two apartments and a cottage at the quarantine station. The station is located in Halawa Valley, a somewhat remote area approximately seven miles from central Honolulu.

After an initial 10-day observation period, a guide dog may train with its owner on the station grounds, HawAdmin.R. § 4r-29-15(b)(1) — (2), and may train off the station grounds for up to four hours a day, three days a week, if accompanied by a department inspector. HawAdmin.R. § 4-29-15-(b)(3). During the time a guide dog is outside the quarantine station, however, it may have no contact with other animals or humans. HawAdmin.R. § 4-29-15(b)(5). After the 120-day quarantine period, if the guide dog is found not to have rabies, the dog is released to its owner.

The quarantine applies to visually-impaired users of guide dogs without regard to place of residence. A visually-impaired Hawaii resident who travels to the mainland United States on business or pleasure will have his guide dog quarantined for 120 days upon his return. Similarly, a visually-impaired resident of California, or any other place in the world which is not rabies free, who travels to Hawaii for business or pleasure will have his guide dog quarantined.

Vernon Crowder, a resident of California, and Stephanie Good, a resident of Hawaii, are visually-impaired users of guide dogs. They filed suit in March 1993 against the State of Hawaii and various governmental officials (collectively, Hawaii), and were certified as class representatives (collectively, the plaintiffs) by the district court in January 1994.

The evidence produced in support of the parties’ motions for summary judgment established that the state’s quarantine requirement denies visually-impaired persons the ability to make meaningful use of services the state provides. The plaintiffs rely upon their guide dogs to assist them in negotiating public streets and using transportation systems. Without their dogs to guide them, the plaintiffs are severely restricted in their ability to use state services. The quarantine also renders guide dogs susceptible to irretrievable loss of their training.

The parties agree that the quarantine does not guarantee that rabies will not be imported into Hawaii by quarantined animals. The rabies disease can have an incubation period longer than 120 days. No ease of rabies has ever been intercepted by the quarantine, and to the knowledge of the parties, no guide dog has ever been diagnosed with rabies.

In support of their contention that Hawaii’s quarantine requirement can be reasonably modified for the benefit of visually-impaired users of guide dogs, the plaintiffs contended that more effective alternative means were available to prevent the importation of rabies by guide dogs. Such alternatives include a vaccine-based system by which “dead” vaccines can be administered to the animals by veterinarians, who can then certify the vaccinations by fitting the animals with identifying microchips. The animals can be tested before admission into Hawaii by use of rabies virus antibody titers to ensure against the disease.

In response to the plaintiffs’ evidence of what they contended were effective alternatives to the quarantine requirement, Hawaii produced evidence that its state legislature had recently undertaken a review of the quarantine program. In this review, the legislature had conducted hearings and had considered alternatives such as those proposed by the plaintiffs. The effectiveness of both the state’s quarantine requirement and the vaccine-based alternatives were vigorously debated by veterinarians, scientists and academicians during these hearings. In the face of conflicting scientific and medical opinions, the legislature did not enact any changes to the quarantine or the modifications already in place for the visually-impaired.

In granting summary judgment for Hawaii, the district court held that the plaintiffs were not “qualified individual[s] with a disability” under the -ADA, 42 U.S.C. § 12132, because they were not being excluded from the receipt of state services, programs or activities by reason of their disability. All public services, programs, and activities were open to them, as well as to all other residents of and visitors to Hawaii. The district court also held that even if the plaintiffs did fall within the definition of “qualified individuals” under the ADA, the relevant federal regulations require only that “reasonable modifications” be made to avoid discrimination, and the quarantine already had modifications in place for the benefit of the visually-impaired. The district court granted summary judgment in favor of Hawaii, and this appeal followed.

DISCUSSION

The ADA was enacted by Congress in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress found that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices_” 42 U.S.C. § 12101(a)(5).

The plaintiffs allege Hawaii’s quarantine system violates section 12132 of the ADA, which provides that “no qualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

Section 12131(2) defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies or practices, removal of architectural barriers, or the provision of auxiliary aides and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”

The linchpin of the district court’s summary judgment on the ADA claim, and the state’s argument, is that “[t]he quarantine requirement is a public health measure, and not a ‘service’ or benefit furnished by the state to eligible participants.” Crowder v. Kitagawa, 842 F.Supp. 1257, 1267 (D.Hawai’i 1994). Because, according to the district court, the quarantine requirement is not a service or benefit provided by the state, the quarantine does not deny the plaintiffs any benefits, and as a result they have no claim under the ADA

The flaw in this analysis is the assumption that no violation of the ADA occurs unless a service or benefit of the state is provided in a manner that discriminates against disabled individuals. This simply is not so.

