[NFBMT] SB 439
Jim Marks
blind.grizzly at gmail.com
Fri Apr 12 20:49:13 UTC 2019
Great Treasure State Chapter meeting last night. Here are more details on
the MT Supreme Court decision I mentioned during our meeting.
FYI the following is an excerpt from a Montana Supreme Court decision in
which a veteran with a disability using a service dog lost his complaint
against the Bozeman Police Department for failing to enforce his civil
rights. Interestingly enough, the man also sued and won a complaint against
the C'Mon Inn in Bozeman. The hotel refused to rent the man a room because
they wanted no animals in their business, and the courts found this to be
illegal discrimination and awarded the man $15,000. . More details are
below.
The importance of this case is that Montana law enforcement does not have to
enforce the rights of people with disabilities as outlined in MCA 49-4-211
Public Accommodation Access. Even though Montana law assigns a misdemeanor
to violations of civil rights, law enforcement is under no obligation to
enforce the law according to this case. Since the decision comes from the
Montana Supreme Court, the public policy established with this decision
stands now and for the foreseeable future. One take-away from this case is
that people with disabilities have to advocate for ourselves, that disputes
and violations are civil and not criminal, and that we can never look to law
enforcement to intervene when we encounter discrimination. Here is the
excerpt:
IN THE SUPREME COURT OF THE STATE OF MONTANA
May 26 2015
Case Number: DA 14-0683
COREY HANSEN,
Plaintiff and Appellant,
V.
BOZEMAN POLICE DEPARTMENT,
APPEAL FROM: District Court of the Eighteenth Judicial District,
Submitted on Briefs: April 8, 2015 Decided: May 26, 2015
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Corey Hansen appeals from the District Court's orders denying leave to
file an amended complaint and granting summary judgment to the Bozeman
Police Department. We affirm.
¶2 Hansen presents the following issues for review:
9 Issue One: Did the District Court err in denying Hansen's motion for
leave to file an amended complaint?
¶4 Issue Two: Did the District Court properly grant summary judgment to
the Bozeman Police Department?
BACKGROUND
¶5 Corey Hansen is a veteran who suffers from service-connected physical
conditions, including a seizure disorder. He has a service dog that alerts
him to oncoming seizures. In 2011 Hansen and a few friends planned a visit
to the C'Mon Inn, a hotel in Bozeman, Montana. Hansen had a reservation and
had stayed at the hotel with his service dog in the past. He left copies of
the certification papers for his service dog on file at the hotel. Those
papers were still on file in September 2011 when Hansen arrived to check in,
accompanied by his service dog wearing the appropriate identification vest.
¶6 The C'Mon Inn staff refused to allow Hansen to register at the hotel
because he was accompanied by his service dog. The hotel's reason for
excluding Hansen was that dogs are not allowed on the premises. This refusal
persisted after Hansen explained that he had a disability that required the
presence of the service dog; that the presence of the
2
service dog had been noted when the reservation was made; that he had stayed
there in the past with his dog; and that the dog's papers were on file at
the hotel. Eventually Hansen called 911 and complained that the hotel was
violating his rights and discriminating against him by refusing him entry. A
hotel employee also called 911 to ask that Hansen be removed from the
premises.
¶7 Three Bozeman Police Department officers responded. They first
interviewed Hansen and his friends, and then the C'Mon Inn manager. The
manager claimed that Hansen had become "disorderly" when employees
questioned him about his service dog and asked that Hansen be removed from
the premises. The officers told Hansen that he would have to leave, but
suggested other motels that would allow him to stay with his dog and
obtained a C'Mon Inn business card so that Hansen could file a complaint if
he wished.
¶8 Hansen filed a complaint against the hotel with the Montana Human
Rights Bureau. After an investigation and an evidentiary hearing, the
hearing examiner determined that the C'Mon Inn had discriminated against
Hansen and had violated his rights under the Montana Human Rights Act. The
hearing examiner awarded Hansen $15,000 in damages against the C'Mon Inn.
