Bledsoe v. Palm Beach County Soil

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 22, 1998
• Docket: 96-5375
• Status: Published

Opinion

HILL, Senior Circuit Judge, concurring specially:

I concur with reluctance.

In Part IIA, we conclude that the meaning and consequence of an unambiguous

written release are subject to dispute, variance and avoidance because we, acting in

loco parentis, find the adult parties to the contract in need of our patronage. Although

troublesome, we apparently have such a role. See Puentes v. United Parcel Service,

Inc., 86 F.3d 196 (11th Cir. 1996).

In Part IIB, we find that Title II of the ADA (the Act) is carefully drafted to

obfuscate.1 Congress could have said “discrimination in employment” if it had

wanted to do so. Here, however, it merely forbids the exclusion of qualified

individuals “from . . . participat[ing] in or be[ing] denied the benefits of the services,

programs or activities of a public entity” by reason of a disability.

The district judge concluded that the Act forbids discrimination vis-à-vis the

“output of these public entities.” See Bledsoe v. Palm Beach Soil and Water

Conservation District, 942 F.Supp. 1439 (S.D.Fla. 1996). If a constituent is angered

by the district judge’s interpretation or our holding today, his or her Congressperson

1 The Act resembles the campaign address of a candidate appearing before an audience that was split on a key issue. The candidate observed, “Some of my friends are in favor of this proposition; some of my friends are against it! As for me, I stand four square behind my friends!” can say “That’s not what we passed. I would never have voted for that! That’s just

the work of those activist judges.”

So be it. The legislative power is vested in Congress. By concluding what

Congress has done, are we legislating? I hope not.

With a tip of the hat to the district judge, I reluctantly conclude that the flow of

precedent is too strong for him or for us to swim upstream, and I

CONCUR.