No. 99-424
In the Supreme Court of the United States
WILLIE M. BROWN, DAVID S. BAGLEY, JOAN BAGLEY,
ORRIS CROSS, AND RUSSEL ANDERSON, ETC., PETITIONERS
AND
UNITED STATES OF AMERICA
v.
NORTH CAROLINA DIVISION OF MOTOR VEHICLES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
A regulation promulgated by the Department of Justice to implement Title
II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131-12165,
prohibits a "public entity" from placing a "surcharge on
a particular individual with a disability or any group of individuals with
disabilities to cover the costs of measures, such as the provision of auxiliary
aids or program accessibility, that are required to provide that individual
or group with the nondiscriminatory treatment required by" the Americans
with Disabilities Act. 28 C.F.R. 35.130(f). The question presented is:
Whether Congress's general authorization for the promulgation of 28 C.F.R.
35.130(f) reflects a proper exercise of Congress's power under Section 5
of the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity
from suit, as applied to prohibit a state surcharge for handicapped parking
placards.
In the Supreme Court of the United States
No. 99-424
WILLIE M. BROWN, DAVID S. BAGLEY, JOAN BAGLEY,
ORRIS CROSS, AND RUSSEL ANDERSON, ETC., PETITIONERS
AND
UNITED STATES OF AMERICA
v.
NORTH CAROLINA DIVISION OF MOTOR VEHICLES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-A24) is reported at 166
F.3d 698. The opinion of the district court (Pet. App. A25-A44) is reported
at 987 F. Supp. 451.
JURISDICTION
The court of appeals entered its judgment on February 12, 1999. A petition
for rehearing was denied on May 11, 1999. Pet. App. A45-A46. On August 2,
1999, the Chief Justice extended the time for filing a petition until September
8, 1999, and the petition for a writ of certiorari was filed on that date.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Americans with Disabilities Act of 1990 (Disabilities Act), 42 U.S.C.
12101 et seq., is a "comprehensive national mandate for the elimination
of discrimination against individuals with disabilities." 42 U.S.C.
12101(b)(1). Based on extensive study and fact-finding by Congress,1 and
Congress's lengthy experience with the analogous nondiscrimination requirement
in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, Congress
found in the Disabilities Act that:
(2) historically, society has tended to isolate and segregate individuals
with disabilities, and, despite some improvements, such forms of discrimination
against individuals with disabilities continue to be a serious and pervasive
social problem;
(3) discrimination against individuals with disabilities persists in such
critical areas as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health
services, voting, and access to public services;
* * * * *
(5) individuals with disabilities continually encounter various forms of
discrimination, including outright intentional exclusion, the discriminatory
effects of architectural, transportation, and communication barriers, overprotective
rules and policies, failure to make modifications to existing facilities
and practices, exclusionary qualification standards and criteria, segregation,
and relegation to lesser services, programs, activities, benefits, jobs,
or other opportunities;
(6) census data, national polls, and other studies have documented that
people with disabilities, as a group, occupy an inferior status in our society,
and are severely disadvantaged socially, vocationally, economically, and
educationally; [and]
(7) individuals with disabilities are a discrete and insular minority who
have been faced with restrictions and limitations, subjected to a history
of purposeful unequal treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that are beyond the
control of such individuals and resulting from stereotypic assumptions not
truly indicative of the individual ability of such individuals to participate
in, and contribute to, society[.]
42 U.S.C. 12101(a). Based on those findings, Congress "invoke[d] the
sweep of congressional authority, including the power to enforce the fourteenth
amendment and to regulate commerce, in order to address the major areas
of discrimination faced day-to-day by people with disabilities." 42
U.S.C. 12101(b)(4).
The Disabilities Act targets three particular areas of discrimination against
persons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discrimination
by employers affecting interstate commerce; Title II, 42 U.S.C. 12131-12165,
addresses discrimination by governmental entities; and Title III, 42 U.S.C.
12181-12189 (1994 & Supp. III 1997), addresses discrimination in public
accommodations operated by private entities.
This case involves a suit under Title II of the Disabilities Act, which
provides that "no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity." 42 U.S.C. 12132.
A "public entity" is expressly defined to include "any State
or local government" and "any department, agency, special purpose
district, or other instrumentality of a State or States or local government."
