Phiffer v. Columbia River Correctional Institute

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O’SCANNLAIN, Circuit Judge,

concurring:

I agree that circuit precedent controls the outcome of this case. See Dare v. California, 191 F.3d 1167 (9th Cir.1999); Clark v. State of California, 123 F.3d 1267 (9th Cir.1997). I nevertheless write separately to stress that, even after Tennessee v. Lane, — U.S. -, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), a palpable tension continues to exist between our circuit’s sovereign immunity jurisprudence and the Supreme Court’s guidance on this issue. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1191 (9th Cir.2003) (O’Scannlain, J., concurring); Hason v. Med. Bd. of Cal., 294 F.3d 1166, 1167 (O’Scannlain, J., dissenting from denial of rehearing en banc).

Although the Court held in Lane that Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity in the context of courthouse access, that narrow holding was reached by a circumspect analysis that is significantly more exacting than that employed by our circuit in Dare and Clark. — U.S. at -, 124 S.Ct. at 1994. Indeed, the Lane Court placed significant emphasis upon the fact that courthouse access is a fundamental right that implicates not only disabled persons’ entitlement to equal protection but also their due process 'rights and their rights under the First and Sixth Amendments. See id. at 1988. It is therefore open to question whether Title II validly abrogates state sovereign immunity where no such fundamental right is at issue. See id. at 1994 n. 20. A State may well retain its Eleventh Amendment immunity where a plaintiff premises a Title II claim solely upon an alleged equal protection violation and has not suffered the deprivation of any other constitutional right. Because Dare and Clark upheld the entirety of Title II without engaging in the nuanced, case-by-case analysis demanded by Lawe, their, continued vitality is uncertain. In the absence of en banc review, however, I acknowledge that these decisions remain binding on this panel and thus join in the per curiam opinion.