PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS THIRD AMENDED by sparkunder20

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									                   IN THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLORADO

Civil Action No. 99-Z-967

JANE DOE #2, JANE DOE #3, JANE DOE # 4, JANE DOE # 5, and THE RALPH
TIMOTHY POTTER CHAPTER OF THE AMERICAN CIVIL LIBERTIES UNION at
THE UNIVERSITY OF DENVER COLLEGE OF LAW,

                   Plaintiffs,

v.

ALAN OGDEN, in his official capacity as the EXECUTIVE DIRECTOR OF THE
COLORADO STATE BOARD OF LAW EXAMINERS, and MELANIE BACKES,
DEBORAH BIANCO, SHERRY A. CALOIA, DAVID DIFFEE, JAY E. FERNANDEZ,
SHARI FRAUSTO, SUSAN M. HARGLEROAD, STEVEN J. HENSEN, GARY
JACKSON, DORIS G. KAPLAN, and HELEN STONE, in their official capacities as
MEMBERS OF THE BAR COMMITTEE OF THE COLORADO STATE BOARD OF
LAW EXAMINERS,

                   Defendants.


        PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION
           TO DISMISS THIRD AMENDED COMPLAINT


David D. Powell, Jr., #16152              In Cooperation with the American Civil
Stephen G. Masciocchi, #19873             Liberties Union Foundation of Colorado
Lawrence G. Katz, #32724
HOLLAND & HART LLP                        Mark Silverstein, #26979
555 Seventeenth Street, Suite 3200        American Civil Liberties Union
P. O. Box 8749                            Foundation of Colorado
Denver, CO 80202                          400 Corona Street
(303) 295-8000                            Denver, CO 80218
                                          (303) 777-5482

                            ATTORNEYS FOR PLAINTIFFS
                                  INTRODUCTION
       In this case, plaintiffs (the “Students”) assert that three questions on the

Colorado Bar Application relating to an applicant’s history of diagnosis or treatment for

mental illness and drug or alcohol use violate the Americans with Disabilities Act, 42

U.S.C. § 12101 et seq. (“ADA”) and their right of privacy. In other states, licensing

boards have abandoned or circumscribed similar questions, either voluntarily or after

courts ruled that the questions violated the ADA. See Clark v. Virginia Bd. of Bar

Examiners, 880 F. Supp. 430, 438-41 & nn.15-19 (E.D. Va. 1995).

       Over 2½ years ago, defendants (the “Board”) moved to dismiss and raised a host

of justiciability issues that were ultimately rejected by the Tenth Circuit in Roe #2 v.

Ogden, 253 F.3d 1225 (10 th Cir. 2001). The Board has now filed yet another Motion to

Dismiss raising new issues. Stripped of its veneer, the Board’s position is that it cannot

be subjected to discovery or the presentation of evidence showing that its questions

violate federal law. But despite filing a 39-page brief, the Board has utterly failed to

show how the merits of the Students’ substantial federal claims could possibly be

resolved on a mere motion to dismiss.

       The Board first argues that the Students failed to plead specific facts showing the

substantial impairment of a major life activity. Motion at 11-15. The Board insists that
such fact pleading is required by Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).
Sutton, however, was not a case about minimum requirements for pleading a disability.

Instead, it involved the wholly separate issue of self-defeating pleadings where

plaintiffs pled that corrective measures completely eliminated their disability. In cases

decided both before and after Sutton, the Tenth Circuit and other federal circuits have

affirmed that notice pleading applies under the ADA. As shown below, the Students’

allegations are more than sufficient to put the Board on notice of their ADA claims.



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       In its second set of arguments, the Board asks the Court to dismiss the Students’

ADA and privacy claims on the merits without hearing any evidence. These arguments

flow from a statement taken out of context from Roe #2 v. Ogden. The Board notes that
in Roe #2 v. Ogden, the Tenth Circuit stated that the Students’ claims are ripe in part

because they “turn[] upon strictly legal issues and do[] not require[] facts that may not

yet be sufficiently developed.” 253 F.3d at 1232 (citation and quotations omitted). The

Board then makes the unwarranted inference that this Court may thus determine the

merits without hearing any evidence in support of the Students’ legal claims.

