Kitzhaber

Per Curiam Opinion; Concurrence by Judge O’SCANNLAIN

OPINION

We must decide whether the Eleventh Amendment bars claims against the State of Oregon under the Americans with Disabilities Act and the Rehabilitation Act, and whether these statutes, in turn, bar claims against state officials.

I

The Plaintiffs are ten individuals with mental illness (collectively or individually “Miranda B.”) who are institutionalized in state psychiatric hospitals in Oregon. Miranda B. brought claims under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-65 (“Title II”), for failing to provide community-based treatment and for unnecessary institutionalization, and under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”) for fading to provide services in the most integrated setting. Miranda B. named the Oregon Department of Human Services (“DHS”), its director, Bob Mink, and Oregon’s Governor, John Kitzhaber (collectively “the State”) as defendants. In her complaint, Miranda B. alleges that she has been assessed by the State’s treating professionals as being ready for discharge to a community placement for a period of months, but has remained…

concurring.

I agree with the State of Oregon that if we had treated the issues at hand in the first instance with the thoughtful consideration that they deserved, we would have reached a different result. Nevertheless, I concur in the court’s reasoned decision: our precedent clearly commands the conclusion that Oregon is not entitled to Eleventh Amendment immunity under Title II of the ADA and that the State waived its Eleventh Amendment immunity under Section 504 of the Rehabilitation Act by accepting federal funds.

I write separately not to belabor my reasoning for why I have concluded our precedent is wrong — I have done so in detail elsewhere, see, e.g., Hason v. Med. Bd. of Cal., 294 F.3d 1166 (9th Cir.2002) (O’Scannlain, J., dissenting from denial of rehearing en banc); Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226 (9th Cir.2002) (O’Scannlain, J., dissenting from denial of rehearing en banc) — but rather to state once again that our precedent in these important areas is far out of step with both our sister circuits and the Supreme Court. 1 As I have stated before, “Clark and Dare have gone the way of the dodo bird and- the wooly mammoth, overtaken and relegated to…