it please the court or this court should reverse the district court's decision for three reasons first the marion circuit court court is entitled sovereign immunity second king's request would fundamentally alter the nature of the mari county alternative dispute resolution plan and third king failed to show that the marion circuit court intentionally discriminated against first sovereign immunity applies here because mr king's claims have no constitutional dimension this case does not implicate fundamental right to access the courts and thus tennessee vs line is not controlling mr king had full access to a scheduled hearing in front of the court at which he would have been provided an interpreter mediation in this case was not mandatory and mr king had a closure originally was correct hard the court ordered me a mandatory mediation correct mr king requested mediation and the court did order made it voluntary after that because he was asking for the accommodation because they made it voluntary so that there would be no question that mr king had access to the courts  what's important when you're first thinking about how everybody else has access to the mediation program right any person has access to you litigation program but it's in this case the program is not a guarantee that mr king can participate in mediation for free this is not pro bono mediation what this is is this is this is not like the seven circuits mediation program where the second circuit has an employee who does mediation and access to the court there is a question but there for purposes of the argument yes but in this case good court is their lives so if the court says ok we're a little short on manpower judicial manpower to run this mediation program and handle the mediations so we're going to extend the program by identifying a number of certified mediators we approve them we assign them and they report back to us that they've got to say that feels an awful lot to me why simply an extension of the judicial services that are provided in this case is so mediation at the state court level in civil case the it is not performed by the court it's not performed by an employee of the court it's a private but in those cases the parties bear the cost of mediation right missed and mystery havior misbehavior is subject to sanction by the courts correct yes misbehavior did the courts to the court of jurisdiction just like a just like a discovery a sanction or violating a discovery order i ask you would would the plaintiff under your theory have a claim under title three of the americans with disabilities act against the mediator if he refused a request to provide an interpreter so if if a private party  our position is that is that sovereign immunity cannot be abrogated because the court doesn't guarantee mediation free of charge except in pro bono situations and this is not a problem situation so the way to think about it is what benefit is being given by the court right if if in state court civil mediation if this program was not here the parties would be responsible for the full cost of mediation and they would not have to do it either right or they would not have to do it either it well it may be required the court can require it at the cost of the litigants and that goes to the important distinction between you have to identify the constitutional right at issue right there to constitutional rights that  relevant in this case right the first constitutional right is access to the courts and the reason line doesn't apply here is lane is a criminal case and any of the right of access to the courts is not an enumerated right but is instead  situational application of other constitutional rights and lane identifies four of those rights under the sixth amendment the due process clause the first minute they identify specific rights which are encompassed in that for criminal cases in civil cases it's much different so the question about access to the courts is what is the due process right even so this this is a civil case in which what are the stakes for the n mr king is seeking a modification of his is whether he gets to spend time with his daughter correct pretty important right certainly that that is an important claim but so you're not trying to distinguish lane on the grounds that it's a criminal versus a civil case are you i am trying to distinguish that because due process clause requires different process for an individual in a criminal case as opposed to an individual in a state court civil case about a criminal case in which you're facing a potential fine of five hundred dollars contrasted with a civil domestic case in which the state is seeking to terminate your parental rights so in a case of a bit involved there are criminal you know criminal court in which an ex pat is trying to suspend all visitation about that what i would say is that the sixth amendment and and the first amendment apply differently to promote cases than they do to civil cases and i think the bodie versus connecticut case is a great case that talks about the difference between civil and criminal for the for the purposes of access the court and anybody versus connecticut a woman is seeking  seeking to have a dissolution of marriage in a civil case and the court finds that that is the only way for her to dissolve her marriage is through a court proceeding right but that court also talks about that in civil cases th the court is is one way that is that is encouraged to resolve the issue but in this case mr king had full opportunity to come into the court and have a mediator he ever had an interpreter excuse  your argument depend on the fact that the court chose to waive this mandatory mediation for the plaintiff you know didn't matter does that fact matter that the church the choice to to waive is actually only important because it shows that the court is mindful of that right to access the courts so your position then is that the court can mandate this mediation under its supervision without providing access the courts access to