       The Tenth Circuit’s statement, however, was made in the context of a discussion

of ripeness, and specifically, the third prong of the ripeness test, which asks “whether

the courts would benefit from further factual development of the issues presented.” Id.

at 1231 (citations omitted). The issue addressed by the third ripeness prong, then,

concerns whether out-of-court disputes have developed factually to the point where they

are no longer abstract. It does not speak to what evidence a court should or should not

hear in court regarding the validity of a ripe legal claim.

       This conclusion is fully supported by even a cursory review of other cases

involving ADA challenges to bar application questions. The courts in these cases have

routinely permitted discovery and heard evidence before making a determination as to

whether the questions at issue passed or failed the applicable legal test. The Students

can and will prove that the challenged questions fail that test.

       The Court therefore should deny the Board’s Motion and should brook no further

procedural delays. This case has been pending for 2½ years during which two former

plaintiffs’ claims became moot when they were admitted to the bar--one after a lengthy

and humiliating vetting of his “mental stability.” The Court should set an expedited

discovery schedule and rule before the release of the summer bar exam results.



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                             STANDARD OF REVIEW
       On a motion to dismiss for failure to state a claim, this Court must “take all

factual allegations in the Students’ Complaint as true and construe them in the light

most favorable to the Students.” Roe #2 v. Ogden, 253 F.3d at 1228 n.2. The Court

must not dismiss the Students’ Complaint “unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim that would entitle him to

relief.” Yousef v. Reno, 254 F.3d 1214, 1219 (10 th Cir. 2001) (citation omitted).

Dismissal would be particularly inappropriate here because a motion to dismiss “is not

a procedure for resolving a contest about . . . the merits of the case.” 5A Wright &

Miller, F EDERAL P RACTICE & P ROCEDURE § 1356 at 294 (2 nd Ed. 1990).
                                     ARGUMENT
I.     THE AMENDED COMPLAINT MAKES THE ALLEGATIONS
       NECESSARY TO STATE AN ADA CLAIM.
       The Board first contends that the Students failed to plead specific facts showing

that they have or had a disability. Motion at 13. It argues that they must specifically

allege which major life activity is or was substantially limited, and how that activity is

or was substantially limited, before they can challenge the Board’s questions. Id. In

essence, the Board’s contention is that the Students must engage in detailed fact
pleading as opposed to the usual notice pleading.

       The Board is wrong. It cites no authority on point and its argument is directly

contrary to Tenth Circuit and other case law. Under the applicable law, the Students

have made the allegations necessary to state a claim under the ADA. First, they have

adequately alleged that they have records of disabilities, and they need not go further at

the pleading stage and provide factual details such as which major life activity was

substantially limited and how that activity was limited. Second, by putting the burden

of proving mental stability on persons who answer “yes” to the questions at issue, the



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Board regards the Students as having disabilities. For both of these reasons, the

Students have adequately alleged “disabilities” under the ADA.
       A. The Students Properly Pled That They Have A Record Of A Disability.
       The Students properly pled that they have records of disabilities. The ADA

defines “disability” as
              (A) a physical or mental impairment that substantially limits one or
              more of the major life activities of such individual;
              (B) a record of such an impairment; or
              (C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). All the ADA requires at the pleading stage is an allegation that

the plaintiff had an impairment that qualifies as a “disability”. See Poindexter v.
Atchison, Topeka and Santa Fe Railway Co., 168 F.3d 1228, 1232 (10th Cir. 1999);

EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir. 2001); Duda v. Bd. of

Educ. Of Franklin Park Pub’l School Dist. No. 84, 133 F.3d 1054, 1059 (7th Cir. 1998).

