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Miles Herman has represented clients at the Bristol County Courthouse in Massachusetts for years. There’s only one problem. Herman has never actually been inside a courtroom in the Bristol County Courthouse. The Plymouth, Mass.-based solo practitioner is disabled, and can’t walk up the courthouse steps. The building has no access for disabled people. Herman has been in a wheelchair ever since he was hit by a drunken driver when he was 19 years old. Instead of a courtroom, Herman and his clients have held divorce proceedings in the parking lot and arraignments in the cellar boiler room. “I was being accommodated [in Bristol County] by moving boxes out of the way to bring me into the cellar and a judge and some clerk would come down and hold proceedings there,” Herman said. But that will soon change. On Jan. 20, a federal judge approved a settlement with the state of Massachusetts that will allocate $6 million to upgrade courthouses and registrars of deeds throughout Bristol County. The court buildings located in New Bedford, Taunton, Fall River and Attleboro will be renovated to provide access to disabled persons. The settlement ends a lawsuit filed by Herman and another disabled lawyer, Joseph deMello, a solo practitioner out of Taunton, about two years ago. The action, deMello v. Mulligan C.A., No. 01-CV-11730 (D. Mass.) was filed in federal court and relied on both federal and state law to assert that the plaintiffs were discriminated against because they were disabled, according to their lawyer, Carlin Phillips of Phillips & Garcia in North Dartmouth, Mass. The complaint cited the Americans With Disabilities Act (ADA), the federal rehabilitation and civil rights acts, the Massachusetts Constitution and the state’s civil rights act. In response to deMello, the U.S. Department of Justice also sued the state, in its capacity as enforcer of Title II of the ADA. U.S. v. Commonwealth of Massachusetts, C.A. No. 03-10246 (D. Mass.). The settlement resolves both cases. Fellow law students Herman and deMello first met as law students at the New England School of Law. DeMello, who suffers from muscular dystrophy, primarily practices in Bristol County. Herman, however, had stopped taking clients in Bristol because the aggravation over how he was going to get into the courthouse had begun to overshadow the interest of his clients. “I felt my energy and intelligence should be devoted to my clients’ problems and not my problem getting into the building,” said Herman. “So I stopped practicing in Bristol and it was a big blow to my practice.” It was deMello who initiated the lawsuit and asked Herman to join. DeMello walks with a cane but expects he may need a wheelchair in the future. The two declined any compensatory damages and filed the suit as a class action. The Massachusetts attorney general’s office represented the state, but declined to comment on the settlement. The plaintiffs have also procured a letter from the office of Governor Mitt Romney, according to their lawyer, to ensure that the necessary funding will be made available. Meanwhile, the U.S. Supreme Court heard oral arguments this month in a similar ADA case, Lane v. Tennessee, to determine whether plaintiffs can sue the state of Tennessee over courthouses that are not in compliance with the ADA. The case was brought by a court reporter who claims her career has been disadvantaged and a paraplegic who says he was humiliated by having to crawl up two flights of stairs to attend his arraignment on misdemeanor charges. The 6th U.S. Circuit Court of Appeals in Cincinnati said the plaintiffs do have a right to sue for damages on the basis of Title II of the 1990 ADA. Tennessee appealed to the high court, asserting a defense of sovereign immunity. That defense was also raised in Massachusetts, according to Phillips, but the issues were mediated and settled. For now, court personnel work in good faith to accommodate Herman, but he gets exasperated when he sees the halls of justice modernized with new carpeting and new computers, and yet still not in compliance with the ADA. “What is it they say?” Herman said. “It’s the plumbers’ pipes that always leak.” McAree’s e-mail is [email protected].

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