the courts he has that theory available that goes to the question of equal protection right and in order in order for there to be an equal protection claim when a state distributes a benefit  then equal protection scrutiny applies to that benefit if it's not applied to one party or it is to another and in that case you have to look at the benefit that is being provided by the state and in this case under the enabling statues the benefit that is being provided is not free mediation it's not mediation without any cost what it is is it's a subsidy for a portion of the fee for the hourly rate of the cases where the judge is very happy to have some mediator talk to children do some other things that the court doesn't even have the expertise or the ability to do so that's what i always thought would mediation was about where you put it with before someone in this particular case did sort or apparently so unusual for someone who is deaf that you know he had to bring in his stepfather i believe who apparently did whatever we need to be done its var interpretations so he got the call of the benefit or detriment of where you want to call it with the mediation and i don't know what happened result of this so as you are saying the mediation benefits all parties in the program recognizes that have been if it's the parties it's it benefits the courts but in when we're talking about equal protection and the benefit that is given by the program right the program gives a portion of the fee it does not guarantee mediation it's not a pro bono mediation program in that sense that mr king didn't qualify for per what pro bono mediation he qualified to do it's mandated that pro bono provided on the basis of disability it's provided on the basis of income and mr king interests received that benefit and so there's no equal protection receive the benefit when he brought in his stepfather no he received the benefit of the program when he received a portion of the fees you know ok that you talk about the money no yeah because the program is not guaranteeing mediation and even if this is even if the mediation was abrogate sovereign immunity and in this case and the reason is because it changes the state's legal obligations under the constitution the purpose of the congress or proportionality test is to distinguish prophylactic legislation that's designed to address the specific constitutional right and a redefinition of the constitutional right and in this case the a b a redefines the constitutional right by changing the standard from rational basis to heightened scrutiny and we and we can see in the city of bernie case in the in the kimmel case in the garrett case that the supreme court has a problem with when a screw the level of scrutiny is changed and in this case not only has it changed but it's changed in a very broad way the court in the hips spoke about a about narrow narrow targeting of a statute here the a b a says that any program in which the government racks in this way it changes the level of scrutiny for any program and so alternately though this if we get to the congress and proportionality test the reason that is not can group and proportionate use because it changes the legal rights which the city of bernie says which is so you bernie and court if i may just like to clarify few issues about modest means program from the last arguments this is a modest means program and the local rule is that all domestic cases regardless of move it along and he motioned so that he could participate in the modest means program and the modest means program is subsidized by the funding and the funding that comes from the filing fee so every lead again and a domestic case and marion rata basis they file they file a financial declaration and it's determined how much each litigant will pay are if they qualify for the program and he did qualify for the program but regardless of the program of the modest means mediation program he would still be role requires that all cases and domestic cases that they are required and they can waive it for absent for good cause however waiver in this issue preclusion is what i'm just thinking about what happened in this came and he was told mediation watching to the central right on it it seems to me we might have very different consequences if the court said everybody has to mediate in order to that the initial question is what the eighty eight applies to but whether something comes with then what the supreme court said in tennessee against lane was a fundamental right that at least as i understand the as i said the question for tennessee against lane is not what title to provide the question is as i understand the majority opinion to friends is whether what is being provided but the question is whether a particular thing is or is it a fundamental right of access to the court would it violate the constitution for indiana to abolish this mediation program w  there's a modest means program itself that helps those that don't have enough money to keep artists and then there's a mediation that can be required but not a part of this much means mediation program so yes and a litigants for your answer is yes that if say the state of alaska has never had a domestic relations mediation program it is right now in violation of the due process stupid i begin the sequence of questions by saying that if mediation were a condition precedent to access to the court then i can understand how it's part of the fundamental right but i take it as given th service of the court and something that's part of the fundamental right of access to the courts it did seem to me perhaps mistakenly that the majority opinion in tennessee against lane was trying to distinguish between the  of all conceivable court related services and those services that were essential to the fundamental right of access to the courts do you see such a distinction yes but he could you articulate what that distinction is as you see it because every time i ask this question you come back to just say well this is a court