[NFBMT] SB 439

[d m gina]

I can't repeat this well,
Look up the Texas laws for guide dogs and what happens if the team is 
bothered in any way especially in harm.
Is there any way that national would help change what the law is here 
in Montana?
Mental cruelty is hard for me.
I lived with this in Colorado.
Just wanting to use a guide dog for traveling.
I wasn't bothering anyone.
The schools start saying things like, if you have to many more problems 
with your dogs, we will take set dog away.
As though it was my fault wanting folks to come bother us.
It says to me, that they would rather see no guide dogs on the streets, 
just canes maybe.
Yes the set person I was talking about would come in the middle of the 
street, and step in the middle of the cane to see it brake.
Some blind would scream out of fear.
I just kept walking strait.
Would always have a back up cane.
Now I understand revenge isn't sweet, lol.
The guy came up to me wanting to put his shoe between the harness 
handle to step on my dogs back.
I grabbed shoe and threw it in the middle of the street.
The police did see what happened, where he did get a good scolding.
As though that would stop set problem.
I am doing some really hard thinking, on behalf of after this dog, do I 
want to put up with any more of the foolishness we have to put up with 
just to be a guide dog user.
We will cross one bridge at a time.

Original message:
> 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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