www.deaflaw.org
TABLE OF CONTENTS
Who
are we and why this handbook
Hearing Loss and Communication
Accommodation in the Courtroom and Courthouse
Table of Contents: Legal References
WHO ARE WE AND WHY THIS HANDBOOK?
This project is supported by the State Equal Access Fund administered by the State Bar of California and by Grant No. 2001-WL-BX-0047 awarded by the Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.
California Center for Law and the Deaf
14895 E. 14th Street, Suite 220
San Leandro, Ca. 94578
Voice/TTY (510) 483-0922 Fax (510) 483-0967
There are approximately 26 million people in the United States who experience some form of hearing loss with varying degrees of impairment, of which an estimated two million are deaf and use various forms of sign language as their primary means of communication. The remaining 21 million people may be described as hard of hearing. They typically do not sign and depend more on audible communication. It is commonly assumed that all deaf people use sign language. These statistics, however, indicate that the majority of people with hearing loss do not benefit from sign language interpreters and will need other types of accommodations. Considering the wide array of communication modes used by individuals who are Deaf and hard of hearing, this makes the court's job of assuring effective communication far more complex, since there is no one method that will meet the needs of such a diverse group of people.
Our experience has shown that there are several obstacles that people who are deaf and hard of hearing face in a court setting – negative and patronizing attitudes, disrespectful treatment, impatience, ignorance and confusion about how to communicate. A common complaint is the court's lack of knowledge about services and equipment. A standing concern is that hearing people equate the inability to speak with intellectual capacity. This is one of the most important issues that must be addressed and demystified -- deaf people do not lack intelligence, they simply cannot hear and may lack information and knowledge more readily available to people who can hear.
It is our belief that if all family court personnel and auxiliary service providers, such as judges, custody evaluators, counselors, social workers, mediators, facilitators and other professionals, have a greater knowledge of hearing loss, deaf culture, assistive technology and the auxiliary aids and services the courts are responsible for providing, then the prevailing stereotypic attitudes within family courts and services would be diminished and meaningful communication for people who are deaf and hard of hearing would be ensured.
It is our hope and intent that this handbook will help accomplish that goal.
HEARING LOSS AND COMMUNICATION
People who are deaf and hard of hearing experience wide degrees of hearing loss. Although somewhat arbitrary and for ease of understanding, we will describe three groups: deaf, hard of hearing and late deafened. Each group's communication needs are different; what works for one does not necessarily work for the other. There is one communication tip common to all, regardless of their degree of hearing loss: Be sure to face the person with whom you are communicating and do not cover your mouth or look away while you are talking. This cannot be emphasized strongly enough. Deaf and hard of hearing people “hear” through their eyes. Many speech read and all take cues from your facial expressions and body language.
People who are deaf: Deafness is the inability to hear and understand speech. Audiologically, those who have greater than 90 dB (deciBel) loss -- cannot hear a airplane roaring overhead -- have a profound hearing loss and are considered to be deaf. "Congenitally” deaf people can make little, if any, sense of sounds that hearing people experience. Also in this category are people who are pre-lingually deaf, meaning they lost their hearing before they learned to speak. For many deaf people, American Sign language (ASL) is their first language, not English, and is often their most effective means of communication. Many adults in this group have attended schools for the deaf and consider themselves members of the Deaf Community – a recognized socio-linguistic minority.
People who are hard of hearing: These people have some degree of residual hearing and their hearing loss can be from "moderate" to "severe". Members of this group are the most difficult to identify since often their hearing loss has been progressive and gradual, they are linguistically and socially adept, and will sometimes intentionally or unintentionally camouflage their hearing loss.
People who are hard of hearing tend to depend on spoken or written English. Few know sign language. They generally function quite well in the hearing world; their friends are hearing and they work in a hearing environment. Many use hearing aids. Vanity or expense is often the explanation for not using them. Hearing aids, although improving with advances in technology, are not the panacea that hearing people assume they are – background noise distorts sounds, sometimes to the point where turning off or removing the hearing aid is less intrusive and more effective. Hearing aids only amplify sound; they do not clarify or differentiate between sounds. An increasing number of people have cochlear implants and are functionally hard of hearing. This group of people will typically benefit most from assistive listening devices.
People who are late-deafened: These are people who have lost their hearing post-lingually -- after acquiring language and speech -- perhaps because of age (most common), an accident, sickness or other health-related reasons (sometimes referred to as adventitiously deaf). Their hearing loss is usually severe to profound. Their first language is English and they usually identify with the hearing world. They are most likely to use hearing aids but are unable to understand speech without visual aids, such as speech reading, sign language or Computer Assisted Realtime Transcription (CART).
Subcategories -- The oral deaf, deaf-blind, foreign-born deaf and minimal- language-skilled deaf:
ACCOMMODATION IN THE COURTROOM AND COURTHOUSE
Attitudinal barriers are perhaps the most difficult barriers to overcome. From our experience, it is common to see a lack of awareness regarding the diversity and degrees of hearing loss; mistaken assumptions that lead to stereotypic opinions about intelligence and ability; seeing an individual who is deaf or hard of hearing as a burden and inconvenience to the court. Attitudinal change is the key that will bring equal communication access to the courtroom and courthouse for the deaf and hard of hearing. An informed staff and judiciary and a willingness to make needed accommodations will ensure success. Providing training and resources to appropriate staff is the best way for a Court to assure that its staff becomes and stays informed.
A key step in the accommodation process is to inform individuals that accommodations can be provided and give them the opportunity to identify what type of accommodation they need in order to fully participate. The ADA requires that courts give “primary consideration” to the individual’s choice of auxiliary aid or service. The law is clear that court proceedings may not begin until the auxiliary aid or service is in place and functioning. If both the court and the individual with the hearing loss work together, meaningful and effective communication will be more readily achieved.
The different types of accommodations that can be utilized include:
1. Sign language and oral interpreters: A sign language interpreter is a skilled professional who should be certified and trained in court interpreting. The interpreter simultaneously interprets the meaning of spoken words into sign language and from sign language into spoken English. Sign language interpreters are used by people who are deaf and whose first language is ASL.
An oral interpreter is someone who silently “enunciates” the speaker's words and uses facial expressions, natural gestures and clear articulation to help people who speech read understand the proceedings. Oral interpreters might be needed by a person who depends on speech reading rather than sign language.
Evidence Code Section 754 requires the use of certified interpreters. When this is not possible, an interpreter that is functionally otherwise qualified should be used with the parties’ documented consent. As recognized in Section 754, in some cases "intermediary" interpreters or Certified Deaf Interpreters for foreign born or semi or a-lingual deaf individuals may be necessary. Courts are increasing their use of intermediary interpreters, or Certified Deaf Interpreters. CDI’s are not certified for court interpreting and the Court should voir dire such an interpreter regarding his or her qualifications and obtain the parties’ consent just as it should before using any non-court (or non-legal) certified interpreter. Other legal mandates for using interpreters, such as providing separate interpreters for open court communications and attorney-client communications, must also be followed. For cases where both parties are deaf, which happens more often in Family Court, three or more interpreters should be appointed and present, one to interpret for the court and the other two for each of the parties.
Following the guidance in the Standards of Judicial Administration on the use of court interpreters is important with respect to instructions and particularly the “pre-appearance interview” where the interpreter meets with the deaf individual to determine his or her particular sign language fluency. It is good practice for the Court to authorize and allow sufficient time for such an interview as a matter of course whenever the appointed interpreter is not familiar with the deaf person. Finally, where it is administratively possible, the same interpreters should be appointed for any case where there is more than one court appearance by the deaf individual.
In appropriate cases, particularly when interpreters will be used for witnesses who are deaf, the Court should consider videotaping the proceedings in order to keep a complete record of the sign language interpreting.
2. Computer Assisted Realtime Translation (CART): CART, which is expressly required if requested pursuant to Civil Code Section 54.8, is a system using a court reporter or CART specialist who uses a stenotype machine and specialized software together with a computer to produce instant speech-to-text translation to a computer monitor or other display that enables an individual to read the transcript of the proceedings as it occurs. CART can be effective for individuals who are deaf or late-deafened and use speech to communicate, and for people who are hard of hearing.
Providing CART is not the same as making the official record. Clarity and understanding of all courtroom communication for the deaf litigant, witness or juror is the goal of the CART provider. The CART provider will, for example, continue transcribing what is said whether it is on or off the record. The CART provider may also include other information, such as laughter, an alarm ringing, or anything that detracts attention from the proceedings. Therefore, attempting to have one court reporter perform both functions should be avoided, even for short proceedings.
The standards for CART reporters are designated by the National Court Reporters Association, NCRA. The certification of Registered Professional Reporter, RPR, is considered a prerequisite for qualified CART providers. Attainment of the Certified Realtime Reporter, CRR, is recommended.
