Dustin A. King v. Marion Circuit Court

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3726
DUSTIN A. K ING,
Plaintiff-Appellee,
v.
M ARION C IRCUIT C OURT,
Defendant-Appellant.
U NITED S TATES OF A MERICA,
Intervenor on Appeal.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14-cv-01092-JMS-MJD — Jane Magnus-Stinson, Chief Judge.
____________________
A RGUED A PRIL 6, 2017 — DECIDED A UGUST 18, 2017
____________________
Before EASTERBROOK, M ANION , and HAMILTON , Circuit
Judges.
EASTERBROOK, Circuit Judge. A county in Indiana may
subsidize private dispute resolution in domestic-relations
cases. See Ind. Code §33-23-6-2. Marion County has such a
program, which it calls the Marion County Domestic Rela-

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2 No. 16-3726
tions Alternative Dispute Resolution Plan. We call it the
Plan. The Plan provides financial assistance for parties with
modest means to help defray the cost of mediation. A party
to a domestic-relations suit may request subsidized media-
tion, or the court may order it of its own accord.
Dustin King was a party to a domestic-relations case in
the Marion Circuit Court. King asked the court to refer his
case to mediation and authorize his participation in the sub-
sidy program. The court ordered both. King, who is deaf,
also asked the judge to provide an American Sign Language
interpreter. The judge denied that request, explaining that
the Plan does not include subsidies for interpreter services.
The Circuit Court did, however, rescind its order of media-
tion, inviting King to return to court for resolution of his
case. There he would have had an interpreter at no cost to
him. King declined. He proceeded through mediation, em-
ploying his stepfather as an interpreter, and achieved a satis-
factory outcome. The domestic-relations case was dismissed.
King then sued the Circuit Court in federal court under
Title II of the Americans with Disabilities Act. He contended
that, by refusing to provide him with a free interpreter in
mediation, the Circuit Court “by reason of [his] disability …
denied [him] the benefits of the services, programs, or activi-
ties of a public entity”. 42 U.S.C. §12132. Following cross-
motions for summary judgment and a bench trial, King pre-
vailed, with the district court awarding him $10,380 in dam-
ages. The Marion Circuit Court now appeals.
We need not address the merits of King’s Title II claim;
another issue controls this case’s outcome. The Marion Cir-
cuit Court is a division of the State of Indiana, so King’s suit
is one against Indiana itself. See Will v. Michigan Department

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No. 16-3726 3
of State Police, 491 U.S. 58 (1989). Indiana has asserted sover-
eign immunity. And because sovereign immunity bears on
whether a federal court may hear a case, we resolve it before
considering the merits. See Seminole Tribe of Florida v. Florida,
517 U.S. 44, 64–65 (1996). The district court held that Indiana
does not enjoy sovereign immunity because this case falls
within the abrogation of that immunity sustained in Tennes-
see v. Lane, 541 U.S. 509 (2004). We disagree with that conclu-
sion.
Section 5 of the Fourteenth Amendment permits Con-
gress to abrogate states’ sovereign immunity when Congress
deems that necessary to protect the substantive rights guar-
anteed by the Amendment’s other provisions. See Fitzpatrick
v. Bitzer, 427 U.S. 445 (1976). The §5 power also permits Con-
gress to authorize federal litigation to enforce rights guaran-
teed by the other amendments that have been incorporated
against the states via the Fourteenth Amendment’s Due Pro-
cess Clause. Lane, 541 U.S. at 522–23. It does not, however,
permit Congress to authorize federal litigation against the
states to enforce statutory rights under other grants of pow-
ers, such as the Commerce Clause. See Kimel v. Florida Board
of Regents, 528 U.S. 62, 78–79 (2000). Congress also may not
work a “substantive change in constitutional protections”; it
can enforce the Constitution only as the Supreme Court has
understood it. Boerne v. Flores, 521 U.S. 507, 509 (1997).
The Supreme Court has held that the §5 enforcement
power extends beyond remedying actual constitutional vio-
lations; it may also proscribe some facially constitutional
conduct as a prophylactic measure against future violations.
See Lane, 541 U.S. at 518. For Congress to adopt such rules,
however, there must be significant evidence that future vio-

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4 No. 16-3726
lations are likely to occur, and the rules must target those
likely violations. Otherwise, the rules rest on the commerce
or spending powers rather than §5, with consequences for
venue of litigation against states. See Board of Trustees of Uni-
versity of Alabama v. Garrett, 531 U.S. 356, 368 (2001); Kimel,
528 U.S. at 91.
In Lane the Supreme Court found that there was a great
“volume of evidence demonstrating the nature and extent of
unconstitutional discrimination against persons with disabil-
ities in the provision of public services”. 541 U.S. at 528.
Based on that body of evidence, the Court held that Title II
properly abrogated states’ sovereign immunity in cases “im-
plicating the fundamental right of access to the courts”. Id. at
533–34. King has not made a similar showing that limits on
the subsidy of court-annexed mediation services can deny
him, or anyone else, access to judicial services.
The Constitution does not guarantee a freestanding
“fundamental right of access to the courts”. Thus there is no
constitutional problem with filing fees or requiring litigants
to pay for their own lawyers in civil cases, although those
expenses may make litigation impractical if not impossible
for some persons. See, e.g., United States v. Kras, 409 U.S. 434
(1973). Lane used the phrase “fundamental right of access to
the courts” to denote a cluster of constitutional rights, such
as due process of law, that are valid grounds on which Con-
gress might abrogate state sovereign immunity. 541 U.S. at
522–23. What those rights have in common is that they affect
the adjudicatory process itself; they safeguard people’s abil-
ity to get into court and receive a judicial decision. Ibid. A
limited subsidy—the Plan pays for a mediator but not an in-

