Under pressure from activists this week, Emeryville pulled out of a high-profile legal fight pitting over 200 American cities against disability rights advocates in a battle over sidewalk accessibility.
Emeryville Mayor Ken Bukowski announced the decision outside City Hall Tuesday night, as a dozen wheelchair-bound activists, many of them from Berkeley, prepared to protest at a City Council meeting.
The conflict is rooted in the case of Barden v. Sacramento, brought by the Oakland-based Disability Rights Advocates in 1999, which may be headed for the U.S. Supreme Court.
The plaintiff insists that local governments must clear any obstructions, including poles, benches or broken cement, that prevent the disabled from moving down sidewalks.
But Sacramento, backed by over 200 cities and counties across the country, argued that the Americans With Disabilities Act, or ADA, which requires public entities to provide access to all of their “services, programs or activities,” does not apply to sidewalks.
In June 2002 the Ninth Circuit Court of Appeals, reversing a lower court decision, ruled that the ADA applies to all basic government services, including public sidewalks. Sacramento has appealed to the Supreme Court, which has not yet decided whether to consider the case.
The chief concern among local governments siding with Sacramento is that removing poles and fixing hundreds of sidewalk panels will be extraordinarily expensive.
“If we had the money, of course we would want our facilities to be accessible to all the people in our communities,” said JoAnn Speers, general counsel for the League of California Cities, which authored an amicus curiae, or “friend of the court,” brief backing Sacramento. “But this is an example of a higher level of government, in this case the federal government, saying ‘cities you need to do this, but there is no funding.’”
A handful of municipalities, including Berkeley, Oakland and San Francisco, have sided with the activists. But several major cities around the country, like New York City, Boston, MA and Dallas, Tex., have filed amicus briefs backing Sacramento. And scores of California cities, including Albany and Alameda, have signed onto the league’s amicus brief, supporting Sacramento’s appeal.
Before Tuesday, Emeryville was one of those cities. But the Emeryville City Council, after a closed session, decided to withdraw.
“It is too bad that we couldn’t have [done] this sooner,” said City Councilmember Richard Kassis, arguing that Emeryville had taken a “step backward” in supporting Sacramento.
Activists, who had blasted the city in interviews prior to the meeting, said they were happy with the change of heart.
“We’re just really pleased with their decision and we hope Albany and Alameda will follow suit,” said Jan Barrett, executive director of the Berkeley-based Center for Independent Living.
Albany City Attorney Robert Zweben said he plans to meet with activists next week to discuss the issue, but still believes that sidewalks may not constitute a government “program,” covered by the ADA.
Emeryville is not the first city to buckle under pressure from activists. At least 10 cities and counties in California, including San Diego, San Rafael and Mill Valley, have removed their names from the league’s brief.
Speers, of the League of California Cities, said it was difficult to know how the Supreme Court will view the withdrawals. But in end, she said, the league’s legal arguments are strong and should carry weight with the court.
Emeryville’s dance with the sidewalk issue has been a particularly odd one. In the fall of 2001, the city settled a suit on the matter and spent $1.5 million removing sidewalk obstacles, according to City Attorney Michael Biddle.
Nonetheless, when Sacramento went to trial last summer in the Ninth Circuit Court of Appeals, Emeryville signed an amicus brief supporting the state’s capital. Last fall, after Sacramento lost in the Ninth Circuit, Emeryville signed a second amicus brief supporting the Supreme Court appeal.
Biddle explains that Emeryville, as a small city, could afford to fix its sidewalks. But larger cities, he said, will face a tremendous economic burden in a time of severe budget deficits.
“This potential ruling could really be a hardship for cities, not only in California, but throughout the country,” Biddle said.
Melissa Kasnitz, staff attorney for Disability Rights Advocates, which filed the Emeryville and Sacramento suits, says the Ninth Circuit ruling, if it stands, need not break the bank.
A clause in the ADA which prevents cities from incurring an “undue” financial burden will allow municipalities to spread out sidewalk improvements over many years, she said.
“It won’t all happen overnight,” she said, arguing that cities only need to take “reasonable steps over time.”
In the end, Kasnitz said, cities that support Sacramento’s position are sending the wrong message.
“These cities have made a political statement that they don’t care about the safety of people with disabilities or their ability to participate in everyday activities,” she said.