3. Assistive Listening Systems/Devices (ALS/ALD): These are devices that transmit amplified speech by a variety of methods that differ in their transmission mode and installation. The court is also required to provide a device upon request pursuant to Civil Code Section 54.8. The following is a brief description of three assistive listening systems.
(a Audio loop: This is a permanently-installed wireless technology that can be used with certain types of hearing aids (those with a "T" switch) that allow a person who is hard of hearing to pick up the amplified sound that is created by the electromagnetic signal within this loop. That sound is sent through a cable (the “loop”), which is placed around the perimeter of the courtroom.
(b) Wireless FM system: This system requires the speaker to wear or hold a microphone and a transmitter unit that sends sound directly to the hard-of-hearing individual who wears a headset or a hearing aid with a "T" switch and wearing a receiver with either a neck loop or headphones. If multiple systems are used in adjoining courtrooms, separate broadcast frequencies should be used since FM signals can penetrate walls and ceilings.
(c) Infrared transmitter and receiver: This system transmits audio signals via invisible light waves. The IR receiver contains a photo diode that detects the IR light wave and the audio signal is transmitted to the user wearing a headset or neck loop. Since light waves are contained within the boundaries of the courtroom, there is less chance for interference and for that reason may be considered more effective. Bright, incandescent light may cause interference.
The system should be in place and tested prior to the scheduled time for the particular proceeding. Furthermore, the court should ensure that the system is in fact effective for the individual who is hard of hearing and remains so throughout the proceeding. Depending on lighting and the acoustics of the courtroom, the individual may need to move to a better location and lighting adjusted.
Attorneys who represent a party who is deaf or hard of hearing or who plan testimony from an individual who is deaf or hard of hearing, should notify the court well in advance of the date and request the type of accommodation that will be most effective for their client or witness, using Form MC-410 as appropriate.
4. Telecommunication Devices for the Deaf (TTYs/TDDs): Sometimes called teletypewriters, these are special telephones with keyboards and LED displays used by people who are deaf and/or speech impaired. All but the smallest county court system should have a dedicated TTY telephone line and should provide notice of its availability. In addition, larger court facilities should and may be required to have one or more pay telephones equipped with TTYs.
Without a dedicated TTY line, TTY callers will need to rely on the California Relay Service (CRS), a "go-between" using the intervention of a third party operator who reads aloud what is typed by the deaf person and types what is being said by the hearing person. The prevalent reliance of courts on automated menu systems for telephone access presents difficulties for relay users. To minimize problems, every court menu system should provide an initial option to select an operator or other court representative.
5. Signage: Pursuant to both state and federal law, courts are required to notify the public about the availability of auxiliary aids and services. The notice should provide the name and location of the contact person. Signs should be large and placed in locations easily visible to the public – by the entrance to the courthouse and each courtroom and, for TTYs, near the public telephones. Written materials, including notice of trials and other locally generated forms, as well as information on the Internet should also include such notices.
6. Visual warning devices: All courthouses should be and some must be equipped with functioning flashing lights – typically strobes -- that will notify people who are deaf or hard of hearing of fire or other emergency.
7. Signal/hearing dogs: Service dogs are usually associated with people who are blind or have a visual loss. However, many people who are deaf have “hearing dogs” that alert them to important auditory signals that most hearing people take for granted – a knock at the door, the buzz of a smoke alarm or fire detector. State and federal law require the court to allow them to accompany their deaf owners into the courthouse and courtroom
LEGAL MANDATES
1. Facilities
All court buildings must comply with state and federal building standards. Most current code requirements for disability access date from 1993 for new construction and any substantial remodeling. The federal requirements are contained in the ADA Guidelines for Accessibility (see Legal References # 4), which have been incorporated into the U.S. Department of Justice ADA regulations (see Legal References #1). The state standards, found in Title 24 of the California Code of Regulations, are based on ADAAG. For the deaf and hard of hearing, these standards include requirements for public TTYs, signage, assistive listening systems and visual alarms. California Civil Code Section 54 also requires that “individuals with disabilities have the same right as the general public to the full and free use of . . . public buildings . . . facilities, and other public places.” To the extent that court facilities are funded by federal and state money, they also must comply with Section 504 of the federal Rehabilitation Act of 1973 and California Government Code Sections 11135 and following. Both of these require both facility and program access. Taken together, these laws both set out very specific requirements and generally require courts to otherwise remove architectural barriers (in this case communication) to the extent doing so would not be an “undue burden.”2. Programs
All courts must comply with state and federal antidiscrimination laws. Some of these are very specific in their requirements, others are more general. Federal requirements are found in the U.S. Department of Justice’s regulations implementing Section 504, 28 C.F.R. Pt. 42, which are triggered for courts receiving any federal funds, and in Title II of the ADA and the Department’s regulations implementing it, 28 C.F.R. Pt. 35 (see Legal References ##1-3). These laws include general requirements for equal treatment, opportunity and access, including the provision of reasonable accommodations such as securing equipment, devices, services and modifying policies and practices. For the deaf and hard of hearing, they provide specific guidance regarding the mandate for “effective communication,” TTYs, signage, notice of accommodations, the meaning of “qualified” interpreter and examples of the types of other “auxiliary aids and services” that will overcome the communication barrier. Although the Court is provided the power to decide what accommodation it will provide, it must give primary consideration to the expressed preference of the deaf or hard-of-hearing individual and the accommodation selected must be effective. Again, a Court is not required to take any action “it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities, or in undue financial and administrative burdens.”
The California laws requiring program access are also based on Civil Code Section 54 and Government Code Section 11135 and its implementing regulations, 22 CCR Div. 8 it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities, or in undue financial and administrative burdens. These laws either reference the ADA standards (§ 54) or are based on Section 504 regulations (§ 11135). In addition to these laws, there are some California laws that are specific to the courts. There are Civil Code 54.8 (see Legal References #5) relating to assistive listening systems and CART, Evidence Code 754 (see Legal Reference #6) relating to interpreters for deaf parties and witnesses, Code of Civil Procedure Sections 203 and 224 (see Legal References #7) relating to interpreters needed for deaf jurors, and Rule of Court 989.3 (see Legal References #8), which sets forth very specific procedures and appeal rights for court participants who request accommodations.
Proceedings for Temporary Restraining Orders and other Expedited Matters:
The court must be prepared to obtain sign language interpreters or CART providers on short notice, from as little as 90 minutes to at most one day. Without such readiness, a deaf victim of domestic violence may not be able to secure a needed restraining order as quickly as a hearing person. A delay of a day or more in obtaining a restraining order may easily expose the victim to an unnecessary risk of harm. On the other hand, being forced to proceed without a court qualified interpreter may also jeopardize the victim’s ability to obtain appropriate and needed relief.
Custody Evaluators and Other Experts:
When a child custody proceeding involves an evaluation where there are one or more deaf family members, it is critical that the court consider the use of professionals who have specialized training, education and experience in assessing and/or providing services to deaf people in order to ensure that any evaluation will be fair and accurate. The court should conduct focused outreach to attract such professionals to become approved court evaluators.
The California Courts Web Site
The Judicial Council maintains a web site that contains, among other information, a list of court-certified sign language interpreters. The URL is http://www.courtinfo.ca.gov/programs/courtinterpreters/
California Relay Service (CRS)
Enables people who do not have a telecommunication device (TTY/TDD) to communicate over regular telephone lines with people who are Deaf, hard-of-hearing, or have speech impairments and who use a TTY/TDD.
Voice: 7-1-1 (No Charge. Long distance rates, if applicable, will apply.)
The Caption Center
Produces captions for videotapes.
Voice: (818) 562-3344; Fax: (818) 562-3388
Sign Language Interpreters
Most courts have sign language interpreters on their lists of local interpreters. In addition, there are a modest number of private referral interpreter businesses, some of which have interpreters on staff.
Interpreter Referral Agencies serving the Bay Area:
Hired Hands: TTY/V: (510) 659-1882; Fax: (510) 739-1993
E-mail: handshired@aol.com
Hands-On Services: TTY: 1-800-900-9479; Voice: 1-800-900-9478
Fax: 1-888-900-9477
Bay Area Communication Access (BACA): TTY: (415) 356-0376
Voice: (415) 356-0405; Fax: (415) 356-0495
E-mail: bacaterp@aol.com
Interpreters Consulting Services: V/TTY: (707) 747-0353
Fax: (707) 643-8220
E-mail: sign4life@aol.com
Communique: V/TTY: (707) 546-6869; Fax: (707) 546-1770
E-mail: cqinterps@aol.com
Sign Language Associates (Interpreting via video conference):
(301) 588-7591, Fax: (301) 588-3021
E-mail: sla@signlanguage.com
CART Services
Many courts already have court reporters who are presently on staff and who can provide CART services. If not, or if they are unavailable, CART providers must be hired.