       The Students met this basic requirement. All of the Students alleged that they

are “qualified individuals with a disability” under the ADA. Third Amend. Compl. ¶

16. They also alleged facts corroborating that they have records of impairment under

section 12102(2)(B). Three individual plaintiffs (and another Potter Chapter member)

alleged that they have “a past history of diagnosis and treatment” or a “past history of

diagnosis, treatment, and hospitalization” for a “mental or emotional disability.” Id. ¶¶

8, 10-11, 13. Likewise, one individual plaintiff (and three other Potter Chapter

members) alleged that they have a “past history of treatment for alcohol use.” Id. ¶¶ 9

& 13. By alleging histories of treatment for mental disabilities, the Students alleged

sufficient facts revealing that they have a record of a disability under the ADA.

       Contrary to the Board’s contentions, the Students need not plead facts regarding

which specific major life activity was substantially limited or how that life activity was




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limited. See Poindexter, 168 F.3d at 1232. The Poindexter court held that to prevail on
an ADA claim, a plaintiff must articulate and eventually prove a disability, meaning an

impairment that substantially limits a major life activity. Id. at 1230, 1232. But the

court confirmed that this holding
              does not in any way change the federal notice pleading
              requirements. A plaintiff has the option of clarifying his or her
              position at the pleading stage or waiting until trial to prove with
              particularity the impairment and major life activity he or she
              asserts are at issue.
Id. at 1232 (emphasis added). Thus, even though the plaintiff “did not specifically

plead the major life activities she believes were impaired[,]” the court held that she was

entitled to prove at trial which major life activity was substantially limited. Id.

       In a post-Sutton case, the Sixth Circuit also held that an ADA claimant need not

plead which major life activity is impaired. J.H. Routh Packing, 246 F.3d at 854. In

that case, the district court dismissed for failure to state a claim because plaintiff failed

to specify which major life activity was substantially limited. Id. The Sixth Circuit

reversed and held that a claimant need only plead that he had an impairment:
              [T]oday we clarify what a claimant under the Act is required to
              allege in her complaint. We hold that so long as the complaint
              notifies the defendant of the claimed impairment, the substantially
              limited major life activity need not be specifically identified in the
              pleading. Rule 8 requires only that the complaint give the
              defendant fair notice of the claim and its supporting facts.
Id. As noted above, the Students clearly met this requirement.

       The Board cites Sutton and Steele v. Thiokol, 241 F.3d 1248 (10th Cir. 2001) for

the proposition that ADA plaintiffs must allege which major life activity is substantially

limited and how it is limited in order to properly state a claim for relief. Motion at 13-

14. Neither case stands for that proposition, and indeed, neither case even addresses the

minimum requirements for pleading a disability under the ADA.




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       As the Sixth Circuit noted in J.H. Routh Packing, the “pleading issue addressed
in Sutton” was not the minimum requirements for pleading a disability but “the separate
pleading issue” of “self-defeating pleadings of corrective measures taken by plaintiffs.”

246 F.3d at 854. In Sutton, plaintiffs who had 20/200 vision or worse alleged that

United Airlines discriminated against them by not hiring anyone with vision worse than

20/100. Sutton, 527 U.S at 475-76. But the Supreme Court upheld the dismissal of

their complaint because they also alleged that “with corrective measures their vision is

20/20 or better.” Id. at 481. In other words, Sutton involved a unique situation where

the plaintiffs defeated their own ADA claim by pleading that corrective measures had

completely eliminated their disabilities. Sutton thus does not apply.

       Steele is also off point. In Steele, the district court granted summary judgment

to a defendant, holding that there was no issue of material fact and the plaintiff was not

disabled as a matter of law. 241 F.3d at 1252. On appeal, the Tenth Circuit affirmed.

Id. at 1256. In ruling on summary judgment, neither the district court nor the Tenth

Circuit addressed the minimum pleading requirements under the ADA.

       In sum, the Students pled that they are qualified individuals with disabilities, and

specifically, persons with “records of such an impairment” under section 12102(2)(B).

Under both Poindexter and J.H. Routh Packing, their allegations are sufficient.
       B. The Students Properly Pled That They Are Regarded As Having A
          Disability.
       The Students also pled that they are regarded as having a disability. They allege

that the Board asks questions about their diagnosis and treatment for mental illness and

substance abuse, and that if an applicant answers “yes,” the Board requires them to

explain their answers and submit additional information proving that they are mentally

stable. See Third Amend. Compl. ¶¶ 15-16, 19-20, 23-28, 39. The Students have thus

stated a claim that the Board regards them as having a disability under the ADA.


