[NFBMT] SB 439

Fri Apr 12 22:07:33 UTC 2019

I will do my best to help out Montana guide dogs.
I had a matter the other day at Billings clinic.
A lady decided to put her hands all over my dog while we were walking 
outside for uber.
I have a gentle leader on the dog to keep her slow for me in pace.
Some folks think it is because the dog is mean and I say nothing where 
in her case she wanted to see what we would do.
She said after my request
Don't pet dog,
she knew that, but wanted to see what I would do.
Inside I am seething.
I just asked my dog to keep going outside.
This is the kind of hog wash I have lots of problems with.
Not just not respecting me as a lady, where respecting the disabled in 
our case blind.
I am sure we all have had this, where the on going problem is what it is.

Original message:
> Hi Dar,

> The NFB-MT tried to change the guide dog laws, but our bill failed in the
> first legislative committee that looked at it.  We will have to try again
> next legislative session, which will begin January 2021.  National helped us
> out with our efforts, but the thing about the Federation is that we pretty
> much do for ourselves.  Joy Breslauer did an extraordinary job of leading
> our legislative efforts.  It isn't quite over, but it's good to have so many
> colleagues to help us fight the good fight.

> Oh, the failed change we sought was to establish penalties and restitution
> for injuring or killing a service animal.  It's very frustrating that the
> bill to criminalize the misrepresentation of service animals is sailing
> through so far.  Don't know about you, but I'm feeling very angry that our
> point of view is dismissed and that others are speaking for us.  We have to
> keep pushing ahead even when we face setbacks.  Being persistent and
> relentless matters very much.

> Best!

> Jim Marks
> President, National Federation of the Blind of Montana
> president at nfbofmt.org
> (406) 438-1421

> -----Original Message-----
> From: NFBMT <nfbmt-bounces at nfbnet.org> On Behalf Of d m gina via NFBMT
> Sent: Friday, April 12, 2019 3:43 PM
> To: nfbmt at nfbnet.org
> Cc: d m gina <dmgina at mysero.net>
> Subject: Re: [NFBMT] SB 439

> 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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> --
> --Dar
> skype: dmgina23
>   FB: dmgina
> www.twitter.com/dmgina
> every saint has a past
> every sinner has a future

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-- 
--Dar
skype: dmgina23
  FB: dmgina
www.twitter.com/dmgina
every saint has a past
every sinner has a future