Remand in Klingler v. Director, Dep’t of Revenue
on Jun 13, 2005 at 11:57 am
This morning the Court sent an interesting case back to the Eighth Circuit for reconsideration and did so in an interesting way. The petition in Klingler v. Director, Dep’t of Revenue, No. 04-585, sought review of a decision from the Eighth Circuit that held that Title II of the Americans with Disabilities Act (ADA), was unconstitutional to the extent it prohibited Missouri from imposing a $2 surcharge on parking placards that allow people with disabilities to park in handicap parking spaces. The court held that Congress lacked the power under the Fourteenth Amendment or the Commerce Clause to prohibit such a surcharge. Today, the Court granted the petition, vacated the court of appeals’ decision, and remanded the case for reconsideration of the Court’s recent decision in Gonzales v. Raich , No. 03-1454 (which upheld Congress’s power to prohibit possession of medical marijuana under the Commerce Clause) and its decision from last term in Tennessee v. Lane , No. 02-1667 (which held that Title II of the ADA was valid Fourteenth Amendment legislation as applied to disability discrimination in access to courts and judicial services). [Disclosure: I worked on this case in the court of appeals when I was at the Justice Department].
The GVR in light of Lane is a bit of slap in the face to the Eighth Circuit because the court of appeals already had a chance to reconsider its decision in light of Lane but chose not to. Lane was decided after the panel decision in Klingler, but both the plaintiffs and the United States as intervenor petitioned for rehearing, asking the court to reconsider its Fourteenth Amendment holding in light of Lane. Without comment, the court of appeals denied the petitions.
The Court’s GVR in light of Lane, therefore, could be seen as expressing disagreement with the Eight Circuit’s adherence to its prior precedent without reflection on the implications of Lane. But the GVR could also reflect deference to Missouri’s Solicitor General, who joined the plaintiffs and the United States in the Supreme Court in asking the Court to GVR in light of Lane, an interesting move in itself. In the trial court and in the court of appeals, Missouri had argued that Title II was not valid Fourteenth Amendment legislation. However, the State’s Solicitor General signed on to an amicus brief in Lane taking the opposite position, urging the Court to uphold Title II as valid Fourteenth Amendment legislation in all its applications. In his response to the cert. petition in Klingler, the State Solicitor General acknowledged this inconsistency and asked the Court to GVR in light of Lane. While there has been some disagreement on the Court over whether it is appropriate to GVR a case in light of the government’s change in position, see Lawrence v. Chater, 516 U.S. 163 (1996), the GVR in light of Lane at the State’s request may reflect a desire to accommodate the State’s request for a second chance to craft its position in the court of appeals.
The GVR in light of Raich is less surprising. The court of appeals’ decision, like the Ninth Circuit’s decision in Raich, took a rather narrow view of the proper unit of the Commerce Clause analysis, asking whether Title II was valid Commerce Clause legislation as applied to this particular parking fee in this particular state, even though the statute prohibits disability discrimination in public services writ large and the regulations prohibit surcharges on accessibility generally.
Another interesting aspect of the decision is that the Court did not hold the petition pending its decision in United States v. Georgia, No. 04-1203, a case that will be decided next Term. Georgia is a follow-up to Lane, asking whether Title II is valid Fourteenth Amendment legislation as applied to prisons. One might have thought that the forthcoming decision in Georgia would be at least as informative as the prior decision in Lane. But the Court’s decision not to hold the case may reflect a recognition that the State will presumably abandon any Fourteenth Amendment challenge to Title II on remand (given its position as amicus in Lane and its statements in the response to the petition in Klingler), rendering both the Fourteenth Amendment and Commerce Clause challenges moot.
