Vernon Crowder Stephanie Good v. Yukio Kitagawa, Chairman, Board of Agriculture, State of Hawaii Calvin Lum

81 F.3d 1480 64 USLW 2694 , 5 A.D. Cases 810 , 15 A.D.D. 1, 8 NDLR P 27 , 96 Cal. Daily Op. Serv. 2980 , 96 Daily Journal D.A.R. 4956 Vernon CROWDER; Stephanie Good, Plaintiffs-Appellants, v. Yukio KITAGAWA, Chairman, Board of Agriculture, State of Hawaii; Calvin Lum, et al., Defendants-Appellees. No. 94-15403. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 6, 1995. Decided April 30, 1996. Michael A. Lilly, Honolulu, Hawaii, for plaintiffs-appellants. Heidi M. Rian and Sonia Faust, Deputy Attorneys General, Honolulu, Hawaii, for defendants-appellees. Burton J. Rubin, Alexandria, Virginia, for amicus curiae American Society of Travel Agents, Inc. Jessica Dunsay Silver and Rebecca K. Troth, United States Department of Justice, Washington, DC, for amicus curiae United States of America. Appeal from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding, D.C. No. CV-93-00213-DAE. Before: HUG, Jr., Chief Judge, THOMPSON and O'SCANNLAIN, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: 1 The plaintiffs are a class of visually-impaired persons who use guide dogs. They seek exemption from Hawaii's imposition of a…

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…

dissenting:

I cannot agree that the State of Hawaii has violated its obligation to blind people under federal law. Because the plaintiffs have failed to offer any evidence to satisfy two of the three elements required to be proven by the plain language of the statute at issue in this case, I respectfully dissent.

I

To state a claim under section 202 of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 , a plaintiff bears the burden of proving: (1) that he is a “qualified individual with a disability” as defined in section 12131(2); (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiffs disability. Tyler v. City of Manhattan, 857 F.Supp. 800, 817 (D.Kan.1994) (citation omitted); Concerned Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F.Supp. 986, 990 (S.D.Fla.1994).

As to the first requirement, the blind plaintiffs in this case are clearly disabled. However, it is not dear whether they meet the…