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The next major battleground over the scope and meaning of the Americans With Disabilities Act may be the public sidewalk. In City of Sacramento v. Barden, No. 02-815, which goes before the Supreme Court at its private conference Feb. 28, the issue is whether the 1990 federal disabilities law requires local governments to overhaul existing sidewalks to make them more accessible to the disabled. In an amicus curiae brief filed in the case, the National League of Cities warns of “dire fiscal consequences” if the high court answers yes. Justices will decide at the conference whether or not to grant review in the case, along with dozens of others. The Court will also meet in conference on March 7. Ever since the ADA was passed, the high court has had a steady diet of cases interpreting its provisions. The Sacramento, Calif., case asks whether municipal sidewalks are the type of government “program, service or activity” the law says must be made accessible to those with disabilities. Aided by the Oakland-based organization Disability Rights Advocates, Sacramento resident Joan Barden, along with others with mobility and vision disabilities, filed a class action against the city under ADA in 1999. Their aim was to force the city to remove obstacles from existing Sacramento sidewalks � such as poles, benches, and broken concrete � as well as to install curb ramps in new sidewalks. The city agreed to the demands for curb cuts when it builds new sidewalks, but balked at the costly renovation of existing walkways, asserting that such changes were not covered by the ADA. After a district judge ruled for the city, a unanimous panel of the U.S. Court of Appeals for the 9th Circuit reversed and ruled against Sacramento, finding that public sidewalks are subject to the accessibility requirements of the ADA. “Attempting to distinguish which public functions are services, programs, or activities, and which are not, would disintegrate into needless hair-splitting arguments,” 9th Circuit Judge A. Wallace Tashima wrote for the panel. “The focus of the inquiry, therefore, is not so much on whether a particular public function can technically be characterized as a service, program, or activity, but whether it is a normal function of a governmental entity.” By that standard, Tashima held, sidewalks are clearly covered. But Sacramento, in its appeal to the Supreme Court, argues strenuously that the law does not cover sidewalks. “Services are something that can be received by the public, and programs or activities are things that citizens participate in,” asserts Roy Englert Jr., a partner at D.C.’s Robbins, Russell, Englert, Orseck & Untereiner, on behalf of Sacramento. “No one receives or participates in a sidewalk.” With apologies to the songwriters, Englert invokes the words of the 1894 song “Sidewalks of New York” to suggest that in lyrics as well as in statutory interpretation, regarding sidewalks as a program or service would be a stretch. Englert also notes that the Justice Department, the lead agency in interpreting the ADA, only recently concluded that the act covers sidewalks, when it intervened in the Sacramento case. Congress, Englert notes, distinguished between existing and new facilities in enacting the ADA, mindful of the cost of requiring cities to rebuild their infrastructure. He cited numerous court rulings that found other analogous entities not to be covered. The National League of Cities, the U.S. Conference of Mayors, and numerous cities are asking the high court to take the case. Laurence Paradis, executive director of the disability rights group, argues in a brief that the 9th Circuit ruling was clearly correct. “Undeniably, one uses and benefits from the public sidewalk system, just as one uses and benefits from a library,” he writes. Paradis also asserts that broken concrete and blocked paths often make sidewalks impassable or dangerous for those with disabilities: “The cumulative effect of sidewalk barriers is the profound limitation of the ability of people with disabilities to travel around in the community and to conduct the basic activities of daily life.” OTHER CASES UP FOR REVIEW Feb. 28:Perna v. United States, No. 02-787. Statute of limitations under the Federal Tort Claims Act. • McClendon v. Columbia, Miss., No. 02-861. Qualified immunity for police officer who loaned gun to an informer, who used it to shoot someone. March 7:Lamie v. United States Trustee, No. 02-691. Whether the Bankruptcy Code authorizes attorney fees award to debtor’s attorney. • Household Credit Services Inc. v. Pfennig, No. 02-857. Validity of Federal Reserve regulation of credit card charges under the Truth in Lending Act. • Fluor Federal Services Inc. v. Brundridge, No. 02-896. The National Labor Relations Board’s exclusive jurisdiction in unfair labor practice claims. • Mayfield Heights, Ohio v. Shemo, No. 02-914. Whether an unconstitutional zoning restriction on residential use should be deemed a taking requiring just compensation. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein represents the petitioner in Lamie v. United States Trustee, No. 02-691.

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