Section 12132 of the ADA precludes (1) exclusion from/denial of benefits of public services, as well as (2) discrimination by a public entity. Due to the insertion of “or” between exclusion from/denial of benefits on the one hand and discrimination by a public entity on the other, we conclude Congress intended to prohibit two different phenomena. Congress intended to prohibit outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability.

In section 12101(a)(5), Congress declared its intent to address “outright intentional exclusion” as well as “the discriminatory effects of architectural,, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices.” It is thus clear that Congress intended the ADA to cover at least , some so-called disparate impact cases of discrimination, for the barriers to full participation listed above are almost all facially neutral but may work to effectuate discrimination against disabled persons.

Few would argue that architectural barriers to disabled persons such as stairs, or communication barriers such as the preference for the spoken word, are intentionally discriminatory. Yet, stairs can deny the wheelchair-bound access to services provided on the second floor of a government building; and communicating only by the spoken word can deny deaf persons the ability to find out that it is the second floor where they must go to obtain the services they seek.

These and other types of barriers to participation by the disabled in public life do not provide any benefits themselves. Neither stairs nor the spoken word is a “servieef], program[], or activit[y]” of a public entity, yet each can effectively deny disabled persons the benefits of state services, programs or activities.

A further indication of Congress’ intent to cover both intentional discrimination and discrimination as a result of facially neutral laws is the explicit mandate in the ADA that federal regulations adopted to enforce the statute be consistent with the Rehabilitation Act, 29 U.S.C. § 794, an earlier congressional effort to combat discrimination against' disabled persons by public entities receiving federal financial assistance. Section 12133 of the ADA provides that “[t]he remedies, procedures, and rights set forth in [the Rehabilitation Act] shall be the remedies, procedures, and rights” applicable to section 12132 discrimination claims. 42 U.S.C. § 12133. See also Collings v. Longview Fibre Co., 63 F.3d 828, 832 n. 3 (9th Cir.1995) (“The legislative history of the ADA indicates that Congress intended judicial interpretation of the Rehabilitation Act be incorporated by reference when interpreting the ADA”).

The Supreme Court interpreted the Rehabilitation Act in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). In Choate, the Court concluded that Congress intended to protect disabled persons from discrimination arising out of both discriminatory animus and “thoughtlessness,” “indifference,” or “benign neglect.” Id. at 295, 105 S.Ct. at 717. The Court held, howevér, that judicial review over each and every instance of disparate impact discrimination would be overly burdensome. Rather than attempt to classify a type of discrimination as either “deliberate” or “disparate impact,” the Court determined it more useful to assess whether disabled persons were denied “meaningful access” to state-provided services. Id. at 302, 105 S.Ct. at 720-21; see also Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir.), cert. denied by Pennsylvania Secretary of Public Welfare v. Idell S., — U.S. -, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995) (“Congress could not have intended to limit the [ADA’s] protections and prohibitions to circumstances involving deliberate discrimination.... Rather, the ADA attempts to eliminate the effects of ... benign neglect, apathy, and indifference.”) (internal quotations omitted).

Athough Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique depéndence upon guide dogs among many of the visually-impaired, Hawaii’s quarantine effectively denies these persons — the plaintiffs in this case — meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others. The quarantine, therefore, discriminates against the plaintiffs by reason of their disability.¹

During the four days of each week of the quarantine period when guide dogs must remain in the quarantine station this denial is especially acute. On the other three days when the dogs are allowed out of the quarantine station grounds, the negative impact of the regulation is only slightly alleviated, because during these days the regulations require that the guide dogs avoid all physical contact with other humans or animals. Haw.Admin.R. § 4r-29-15(b)(5). This effectively precludes visually-impaired persons from using a variety of public services, such as public transportation, public parks, government buildings and facilities, and tourist attractions, where humans or animals are inevitably present.

It is no response to assert that the visually-impaired, like anyone else, can leave their dogs in quarantine and enjoy the public services they desire. As the Department of Justice has noted in related regulations, “the general intent of Congress” was “to ensure that individuals with disabilities are not separated from their service animals,” such as guide dogs. See 28 C.F.R. § 36, Appendix B, at 616 (service animals in public accommodations); 135 Cong.Rec. D956 (Statement of Sen. Simon) (“As an auxiliary aid, the use of assistive animals is protected by the Americans With Disabilities Act, in public accommodations as well as public services (including schools).”).

We conclude that Hawaii’s quarantine requirement is a policy, practice or procedure which discriminates against visually-impaired individuals by denying them meaningful access to state services, programs and activities by reason of their disability in violation of the ADA.

When a state’s policies, practices or procedures discriminate against the disabled in violation of the ADA, Department of Justice regulations require reasonable modifications in such policies, practices or procedures “when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).

