#203

January 23, 1997

James K. Green, Esq. James K. Green, P.A. One Clearlake Centre, Suite 1602 250 Australian Avenue South West Palm Beach, FL 33401 Michael Cohen, Esq. Assistant Attorney General Office of the Attorney General 110 S.E. 6th Street Fort Lauderdale, FL 33301 Re: Proposed Revised Inquiries for Judicial Nomination Application Dear Messrs. Green and Cohen: This letter responds to your request regarding certain inquiries you propose to include in future judicial nomination applications for the State of Florida. Specifically, you have requested guidance regarding whether, in the view of the U.S. Department of Justice, questions you propose be included on the Florida Judicial Nominating Commission's application form are consistent with the Americans with Disabilities Act of 1990, 42 U.S.C. ​ 12101 et seq. ("ADA"). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice and it is not binding on the Department of Justice. The analysis herein is based on the Florida Judicial Nominating Commission's status as a public entity. Title II of the Americans with Disabilities Act contains a sweeping

prohibition of practices by public entities that discriminate against persons with disabilities. 42 U.S.C. 12132. The ADA defines "disability" to include not only a "physical or mental impairment that substantially limits one or more of the major life activities of such individual," but also "a record of such impairment" or being "regarded as having such an impairment." 42 U.S.C. 12101(2). State organizations or entities responsible for screening applicants for possible appointment to positions in the judiciary would fall within Title II's definition of "public entit[ies]," and may not discriminate on the basis of disability in conducting these activities. See 42 U.S.C. 12131(1)(B). The regulations under Title II prohibit policies that unnecessarily impose greater requirements or burdens on individuals with disabilities in the screening process than those imposed on others. See 28 C.F.R. ​ 35.130(b)(6) and 35.130(b)(3)(i). The regulations also prohibit public entities from imposing discriminatory "eligibility criteria." Specifically, the regulations state the public entities may not impose or apply eligibility criteria that screen out or tend to screen out individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be "necessary" for the provision of the service, program, or activity being offered. 28 C.F.R. 35.150(b)(8). A form appended to your letter captioned "Final Revised Copy" dated January 13, 1997, set out proposed questions numbered "Q 10-Q 22." We first address those questions that in our view either require revision in order to be consistent with the ADA, or simply require explanation. Next, we list the remaining proposed questions, which we find consistent with the ADA. Question 10 Are you currently addicted to or dependent upon the use of narcotics, drugs, or intoxicating beverages? If yes, state the details, including the date. This question would be consistent with the ADA if the reference to use of intoxicating beverages was omitted. Only current illegal drug users are excluded from the Act's protection. See 42 U.S.C. ​12210, 12212. The application could contain a question linking the

applicant's use of alcohol to his or her current ability to carry out judicial duties in a competent and professional manner. For example, the application could, consistent with the ADA, contain a question that reads: "Do you consume intoxicating beverages such that your current ability to exercise your duties as a member of the Judiciary is impaired or limited?" See also proposed Questions 12a, 12b, and 15 below (found consistent with the ADA), which inquire about behavior which may be connected to the abuse of alcohol. Further, we note that this inquiry could be broader in one respect. Since current illegal drug users are not protected under the ADA, the application could inquire about all current illegal drug use, not just about addiction or dependence. Question 11a During the last ten years have you been hospitalized or have you consulted a professional or have you received treatment or a diagnosis from a professional for any of the following: Kleptomania, Pathological or Compulsive Gambling, Pedophilia, Exhibitionism or Voyeurism? This question, and its follow-up inquiry, are consistent with the ADA because the conditions listed are specifically exempted from coverage by the ADA. See 42 U.S.C. 12211. Question 11b In the past (five) (ten) years have any of the following occurred to you which would (significantly) interfere with your ability to work in a competent and professional manner? . . . . . . . . . experiencing periods of no sleep for 2 or 3 nights experiencing periods of hyperactivity spending money profusely with extreme poor judgment suffered from extreme loss of appetite issuing checks without sufficient funds defaulting on a loan experiencing frequent mood swings uncontrollable tiredness falling asleep without warning in the middle of an activity

