The 8th U.S. Circuit Court of Appeals on Tuesday ruled 2-1 that a lawsuit seeking damages from the state of Nebraska for its refusal to allow an HIV-positive woman to adopt a child could name the state and the state Department of Social Services
as defendants, the AP/Omaha World-Herald
reports. Jay and GayLynn Brummett for several years fought to adopt a young boy who was placed with them as a state ward in 1992. The Department of Social Services opposed the adoption, saying that GayLynn Brummett's HIV-positive status made it unlikely that she could parent the boy into adulthood. With the assistance of the American Civil Liberties Union
, the Brummetts sued then-Gov. Ben Nelson (D), then-Social Services Director Don Leuenberger and three Social Services employees to gain the right to adopt Noah. The state Supreme Court in 1996 ruled in favor of the Brummetts. However, GayLynn Brummett died of AIDS-related complications one day after the couple filed the new state-supported application for adoption.
In a new case, Jay Brummett is seeking damages for the emotional strain he and his wife underwent as a result of the case. U.S. District Judge Warren Urbom in 1997 ruled that Brummett could bring the damages lawsuit against Nelson, Leuenberger and other individuals but dismissed the state and the Department of Social Services as defendants, saying that they were protected under the 11th amendment state right of sovereign immunity from such lawsuits. However, the appeals court on Tuesday ruled that the state can be held liable. According to the ruling, when the state accepted federal funds for various social programs, it agreed to waive its right to sovereign immunity if it violated the Rehabilitation Act of 1973, a predecessor of the Americans with Disabilities Act. Even though the U.S. Supreme Court has since ruled that Congress cannot require states to waive the right to sovereign immunity for violating the Disabilities Act, the court on Tuesday ruled that the state at the time knew of the requirement to waive sovereign immunity and must therefore "be held to its agreement," Judge Richard Arnold wrote in the majority opinion (AP/Omaha World Herald, 10/7). An appeal of the ruling to the full circuit court seemed likely, especially because the three-judge panel issued a divided opinion, according to the Lincoln Journal Star (Mabin, Lincoln Journal Star, 10/8).
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