¶9 Hansen filed a separate Human Rights complaint against the Bozeman
Police Department. The Human Rights Bureau investigated and concluded that
the police did not discriminate against him. The Human Rights Commission
upheld that conclusion
3
and issued a right to sue notice.' Hansen filed the present action against
the Bozeman Police Department, contending that the responding officers
themselves violated the Human Rights Act when they "aided, abetted and
facilitated" the C'Mon Inn's discrimination against him.
¶10 Hansen appeals from the District Court's refusal to allow him to amend
his complaint and from the subsequent order granting summary judgment to the
Bozeman Police Department. We affirm.
STANDARD OF REVIEW
¶11 This Court reviews a district court's decision on a motion under Rule
15, M. R. Civ. P. to file an amended pleading to determine whether there was
an abuse of discretion. Seamster v. Musselshell County Sheriff's Office,
2014 MT 84, Ili 6, 374 Mont. 358, 321 P.3d 829.
¶12 This Court reviews a district court's decision on a motion for summary
judgment de novo, using the same criteria as the district court under Rule
56 M. R. Civ. P. Passmore v. Watson, 2014 MT 287,119, 376 Mont. 529, 337
P.3d 84.
DISCUSSION
¶13 Issue One: Did the District Court err in denying Hansen 's motion
for leave to file an amended complaint?
¶14 Hansen filed the complaint in this action on October 18, 2012, and moved
for leave to file an amended complaint on June 3, 2014, proposing to include
a new claim that the Bozeman Police Department negligently trained and
supervised its officers. The
1 We have not located copies of these documents in the record on appeal.
4
deadlines for the close of discovery and for amendment of pleadings had been
set in a stipulated scheduling order and had already passed. Hansen
contended that he did not learn of the facts to support the new claim until
he deposed the responding officers the last day of the discovery period.
Bozeman objected to the motion.
¶15 The District Court concluded that Hansen had unduly delayed both
deposing the officers and filing the motion to amend. Further, Hansen's
claims had been through two Human Rights proceedings, including
investigations and a hearing. The District Court therefore concluded that
Hansen's claim that he did not have information on a failure to train issue
was "disingenuous." Additionally, while Hansen did not request a new
pretrial scheduling order, the new claim would require additional discovery
and designation of expert witnesses. The District Court determined that the
motion for leave to amend was therefore untimely and prejudicial to Bozeman,
and should be denied.
¶16 We find that the District Court thoroughly considered the positions of
the parties and the context of the case to determine that leave to amend
should not be granted. Determining whether to grant leave to amend is within
the discretion of a district court, which acts arbitrarily if it acts
without employing conscientious judgment, or exceeds the bounds of reason in
view of all the circumstances. Campbell v. Bozeman Investors, 1998 MT 204,
II 34, 290 Mont. 374, 964 P.2d 41. Hansen has not demonstrated that the
District Court abused its discretion, and the decision to deny leave to file
the amended complaint is affirmed.
5
¶17 Issue Two: Did the District Court properly grant summary judgment to
the Bozeman Police Department?
¶18 Hansen's complaint alleged two claims for relief: that the responding
officers discriminated against him by violating § 49-2-302, MCA (part of the
statues referred to as the Montana Human Rights Act), and by violating the
Federal Americans With Disabilities Act. The District Court granted summary
judgment to Bozeman on both claims, concluding that neither Act required
that the officers enforce Hansen's asserted rights against the C'Mon Inn.
The essential facts are not in dispute and therefore there is only an issue
of law.
¶19 Montana law provides that it is an unlawful discriminatory practice for
a public accommodation to refuse service to a person "because of a physical
or mental disability." Section 49-2-304, MCA. As noted, the Human Rights
Bureau, in a separate proceeding and after hearing, determined that the
C'mon Inn violated § 49-2-304, MCA, by refusing to provide a room to Hansen.
Hansen contends that the Bozeman police officers were required to materially
assist him at the scene in his dispute with the hotel personnel. At the
hearing on summary judgment, Hansen's attorney argued that the officers
responded to the situation with the wrong attitude, that they did not try to
get the hotel to reconsider its position, and that they did an inadequate
investigation. He did not contend that the officers should have forced the
hotel to give Hansen a room. The officers, he said, were required "to at
least attempt to enforce his rights."