Questions that inquire into symptoms of disability must be

linked to an applicant's current ability to carry out judicial duties in a competent and professional manner. This question therefore would be consistent with the ADA only if the word "current" were inserted before "ability to work" in the first sentence. Two of the listed behaviors -- issuing checks without sufficient funds, and defaulting on a loan -- cannot be construed as symptoms of disability. Therefore, the Commission may ask about these behaviors. Question 14 During the last ten years, have you unlawfully used controlled substances, narcotic drugs or dangerous drugs as defined by Federal and State laws? If your answer is "Yes," explain in detail. (Unlawful use includes the use of one or more drugs and/or the unlawful possession or distribution of drugs. It does not include the use of drugs taken under supervision of a licensed health care professional or other uses authorized by Federal law provisions). A person who is addicted to drugs such that his or her ability to perform major life activities is substantially limited is protected by the ADA -- but only if he or she is not currently using controlled dangerous substances. Current illegal drug users are not protected under the ADA. Therefore, this question should be narrowed to inquire about current illegal drug use, instead of during the last ten years. The Commission may ask a question about the applicant's record of committing illegal acts generally, however, that extends further back in time. For example, the application could contain a question asking whether the applicant has committed any illegal acts in the past ten years, and could include "unlawful use of controlled substances, narcotic or dangerous drugs as defined by Federal and State laws" on a list of various offenses such as misdemeanors, fraudulent acts, or other illegal acts. The objective is to reframe the question to ask broadly about the applicant's record of engaging in illegal behavior, instead of focusing only upon illegal acts that may be connected to a record of disability. Question 13

During the last ten years have you ever been declared legally incompetent or have you or your property been placed under any guardianship, conservatorship or committee? If yes, give full details as to court, date and circumstances. This question inquires into a record of disability that may have no impact upon an applicant's current ability to carry out professional duties. The inquiry should be revised to ask about only about current competence as follows: "Have you been declared legally incompetent or are you or your property under any guardianship, conservatorship or committee?" Remaining Questions Consistent With ADA Certain of the remaining proposed revised inquiries are not, in the Department's view, model questions under the ADA. These questions are not, however, inconsistent with the ADA. Question 12a Do you currently have a physical or mental health problem which in anyway impairs or limits your ability or fitness to properly exercise your duties as a member of the Judiciary in a competent and professional manner? Question 12b If your answer to the question above is Yes, are the limitations or impairments caused by your physical or mental health problem reduced or ameliorated because you receive ongoing treatment (with or without medication) or participate in a monitoring or counseling program? Describe such problem and any treatment or program of monitoring or counseling. Question 15 In the past year, have you ever been reprimanded, demoted, disciplined, placed on probation, suspended, cautioned or terminated by an employer as a result of your alleged consumption of alcohol, prescription drugs or illegal use of drugs? If so, please state the circumstances. Question 16

Within the last five years, have you ever been formally reprimanded, demoted, disciplined, cautioned, placed on probation, suspended or terminated by an employer? If so, please state the circumstances under which such action was taken, the date(s) such action was taken, the name(s) of any persons who took such action, and the background and resolution of such action. Question 17 Have any of your current or former co-workers, subordinates, supervisors, customers or clients ever filed a complaint or accusation of misconduct against you with any regulatory or investigatory agency, or with your employer? If so, please state the date(s) of such accusation(s), the specific accusation(s) made, and the background and resolution of such action(s). Question 18 Have you ever refused to submit to a test to determine whether you had consumed or were under the influence of alcohol or drugs? If so please state the date you were requested to submit to such a test, type of test required, the name of the entity requesting that you submit to the test, the outcome of your refusal and the reason why you refused to submit to such a test. Question 19 In the past year, have you failed to meet any deadline imposed by court order or received notice that you have not complied with substantive requirements of any business or contractual arrangement? If so, please explain in full. Question 20 In the past ten years have you suffered memory loss or impaired judgment for any reason? If so, please explain in full. Question 21 Are you currently the subject of an investigation which could result in civil, administrative or criminal action

against you? If yes, please state the nature of the investigation, the agency conducting the investigation and the expected completion date of the investigation. Question 22 In the past ten years, have you been subject to or threatened with eviction proceedings? If yes, please explain. We hope that this is helpful to you in your efforts to promulgate judicial nomination application forms consistent with the ADA. Please feel free to forward any additional materials on which you wish the Department to provide technical assistance, and to call me at (202) 616-2314 with any questions you may have. Sincerely,

Sheila M. Foran Attorney Disability Rights Section