Qualified CART reporters serving the Bay Area:
Captioning Agency Professionals
Jane James
TTY: (510) 482-5421 Voice: (510) 530-3989; Fax: (510) 530-4130
E-mail: captioning@earthlink.net
Laura Brewer and Terry Darrenougue
Brewer and Darrenougue
Voice (650) 949-1900; Fax (650) 949-1961
Golden Gate Reporters
35 Mitchell Blvd., Suite 8
San Rafael California 94903-2010
Voice: (800) 442.4611; Fax: (415) 491.4635
E-mail: ggr@depos.com
California Shorthand Reporting
176 Marview Way
San Francisco California 94131
Voice (415) 457-4417 Fax: (415) 454-5626
E-mail: meddler@1945@cs.com
CalNorth Reporting Services
3510 Unocal Place, Suite 111
Santa Rosa California 95403
Voice: 707 579-4500 Fax: 707-579-5738
E-mail: calnorth@sonic.net
Clark Reporting
Contact Jill Stephenson or Patricia Sessions
2161 Shattuck Avenue, Ste. 201
Berkeley, CA
94704
Phone: (510) 486-0700; (888)
539-4142 (Toll Free)
Fax: (510) 486-1078
E-mail: admin@1courtreporting.com
Harry A. Cannon, CSR Inc.
550 California #600N
San Francisco California 94104
Voice: (415) 391-7421; Fax: (415) 391-4978
E-mail: cannonhac@msn.com
Nogara Reporting Service
130 Battery Street, Suite 580
San Francisco California 94111
Voice: (800) 362-6622/(415)
398-889; Fax: (415) 398-0611
E-mail: depos@nogara.com
DeMichelle Deposition Reporters of Northern CA
744 Empire Street, Suite 201
Fairfield California 94533
Voice: (707) 425-6000; Fax:
(707) 425-6019
E-mail:
susan@demichelle.com
Brickman Deposition Reporting
41 Sutter Street, Suite 700
San Francisco, CA 94104
Ph:(800)-728-6903 (415) 788-5095
Fax:415-788-5928
E-mail: bdrsf@aol.comComp-U-Scripts Court Reporters
1101 S. Winchester #D138
San Jose/Palo Alto, CA 95128-3901
Ph:408-261-9795
Fax: 408-247-0433
E-mail: cusstaff@compu-scripts.comSpherion Elizabeth Eastwood
475 Sansome Street Suite 720
San Francisco, CA 94111
Ph:415-362-6666
Fax:415-362-0907
E-mail: elizabetheastwood@spherion.comStar Reporting Service
703 Market Street
Suite 1003
San Francisco, CA 94103
Ph:(877)388-0800 (415)576-0700
Fax:(415)576-0722
E-mail: starrptg@pacbell.net
Some helpful websites
Deaf Counseling, Advocacy and Referral Agency (DCARA): www.dcara.org
California Center for Law and the Deaf (CalCLAD): www.deaflaw.org
California Telephone Access Program (CTAP): www.ddtp.org
Registry of Interpreters for the Deaf (RID): www.rid.org
National Association for the Deaf (NAD): www.nad.org
Self Help for the Hard of Hearing (SHHH): www.shhh.org
National Court Reporters Association (NCRA): www.ncraonline.org
(To locate CART Reporters in your area: Click on CART Interest Area.
Go to Professional Services Locator. To familiarize yourself with the
professional skills required of CART providers, click on the CART
Provider’s Manual.)
Deaf Women Against Violence (DWAV): www.dwav.org
(Gives training to judges, family court lawyers, paralegals, police,
counselors, shelter services, medical staff, professionals that work
with domestic violence and sexual assault victims. Provides 24-hour crisis intervention -
TTY 510/538-0152)
The U.S. Department of Justice’s ADA Home Page: http://www.usdoj.gov/crt/ada/adahom1.htm
Videotapes:
"Obstacles Courts" and “Silent Justice” may both be purchased through
The American Judicature Society: Phone: (312) 558-6900, Ext. 147
Fax: (312) 558-9175
TABLE OF CONTENTS: LEGAL REFERENCES
US Department of Justice Regulations Implementing Title II of the ADA
(Title 28m Code of Federal Regulations, Part 35)
US Department of Justice Title II ADA Technical Assistance Manual
US Department of Justice Title II ADA Technical Assistance Manual as amended by 1994 Supplement
ADA Accessibility Guidelines (ADAAG)
California Code Section 54.8 – Assistive Listening Sysems
California Evidence Code Section 754 – Interpreters
California Code of Civil Procedure Sections 203 and 224 – Jurors
Standards of Judicial Administration – 2001 Rules of Court
Procedure for Determining Need of Interpreter
Pre-appearance interview
10. Registry of Interpreters for the DEAF (RID) – Interpreters in legal settings
11.
National Court Reporters Association – CART Providers Manual
REFERENCES
Below are selected excerpts from relevant laws, codes, rules and regulations, cases and Judicial Standards that are pertinent to court access for people who are deaf or hard of hearing.
Duvall v. County of Kitsap, 260 F.d3d 1124 (9th Cir. 2001)
Christopher Duvall brought this action against a superior court judge, Kitsap County, the County's Americans with Disabilities Act ("ADA") coordinator, the chairperson of the County's ADA committee, and the person who served as court administrator and court ADA coordinator. Duvall alleged that these defendants failed to accommodate his hearing impairment during the state court proceedings involving the dissolution of his marriage. Specifically, he contends that the defendants violated the ADA, Section 504 of the Rehabilitation Act, and the Washington Law against Discrimination (WLAD) by refusing to provide real-time transcription for his hearings. [FN1] The district court granted summary judgment to all defendants as to all claims. Duvall appeals.
FN1. Real-time transcription, also known as videotext display or close captioning, is a computer-aided transcription device that converts typing from the court reporter's stenographic machine into English language text displayed on a computer screen.
I. Background
Christopher Duvall is completely deaf in his left ear and has a severe hearing impairment in his right ear. Because he does not sign well enough to use American Sign Language or Signed English, Duvall's primary mode of receiving communication is through the written word. He wears custom-fitted hearing aids and is able to communicate effectively in one-on-one conversation in spoken English with the aid of visual cues and lip reading. He finds it extremely difficult, however, to follow a conversation in which he is not a participant. In such circumstance, he is unable to focus on a single speaker to study his facial expressions, body language, and lip movement; nor is he able to control the pace of the conversation, nor provide for a pause that would give him time to process the various aural and visual cues and interpret the speaker's message. Attempting to overhear or follow a conversation between others requires a great deal of concentration, and after approximately thirty minutes Duvall begins to suffer from tinnitus and headaches that further diminish his capacity to understand spoken communication.
In 1994 and 1995 Duvall was a party to a family law case in the superior court of Kitsap County, Washington involving the dissolution of his marriage. In his declaration, he states that he was initially able to participate meaningfully in several pre-trial hearings because the hearings were short, there was no oral testimony, and the discussion centered on written materials that he had reviewed prior to the hearing. Thereafter, however, he experienced difficulty in following the one pre-trial hearing that included extensive oral testimony. That hearing took place in courtroom 269, the courtroom designated for hearing- impaired individuals because of its small size, superior acoustics, and special equipment, including an assistive-listening device, for hearing-impaired individuals. Nevertheless, Duvall could not understand the testimony of his ex-wife, even though he knows her speech patterns very well. Subsequently, after he continued to experience difficulty understanding the proceedings in two further pre-trial hearings, Duvall realized that he would not be able to participate meaningfully when the case came to trial without some form of accommodation. He then contacted the U.S. Department of Justice and was advised that he should request videotext display from the ADA Coordinator for Kitsap County.
The parties dispute when Duvall first requested videotext display for his court proceedings. Duvall contends that he contacted Barbara Razey, the county's ADA coordinator, in April, 1995, and spoke to her several times in the six weeks preceding his trial about his need for accommodation. According to Duvall, he explained to Razey that he had examined the equipment in courtroom 269 and had concluded that it would not effectively accommodate his hearing impairment, and specifically requested real-time transcription for his trial, which was scheduled to begin in late June. He asserts that when he called Razey shortly before the trial to emphasize the importance of his request he was instructed to contact Patricia Richardson, the Chairperson of the Kitsap County ADA Committee, because Razey was on vacation. According to Duvall, Richardson took no action with regard to his request but, instead, directed him to contact Madelyn Botta, who was both the Director of the Superior Court Administrative Services and the ADA coordinator for the superior court. [FN2]
FN2. Razey and Richardson deny that Duvall requested videotext display for his trial and allege that they did not discuss any accommodation with Duvall until after the completion of his trial. Because this is an appeal from an order granting summary judgment in favor of appellees, we are required, for purposes of our review, to accept the appellant's version of all disputed facts. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998).