¶20 The District Court considered these arguments and the Human Rights
statutes and was unable to find support for these contentions, concluding
that officers responding to a
6
911 call are not required to force another to make a reasonable
accommodation to a person with disabilities. Rather, Hansen's statutory
remedy, which he utilized, was to pursue a claim under the Human Rights
statues. Montana law, § 49-2-501 to -504, MCA, provides that the duty to
enforce the Human Rights Act rests with the Montana Department of Labor and
Industry (Department). Persons "aggrieved by any discriminatory practice"
may file a complaint with the Department, § 49-2-501, MCA, which is the
exclusive remedy to address unlawful discrimination in Montana. Section
49-2-512(1), MCA; Edwards v. Cascade County Sheriff 2009 MT 451, If 69, 354
Mont. 307, 223 P.3d 893.
¶21 When an aggrieved person files a complaint, the Department is required
to investigate and attempt to informally settle the dispute. Section
49-2-504(1), (2), MCA. The Department must issue a finding based upon the
facts of the case as to whether there is reasonable cause to believe that
unlawful discrimination has occurred. Section 49-2-504(7), MCA; Reeves v.
Dairy Queen, 1998 MT 13, irf 28, 287 Mont. 196, 953 P.2d 703. The Department
may determine that the facts either support the claim or that they do not.
Section 49-2-504(7)(b), (c), MCA. If there is reasonable cause to believe
that there was discrimination, the matter is referred to a contested case
hearing. Section 49-2505, MCA. The hearing officer issues a decision and
either party may appeal to the Human Rights Commission. Section 49-2-505(3)
to (5), MCA. The Human Rights Division hearings officer may provide
appropriate relief to the aggrieved party, § 49-2-506, MCA, which may be
enforced by petition to district court, § 49-2-508, MCA.
7
¶22 The express allegation in Hansen's complaint was that Bozeman itself
violated the
Human Rights Act when it "aided and abetted" the C'Mon Inn's discriminatory
conduct. Hansen's claim is based upon § 49-2-302, MCA:
It is unlawful for a person, educational institution, financial
institution, or governmental entity or agency to aid, abet, incite, compel
or coerce the doing of an act forbidden under this chapter or to attempt to
do so.
The Montana Human Rights Act does not contain a definition of the terms
"aid, abet, incite, compel or coerce" as used in § 49-2-302, MCA. The
District Court and the parties relied upon the Restatement of Torts for a
definition of "aiding and abetting":
For harm resulting to a third person from the tortious conduct of another,
one is subject to liability if he
does a tortious act in concert with the other or pursuant to a common
design with him, or
knows that the other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself,
or
gives substantial assistance to the other in accomplishing a tortious
result and his own conduct, separately considered, constitutes a breach of
duty to the third person.
Restatement (Second) of Torts, § 876. Assuming that this definition applies,
Bozeman does not qualify as an aider or abettor of C'Mon Inn's
discrimination. Most obviously, the hotel had already discriminated against
Hansen by refusing to register him before the officers arrived. There is
nothing but speculation to support a contention that the C'Mon Inn staff
would have reversed its decision if only the officers had done or said
something different. And, it is notable that the C'Mon Inn organization
continued its resistance to Hansen's claim through the investigation and the
evidentiary hearing that resulted in an adverse decision.
8
¶23 There is also no material support for the contention that the
responding Bozeman officers committed a discriminatory act "in concert with"
or as part of a "common design" with the hotel, or that the officers gave
"substantial assistance or encouragement" to the hotel to discriminate
against Hansen. While Hansen sees assistance and encouragement in the
officers' ultimate request that he leave the hotel and seek a room
elsewhere, there is no showing that this was anything more than their good
faith effort to diffuse the impasse between Hansen and the hotel staff.
Last, the officers did not discriminate against Hansen through their own
separate conduct. Therefore, we find no evidence to support a contention
that they aided or abetted C'Mon Inn's conduct.
¶24 We agree with the District Court's conclusion that the Human Rights Act
on its face does not make law enforcement officers responsible for remedying
unlawful discrimination following the aggrieved party's call to 911. To the
contrary, the law sets
out clear procedures and remedies to address and correct discrimination.