42 U.S.C. 12131(1)(A) and (B).2 The prohibition on discrimination may be
enforced through private suits against public entities. See 42 U.S.C. 12133;
see also Olmstead v. L.C., 119 S. Ct. 2176, 2182 (1999). In the Disabilities
Act, Congress expressly abrogated the States' Eleventh Amendment immunity
from private suits in federal court. 42 U.S.C. 12202 (a "State shall
not be immune under the eleventh amendment to the Constitution of the United
States from an action in Federal or State court of competent jurisdiction
for a violation of this chapter").
Unlike Titles I and III, Title II does not explicitly delineate all the
different types of actions that constitute "discrimination." Instead,
Congress instructed the Attorney General to issue regulations implementing
the provisions of Title II. See 42 U.S.C. 12134(a); see also 28 C.F.R. Pt.
35 (Attorney General's regulations). The Attorney General's regulations,
Congress further directed, "shall include standards applicable to facilities
and vehicles covered by this part" that are "consistent with the
minimum guidelines and requirements issued by the Architectural and Transportation
Barriers Compliance Board." 42 U.S.C. 12134(c). To ensure that newly
constructed facilities are accessible to people with disabilities, the regulations
require that, "[i]f parking spaces are provided for self-parking by
employees or visitors, or both, then accessible spaces * * * shall be provided
in each such parking area" in a number proportional to the number of
total parking spaces. 28 C.F.R. Pt. 36, App. A, § 4.1.2(5); see 28
C.F.R. 35.151(c) (incorporating standards).3 Each space must be "designated
as reserved by a sign showing the symbol of accessibility." 28 C.F.R.
Pt. 36, App. A, § 4.6.4. Accessible parking must also be provided in
existing facilities when necessary in order to assure that programs, services,
and activities of an entity are accessible to people with disabilities.
See 28 C.F.R. 35.150. The regulations additionally direct that a
public entity may not place a surcharge on a particular individual with
a disability or any group of individuals with disabilities to cover the
costs of measures, such as the provision of auxiliary aids or program accessibility,
that are required to provide that individual or group with the nondiscriminatory
treatment required by the Act or this part.
28 C.F.R. 35.130(f).
2. Respondent permits cars to park in parking spaces reserved for "handicapped
persons" only if the car has a special license plate or removable windshield
placard that indicates that the car is being used to transport a person
with a mobility impairment. Pet. App. A4. It is otherwise a crime to park
in the spots designated for handicapped persons. See N.C. Gen. Stat. §
20-37.6(e)(1) (1993). Respondent charges no extra fee for the issuance of
handicapped license plates, but, consistent with state law, charges a fee
of five dollars for a handicapped parking placard, which is valid for five
years. Pet. App. A4.
Petitioners are persons with disabilities who paid a five-dollar fee to
receive placards so that they could park in accessible parking spaces. Pet.
App. A5. They alleged that the fee violated 28 C.F.R. 35.130(f), and sought
declaratory and injunctive relief, and a refund of all fees on behalf of
themselves and a class of similarly situated persons. Ibid.
The district court held that the Eleventh Amendment barred the suit and
dismissed the action. Pet. App. A25-A44. The court found that Congress clearly
intended to abrogate Eleventh Amendment immunity, id. at A31, but that Congress
lacked the power to do so because Title II of the Disabilities Act exceeded
its remedial power under Section 5 of the Fourteenth Amendment. Id. at A31-A41.
3. On appeal, the United States intervened pursuant to 28 U.S.C. 2403(a)
to defend the constitutionality of Congress's abrogation of the States'
Eleventh Amendment immunity.4 The court of appeals affirmed, but on narrower
grounds than the district court. Pet. App. A1-A20. Rather than examine the
constitutional validity of Title II as a whole, the court of appeals examined
"the legality of the specific statute and regulation whose asserted
violation by state government gave rise to the claim for relief in federal
court," because "the statute itself-which may speak only in general
terms-may be facially constitutional, despite the fact that the regulations
promulgated under it are unconstitutional." Id. at A11, A12. The court
then held that Congress clearly intended in the Disabilities Act to abrogate
Eleventh Amendment immunity. Id. at A12. But the court determined that,
when 28 C.F.R. 35.130(f) "prohibits a state from charging even a modest
fee to recover the costs of its efforts to aid the handicapped, [it] lies
beyond the remedial scope of the Section 5 power." Pet. App. A13. This
was so, the court reasoned, because Congress had not identified any evidence
in the "legislative record" that "state surcharges for handicapped
programs are motivated by animus." Id. at A18. The court of appeals
did not address the validity of the Disabilities Act's abrogation of Eleventh
Amendment immunity with respect to any other aspect of Title II. Id. at
A20 n.*.