Duvall asserts that he telephoned Botta twice in mid-May. While the substance of their conversations is disputed, Duvall contends that he requested real-time transcription. Subsequently, Botta contacted Duvall's attorney, Michael Alvarado, and told him that the trial would be held in a courtroom equipped for the hearing impaired, that neither she nor the judge would speak directly to Duvall, and that Duvall could file a motion with the court regarding accommodation if he wished. [FN3] None of the court or county officials attempted to determine whether the facilities in courtroom 269 would accommodate Duvall's hearing impairment, or whether it would be possible to provide videotext display through a court-reporting service, although, according to Duvall, he had informed them that the accommodations provided in Courtroom 269 were inadequate, given the nature of his particular hearing problems.
FN3. In her deposition, Botta testified that if an individual wished to request an accommodation for a disability in the superior court, "they would be informed by the receptionist" that they should address their inquiries to Botta: "If someone walked in and said, 'I have a problem ... ' whatever it is, that type of inquiry would be sent to me."
The trial for the marriage dissolution action was held before Judge Leonard Kruse on June 21, 22, and 23 in courtroom 269. That courtroom was equipped with the "Telex Soundmate," an assistive audio system for hearing-impaired individuals. Duvall contends that this device was inappropriate for an individual like himself who uses hearing aids that are precisely adjusted to the user's hearing needs. Telex-Soundmate did not contain an inductive loop system that would transmit to Duvall's hearing aids and make use of their customized settings. He further declares that the facilities in courtroom 269 required him to remove his hearing aids and to use earbuds, which provided only general amplification and impeded the use of his natural hearing ability. By Duvall's account, requiring him to remove his hearing aids to use the inferior Soundmate system was equivalent to requiring a person with an artificial leg to remove the leg and use crutches.
Duvall's attorney made a motion to the court on the first day of trial requesting videotext display to accommodate Duvall's hearing impairment. Judge Kruse stated in his deposition that this was the first time that he had heard about Duvall's request for that accommodation. In any event, Judge Kruse denied the motion, stating,
[T]hat's the way humans happen to communicate, I guess up until a very recent time, with one another is orally. And I know that some courts in some places have the ability to have, in effect, an on-line screen available through the court reporter. We have not progressed to that technical degree in this county, and I can only assume that if Mr. Duvall wished to have that service available he can provide that service for himself.
Judge Kruse did, however, permit Duvall to move around the courtroom freely and position himself wherever he could best hear the proceedings. Duvall sat in the jury box for a portion of the trial. Although this permitted him to understand the witnesses somewhat better, he was unable to communicate easily with his lawyer, who was sitting at the counsel table. He testified that he made extensive notes to preserve his thoughts for his lawyer, but that he missed the testimony that occurred while he was looking down to write notes. When Duvall's ex-wife took the stand on the first day of trial, Judge Kruse stated that the parties and attorneys could move about the courtroom "unless it ... starts to be disconcerting in some regard or intimidating or something." Duvall states in his declaration that he interpreted this remark to imply that he was sitting too close to the witnesses, and moved several seats away from the witness box, putting him out of effective aural range of the witnesses and attorneys. According to Duvall, at this point he "gave up" and returned to his seat next to his attorney for the remainder of the trial. The intense concentration required to attempt to follow the proceedings resulted in exhaustion, headaches, and tinnitus, further impeding his ability to hear. In sum, Duvall avers that his hearing impairment prevented him from meaningfully participating in the trial.
A post-trial hearing was scheduled for August 11, 1995. According to Duvall, he phoned Razey and Richardson about ten days before the hearing to again request videotext display. On August 8 Duvall hand-delivered a letter to both Razey and Botta requesting that videotext display be provided at the upcoming hearing. Razey testified that as the ADA Coordinator for the County she had the authority to arrange accommodations for Duvall. When she received Duvall's letter, she discussed it with Botta and Richardson, and Richardson responded to Duvall on behalf of the County on the same day with a letter stating simply that the hearing would be held in Courtroom 269. Again, no county or court official made any effort to determine whether videotext transcription was available. Duvall brought a motion for a mistrial at the August 11 hearing, based upon the court's failure to provide videotext display at the trial, and Judge Kruse denied the motion, stating that real-time transcription was not available in Kitsap County.
At the time of Duvall's June trial, one of the county's court reporters was training to learn real-time transcription, and in fact had already demonstrated to Botta and several of the superior court judges how that process works. Duvall also submitted declarations of court reporters in Seattle who stated that they could have provided videotext display at the time of his trial. Indeed, when Razey first contacted firms in Seattle and Tacoma in September 1995 as part of the investigation of Duvall's complaint to the county ADA grievance committee, she learned that these firms did, in fact, have the capacity to provide videotext display to the superior court in Kitsap County. Moreover, although Sandra Baker and Associates, an independent firm that provided much of Kitsap County's court-reporting services, had never provided videotext display prior to September 1995, when Kitsap County first requested this service on September 19, 1995, that firm also was able to accommodate the request. It provided videotext display for Duvall's post-trial court hearing three days later, and for the subsequent hearings.
The County's ADA grievance committee denied Duvall's grievance on October 6, and the Board of County Commissioners denied his appeal in late November. Duvall filed suit in federal district court under Title II of the ADA, Section 504 of the Rehabilitation Act of 1973, the Washington Law Against Discrimination (WLAD), and 42 U.S.C. § 1983 seeking declaratory [FN4] and compensatory relief. The suit named as defendants (1) Judge Kruse and court administrator and ADA coordinator Botta (collectively "the Superior Court defendants") and (2) County ADA Coordinator Razey, County ADA committee chairperson Richardson, and the three members of the Board of County Commissioners (collectively "the County defendants"). [FN5] The district court granted summary judgment to all defendants on all claims. Duvall now appeals.
FN4. In his complaint, Duvall requested a declaration "that defendants have unlawfully discriminated against Plaintiff by refusing to provide real time captioning for his dissolution of marriage proceedings." Because Duvall ultimately received real time transcription and the county now provides that service for hearing-impaired individuals, his claims for declaratory relief are now moot. See Williams v. Alioto, 549 F.2d 136, 143-44 (9th Cir.1977). His suit for damages, however, is not. Memmer v. Marin County Courts, 169 F.3d 630, 632 n.3 (9th Cir.1999). We therefore discuss only the claims for damages.
FN5. All of the individually named defendants were sued in their official capacities.
II. Judicial Immunity
The district court granted summary judgment to Judge Kruse and court administrator Botta on the ground of judicial immunity. It is well settled that judges are generally immune from suit for money damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991). However, absolute judicial immunity does not apply to non-judicial acts, i.e. the administrative, legislative, and executive functions that judges may on occasion be assigned to perform. Forrester v. White, 484 U.S. 219, 227 (1988). We have identified the following factors as relevant to the determination of whether a particular act is judicial in nature:
(1) the precise act is a normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity.
Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir.1999).
We conclude that Judge Kruse was acting in a judicial capacity when he refused to accommodate Duvall. Judge Kruse testified that he first learned of Duvall's request for videotext display on the first day of trial, when Duvall's attorney brought a motion requesting videotext display. Following completion of the trial, Duvall requested a new trial because of the absence of videotext display during that proceeding. Duvall's motions were made by his attorney while Judge Kruse was presiding over Duvall's case. The judge stated that, when he ruled on the motion requesting videotext display, he did not consider Duvall's request under the ADA. Instead, Judge Kruse considered only whether, as a matter of courtroom administration, the courthouse was able to provide videotext display without delaying the start of the trial. At the August post- trial hearing, Judge Kruse simply ruled that Duvall was not entitled to a new trial based upon the court's earlier refusal to provide videotext display. Ruling on a motion is a normal judicial function, as is exercising control over the courtroom while court is in session. Judge Kruse is therefore entitled to absolute judicial immunity. [FN6]
FN6. The defendants contend that Judge Kruse is immune from suit as a state officer under Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001). They do not argue that the Eleventh Amendment bars suit against any of the other defendants. Because we hold that Judge Kruse is entitled to absolute judicial immunity, we do not address whether Garrett applies to Title II of the ADA.
Judicial immunity is extended to "certain others who perform functions closely associated with the judicial process." Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir.1996). "When judicial immunity is extended to officials other than judges, it is because their judgments are 'functional[ly] comparab[le]' to those of judges--that is, because they, too, 'exercise discretionary judgment' as part of their function." Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993) (citation omitted); see also Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1108 (9th Cir.1987) (holding that "the lynchpin of both the judicial and quasi-judicial immunities" is that the acts in question are "an integral part of the judicial process"). Here, Botta was the superior court ADA coordinator as well as the court administrator. She concedes that she had ministerial authority to arrange courtroom accommodations for disabled individuals, but contends that, because she was entitled to determine whether Duvall would receive his requested accommodations only in consultation with the judge presiding over his case, she is entitled to quasi- judicial immunity.