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      This conclusion follows from the Third Circuit’s decision in Olson v. General
Electric Astrospace, 101 F.3d 947 (3d Cir. 1996). While working for General Electric,

plaintiff Olson was hospitalized for four months for depression. Id. at 949. Shortly

after returning to work, he was laid off because of “adverse business conditions.” Id.

Olson later applied for a new job with GE and was interviewed by his former

supervisor, who knew of his previous hospitalization. Id. During the interview, the

supervisor asked about Olson’s depression and whether there were “any further medical

developments.” Id. at 950. Olson did not get the job.

      Olson sued and alleged inter alia that he was regarded by GE as having a

disability. Id. at 950. The district court granted summary judgment to GE, but the

Third Circuit reversed in relevant part. The court held that Olson had established

enough facts for a trial on whether he was regarded as having a disability. Notably,

Olson had alleged only that his former supervisor asked about his impairment during

the interview and that a performance evaluation from his prior job contained a notation

that he had taken time off for “illness reasons.” Id. at 954. He did not allege which

major life activity GE regarded as being substantially limited. Yet, based on these

allegations, the Third Circuit concluded that Olson “clearly demonstrated” that a

“reasonable factfinder could conclude that he did not get the job because GE regarded

him as disabled.” Id. at 952 (emphasis in original).

      In Olson, the mere asking of mental disability-related questions, combined with

the employer’s general knowledge of the impairment, was enough to state a “regarded

as” claim. Here, the facts alleged by the Students are more compelling. In question 37,

the Board inquires about alcohol and drug use, addiction, and treatment. Third Amend.

Compl. ¶ 23. In question 39--a question phrased very much like the definition of a

disability under the ADA--the Board asks whether the applicant has been diagnosed or



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treated for any mental condition which “significantly impaired” any “important life

activity.” Id. And in question 40, the Board asks about hospitalization for mental or
emotional disorders. Id. As the Board has conceded, if an applicant answers “yes” to

any of these questions, then the burden of proof is on the applicant to show that he or

she is mentally stable and thus fit to practice law. See Motion at 5. These facts are

easily sufficient to establish that the Board regards applicants who answer “yes” as

having a disability. The Students have thus stated a “regarded as” claim.

      In sum, the Students have stated an ADA claim for two independently sufficient

reasons: They adequately alleged that they (1) have a record of a disability and (2) are

regarded as having a disability. The Board’s Motion therefore should be denied.
II.   THE COURT CANNOT RESOLVE THE MERITS OF THE STUDENTS’
      ADA AND PRIVACY CLAIMS ON A MOTION TO DISMISS.
      The Board devotes the bulk of its 39-page brief to the merits. It argues, in

effect, that the Court may dispose of the Students’ claims without hearing any evidence.

See Motion at 15-39. This argument borders on the frivolous. The legal tests this

Court must apply in addressing the Students’ ADA and privacy claims require the Court

to hear evidence before ruling. Moreover, courts that have addressed similar challenges

to disability-related questions on bar applications have permitted discovery and heard

evidence before ruling—usually in favor of bar applicants—on the validity of the

questions. For these reasons, the Court should reject the Board’s improper attempt to

prevent the Students from presenting evidence in support of their claims.
      A.     The Students Are Entitled To Conduct Discovery And Present
             Evidence In Support Of Their ADA Claim.
      The Board asserts that the Students’ ADA claim should be dismissed “because

the ADA does not prohibit the Board from inquiring into an applicant’s history [sic].”

