Seyfarth Synopsis: A state court has granted the Arizona Attorney General’s Motion To Dismiss approximately 1,700 Arizona access lawsuits on grounds that the organizational and individual plaintiffs lacked standing to sue.
As we previously reported here, the Arizona Attorney General responded to a surge of approximately 1,700 access suits filed in that state’s courts by moving to consolidate, to intervene in, and to dismiss all of such actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler. According to a recent communication from the Arizona AG’s office describing his court appearance on February 17, 2017, the Arizona trial court judge on that date orally granted the AG’s motion to dismiss virtually all of the consolidated cases with prejudice and directed the AG to submit a proposed form of judgment.
There currently is no written decision laying out the Court’s reasoning for its decision, so it is not clear which of the AG’s arguments persuaded the court to issue this decision. The AG’s Motion to Dismiss challenged both the individual’s (Ritzenthaler’s) and AIDF’s standing to bring claims under what the AG described as the “rigorous” standing requirements of Arizona law. The AG presented several arguments about how the Plaintiffs failed to meet these requirements. First, the AG argued that the Plaintiffs failed to allege that they patronized the businesses that they sued. Second, the AG asserted that the Plaintiffs failed to allege an actual barrier to their access. The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’” The AG then stated that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.” Third, the AG asserted that Plaintiffs’ claims were insufficient because they failed to sufficiently allege denial of access based upon their particular, identified disability. Fourth, the AG argued that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint. Fifth, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief: That the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.
If the court issues a written opinion explaining the basis for his ruling, we will update you.
In an interesting peripheral note, the Arizona Attorney General’s office has notified affected parties that the Court also stated that it would consider applications for attorneys’ fees and costs following its ruling, and noted that, should any affected party be interested in filing a fee petition, it should keep in mind that any fee request “must be in sufficient detail to enable the court to assess the reasonableness of the time incurred.” Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983). Based upon the AG’s comments, this portion of the ruling apparently extends beyond the AG’s own attorneys’ fees and costs, potentially including any defendant who hired counsel to defend against Plaintiffs’ 1,700 dismissed actions prior to entry of the stay.