For Botta's defense of absolute immunity to succeed, she must demonstrate that her decision to refuse videotext display was functionally comparable to the type of decision made by a judge. See Antoine, 508 U.S. at 436. Absolute immunity is "the exceptional case." Zolin, 812 F.2d at 1108. Although, in her deposition, Botta expressed uncertainty about the limits of her authority to provide accommodations, she admitted that, as the court's ADA coordinator, she was the appropriate person from whom to request accommodations. She further acknowledged that she made the decision to accommodate Duvall by scheduling his trial in Courtroom 269, rather than by providing him with videotext display. That she may have decided upon the accommodation she provided after consulting with Judge Kruse does not demonstrate that she was exercising a quasi-judicial function rather than implementing the requirements of the ADA pursuant to duties that had been assigned to her--particularly in light of Judge Kruse's testimony that Botta did not consult with him or inform him about Duvall's request for videotext display. In fact, some of Botta's deposition testimony strongly suggests that her decision not to provide videotext display was administrative in nature.
Q: You said that if someone came to you and requested an ASL interpreter for litigation, you would make that decision yourself.
A: Right, based on the statute.
Q: Which statute?
A: I can't cite it to you, but it's my understanding that the legislature has decided that sign-language people should be available and that there is a statute--I can't cite it to you.
Q: Do you know if that statute speaks to any disabilities other than the need for a sign-language interpreter?
A: I don't know.
Q: So based on that statute you had the authority to provide ... [a] sign- language interpreter?
A: Right.
Thus, it appears that when a statute requires, or perhaps even authorizes, the provision of a particular form of assistive device to a hearing-impaired individual, Botta has the authority to make the necessary arrangements therefor, as an administrative matter. Further, it appears that in acknowledging her authority in that regard, that Botta may have been adverting to the very statutes at issue here. [FN7] Accordingly, the type of decision- making authority Botta exercised in Duvall's case appears, at the very least, to raise an issue of material fact as to whether she was acting in an administrative rather than quasi-judicial capacity. Because the burden is on the official claiming immunity to demonstrate that public policy requires recognition of an absolute immunity, see Zolin, 812 F.2d at 1108, we hold that Botta's deposition testimony alone precludes summary judgment in her favor.
FN7. Although neither the Rehabilitation Act nor Title II of the ADA, on its face, requires the provision of sign-language interpreters as an accommodation for hearing-impaired individuals, the regulations promulgated by the Attorney General under Title II list sign-language interpreters and videotext display as among the accommodations required, in appropriate circumstances, by the ADA. 28 C.F.R § 35.104(1).
III. Reasonable Accommodation
Duvall's complaint also alleges that the County defendants denied him the use of videotext display at his trial on June 21, 22, and 23, and at his post-trial hearing on August 11 in violation of the ADA, the Rehabilitation Act, and the WLAD. Title II of the ADA provides:
... [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. To prove that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a "qualified individual with a disability"; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Weinreich v. Los Angeles County Metropolitan Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997).
Title II of the ADA was expressly modeled after § 504 of the Rehabilitation Act. [FN8] A plaintiff bringing suit under § 504 must show (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. Id. Similarly, the elements of a prima facie claim of discrimination in a place of public accommodation under the WLAD [FN9] are: (1) the plaintiff is disabled; (2) defendant's establishment is a place of public accommodation; (3) disabled persons are not provided services comparable to those provided nondisabled persons by or at the place of public accommodation; and (4) the disability was a substantial factor causing the discrimination. Fell v. Spokane Transit Auth., 128 Wash.2d 618, 637 (Wash.1996) (en banc). Because the elements of Duvall's ADA, Rehabilitation Act, and WLAD claims do not differ in any respect relevant to the resolution of this appeal, [FN10] we address these claims together. See Zulkle v. Regents of the University of California, 166 F.3d 1041, 1045 n.11 (9th Cir.1999).
FN8. Section 504 of the Rehabilitation Act provides:
No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
FN9. The WLAD protects "the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement," Wash. Rev.Code § 49.60.030(1)(b), and provides that it is an unfair practice to discriminate in a place of public accommodation. RCW 49.60.215.
FN10. The WLAD differs from Title II of the ADA and § 504 of the Rehabilitation Act in that it does not require a showing of intentional discrimination in suits for money damages. See Wash. Rev.Code § 49.60.030(2) ("Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both."); Negron v. Snoqualmie Valley Hosp., 86 Wash.App. 579, 588-89 (Wash.Ct.App.1997) (holding that plaintiff need not show intentional discrimination to recover money damages for discrimination in a place of public accommodation under the WLAD). Because we find that Duvall has made a sufficient showing of intentional discrimination to survive summary judgment on his ADA and Rehabilitation Act claims, a fortiori he has made a sufficient showing of discrimination under the WLAD as well.
In their motion for summary judgment, the defendants argue that Duvall's WLAD claim must be dismissed because he failed to file a claim for damages with the County pursuant to Wash. Rev.Code § 4.96.010 prior to commencing this action. Because the district court did not reach this issue in its order, we will not consider it on this appeal.
As a severely hearing-impaired individual who was a party to a lawsuit involving public hearings, Duvall is a qualified individual with a disability for purposes of the ADA. 42 U.S.C. § 12131. The primary issue in dispute is whether the County was required to provide videotext display as a reasonable accommodation for Duvall's disability. The regulations implementing Title II of the ADA provide:
A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
28 C.F.R. § 35.160(b)(1). The regulations specifically mention "transcription services ... videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments" as auxiliary aids and services that may be required by the ADA, 28 C.F.R. § 35.104(1). The 1991 preamble to the regulation notes that videotext display is "often used at conferences, conventions and hearings," 28 C.F.R. § 35.104 App.A, and may be "an effective auxiliary aid or service for a person who is deaf or has a hearing loss who uses speech to communicate." 28 C.F.R. § 35.160 App.A.
The defendants argue first that videotext display was not a reasonable accommodation because it was not available in Kitsap County at the time of Duvall's trial. Duvall has presented sufficient evidence to create a triable issue of fact as to whether real-time transcription was a reasonable accommodation in Kitsap County in June 1995. He has presented deposition testimony from Botta that, sometime before June, she attended a demonstration by one of the county's court reporters of the use of videotext display, and Judge Kruse's testimony establishing that the judge was familiar with both the demonstration and the court reporter. Duvall provided declarations of other court reporters who could have provided videotext display for the Kitsap County court at the time of his trial. When the County first requested videotext display services from a local firm in September, the firm was able to provide this service for Duvall's hearing three days later. When Razey investigated the availability of real-time transcription in September, she discovered that firms in both Seattle and Tacoma could provide the service for the court. Although the County defendants were not aware of a court reporting service that provided real-time transcription when Duvall allegedly made his request, the ADA imposes an obligation to investigate whether a requested accommodation is reasonable. We have observed that "mere speculation that a suggested accommodation is not feasible falls short of the reasonable accommodation requirement; the Acts create a duty to gather sufficient information from the disabled individual and qualified experts as needed to determine what accommodations are necessary...." Wong v. Regents of the University of California, 192 F.3d 807, 818 (9th Cir.1999). In determining what type of auxiliary aid is necessary, a public entity must "give primary consideration" to the accommo- dation requested by the disabled individual. 28 C.F.R. § 35.160(b)(2). The evidence in the record strongly suggests that the County would have been able to provide videotext display for Duvall's hearings if the defendants had given due consideration to Duvall's requested accommodation and investigated the availability of real-time transcription.
Noting that a public entity need only provide auxiliary aids and services "where necessary to afford an individual with a disability an equal opportunity to participate" in a public service or program, 28 C.F.R. § 35(b)(2) (emphasis added), defendants next argue that the accommodations offered to Duvall were sufficient to reasonably accommodate his disability. To prevail under the ADA, Duvall must show that the accommodations offered by the County were not reasonable, and that he was unable to participate equally in the proceedings at issue. Memmer v. Marin County Courts, 169 F.3d 630, 633- 34 (9th Cir.1999). The County argues that it offered two effective accommodations for Duvall's hearing impairment: (1) the Soundmate assistive listening device, which Duvall refused, and (2) assignment to the courtroom designed for hearing-impaired persons, along with permission to sit wherever he could best see and hear the witnesses.
Duvall presented evidence that he examined the Telex Soundmate system prior to his trial, determined that it was inappropriate for his needs, and explained to Razey that the device was incompatible with his particular disability. Duvall testified that the Soundmate system would require him to remove his hearing aids, which are precisely adjusted to his hearing needs, and replace them with the system's earbuds, which would provide only general amplification and would impede his natural hearing ability.