Motion at 15. Without evidentiary support, the Board declares that inquiries about an




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applicant’s history of diagnosis and treatment for mental illness and substance use are

“one of the best tools available to alert examiners to potential problems[.]” Id. at 16.
       These contentions are unfounded and, in any event, premature. The Court cannot

make a reasoned or informed decision about whether the challenged questions pass or

fail the applicable legal test without hearing evidence. In order to survive the Students’

challenge, the Board must show that the challenged questions are “necessary”:
              A public entity shall not impose or apply eligibility criteria that
              screen out or tend to screen out an individual with a disability or
              any class of individuals with disabilities from fully and equally
              enjoying any service, program, or activity, unless such criteria can
              be shown to be necessary for the provision of the service, program,
              or activity being offered.
See 28 C.F.R. § 35.130(b)(8) (emphasis added). 1

       The Board nevertheless contends that this Court can resolve this case on a

motion to dismiss. In so arguing, the Board ignores the fact that in other cases where

courts decided the merits of ADA challenges to bar application questions, they did so

only after hearing evidence from both sides on whether the questions at issue were

“necessary.” See, e.g., In re Petition & Questionnaire for Admission to the R. I. Bar,

683 A.2d 1333, 1335-37 (R.I. 1996); Clark v. Virginia Bd. of Bar Examiners, 880 F.
Supp. 430, 435-38 (E.D. Va. 1995); Applicants v. Texas State Bd. of Bar Examiners,

1994 WL 923404, at *4-5, *8 (W.D. Tex. Oct. 11, 1994) (“Texas Applicants”). The
courts heard evidence on issues such as the following:

       Overbreadth: Courts have evaluated whether disability-related questions force

applicants to disclose intimate details about their lives related to diagnoses and illnesses

that have nothing to do with the practice of law. See, e.g., Doe v. Judicial Nom.

Comm’n, 906 F. Supp. 1534, 1544-45 (S.D. Fla. 1995).

       1
      This regulation is entitled to substantial deference. See Doe v. Judicial
Nominating Comm’n, 906 F. Supp. 1534, 1540 (S.D. Fla. 1995).


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       Predictive Validity: The evidence in other cases has shown that questions (and
follow-up investigations) about mental health treatment, such as those challenged here,

have no predictive validity, i.e., have no ability to predict which applicants are unfit or

will be disciplined in the future. See, e.g., In Re Petition to R. I. Bar, 683 A.2d at 1336

(endorsing special master’s findings that “there is no empirical evidence demonstrating

that lawyers who have had psychiatric treatment have a greater incidence of subsequent

disciplinary action”); Clark 880 F. Supp. at 435 (crediting testimony of plaintiff’s

expert and statement of American Psychiatric Association that there is no correlation

between past mental health counseling and one’s fitness to practice law).

       Necessity: The evidence in other cases has shown that questions like those

challenged here rarely if ever identify an unfit individual who has not been identified

by answers to other, conduct-oriented questions. See Clark, 880 F. Supp. at 436-37.

       Deterrence: In attempting to justify its disability-based inquiries, the Board

relies heavily on the public protection rationale. However, this Court must consider the

costs to public protection as well as the benefits. In striking down disability-related

questions, courts have relied on evidence that questions about treatment history deter

law students from seeking needed treatment. See, e.g., Clark, 880 F. Supp. at 437-38;
In Re Petition to R. I. Bar, 683 A.2d at 1336; In re Petition of Frickey, 515 N.W.2d 741,

741 (Minn. 1994); see also American Association of Law Schools, Report of the AALS

Special Committee on Problems of Substance Abuse in the Law Schools, 44 J. Legal

Educ. 35, 55 (1994) (in survey of 13,000 law students, when asked if they would seek

help for a substance abuse problem, only 10% answered with an unqualified “yes,”

while 41% responded that they would seek help only if they were sure that bar officials

would not have access to the information).




                                             10
       Accordingly, this Court should not accept the Board’s hunch that questions about

mental health treatment are “one of the best tools available” to predict current and

future functioning ability. Motion at 16. The Students are entitled to present expert

testimony and empirical evidence demonstrating that the Board’s intuitions are based on

the same outmoded stigmas about mental illness that the ADA was designed to redress.

And if the Students can prove that the challenged questions have a deterrent effect, it

would seriously undermine the Board’s “public protection” rationale. If law students

are deterred from seeking needed treatment, the likely result is the admission of bar

applicants who are unprepared to deal with the stresses of a law practice.