Judge Murnaghan dissented. Pet. App. A21-A24. In his view,
[i]t makes no more sense to allow states to recoup from the disabled the
costs of providing the remedial programs needed to fully integrate them
into society than it would, for example, to permit universities receiving
federal funding to charge women higher tuition rates to cover the costs
of complying with Title IX of the Civil Rights Act of 1964. The goal is
to help the victims of discrimination, not to heap more discriminatory treatment
upon them.
Id. at A24.
ARGUMENT
Petitioners are correct (Pet. 4) that the question whether the Disabilities
Act's abrogation of the States' Eleventh Amendment immunity constitutes
a valid exercise of Congress's power under Section 5 of the Fourteenth Amendment
is an important question and one on which there is a direct conflict in
the circuits. Indeed, two petitions are currently pending before this Court
in which that question is raised and in which decision of that question
would be dispositive of the Eleventh Amendment inquiry. See Supplemental
Brief for the United States, Florida Dep't of Corrections v. Dickson, No.
98-829; Brief for the United States, Alsbrook v. City of Maumelle, No. 99-423.
In each of those cases, we have suggested that the petition for a writ of
certiorari be held pending this Court's decision in United States v. Florida
Board of Regents, No. 98-796, and Kimel v. Florida Board of Regents, No.
98- 791, which cases concern the validity of Congress's abrogation of Eleventh
Amendment immunity in the Age Discrimination in Employment Act of 1967,
29 U.S.C. 621 et seq. Within fourteen days of the decision in those cases,
the United States has proposed to submit a supplemental filing containing
its views, in light of that ruling, as to the appropriate disposition of
the pending petitions concerning the constitutionality of the Disabilities
Act's abrogation provision.5
Similar disposition of the present petition is not warranted, however. This
case does not squarely present the broad question of whether the Disabilities
Act reflects a proper exercise of Congress's Section 5 power. Rather, it
presents only the narrow and relatively infrequently recurring question
of whether a particular Department of Justice regulation (28 C.F.R. 35.130(f)),
as specifically applied to a limited category of state fees, can validly
be enforced against the States in federal court by private parties. Accordingly,
further review of this case is not warranted.
1. Petitioners contend (Pet. 10-12) that this Court should grant certiorari
to review the conflict in the circuits regarding Congress's power under
the Disabilities Act to abrogate Eleventh Amendment immunity. The court
of appeals, however, did not decide in this case the broad question on which
the courts of appeals are in conflict6 and of which petitioners seek review.
Quite the opposite, the court expressly held only that a particular Justice
Department regulation implementing the Disabilities Act, insofar as it prohibits
"a modest fee to recover the costs of [the State's] efforts to aid
the handicapped, lies beyond the remedial scope of the Section 5 power."
Pet. App. A13. Indeed, the Fourth Circuit in this case expressly declined
to rule on the statute itself, id. at A20 n.*, and the Fourth Circuit subsequently
upheld the Disabilities Act's abrogation of immunity in another Title II
case, limiting Brown to its facts. See Amos v. Maryland Dep't of Pub. Safety
& Correctional Servs., 178 F.3d 212, 221 n.8 (4th Cir. 1999). This case
thus presents no occasion for the Court to decide whether Title II of the
Disabilities Act-as opposed to a particular application of a Justice Department
regulation-reflects a proper exercise of Congress's Section 5 power.
2. Nor does the narrower question of whether the individual regulation,
28 C.F.R. 35.130(f), falls within the Section 5 power merit this Court's
review, for three reasons.