Duvall also offered evidence that, despite the superior acoustics of courtroom 269 and his ability to move freely about the courtroom, he was unable to participate equally in his trial and his post-trial hearing. He testified that although sitting in the jury box made it somewhat easier to understand the witnesses, he missed testimony while he was taking extensive notes to preserve his thoughts for his lawyer, who was sitting at the counsel table. Duvall stated that at some point he "gave up" on sitting in the jury box and returned to his seat next to his attorney for the remainder of the trial. According to Duvall, the intense concentration required to attempt to follow the lengthy proceedings through a combination of lip reading, aural hearing, and interpretation of body language resulted in headaches, exhaustion, and tinnitus, making it even more difficult for him to hear. The defendants rely on Judge Kruse's conclusion that Duvall was able to participate equally based on his observations that he was able to respond appropriately to questions and to consult with his attorney at the hearings. However, Judge Kruse's observations are not inconsistent with Duvall's testimony that although he is able to communicate effectively in one-on-one conversation with the aid of visual cues and lipreading, he has much more difficulty following a conversation in which he is not a participant because he is unable to focus on a single speaker or to control the pace of the conversation.
The defendants rely heavily on our decision in Memmer to support their position. In Memmer, we found that a court did not fail to accommodate a litigant's visual impairment when it offered a Spanish interpreter who did not have specific training in aiding blind persons rather than the litigant's requested reader. We first held that no accommodations were necessary at the pre-trial stage because those hearings did not involve examining exhibits orreading documents, and Memmer was therefore not disadvantaged in any way by the denial of the reader. Noting that the requested service of assisting in examining exhibits and reading documents during the trial did not require special skill, we also held that Memmer failed to carry her burden of proof under the ADA because she did not consult with the Spanish interpreter offered by the court to determine whether he could assist her, and presented no evidence that he was "a less able or sufficient reader" than her preferred reader. 169 F.3d. at 634. Here, by contrast, Duvall examined the court's proposed accommodation--the assistive listening system--prior to rejecting it, and presented evidence regarding the insufficiency of this device. Further, he offered detailed testimony explaining the difficulties he experienced following the proceedings in his case. Duvall has thus presented sufficient evidence to create a material issue of fact as to whether the refusal to provide videotext display prevented him from participating equally in the hearings at issue.
IV. Intentional Discrimination
To recover monetary damages under Title II of the ADA or the Rehabilitation Act, [FN11] a plaintiff must prove intentional discrimination on the part of the defendant. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir.1998). [FN12] This Circuit has, on three occasions, refused the opportunity to determine the appropriate test for intentional discrimination under the ADA. See id. at 675; Memmer, 169 F.3d at 633; Midgett v. Tri-County Metro. Transp. Dist. of Oregon, 2001 WL 709214 (9th Cir.2001). Instead, we decided each time to set forth the options, rather than to resolve the issue, leaving subsequent courts to choose between a "deliberate indifference" or "discriminatory animus" standard. See Ferguson, 157 F.3d at 675 (setting forth, without deciding, the available options); Memmer, 169 F.3d at 633 (noting that Ferguson had delimited the range of permissible options). We now determine that the deliberate indifference standard applies.
FN11. As discussed above, the WLAD does not require a showing of intentional discrimination, however.
FN12. Our adoption of the intentional discrimination standard was premised upon the provisions of the ADA and the Rehabilitation Act requiring the remedies available under those statutes to be construed the same as remedies under Title VI of the Civil Rights Act of 1964. Ferguson, 157 F.3d at 673, (citing 42 U.S.C. § 12133(ADA); 29 U.S.C. § 794a(a)(2) (Rehabilitation Act)). The Supreme Court established in Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582, 584 (1983), and most recently confirmed in Alexander v. Sandoval, 121 S.Ct. 1511 (2001), that "private individuals c[an] not recover compensatory damages under Title VI except for intentional discrimination." Sandoval, 121 S.Ct. at 1517.
In so doing, we follow the example of the circuits that have considered the intentional discrimination requirement following our decision in Ferguson. See Bartlett v. New York State Board of Law Examiners, 156 F.3d 321, 331 (2d Cir.1998) reversed on other grounds, 527 U.S. 1031 (1999) (citing Ferguson and adopting the deliberate indifference standard); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir.1999) (discussing Ferguson and applying deliberate indifference standard to Rehabilitation Act). [FN13] Moreover, the deliberate indifference standard adopted by those circuits is better suited to the remedial goals of Title II of the ADA than is the discriminatory animus alternative noted in Ferguson. Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood. City of Canton v. Harris, 489 U.S. 378, 389 (1988); see also id. at 395 (O'Connor, J., concurring) (deliberate indifference requires both "some form of notice ... and the opportunity to conform to [statutory] dictates"). In Memmer, we required the plaintiff to identify "specific reasonable" and "necessary" accommodations that the defendant failed to provide. 169 F.3d at 633. When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.
FN13. The Tenth Circuit had earlier applied a different standard in the ADA context. Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1336 (10th Cir.1998) (adopting good-faith standard); see also Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir.1994) (decided before Ferguson and rejecting "discriminatory animus" standard as too high to constitute the discriminatory intent required to recover compensatory damages); Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219 (11th Cir.1992) (decided before Ferguson, applying bad-faith standard to compensatory damages available under Rehabilitation Act, and suggesting that discriminatory animus jury instruction may constitute error); Carter v. Orleans Parish Pub. Sch., 752 F.2d 261, 264 (5th Cir.1984) (decided before Ferguson and adopting intentional discrimination or discriminatory animus standard). In light of Powers, we presume that the Tenth Circuit will in the future apply the deliberate indifference standard in ADA cases as well. We also note that the Fourth Circuit has outright, and the Eleventh Circuit has tentatively, rejected the discriminatory animus standard. The Fifth Circuit's endorsement of the standard as an alternative to intentional discrimination leaves the question of the applicable standard in that circuit, at best, in doubt.
A public entity's duty on receiving a request for accommodation is well settled by our case law and by the applicable regulations. It is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation, and we have provided the criteria by which to evaluate whether that investigation is adequate. "[M]ere[ ] speculat[ion] that a suggested accommodation is not feasible falls short of the reasonable accommodation requirement; the Acts create a duty to gather sufficient information from the [disabled individual] and qualified experts as needed to determine what accommodations are necessary." Wong, 192 F.3d at 818 (all but first alteration in original; citation and internal quotation marks omitted). Furthermore, the Attorney General's regulations require the public entity to "give primary consideration to the requests of the individual with disabilities" when determining what type of auxiliary aid and service is necessary. 28 C.F.R. § 35.160(b)(2). Accordingly, a public entity does not "act" by proffering just any accommodation: [FN14] it must consider the particular individual's need when conducting its investigation into what accommodations are reasonable. Because in some instances events may be attributable to bureaucratic slippage that constitutes negligence rather than deliberate action or inaction, we have stated that deliberate indifference does not occur where a duty to act may simply have been overlooked, or a complaint may reasonably have been deemed to result from events taking their normal course. See Ferguson, 157 F.3d at 675. Rather, in order to meet the second element of the deliberate indifference test, a failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness. See Bartlett, 156 F.3d at 331; Matthews v. Jefferson, 29 F.Supp.2d 525, 535-536 (W.D.Ark.1998) (notice combined with failure to provide appropriate facilities may violate Title II).
FN14. Especially when the accommodation is provided based upon stereotyped assumptions about the person's disability, such as the assumption that all hearing-impaired individuals need sign-language interpreters, or all hearing-aid wearers may be accommodated by a sound-amplification system.
Here, Duvall provided sufficient evidence to create a triable issue as to whether Botta, one of whose jobs was that of superior court ADA coordinator, and Razey and Richardson, two of the County defendants, had notice of his need for the accommodation involved and that they failed despite repeated requests to take the necessary action. Viewing the facts in the light most favorable to Duvall, Duvall telephoned Botta to request videotext display, she failed to investigate whether such display was available (despite already having witnessed a demonstration of that system in the courthouse), and she deliberately made the decision, instead, to "accommodate" his disability by rescheduling the trial in Courtroom 269. Duvall also informed Razey, the County ADA coordinator, several weeks before his trial, and again approximately ten days before his post-trial hearing, that the existing accommodations were inadequate with respect to his disability and specifically requested videotext display for the upcoming hearings. By her own admission, Razey had the authority to arrange an accommodation for Duvall, [FN15] but made no effort to contact court reporting firms and determine whether they could provide videotext display until after Duvall filed a grievance following his trial. Razey made a deliberate decision to deny Duvall's requests for a particular auxiliary aid without making any effort to determine whether it would have been possible to provide the requested accommodation. Similarly, in response to Duvall's request for real-time transcription at his post-trial hearing, Richardson merely informed Duvall that his hearing would be held in the courtroom designated for hearing-impaired individuals, although Duvall had advised her over six weeks before that he was familiar with the audio system used in Courtroom 269 and that it was inadequate. Nonetheless, Richardson denied his request without investigating whether the facilities in the courtroom would accommodate Duvall's needs. If Duvall's account of the timing and content of his requests for accommodation and defendants' reactions thereto are accurate, a trier of fact could conclude that defendants' decisions not to accommodate him were considered and deliberate. Accordingly, viewing the record as we must on summary judgment, Duvall has presented sufficient evidence to show deliberate indifference, and thus intentional discrimination, on the part of Botta, Razey and Richardson.