       Moreover, the sheer weight of authority in favor of bar applicants should give

the Court significant pause before ruling, at any stage of this litigation, in favor of the

Board. The Board acknowledges that courts have held that bar application questions

about applicants’ histories of diagnosis and treatment for mental illness and substance

abuse violated the ADA but contends that the “best reasoned cases” hold that the ADA

does not prohibit such inquiries. See id. at 16. One would assume that the Board would
not make such a bold pronouncement unless it cited and discussed all of the relevant

cases. But the Board cites only five cases involving ADA challenges to licensure

application questions. See Motion at 15-21.
       In fact, there are nine decisions in which state and federal courts have addressed

whether application questions and follow-up investigations like those at bar violated

Title II and its implementing regulations. Seven were decided in favor of the plaintiffs.

See In re Petition to R. I. Bar, 683 A.2d at 1335-37; Clark, 880 F. Supp. at 431, 446;

Doe v. Judicial Nom. Comm’n, 906 F. Supp. at 1536-37, 1545; In re Frickey, 515

N.W.2d at 741; In re Applications of Underwood & Plano, 1993 WL 649283, at *2 (Me.
Dec. 7, 1993); Medical Soc’y of N.J. v. Jacobs, 1993 WL 413016, at *10 (D.N.J. Oct. 5,



                                             11
1993) (medical license application); Ellen S. v. Florida Bd. of Bar Examiners, 859 F.
Supp. 1489, 1494 (S.D. Fla. 1994). By contrast, only two were decided in favor of the

law examiners. See O’Brien v. Virginia Bd. of Law Examiners, 1998 WL 391019, at *3

(E.D. Va. Jan. 23, 1998); Texas Applicants, 1994 WL 923404, at *9-10.

       The Board not only fails to cite or discuss four of these nine cases, it fails to note

the procedural posture of any of them. In none of these cases did the court grant a

motion to dismiss. Indeed, in Ellen S., the only case that is procedurally on point, the

court denied a Rule 12(b)(6) motion to dismiss and observed that other federal courts

had found similar application questions to be “problematic.” Ellen S., 859 F. Supp. at

1494. The Board never mentions Ellen S.

       The Board does cite McCready v. Illinois Bd. of Admissions to the Bar, 1995

U.S. Dist. LEXIS 791, at *15-21 (N.D. Ill. Jan. 24, 1995), which it characterizes as

having “many striking similarities to the instant case.” Motion at 17. In fact,

McCready did not even involve a challenge to disability-related questions on a bar

application; it involved a challenge to questions asked of an applicant’s references. See

id. at *19. The court distinguished this inquiry from questions on the application itself

because it was “non-coercive and impose[d] no additional burden on the applicant” and

“necessarily focuse[d] on [the applicant’s] behavior, not his status.” Id. at *20.
       The Board also attempts to orchestrate the premature adjudication of this case by

characterizing the Students’ position as being that only conduct-oriented questions are

permissible under the ADA. See Motion at 16-17. By casting the Students’ claim in

such absolutist terms, it seeks to make their claim easier to attack. In fact, the Students

are not seeking a declaration that the Board can ask no questions about an applicant’s

history of diagnosis or treatment for mental illness or substance abuse. Instead, they

seek a declaration that the three specific questions at issue violate the ADA. See Third



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Amend. Compl. ¶ 44. The questions are overbroad, ineffective, and deter students from

seeking needed treatment; thus, they fail the necessity test. It may be possible for the

Board to craft narrow, status-oriented questions that comply with the ADA, but the

challenged questions fall far short of this goal.

       Question 37: Question 37 asks, inter alia, whether in the past 10 years, the
applicant has “under gone any treatment or consulted any person about the use of drugs,

narcotics, or alcohol[.]” This question is breathtakingly overbroad. It is not limited to

chemical dependency; it applies to any “use” of alcohol or drugs. It is not limited to

consultations with treating professionals; it applies to consultations with any “person.”

In other words, any bar applicant who ever drank alcohol in the past ten years and

consulted anyone about it must answer “yes” to this question.