There is a genuine dispute of material fact as to whether the plaintiffs’ proposed modifications to Hawaii’s quarantine amount to “reasonable modifications” which should be implemented, or “fundamental ] alterations],” which the state may reject. The district court refused to consider this question because

[t]he legislature has already thoroughly considered [the plaintiffs’] proposed alternatives and has rejected them. As noted earlier, it is the province of the legislature, and not this court, to assess the efGcaey of public health measures against the risks they are designed to reduce, particularly when the questions are debatable and experts disagree as to the best solution to the problem.

Crowder, 842 F.Supp. at 1267.

The district court concluded it could not assess the reasonableness of the plaintiffs’ proposed modifications in light of the legislature’s own consideration of the issue. Yet in virtually all controversies involving the ADA and state policies that discriminate against disabled persons, courts will be faced with legislative (or executive agency) deliberation over relevant statutes, rules and regulations.

The court’s obligation under the ADA and accompanying regulations is to ensure that the decision reached by the state authority is appropriate under the law and in light of proposed alternatives. Otherwise, any state could adopt requirements imposing unreasonable obstacles to the disabled, and when haled into court could evade the antidiscrimi-nation mandate of the ADA merely by explaining that the state authority considered possible modifications and rejected them.

We are mindful of the general principle that courts will not second-guess the public health and safety decisions of state legislatures acting within their traditional police powers. See Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82-83, 66 S.Ct. 850, 851-52, 90 L.Ed. 1096 (1946). However, when Congress has passed antidiscrimination laws such as the ADA which require reasonable modifications to public health and safety policies, it is incumbent upon the courts to insure that the mandate of federal law is achieved.

Whether the plaintiffs’ proposed alternatives to Hawaii’s quarantine for guide dogs constitute reasonable modifications or fundamental alterations cannot be determined as a matter of law on the record before us. Once again turning to the Rehabilitation Act, we have held that the determination of what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry. Chalk v. United States District Court, 840 F.2d 701, 705 (9th Cir.1988). Moreover, inquiry into reasonable modification would necessitate findings of fact regarding the ná-ture of the rabies disease, the extent of the risk posed by the disease, and the probability that the infected animals would spread it.² Cf. School Bd. of Nassau County v. Arline, 480 U.S. 273, 288, 107 S.Ct. 1123, 1131, 94 L.Ed.2d 307 (1987) (such findings necessary in determining if tuberculosis-infected school teacher is “otherwise qualified” to teaeh under section 504 of the Rehabilitation Act).³

CONCLUSION

We reverse the district court’s grant of summary judgment in favor of Hawaii. We remand this case to the district court for determination of the factual dispute whether the plaintiffs’ proposed modifications to Hawaii’s quarantine are reasonable under the ADA.

We do not address the plaintiffs’ constitutional claims because if the plaintiffs prevail on their ADA claim resolution of their constitutional claims will be unnecessary. It is “a fundamental rule of judicial restraint” that federal courts “ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996-97, 86 L.Ed.2d 664 (1985) (internal quotations omitted); Hospital & Service Employees Union v. NLRB, 743 F.2d 1417, 1427 (9th Cir.1984). In the event the plaintiffs do not prevail on their ADA claim, this panel of the court will then consider, upon request to do so, the district court’s summary judgment on the plaintiffs’ constitutional claims.

Any farther appeals or requests for review in this case will be heard by the present panel.

REVERSED and REMANDED.

1 . In his dissent, Judge O'Scannlain argues that if the quarantine discriminates or denies state services “by reason of blindness, then all people who are blind could” assert this ADA claim. Dissent at 1492 (emphasis omitted). Judge O'Scannlain explains that "the quarantine does nothing by reason of blindness; it affects the plaintiffs only because of their use of guide dogs." Id. (emphasis omitted). We respectfully disagree.

Many barriers to full participation of the disabled work their discriminatory effects due to the auxiliary aids upon which the disabled rely, and not due solely to the disabling impairment. For example, stairs do not affect victims of multiple sclerosis solely by reason of their disease; some victims of multiple sclerosis, particularly in its early stages, may still be able to walk. The architectural barrier of stairs works its discriminatory effect because other victims of the disease rely on wheelchairs to move around. In this instance, it is not the disease which renders the disabled incapable of accessing services, it is the reliance on a particular type of auxiliary aid which does so.

2 . This analysis is particularly important when, as here, there is evidence that the risk of rabies being imported by guide dogs is low, vaccine-based alternatives may be equally or more effective in preventing the importation of rabies; and the quarantine has not once in over 75 years detected a single case of rabies among imported dogs.

3 . Hawaii asks us to find the evidence submitted by the plaintiffs in support of their proposed alternatives does not amount to reliable, relevant scientific evidence under Dauberl v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995). We decline to do so. The district court did not address this issue of scientific reliability, and we will not consider it in this appeal. Hawaii may present its Daubert objection to the district court in the course of further proceedings following remand.