VERNON CROWDER and LINDA COTE,
Plaintiffs,
AND
UNITED STATES OF AMERICA,
Plaintiff Intervenor,
v.
JAMES J. NAKATANI, Chairman,
Board of Agriculture, State of Hawaii;
CALVIN LUM, Administrator, Department of Agriculture, State of Hawaii;
DEPARTMENT OF AGRICULTURE, State of Hawaii;
STATE OF HAWAII;
John Does 1 Through 10, inclusive, and
DOE GOVERNMENT AGENCIES 1 Through 10, inclusive
Defendants
CIVIL NO. 93-00213DAE
(OTHER CIVIL ACTION)
Trial: April 7, 1997
Judge: Hon. David A. Ezra
SETTLEMENT AGREEMENT
The parties Vernon Crowder and Linda Cote, et al., Class Plaintiffs, the United States of America, Plaintiff Intervenor, and the State of Hawaii, et al., Defendants, desiring that this action be settled by appropriate Settlement Agreement and without the burden of protracted litigation, agree as follows:
1. PROPOSAL OF RULE. The State of Hawaii agrees to propose to the Hawaii Board of Agriculture adoption of the Draft Rule contained in Appendix 1 to this Settlement Agreement. This Draft Rule provides that, under specified conditions, persons with visual impairments who rely on guide dogs are to be exempted from the 30-day quarantine and 90-day pre-entry deadlines required by Hawaii's May 1997 Rule.
2. ADOPTION OF RULE. The United States and the Class Plaintiffs reserve the right in their sole individual discretion to withdraw agreement to this settlement and proceed to a trial of this matter if the Draft Rule contained in Appendix 1 is modified in any way prior to its implementation; or if the State of Hawaii fails to finalize the Draft Rule contained in Appendix 1; fails to adopt the Draft rule by the effective date in the timetable referenced in Paragraph 9; or takes other steps, either through regulation, statute, or any other means, such that the Draft Rule is not adopted in its current form and/or is not adopted by the effective date in the timetable referenced in Paragraph 9.
3. POST-ADOPTION PROCEDURES: NOTICE. Upon adoption of a Final Rule, the State of Hawaii agrees to provide direct notice (the text of which is attached as Appendix 2) of the Final Rule and this Agreement to all named class members, all guide dog schools, and national disability rights organizations and organizations for persons with visual impairments. The State of Hawaii also agrees to provide constructive notice in the form of publication of Appendix 2 both in local Hawaii newspapers and in a national newspaper such as USA Today. Such notice shall permit class members an opportunity to object to and comment upon the Settlement Agreement, and/or to opt out of the class and appear at the hearing preceding final Court approval of the Settlement Agreement. The State of Hawaii shall ensure that the notice, the Draft Rule and the Final Rule are maintained and available in a format accessible to people with visual impairments, i.e., Braille, audio cassette, and ASCII computer format; and the State of Hawaii shall provide these documents to persons with visual impairments in any one of these formats upon request. In addition, if a person with a visual impairment requests publicly available documents related to the Draft Rule, the Final Rule or guide dog entry into Hawaii, the State shall make available such documents in the format requested, i.e., either Braille, audio cassette or ASCII computer format.
4. POST-ADOPTION PROCEDURES: LISTS. The State of Hawaii agrees to maintain and update where necessary a list of approved hotels (attached as Appendix 3); a list of approved laboratories (attached as Appendix 4); and a list of recognized guide dog schools (attached as Appendix 5).
5. POST-ADOPTION PROCEDURES: RECORDS. Upon adoption of a Final Rule, the State of Hawaii agrees to provide copies of the following documents to the United States every six months during the life of this agreement, beginning on June 30, 1998:
A. Documentation of reasons for deletions from the lists of pre-approved hotels, approved guide dog schools and approved laboratories provided for in the Rule, as well as documentation of reasons for rejecting proposed additions to these lists;
B. The Shipmaster's Declaration, individual owner and animal record, and form for action ("AQS-16"), including the reasons for any adverse action, for:
(i) all guide dogs denied entry under the Final Rule,
(ii) all guide dogs delayed entry in excess of 24 hours under the Final Rule,
(iii) all guide dogs admitted to the State as Class A or resident guide dogs under the Final Rule which are subsequently required to be quarantined during the 30-day post arrival period, and
(iv) all guide dogs admitted to the State as Class A or resident guide dogs which are subsequently denied approval to transfer to a new address.
C. All correspondence from the users of guide dogs raising any complaint, problem, or question of any kind regarding the State's administration of the Final Rule.
D. The State of Hawaii will also, for the life of this agreement, maintain the following records for all guide dogs entering the State: the name and address of the guide dog owner, identification of the guide dog, all correspondence and communication with the guide dog owner, the guide dog's medical records (both pre and post arrival), all documentation concerning the guide dog that is required by the Final Rule, the disposition of the animal after arrival, decisions made during the animal's quarantine (or, in this case, designated or hotel address) period, and documentation concerning inspection of the designated addresses and approved hotels. These documents shall be provided to Class Plaintiffs or Plaintiff Intervenor upon request.
6. FUTURE MODIFICATIONS TO FINAL RULE. The parties acknowledge that this Settlement Agreement is intended to resolve the above-captioned lawsuit. The parties acknowledge that the State asserts that it has a responsibility to promulgate rules for the public health or safety and that the Class Plaintiffs assert that they have a right to meaningful access to the State and its services, programs or activities under the ADA. The Class Plaintiffs have expressed concern that the State of Hawaii may seek to amend the Final Rule in the future, thereby burdening Plaintiffs in a way that might violate the ADA and/or this Settlement Agreement. In order to strike a balance between these competing interests, the parties agree to be bound by the following process with respect to amendments to the Rule:
A. During the life of this Agreement, the State of Hawaii may propose amending the Final Rule only on the basis of an authentic public health or safety concern.