       Courts have struck down much narrower questions. See In re Petition to R.I.

Bar, 683 A.2d at 1334 (striking down question, “Are you or have you within the past

five (5) years been addicted to or dependent upon the use of narcotics, drugs, or

intoxicating liquors or been diagnosed as being addicted to or dependent upon such

items to such an extent that your ability to practice law would be or would have been

impaired?”); Medical Soc’y of N. J., 1993 WL 413016, at *1-2, 11 (plaintiffs had a
“high probability of succeeding on the merits” of their ADA claim challenging drug and

alcohol questions about “dependence” and “treatment”). And contrary to the Board’s

contention, the O’Brien court did not rule on a similar question. Virginia question #20

asks only whether an applicant is or has been “chemically dependent.” O’Brien, 1998

WL 391019 at *3. This is a much narrower inquiry. There is no authority upholding a

question like question 37 under the “necessity” test.

       Question 40: Question 40 asks whether, in the past 5 years, the applicant has
been hospitalized for “any mental or emotional disorder.” This question makes no



                                             13
attempt to limit the response to hospitalizations for serious mental illnesses that are

likely to impact fitness to practice. Such “any disorder” questions have been uniformly

struck down. See Doe v. Judicial Nom. Comm’n, 906 F. Supp. at 1544-45 (question
about hospitalization for “any” mental illness was impermissibly overbroad, as it would

reach even “hospitalizations . . . resulting from personal trauma such as childhood

sexual abuse or loss of a loved one”); In re Petition to R.I. Bar, 683 A.2d at 1334

(striking down hospitalization question). Even in Texas Applicants, a case on which

the Board relies heavily, the court opined that a prior version of a question about

hospitalizations within the past 10 years violated the ADA, because it was not limited

to “specific serious mental illnesses” that “are likely to affect an applicant’s fitness.”

Texas Applicants 1994 WL 923404 at *9; see id. at *2 & n.4. There is no authority

upholding a question like question 40 under the “necessity” test.

       Question 39: This question presents a closer call because the Board has made an

imperfect attempt to limit this inquiry to serious mental illnesses. But in addition to its

listing of illnesses, question 39 asks about “any other condition” that “significantly

impaired” functioning for any period of time over the past 5 years. And question 39 is

not a “verbatim version” of the Virginia question challenged in O’Brien. Motion at 21.
Virginia question 20(a) contains an important preface--absent from Colorado question

39--excluding treatment for various conditions unrelated to functioning ability. See

O’Brien, 1998 WL 391019 at *3. Finally, the O’Brien court merely denied a motion for

preliminary injunction filed by a pro se plaintiff who apparently presented no evidence.

The Students will present evidence demonstrating that question 37 reaches a host of

conditions unrelated to current or future functioning ability.




                                             14
       In sum, there is no basis in fact or law for this Court to rule summarily against

the Students on the merits of their ADA claim. The Court should deny the motion and

reject the Board’s attempt to avoid discovery and the presentation of evidence.
       B.     The Students Are Entitled To Conduct Discovery And Present
              Evidence In Support Of Their Privacy Claim.
       The Board’s contention that the Students’ privacy claim can be dismissed is

likewise untenable. The right to privacy involves two distinct interests: “One is the

individual interest in avoiding disclosure of personal matters, and another is the interest

in independence in making certain kinds of important decisions.” Whalen v. Roe, 429
U.S. 589, 600 (1977); Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10 th Cir. 1995).

The first of these is referred to as the interest in “confidentiality” and the second the

interest in “autonomy.” Hawaii Psychiatric Soc’y v. Ariyoshi, 481 F. Supp. 1028,

1037-38 (D. Hawaii 1979). Both are implicated by the challenged questions.

       Although the right of privacy has been addressed most often in cases involving

disclosure of personal information by the government, the due process clause also

shields individuals from unwarranted demands that they disclose personal information

to the government. See Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5 th Cir.