While § 49-2-601, MCA, makes engaging in willful discrimination a
misdemeanor, nothing in
that section evidences an intent to allow or require law enforcement
officers to supplant the statutes providing for enforcement of protections
against discrimination in Montana. Hansen is unable to concretely describe
the parameters of a law enforcement officer's responsibility in a situation
like the one in this case. See McDonald v. DEQ, 2009 MT 209, 351 Mont. 243,
214 P.3d 749 (determining the parameters required for employer's
accommodation of employee's service dog).
¶25 Hansen sued under the Human Rights Act, and we find no basis therein
to require
law enforcement officers to investigate and determine the merits of
discrimination
9
disputes. Determination of whether there has been unlawful discrimination
can involve intricate issues of law and proof. Reeves, ¶¶ 10-18, 21; BNSF v.
Feit, 2012 MT 147, iii 8, 365 Mont. 359, 281 P.3d 225. These are not the
kinds of situations that are suited to resolution by officers responding to
a 911 call. These are, however, the kinds of situations commonly considered
and disposed of under the investigation, hearing and enforcement provisions
in Montana law.
¶26 We reach a similar conclusion under the Federal Americans with
Disabilities Act.
Under the ADA, 42 USCA § 12132, "no qualified individual with a disability"
may be "excluded from participation or be denied the benefits of the
services, programs or activities of a public entity, or be subject to
discrimination by any such entity." Like the Montana Human Rights Act, the
ADA does not contain any express requirement that the officers enforce or
vindicate whatever rights Hansen had against the hotel.
¶27 The parties agree that Bozeman is subject to the requirements of that
statute. Sheehan v. San Francisco, 743 F.3d 1211 (9th Cir. 2014). This
certainly prohibits Bozeman from itself unlawfully discriminating against
citizens, but it does not also carry an obligation to enforce citizens'
rights as against third parties.2 The District court concluded as follows:
There's no dispute that police officers are subject to the ADA and that
Mr. Hansen was qualified to participate or receive the benefit of the
Bozeman Police Department services. But the Court does not find that, first
of all, there are sufficient allegations either in the Complaint or as even
supplemented through the briefing that he was denied the benefit of the
2 Law enforcement agencies are subject to non-discriminatory requirements of
Montana law. Section 49-2-308, MCA; Edwards,¶ 62.
10
Police Department services or that he was specifically discriminated
against by the Bozeman Police Department by reason of his disability.
We agree with the District Court's assessment of the ADA claim.
128 There is no evidence that Bozeman denied any services to Hansen, aside
from his contention that the officers were required to do something more
than they did to assist him in his dispute with the C'Mon Inn. The officers
responded promptly to Hansen's 911 call; they assessed the situation,
interviewing Hansen first; and they tried to assist Hansen to find some
other place to stay. While the officers did not do what Hansen says they
should have done, they did not discriminate against Hansen because of his
disability. They had no obligation to force the C'Mon Inn to provide him a
room or to negotiate on his behalf.
129 The District Court properly exercised its discretion in denying Hansen's
motion for leave to file an amended complaint and properly granted summary
judgment to the Bozeman Police Department.
130 The District Court is affirmed.
Jim Marks
Blind.grizzly at gmail.com
(406) 438-1421
-----Original Message-----
From: NFBMT <nfbmt-bounces at nfbnet.org> On Behalf Of BRESLAUERS via NFBMT
Sent: Thursday, April 11, 2019 8:06 PM
To: nfbmt <nfbmt at nfbnet.org>
Cc: BRESLAUERS <breslauerj at gmail.com>
Subject: [NFBMT] SB 439
On Thursday, April 11, SB 439 was concurred as amended by the Senate
Judiciary Committee. There were three amendments offered, two of which
passed. One changed the language to be more in sync with the ADA. One
changed the language dealing with complaints, that they be taken to law
enforcement rather than the Commission for Human Rights.
Joy Breslauer, First Vice President and Public Policies Committee Chair
National Federation of the Blind of Montana
Web Site: http://www.nfbofmt.org <http://www.nfbofmt.org/>
Live the life you want
The National Federation of the Blind is a community of members and friends
who believe in the hopes and dreams of the nation's blind. Every day we work
together to help blind people live the lives they want.
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