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No. 16-3726 5
terpreter—does not affect any of the rights catalogued in
Lane.
If mediation in Marion County functioned to prevent
King from obtaining judicial attention, his access to the
courts would have been in danger, just as courthouse facili-
ties that physically exclude handicapped persons block their
access. That was what led to Lane: a wheelchair-bound liti-
gant could not reach a courtroom on the second floor of a
building that lacked an elevator or any way to get a wheel-
chair up the stairs. King’s attorney contends that, in Marion
County, mediation must precede judicial resolution of all
domestic-relations cases. His brief cites Marion County Local
Court Rule LR49-ADR2-209, under which certain parties
“must submit” to mediation. But that rule applies only to
“child related” litigation following a divorce, not to all do-
mestic-relations cases. King has not contended that his case
meets the criteria for mandatory mediation. Even if it did,
the Local Rule requires mediation only when the parties
cannot show “good cause” to come directly to court. A dif-
ferent rule says that a state judge “may” order mediation, if
appropriate, in any domestic-relations case. See Indiana Rule
for Alternative Dispute Resolution 1.6. Neither of these pro-
visions makes mediation a general condition precedent to
litigation. Contrary to King’s contention, both rules afford
judges discretion to determine whether mediation is appro-
priate in each case.
The Circuit Court exercised that discretion in King’s case,
ultimately determining that mediation was not required.
King admits that the Circuit Court offered to adjudicate his
claims and to provide an in-court sign language interpreter
at no cost to him. Such full judicial hearings have long been

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6 No. 16-3726
considered the gold standard of due process. See Marchant v.
Pennsylvania R.R., 153 U.S. 380, 387 (1894); Mathews v. El-
dridge, 424 U.S. 319, 333 (1976). King does not contend that
the Marion Circuit Court treats deaf litigants unfairly or that
deaf litigants encounter any barrier to litigation on a par
with litigants who can hear. The Circuit Court’s invitation to
litigate therefore afforded King full access to court.
The United States, which intervened on appeal under 28
U.S.C. §2403(a) to defend the constitutionality of Title II as
applied to this suit, relies on United States v. Georgia, 546 U.S.
151, 159 (2006), for the proposition that damages against
states can be appropriate even when no one has been denied
access to court. That is right in the abstract. “Congress may
respond to a history of concealable [constitutional] violations
by adopting precautionary rules that reduce … the chance of
[future] evasion”. Holmes v. Marion County Office of Family &
Children, 349 F.3d 914, 920 (7th Cir. 2003). But to the extent
that statutory rules are unnecessary to prevent constitutional
violations, they do not overcome sovereign immunity. See
Garrett, 531 U.S. at 368.
The United States has not explained how awarding dam-
ages to King could ward off future unconstitutional conduct.
As far as we know (and as far as King contends), the Circuit
Court does not wield its power to order mediation as part of
a scheme to bar the disabled from obtaining legal redress. It
does not routinely demand mediation as a prerequisite to
adjudication, knowing that the parties’ disabilities will block
mediation and so block litigation too. Nor does King con-
tend that the Circuit Court plans to implement such a strate-
gy in the future. What happened to him points to just the
opposite conclusion. Our sample of one indicates that, when

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No. 16-3726 7
a disabled person might have trouble mediating, the Marion
Circuit Court immediately offers full adjudication. We do
not have any reason to believe that a single disabled person
in Marion County will ever be denied access to court be-
cause of the limits on the subsidies provided by the Plan, or
because of the mediation process as a whole. And in the ab-
sence of any other evidence, we cannot say that allowing
King’s damages action would plausibly function as a
prophylactic against future constitutional violations.
We have now run out of theories about how awarding
King damages under Title II would protect anyone’s consti-
tutional rights. King was invited to come to the Marion Cir-
cuit Court for resolution of his domestic-relations dispute.
The Circuit Court therefore did not actually violate any right
falling under Lane’s “fundamental access” umbrella. Nor
could abrogating sovereign immunity avert future viola-
tions. King has not suggested that any constitutional right of
access to court is under threat in Marion County. All of this
leads to just one conclusion—that this case has no constitu-
tional dimension at all. Title II therefore does not abrogate
sovereign immunity here, and the Marion Circuit Court re-
mains immune from this suit in federal court.
Since we do not decide the merits, King may, if he wish-
es, present his contentions to Indiana’s courts. Even when
Congress has not abrogated states’ sovereign immunity,
states themselves may waive it in full or in part. See Alden v.
Maine, 527 U.S. 706, 755 (1999). Indiana is among many
states that have consented to be sued in their own courts
over many alleged wrongs. See Hoagland v. Franklin Township
Community School Corp., 27 N.E.3d 737, 749 (Ind. 2015);
Campbell v. State, 259 Ind. 55, 62–63 (1972). We need not con-

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8 No. 16-3726
sider whether King’s claim might be subject to the notice and
timing rules of the Indiana Tort Claims Act, Ind. Code §§ 34-
13-3-3, 34-13-3-6, or whether, because it is based on a statute,
it is outside that law’s requirements. Those and related is-
sues are for the state’s judiciary.
The judgment of the district court is reversed, and the
case is remanded with instructions to dismiss without prej-
udice to raising a Title II claim in state court.

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