1985) (privacy right includes the right to be free “from the government inquiring into

matters in which it does not have a legitimate and proper concern”); McKenna v. Fargo,
451 F. Supp. 1355, 1380 (D. N.J. 1978) (“the Supreme Court recognized that there [is] a

privacy interest in not disclosing personal information to government employees”),

aff’d, 601 F.2d 575 (3d Cir. 1979) (table).

       In determining whether the Students’ history of diagnosis and treatment for

mental illness and substance abuse is entitled to protection, the Tenth Circuit applies a

three-part balancing test. Under this test, a court must consider “(1) if the party

asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a


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compelling state interest, and (3) if disclosure can be made in the least intrusive

manner.” Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435
(10 th Cir. 1981); see Flanagan v. Munger, 890 F.2d 1557, 1570 (10 th Cir. 1989).

       Here, the Board assumes arguendo that the Students have legitimate expectations

of privacy regarding information relating to their mental health treatment history and

history of treatment for substance abuse. See Motion at 24 & n.5. The Board then

argues that it has a “legitimate” interest in evaluating the fitness of lawyers. Motion at

24. The relevant test, however, is whether it has a compelling interest. Furthermore,

the interest at issue is not the Board’s interest in evaluating the fitness of prospective

applicants in general, but its interest in obtaining information about applicants’ history

of diagnosis and treatment for mental health and substance abuse. The Board has

provided not one shred of evidence showing that it has a “compelling” interest in

obtaining information about the treatment history of applicants. Indeed, as noted

above, evidence in other cases has shown that there is no correlation between past

mental health counseling and fitness to practice law. See supra § II.A.

       The Board relies on Florida Bd. of Bar Examiners re: Applicant, 443 So.2d 71,

73-76 (Fla. 1983), where the court upheld a broad question asking bar applicants

whether they had “ever” received mental health treatment for “any” mental disorder.

But the court’s reasoning was superficial and its holding is out of date. The court

summarily concluded that this information was vital to evaluating current fitness--a

conclusion that, as discussed above, is factually untenable. Indeed, in casting doubt on

the validity of a later version of this same question, the Ellen S. court refused to be

bound by this decision. See Ellen S., 859 F. Supp at 1492.

       But even assuming arguendo that the Board has a compelling state interest in

information about an applicant’s history of diagnosis and treatment for mental illness



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and substance use, the Board must gather that information by the least intrusive means.

This is where the evidentiary battle will be fought and where the Board’s argument is

shortest and weakest. See Motion at 36-38. In fact, the Board’s “least intrusive means”
argument misconstrues the nature of the inquiry. Instead of discussing why narrower

questions would not suffice, the Board describes the process that ensues when an

applicant answers “yes” to one of the challenged questions. See Motion at 36-38; see

id. at 4-7. The Board emphasizes two points: that an affirmative answer does not result

in the automatic denial of a license, and that the process is confidential.

       These arguments are beside the point. The fact that an applicant is entitled to

prove his or her fitness in a progressively more formal process makes the process more,

not less, intrusive. These procedures—regardless of the due process safeguards they

entail—are burdens that are placed discriminatorily on applicants who answer the

challenged questions in the affirmative. See Clark, 880 F. Supp. at 442; Ellen S., 859

F. Supp. at 1494; Jacobs, 1993 WL 413016, at *7; Underwood, 1993 WL 649283 at *2.

Likewise, the fact that the Board keeps an applicant’s personal information (qualifiedly)

confidential misses the point. The Students’ primary claim is not that their sensitive

personal information will be disclosed by the Board but to the Board.

       What is relevant--and never discussed by the Board--is whether the Board can

accomplish its objective through narrower questions. As discussed above, the Students

are entitled to conduct discovery and present evidence demonstrating that the Board can

obtain the information it needs without asking the challenged questions, or by asking

narrower questions, without any detriment to public protection. Thus, whether the

questions are narrowly tailored so that applicants’ sensitive personal information is

obtained in the least obtrusive manner cannot be determined on a motion to dismiss.




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                                    CONCLUSION
       For the reasons stated above, the Court should deny the Motion to Dismiss in all

respects and set a discovery schedule that will allow resolution of this case prior to the

announcement of the summer 2002 bar examination results.

Dated: ____________________.




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