related service what do you see as the distinction between the set of all court related services and those that are part of the fundamental right of access to the courts so if mr keene is not able to participate in modest means mediation but for his disk but for his his disability then it's fundamentally unfair to him because everyone else can participate in the i mean i'm asking an abstract legal question how would you articulate the difference between the set of all court related services and the subset of those court related services that are part of the fundamental right of access to the courts well th may please the court dana scully on behalf of the united states this is a straightforward eighty eight case marion circuit court refused to provide king with the sign language interpreter that he needed so that he could participate in the court's mediation program just any individual without a disability instead he had to rely on family members who are not qualified to interpret to help him seek custody of his daughter the district court here correctly determined that marion circuit court violated title two because the mediation program issue is a service program or activity of the circuit court and it also correctly determined that type that kings title two planes were not barred right by eleventh amendment immunity the united states supreme court recognized in the united states the georgia that there need not be a fundamental right issue for congress to have abrogated eleventh amendment immunity in that case the court instructed lower courts in cases that involve a title two violation but no eleven but no violation of a fourteenth amendment fundamental right to nevertheless determine whether congress abrogated state sovereign immunity and that particular class of cases under title t in this class of cases implicating the accessibility of judicial services congress the supreme court has recognized that congress abrogated state sovereign immunity in tennessee dealing this case implicates the excess ability of judicial allow an individual with a deal with a disability to access and participate in and benefit from the program services or activities that the court offers so here simply waiving the obligation to participate in mediation did nothing to enable him to participate it did nothing to allow him to benefit from this program and as counsel for marion circuit court stated this program benefits all parties involved but more to the point nothing in title two or its implementing regulation limits the application of that statute to cases involving mandatory services programs or activities instead courts have consistently applied that statute in cases involving voluntary services programs that i don't have a disagree ridge well again i'm or under even the eleventh amendment there's there's no distinction here between voluntary cases are mandatory cases in tennessee v lane for instance why not that either misunderstood lane or lane is no longer possible but if that is correct if one still has to show that there is some fundamental right of access how to use a service that  is not necessary to obtain a judicial decision part of the fundamental right of action well in tennessee v lane actually in contemplated this category of judicial services as a broad category including the right to serve on a jury or the right to be a spectator incur proceedings those are not fundamental rights of course but it contemplated those as falling within this class of cases that the supreme court held a congress that abrogated a lot of amendment immunity fundamental right in this particular case for congress to have abrogated say sovereign immunity if there just needs to be this broader fourteenth amendment this history of discrimination more broadly under the fourteenth amendment for this to be a services this class of cases involving access to services that the court offers through due to kate legal disputes tennessee dealing also talks about cases in the administration of justice and that's exactly what this case involves king start participat you articulate maybe you don't see any distinction at all could you articulate a distinction between all court services and those that are part of the fundamental right of access to the courts the supreme court in in tennessee be leaner i didn't ask about the supreme court i'm asking you that is what is the position of the executive branch of the united states government is there such a distinction and if there is if the united states saying there is no distinction at all between all court related services and the fundamental right of access to the courts now is it the position that there is no such distinction if there is such a distinction please articulate what it is the distinction is is cases involving access to the courts and involving this fundamental rights involved in the adjudication or that the vindication of legal rights involvement in the court process in some sense being on a jury attending court proceedings and the spectator of course indicating your rights in court proceedings are in mediation service s here this case of course falls within that here but more broadly it i don't know given the state judge's statement that it's unnecessary to participate in mediation i think that the court the supreme court in bodie versus connecticut illustrates provides for in civil cases the fundamental right of access to the court is the access to the court and in this case mr cain had a full opportunity to come before the court and have an interpreter and marion circuit court respectfully request that this court state has a rational basis for discriminating against disabled in court services it's court services it has a rational basis to them to not pay for an out of court proceeding not paid an interpreter for an out of court proceeding but here that's a question about the eighty eight and we don't even get to be i'm asking it in constitution terms so some unconstitutional terms yes harney can the state discriminate against the disabled with