FN15. The County defendants do not assert that their failure to accommodate Duvall was inadvertent. Rather, they argue that they are not liable for the failure because it was ultimately Judge Kruse who denied the motion for videotext display made on the first day of trial. The dissent accepts this argument. However, the record reveals that Razey testified that she had the authority to accommodate Duvall; and, indeed, after Razey investigated his grievance and discovered that videotext display was available, the County contracted with a court reporter to provide this service for the remainder of Duvall's court proceedings, and the service was in fact provided. In any event, the possibility that an individual judge might refuse to order, or even permit, an accommodation to be utilized in his courtroom in a particular case would not absolve the County of its responsibility to attempt to comply with the ADA. Morever, according to his testimony, Judge Kruse was not consulted in advance of the trial regarding the obtaining of videotext display; thus, he was not responsible for any failure of those of whom a request was made to provide that service. When Judge Kruse denied the motion for a mistrial that was based on the failure to provide videotext display, he simply ruled that a mistrial was not warranted because the service was not available in Kitsap County. While it appears that he was mistaken as to the availability of videotext display, the judge never suggested that he would not permit its use if it were available. In fact, he said that if, despite its unavailability in the county, Duvall could somehow arrange for videotext display he was free to provide that service for himself. Supra at p. 10795. Thus, it seems clear that Judge Kruse had no objection to the use of videotext display in his courtroom.
Duvall sues the County directly under the ADA and the Rehabilitation Act, and also indirectly, under 42 U.S.C. § 1983. When a plaintiff brings a direct suit under either the Rehabilitation Act or Title II of the ADA against a municipality (including a county), the public entity is liable for the vicarious acts of its employees. We have held that, under § 504 of the Rehabilitation Act (upon which the ADA was explicitly modeled), we apply the doctrine of respondeat superior to claims brought directly under the statute, in part because the historical justification for exempting municipalities from respondeat superior liability does not apply to the Rehabilitation Act, and in part because the doctrine "would be entirely consistent with the policy of that statute, which is to eliminate discrimination against the handicapped." Bonner, 857 F.2d at 566-567. These same considerations apply to Title II of the ADA. See Zukle, 166 F.3d at 1045 n.11 (holding that, under 42 U.S.C. 12133, the "remedies, procedures, and rights" available under Title II of the ADA are equivalent to those available under § 504). The County is therefore vicariously liable for the actions of the two County employees, Razey and Richardson.
Duvall also brought suit under § 1983 for violation of his statutory rights under the ADA and the Rehabilitation Act. On appeal, the only issue pertinent to this provision raised by any of the defendants is whether Duvall has shown that the denial of his request for videotext display resulted from a custom or policy of the County. Under Monell v. Deptartment of Social Services, 436 U.S. 658 (1978), a municipality sued under § 1983 is not subject to vicarious liability for the acts of its agents: it is only liable when the "execution of a government's policy or custom ... made by ... those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. at 694; see also Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997) ("A municipality may not be held liable under § 1983 solely because it employs a tortfeasor.... We have consistently refused to hold municipalities liable under a theory of respondeat superior."). However, even under the more stringent Monell standard, Duvall is entitled to survive summary judgment. He has, for present purposes, established that he was denied his requested accommodation based upon decisions of the County's policymakers. In a 1992 resolution, the Board of County Commissioners granted the county ADA coordinator the authority to "review, investigate, and otherwise dispose of ... complaints [involving ADA compliance] in a manner that meets the good of the service," and Razey testified that as the ADA coordinator for the County she had the authority to make the requisite accommodations for Duvall. Razey conferred with Richardson regarding Duvall's request for accommodations and approved Richardson's letter rejecting the use of videotext display at Duvall's post-trial hearing. In any case, it is clear from the record that prior to September 1995 it was the County's custom and practice not to accommodate hearing-impaired individuals with videotext display at public hearings; indeed, the County argues that this service was not provided in Kitsap County at the time of Duvall's trial because it was not available. Accordingly, we reverse the grant of summary judgment on the § 1983 claims against the County, as well as Botta, Razey, and Richardson.
The Board of Commissioners, by contrast, did not become aware of Duvall's request for accommodation until after the County had arranged to provide videotext display at his future court hearings. In denying Duvall's grievance, the Board relied on the ADA grievance committee's factual findings that Duvall had not requested videotext display until the first day of his trial, and that Duvall was able to participate equally in the court proceedings without videotext display. There is no evidence of deliberate indifference on the part of the members of the Board of County Commissioners.
In sum, genuine issues of material fact exist as to whether Botta, Razey, Richardson, and the County intentionally discriminated against Duvall in violation of the ADA and the Rehabilitation Act, and also violated the anti- discrimination provisions of the WLAD, but the district court properly granted summary judgment to the three members of the Board of County Commissioners.
V. Conclusion
The district court's grant of summary judgment in favor of Judge Kruse and the members of the Board of County Commissioners is hereby AFFIRMED. The order of summary judgment in favor of Botta, the County of Kitsap, Razey, and Richardson is REVERSED as to all claims. The case is REMANDED to the district court for proceedings consistent with this opinion.
AFFIRMED in part,REVERSED in part, and REMANDED. RYMER, Circuit Judge, dissenting:
Like Judge Kruse, the Court Administrator, Madelyn Botta, is sued for damages and like him, I believe she is entitled to immunity. As the majority recognizes, the judge was performing a judicial function when he declined on the first day of trial (June 21, 1995) to order videotext display for Duvall and when he denied Duvall's motion for a new trial (August 11) based on the absence of real time assistance at trial. Botta's actions were functionally no different. For essentially the same reasons that Judge Kruse is absolutely immune, the Court Administrator should be, too.
Duvall argues that Judge Kruse acted in an administrative capacity in denying Duvall's request for accommodation and that "he has no immunity to share with the remaining defendants." The majority holds otherwise with respect to the judge, and I agree. Duvall's argument that Botta lacks immunity stems from the same premise--that Judge Kruse was performing an administrative, not a judicial, function, therefore so was the Court Administrator. As we unanimously reject this premise, this should be the end of the matter.
Court clerks or administrators are entitled to absolute immunity from liability for damages "when they perform tasks that are an integral part of the judicial process." Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir.1987) (court clerks have absolute quasi-judicial immunity for filing decision). [FN1] Here, assuming Duvall's version is true, he approached Botta before trial for videotext assistance at trial. Botta declined to talk to Duvall because he was represented by counsel, but told him to make his request in the form of a motion to the court. Duvall does not dispute that Botta did not have authority to grant his request once litigation was underway. He in fact asked the judge presiding over his divorce for real time accommodation on the first day of trial. The judge denied the request. This was clearly a discretionary judicial decision. See e.g., United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir.1994) (considering court's withdrawal of interpreter and recognizing trial courts' considerable discretion as to manner in which they protect a defendant's right to testify and to confront witnesses); In re Marriage of Olson, 850 P.2d 527, 529 (Wash.Ct.App.1993) ( "The appointment of interpreter is within the discretion of trial court.").
FN1. See also Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir.1996) (according immunity to clerk of the United States District Court for the Southern District of California given nature of the responsibilities); Sharma v. Stevas, 790 F.2d 1486 (9th Cir.1986) (clerk of United States Supreme Court has quasi-judicial immunity); Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir.1979) (court clerk's "failure ... to perform a ministerial duty [giving notice of order] which was a part of judicial process is also clothed with quasi-judicial immunity"); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir.1978) (recognizing quasi-judicial immunity for clerk of Montana state court from damages but not injunctive relief); Harmon v. Superior Court, 329 F.2d 154, 155 (9th Cir.1964) (recognizing absolute immunity for county clerk and other judicial personnel).
Neither Duvall nor the majority explains why Botta's instruction to take his request to the judge was not part of the judicial process. Nor does either explain why she should not be bound (or least not be properly guided) by the judge's decision at trial when she was later consulted by the county ADA coordinator with regard to Duvall's post-trial request for accommodation at a post-trial hearing.
Beyond this, even if Botta had authority to arrange for sign-language interpreters, which is all she ever said, and even if that authority included arranging for other forms of assistive devices for the hearing impaired, as the majority implies, there is nothing in the record or in Washington law to suggest that she was required to use her authority in any particular way in any particular case. Cf. Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) (declining to extend judicial immunity to court reporters who are afforded no discretion in carrying out statutory duty to record verbatim court proceedings in their entirety). Washington law provides for appointment of qualified interpreters to interpret proceedings for a hearing impaired person by an "appointing authority," defined as the "presiding officer or similar official of any court, department, board [etc]." RCW 2.42.120; 2.42.110; see also Washington Court General Rule 11 (providing for use of qualified interpreters in judicial proceedings involving hearing impaired individuals). These statutes contemplate a "determination, on the basis of testimony or stated needs" that the interpreter is able to interpret communication effectively. RCW 2.42.130. I am not sure that these are the statutes to which Botta referred, but regardless, it is evident to me that determinations about the needs of hearing impaired litigants are inherently discretionary judgments, whether made wholly by the presiding judicial officer or partly by his designee.