B. Before presenting a proposal to amend the Final Rule to the Board of Agriculture, the State must serve notice of the proposed amendment on counsel of record in this case.
C. Any objection to the proposed amendment by Class Plaintiffs or Plaintiff Intervenor must be filed within 30 days of receipt of notice.
D. If either the Class Plaintiffs or Plaintiff-Intervenor objects to the proposed amendment within 30 days, that party shall have an additional 30 days within which to file a motion with the Court. As a basis for their motion, the Class Plaintiffs and/or Plaintiff-Intervenor may assert that the proposed amendments are not based on an authentic public health or safety concerns, violate this Settlement Agreement or violate the ADA.
E. The parties agree that if the Class Plaintiffs or Plaintiff-Intervenor shows that the proposed amendments would (1) re-establish quarantine for guide dogs; (2) re-establish pre-departure deadlines that circumscribe travel to Hawaii for people with visual impairments who rely on guide dogs; or (3) otherwise impose pre-arrival, quarantine, or post-arrival requirements that result in the denial of meaningful access to State services, programs or activities to individuals with visual impairments who rely on guide dogs within the meaning of the ADA and Crowder v. Kitagawa, 81 F.2d 1480 (9th Cir. 1996), then the State of Hawaii must show that (1) such changes are necessary to address authentic public health or safety concerns; and (2) less restrictive changes proposed by Plaintiffs or Plaintiff Intervenor, or the existing system, cannot satisfactorily address such public health or safety concerns.
7. EMERGENCY RULES. Nothing in this Settlement Agreement shall in any way be interpreted as impairing the right and responsibility of the State to issue Emergency Rules pursuant to Section 91-3(b) of the Hawaii Revised Statutes. The State of Hawaii agrees to take all actions necessary to expedite judicial determination of any action filed by the Class Plaintiffs and/or Plaintiff Intervenor contesting the State's assertion that grounds exist to issue such Emergency Rules.
8. PATTERN OR PRACTICE VIOLATIONS. Should Plaintiff Intervenor the United States contend that there is a pattern or practice of violations concerning administration of the Final Rule, the United States shall first notify the State of the alleged violations and give the State 30 days to correct the violations before filing a motion with the Court for enforcement of this Agreement.
9. TIMETABLE. Attached as Appendix 6 is a letter, dated October 20, 1997, from Heidi M. Rian, Deputy Attorney General, State of Hawaii, to counsel for the United States and the Class Plaintiffs. The letter attached as Appendix 6 represents the good faith estimate of the parties regarding the timetable for consideration and adoption of the Final Rule. The parties anticipate that this timetable will be met and agree to make every effort to meet this timetable. The parties also acknowledge that should there be any unreasonable delay in the implementation of the Final Rule beyond the timetable established in Appendix 6, the parties reserve the right to immediately move the Court to schedule a trial of this matter at the next available date.
10. NON-RETALIATION. The parties are unaware of any retaliation of any kind by the State of Hawaii. The State of Hawaii agrees that the State, by and through its officials, agents, employees and all persons in active concert or participation with the State of Hawaii, shall continue to refrain from retaliating against any person because that person has opposed policies or practices he or she believes discriminate on the basis of disability or because of that person's participation in or cooperation with the investigation or litigation of the facts on which this case or this Settlement Agreement is predicated.
11. TERM OF THE AGREEMENT. This Settlement Agreement shall terminate five (5) years from the effective date of the Final Rule. Upon entry by the Court of a final Settlement Agreement, this case is administratively closed. The Court shall, however, retain jurisdiction of this action to enforce the agreement during the life of the agreement.
12. NON-ADMISSION OF LIABILITY. Nothing contained in this Settlement Agreement shall constitute or be construed as an admission of liability, fault or violation of law by the State of Hawaii or any Defendant in this lawsuit. Rather, the parties acknowledge that this Settlement Agreement is a settlement of a disputed claim.
13. ATTORNEYS FEES AND COSTS. For purposes of this Settlement
Agreement, the State of Hawaii acknowledges that the Class Plaintiffs are
"prevailing parties" under 42 U.S.C. § 12205. At any hearing
on a motion for attorneys fees and costs in this action, the State of Hawaii
shall not assert that the Class Plaintiffs were not "prevailing parties."
AGREED AND CONSENTED TO:
For the United States:
Bill Lann Lee
Acting Assistant Attorney General for Civil Rights
By: ______________________
John L. Wodatch
L. Irene Bowen
Edward Miller
Sheila M. Foran
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 514-9807
Date___________________
For the Class Plaintiffs:
Mr. Michael A. Lilly, Esq.
Ning, Lilly & Jones
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
(808) 528-1100
Date___________________
For the Defendants:
Margery S. Bronster
Attorney General of Hawaii
By: ______________________
Charles F. Fell
Heidi M. Rian
Elizabeth A. Schaller
Blair Goto
Deputy Attorneys General
State of Hawaii
Department of the Attorney General
Regulatory Division
465 South King Street, Room 200
Honolulu, Hawaii 96813
(808) 587-3077
Date__________________________
APPROVED AS TO FORM
By: ______________________
Date__________________________