First, the case presents only the question of whether the regulation as
applied to the narrow circumstances presented here-"a modest fee to
recover the costs of [a State's] effort"-falls within the Section 5
power. The court of appeals eschewed an across-the-board analysis of whether
the federal government could, under its Section 5 power, prohibit certain
categories of charges for the costs of providing required services to persons
with disabilities. See Pet. App. A18 (concluding that "[i]t may well
be that some subset of those surcharges is in fact" "motivated
by animus toward the class," but finding that rationale inapplicable
to "a modest cost-recovery mechanism rationally employed to recoup
the costs of programs aimed at assisting persons with disabilities").
The court of appeals' decision thus involved the distinctly limited question
of whether a regulation as applied to a particular factual scenario fell
beyond the Section 5 power. Such narrow rulings generally do not warrant
an exercise of this Court's certiorari jurisdiction.
Second, a necessary antecedent to adjudicating the question petitioners
present for review is the non-constitutional issue of whether, as a matter
of regulatory interpretation, parking placards for disabled persons are
"required to provide that individual or group with the nondiscriminatory
treatment required by the [Disabilities Act]." 28 C.F.R. 35.130(f).
That is an interpretive question about which there is substantial debate.
Compare Dare v. California, 191 F.3d 1167, 1172-1173 (9th Cir. 1999), with
id. at 1177-1181 (Fernandez, J., dissenting).7 Yet the court of appeals
did not address that interpretive issue in its decision. Nor is there any
conflict in the circuits on that question that would warrant this Court's
review. Petitioners, in fact, do not even present that interpretive question
for this Court's review. But "[i]t is not the habit of the Court to
decide questions of a constitutional nature unless absolutely necessary
to a decision of the case." Ashwander v. Tennessee Valley Auth., 297
U.S. 288, 347 (1936) (Brandeis, J., concurring). Because the petition asks
this Court to "anticipate a question of constitutional law in advance
of the necessity of deciding it," id. at 346, further review should
not be granted.8
Third, this case presents a potential bar to federal jurisdiction separate
and apart from the Eleventh Amendment question presented. The Tax Injunction
Act, 28 U.S.C. 1341, denies federal courts jurisdiction over actions to
"enjoin, suspend or restrain the assessment, levy or collection of
any tax under State law where a plain, speedy and efficient remedy may be
had in the courts of such State." Respondent argued in both the district
court and the court of appeals that the Tax Injunction Act barred petitioners'
federal-court action because the "purpose of the charge for the placard
is to raise money to pay for governmental operations through the Highway
Fund, rather than recovering specifically the cost of supplying the placard."
Resp. C.A. Br. 30-31. While the United States takes no position on the ultimate
question of the Tax Injunction Act's applicability,9 the existence of such
a non-constitutional jurisdictional question stands as an additional potential
obstacle to the Court's resolution in this case of the constitutional question
for which petitioners seek review.10
In their supplemental brief, petitioners note that the Ninth Circuit, in
Dare v. California, supra, reached the opposite conclusion from the court
of appeals here as to whether Congress validly abrogated the States' Eleventh
Amendment immunity for suits that challenge parking placard surcharges.
The existence of such an inter-circuit conflict, while obviously relevant
to this Court's discretionary exercise of its certiorari jurisdiction, does
not independently warrant review in this case, both because of the narrow
and limited impact of the courts' rulings and because of the other potential
procedural and jurisdictional barriers to review discussed above.
Furthermore, the conflict between the Ninth Circuit and the court of appeals'
decision here concerns not the broad question of the constitutionality of
Title II, or even whether the regulation alone as applied to parking placard
fees was a valid exercise of Congress's Section 5 authority, but whether
courts should examine the constitutional validity of Title II as a whole
or on a regulation-by-regulation basis. Compare Pet. App. A9-A12 with Dare,
191 F.3d at 1176 n.7. While petitioners suggest at one point (Pet. 9) that
the Fourth Circuit erred in examining the regulation alone as applied to
parking placard fees instead of in the context of the entire statute, their
concession (Pet. 10 (emphasis added)) that their claims "hinge on the
constitutionality of both the statute and the regulation" indicates
that the focus of their challenge is not on the Fourth Circuit's approach,
but on the result to which it led in this case.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys
DECEMBER 1999
1 Fourteen congressional hearings and 63 field hearings by a special congressional
task force were held in the three years prior to passage of the Disabilities
Act. See S. Rep. No. 116, 101st Cong., 1st Sess. 4-5, 8 (1989); H.R. Rep.
