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A deaf man who claims that state jailers’ failure to provide a sign language interpreter at an extradition hearing kept him in jail for five extra days can proceed with his suit under the Americans with Disabilities Act. The 3rd U.S. Circuit Court of Appeals ruled Dec. 28 that summary judgment was improperly granted, since whether the accommodation efforts were adequate is “a question of fact precluding summary judgment.” Chisolm v. McManimon, 00-1865. The 3rd Circuit also found that the 11th Amendment does not bar Ronald Chisolm’s suit against the Mercer County Detention Center in Trenton, N.J., and the Mercer County vicinage of the state court system. The district court reached the same conclusion on that issue but for different reasons. U.S. District Judge Mary Little Cooper of the District of New Jersey, raising the issue sua sponte, concluded that Congress had abrogated 11th Amendment immunity in suits under the ADA and Rehabilitation Act. The 3rd Circuit held, however, that the Mercer County vicinage of the court system did not qualify as an arm of state government since the complained-of events occurred before the state takeover of the court system in the mid-1990s. Thus, there was no need not to address congressional intent. The appeals panel found that Cooper overlooked numerous questions of fact about whether Chisolm’s treatment violated the ADA, the Rehabilitation Act and the state Law Against Discrimination. Chisolm was arrested in Princeton, N.J., on Sept. 10, 1994, on a Bucks County, Pa., bench warrant for his failure to attend an intoxicated-driver retraining program, a condition of his guilty plea to driving under the influence. On Sept. 14, he appeared in a Mercer County court for a hearing on his extradition to Pennsylvania, but no sign language interpreter was available. The hearing was rescheduled for Sept. 20, the earliest date an interpreter would be available, and Chisolm was returned to his cell to wait. Chisolm then contacted East Brunswick, N.J., solo practitioner Clara Smit, who had the Pennsylvania bench warrant quashed and won his release. Smit says the bench warrant was issued in error, as Chisolm had been excused from the training class because it could not offer him a sign language interpreter. Chisolm sued over the failure to provide an interpreter during intake screening, a telecommunications device for the deaf that would have allowed him to make telephone calls, and a closed-caption-activated television. Third Circuit Judge Jane Roth, joined by Judges Maryanne Trump Barry and Thomas Ambro, ordered the case remanded to the district court for rehearing on all factual issues. The court noted, for example, the detention center’s misclassification of Chisolm as homeless and unemployed — and therefore a medium-security risk — even though he had been employed by the U.S. Postal Service for 13 years. “We’re very happy that the 3rd Circuit has affirmed the rights of every disabled person, whether during incarceration or as a litigant,” says Smit, who was assisted by lawyers from the National Association for the Deaf in Silver Spring, Md. Mercer County was represented by Assistant County Counsel Ashley Bostic-Hutchinson and Andrew Schragger. Schragger has left his county job. Bostic-Hutchinson and County Counsel Alfred Vuocolo did not return calls. Neither did Senior Deputy Attorney General Douglass Derry, who represented the state. Richard West, a partner at Lum, Danzis, Drasco, Positan & Kleinberg in Roseland, N.J., who represents management, says he believes Chisolm is the first case to hold that county governments are not entitled to 11th Amendment sovereign immunity under the ADA. If the events in Chisolm were based on the status of the Mercer vicinage today, the results might be different, because New Jersey has since amended its constitution to provide for state control of the county courts. While West is interested in the 11th Amendment aspect of Chisolm, plaintiffs’ employment attorney Roger Jacobs of Newark, N.J.’s Jacobs and Associates finds more significance in the case’s holding that accommodation questions are fact issues.

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