No. 485, 101st Cong., 2d Sess. Pt. 2, at 24-28, 31 (1990); id. Pt. 3, at
24-25; id. Pt. 4, at 28-29; see also Timothy M. Cook, The Americans with
Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393 &
nn.1-3 (1991) (listing the individual hearings). Congress also drew upon
reports submitted to Congress by the Executive Branch. See S. Rep. No. 116,
supra, at 6 (citing United States Civil Rights Commission, Accommodating
the Spectrum of Individual Abilities (1983); National Council on Disability,
Toward Independence (1986); and National Council on Disability, On the Threshold
of Independence (1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same).
2 While the Disabilities Act does not apply to the federal government, substantially
similar protections are provided by Section 504(a) of the Rehabilitation
Act of 1973, 29 U.S.C. 794(a), which has governed "any program or activity
conducted by any Executive agency" since 1978. In addition, Congress
has extended the obligations of the Disabilities Act to itself. See 2 U.S.C.
1331(b)(1) (Supp. IV 1998).
3 28 C.F.R. 35.151(c) permits public entities subject to Title II to select
between these standards and the Uniform Federal Accessibility Standards,
41 C.F.R. Pt. 101-19.6, App. A. With respect to parking requirements, the
two sets of standards are virtually identical, see 41 C.F.R. Pt. 101-19.6,
App. A, §§ 4.1.2(5), 4.6.
4 Because it found it lacked jurisdiction, the district court did not reach
the question whether respondent's placards are "measures * * * required
by the [Disabilities] Act" within the meaning of 28 C.F.R. 35.130(f).
The United States took no position on the merits of petitioners' claims.
5 Another petition raising the constitutionality of the Disabilities Act's
abrogation provision, DeBose v. Nebraska, No. 99-940, is also pending. The
United States has not yet filed its response in that case.
6 Following this Court's decisions in Seminole Tribe v. Florida, 517 U.S.
44 (1996), and City of Boerne v. Flores, 521 U.S. 507 (1997), six courts
of appeals have held that the abrogation of Eleventh Amendment immunity
contained in the Disabilities Act is a valid exercise of Congress's power
under Section 5 of the Fourteenth Amendment to enforce the Equal Protection
Clause. See Garrett v. University of Ala., 193 F.3d 1214 (11th Cir. 1999);
Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); Muller v. Costello, 187
F.3d 298 (2d Cir. 1999); Amos v. Maryland Dep't of Pub. Safety & Correctional
Servs., 178 F.3d 212 (4th Cir. 1999); Coolbaugh v. Louisiana, 136 F.3d 430
(5th Cir.), cert. denied, 119 S. Ct. 58 (1998); Clark v. California, 123
F.3d 1267 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); see also
Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 6 n.7 (1st Cir. 1999) ("we
have considered the issue of Congress's authority sufficiently to conclude
that, were we to confront the question head-on, we almost certainly would
join the majority of courts upholding the provision"). The Seventh
Circuit also upheld the Disabilities Act's abrogation prior to this Court's
decision in Flores, supra. See Crawford v. Indiana Dep't of Corrections,
115 F.3d 481, 487 (7th Cir. 1997). The question of the continuing validity
of Crawford is currently pending in Erickson v. Board of Governors of State
Colleges and Universities, No. 95 C 2541, 1998 WL 748277 (N.D. Ill. Oct.
1, 1998), appeal pending, No. 98-3614 (7th Cir.) (oral argument heard Apr.
27, 1999). The constitutionality of the Disabilities Act's abrogation is
also pending in a number of cases before the Sixth Circuit, for which a
consolidated oral argument was held on October 24, 1999. See, e.g., Nihiser
v. Ohio EPA, 979 F. Supp. 1168 (S.D. Ohio 1997), appeal pending, No. 97-3933.
Only the Eighth Circuit, in a sharply divided opinion, has ruled that the
Disabilities Act's abrogation provision is invalid. Alsbrook v. City of
Maumelle, 184 F.3d 999 (1999) (en banc, with four judges dissenting), petition
for cert. pending, No. 99-423.
7 The Justice Department has not yet expressed a view on the matter.
8 We recognize that the Court traditionally favors the resolution of jurisdictional
questions before the merits of parties' claims are addressed. See Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 89-102 (1998). That precept
does not translate readily to jurisdictional objections based on the Eleventh
Amendment, however, for two reasons. First, as this Court has explained,
the Eleventh Amendment does not operate like a traditional limitation on
subject matter jurisdiction:
The Eleventh Amendment * * * does not automatically destroy original jurisdiction.
Rather, the Eleventh Amendment grants the State a legal power to assert
a sovereign immunity defense should it choose to do so. The State can waive
the defense. Nor need a court raise the defect on its own.
Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 389 (1998) (citations
omitted); see also id. at 394-395 (Kennedy, J., concurring).
Second, in deciding the jurisdictional question of whether Eleventh Amendment
immunity has been validly abrogated pursuant to Congress's Section 5 power,
the legal test adopted by this Court requires, as a prerequisite, a meaningful
analysis of the operation of the Section 5 legislation (or regulation).
This is because a valid abrogation requires a clear intent to abrogate and
ascertaining that intent requires an interpretation of the statute. See
Seminole Tribe, 517 U.S. at 55-57. It also requires that Congress possess
the power to abrogate, and when that power is asserted under Section 5 of
the Fourteenth Amendment, the constitutionality of the abrogation turns
upon whether there is "a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end."
Flores, 521 U.S. at 520. Especially with respect to statutes (or regulations,
like the one at issue here) for which there is no established body of interpretive
law to draw upon, it will often be difficult to assess the law's constitutionality-its
congruence and proportionality-without first determining the substantive
scope of its operation. Indeed, the court of appeals found the Justice Department's
regulation to be incongruent and disproportionate-and thus an unconstitutional
abrogation of immunity-based solely on the assumption that the regulation
embraces the type of placard fees at issue here. See Pet. App. A17-A19.
9 There is an obvious tension between respondent's characterization of the
fee for purposes of its Tax Injunction Act argument as a "revenue generator"
whose purpose is not to "recover[] specifically the cost of supplying
the placard," Resp. C.A. Br. 30, 31, and respondent's characterization
of its fee for purposes of its Disabilities Act argument, Br. in Opp. i
(fee is imposed "to defray the cost of voluntarily providing 'handicapped'
windshield placards").
10 Moreover, the resolution of petitioners' claims may have little practical
impact for them, because they currently have pending a state court action
that raises the identical Disabilities Act allegations presented in this
case and seeks declaratory and injunctive relief and refund of the collected
fees. Although Alden v. Maine, 119 S. Ct. 2240 (1999), held that Congress's
Article I power is insufficient to abrogate the States' sovereign immunity
to suits in their own courts, there is a substantial basis to believe that
respondent has waived its immunity to such suits. First, as respondent conceded
below (Resp. C.A. Br. 31-32), the North Carolina Administrative Procedures
Act, N.C. Gen. Stat. § 150B-43 (1995), permits individuals in petitioners'
position to challenge the validity of the parking placard fee in state court.
In addition, North Carolina has a specific provision that permits a person
who pays under protest a "tax" involving motor vehicles to sue
in state court for a refund. See N.C. Gen. Stat. § 20-91.1 (1993);
cf. Cedar Creek Enters., Inc. v. North Carolina Dep't of Motor Vehicles,
226 S.E.2d 336, 338-339 (N.C. 1976) (construing term "tax" broadly
so as to apply to a penalty imposed for violating weight limit). While both
provisions impose exhaustion requirements before suit can be filed, even
if respondents did not comply with those requirements in all respects, they
are not jurisdictional and can be waived by the courts when the equities
require. See Bailey v. North Carolina, 500 S.E.2d 54, 74-76 (N.C. 1998)
(state law that taxpayers pay the tax under protest and then seek a refund
through administrative procedures before suing in state court need not be
followed in all respects once notice is achieved); Huang v. North Carolina
State Univ., 421 S.E.2d 812, 815 (N.C. Ct. App. 1992) (failure to comply
with Administrative Procedures Act's exhaustion requirement can be excused).