However you slice it, determining whether a particular hearing impaired individual needs accommodation for a court proceeding, and what kind of accommodation is reasonable, entails the power of decision. It is either a judicial function, or comparable to one. It is not administrative, [FN2] legislative, or executive. Judges may delegate some part of this function to the court administrator or clerk of court, but at the end of the day the function is, and remains, judicial.
FN2. "Administrative functions are actions which are significant independent of the fact that the actor is a judge, such as the hiring or firing of staff members." Partington v. Gedan, 961 F.2d 852, 866 (9th Cir.1992) (citing Forrester v. White, 484 U.S. 219, 228-30 (1988)).
In addition, Duvall was not without redress for he could appeal the judge's rulings. As the Supreme Court has observed, "[m]ost judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability." Forrester v. White, 484 U.S. 219, 227 (1988). Duvall does not need, and should not be allowed, to seek damages from a court administrator for an arguably incorrect determination about his needs or the court's ability to address them. This is what appeals are for. To withhold judicial immunity from the clerk in these circumstances permits a party to play the clerk off against the judge, an unseemly as well as unnecessary distraction.
Without question, the judge is the final decision-maker with respect to proceedings in his court. RCW 2.28.010. For this reason, aside from immunity, I do not see how Duvall could be injured by any thing Botta did or didn't do, or how Kitsap County, non-court personnel such as Razey and Richardson could have told the judge what to do. Washington judges are state actors, whose authority comes from the state not the county. Wash. Const., Art. IV, § 1; see Keenan v. Allan, 889 F.Supp. 1320, 1363 (E.D.Wash.1995) (judges are officers of Washington State). As we have held in connection with a similar system elsewhere, a county cannot be liable for judicial conduct it lacks the power to control. Eggar v. City of Livingston, 40 F.3d 312, 314-15 (9th Cir.1994).
Accordingly, I would affirm.
U.S. Department of Justice Regulations implementing Title II of the ADA
(Title 28, Code of Federal Regulations, Part 35)
§35.104 Definitions.
Auxiliary aids and services includes--
(1) Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairmet
Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.
§35.130 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
(e)(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.
(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.
Subpart E -- Communications
§35.160 General
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. (2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.
§35.161 Telecommunication devices for the deaf (TDD's).
Where a public entity communicates by telephone with applicants and beneficiaries, TDD's or equally effective telecommunication systems shall be used to communicate with individuals with impaired hearing or speech.
§35.163 Information and signage.
(a) A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(b) A public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each accessible entrance of a facility.
U.S. Department of Justice Title II ADA Technical Assistance Manual
II-7.0000 COMMUNICATIONS
Regulatory references: 28 CFR 35.160-35.164.
II-7.1000 Equally effective communication. A public entity must ensure that its communications with individuals with disabilities are as effective as communications with others. This obligation, however, does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities, or in undue financial and administrative burdens.
In order to provide equal access, a public accommodation is required to make available appropriate auxiliary aids and services where necessary to ensure effective communication. What are auxiliary aids and services? Auxiliary aids and services include a wide range of services and devices that promote effective communication.
Examples of auxiliary aids and services for individuals who are deaf or hard of hearing include qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, and exchange of written notes.
Examples for individuals with speech impairments include TDD's, computer terminals, speech synthesizers, and communication boards.
The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved.
ILLUSTRATION 1: Some individuals who have difficulty communicating because of a speech impairment can be understood if individuals dealing with them merely listen carefully and take the extra time that is necessary.
ILLUSTRATION 2: Sign language or oral interpreters, for example, may be required when the information being communicated in a transaction with a deaf individual is complex, or is exchanged for a lengthy period of time. Factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.
ILLUSTRATION 2: Because of the importance of effective communication in State and local court proceedings, special attention must be given to the communications needs of individuals with disabilities involved in such proceedings. Qualified interpreters will usually be necessary to ensure effective communication with parties, jurors, and witnesses who have hearing impairments and use sign language. For individuals with hearing impairments who do not use sign language, other types of auxiliary aids or services, such as assistive listening devices or computer-assisted transcription services, which allow virtually instantaneous transcripts of courtroom argument and testimony to appear on displays, may be required.
II-7.1100 Primary consideration. When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. "Primary consideration" means that the public entity must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens.
It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective. Some individuals who were deaf at birth or who lost their hearing before acquiring language, for example, use sign language as their primary form of communication and may be uncomfortable or not proficient with written English, making use of a notepad an ineffective means of communication.
Individuals who lose their hearing later in life, on the other hand, may not be familiar with sign language and can communicate effectively through writing. For these individuals, use of a word processor with a videotext display may provide effective communication in transactions that are long or complex, and computer-assisted simultaneous transcription may be necessary in courtroom proceedings. Individuals with less severe hearing impairments are often able to communicate most effectively with voice amplification provided by an assistive listening device.
II-7.1200 Qualified interpreter. There are a number of sign language systems in use by individuals who use sign language. (The most common systems of sign language are American Sign Language and signed English.) Individuals who use a particular system may not communicate effectively through an interpreter who uses a different system. When an interpreter is required, therefore, the public entity should provide a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.
May friends or relatives be asked to interpret? Often, friends or relatives of the individual can provide interpreting services, but the public entity may not require the individual to provide his or her own interpreter, because it is the responsibility of the public entity to provide a qualified interpreter. Also, in many situations, requiring a friend or family member to interpret may not be appropriate, because his or her presence at the transaction may violate the individual's right to confidentiality, or because the friend or family member may have an interest in the transaction that is different from that of the individual involved. The obligation to provide "impartial" interpreting services requires that, upon request, the public entity provide an interpreter who does not have a personal relationship to the individual with a disability.
Are certified interpreters considered to be more qualified than interpreters without certification? Certification is not required in order for an interpreter to be considered to have the skills necessary to facilitate communication. Regardless of the professionalism or skills that a certified interpreter may possess, that particular individual may not feel comfortable or possess the proper vocabulary necessary for interpreting for a computer class, for example. Another equally skilled, but noncertified interpreter might have the necessary vocabulary, thus making the noncertified person the qualified interpreter for that particular situation.
Can a public entity use a staff member who signs "pretty well" as an interpreter for meetings with individuals who use sign language to communicate? Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively.
II-7.2000 Telephone communications. Public entities that communicate by telephone must provide equally effective communication to individuals with disabilities, including hearing and speech impairments. If telephone relay services, such as those required by title IV of the ADA, are available, these services generally may be used to meet this requirement. Relay services involve a relay operator who uses both a standard telephone and a TDD to type the voice messages to the TDD user and read the TDD messages to the standard telephone user. Where such services are available, public employees must be instructed to accept and handle relayed calls in the normal course of business.
II-7.3400 Voice amplification. Public entities are encouraged, but not required, to provide voice amplification for the operator's voice. In an emergency, a person who has a hearing loss may be using a telephone that does not have an amplification device. Installation of speech amplification devices on the handsets of operators would be one way to respond to this situation.
ADA TITLE II TECHNICAL ASSISTANCE MANUAL AS AMENDED BY 1994 SUPPLEMENT
The obligation of public entities to provide necessary auxiliary aids and services is not limited to individuals with a direct interest in the proceedings or outcome. Courtroom spectators with disabilities are also participants in the court program and are entitled to such aids or services as will afford them an equal opportunity to follow the court proceedings.
ILLUSTRATION: B: An individual who is hard of hearing, wishes to observe proceedings in the county courthouse. Even though the county believes that B has no personal or direct involvement in the courtroom proceedings at issue, the county must provide effective communication, which in this case may involve the provision of an assistive listening device, unless it can demonstrate that undue financial and administrative burdens would result.
4. ACCESSIBLE ELEMENTS AND SPACES: SCOPE AND TECHNICAL REQUIREMENTS.
4.1 Minimum Requirements
ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) as amended through January 1998
4.1.3 Accessible Buildings: New Construction. Accessible buildings and facilities shall meet the following minimum requirements:
(14) If emergency warning systems are provided, then they shall include both audible alarms and visual alarms complying with 4.28.
(17) Public telephones:
(a) If public pay telephones, public closed circuit telephones, or other public telephones are provided, then they shall comply with 4.31.2 through 4.31.8 to the extent required by the following table:
1 or more single unit 1 per floor
1 bank 1 per floor
2 or more banks 1 per bank. [footnotes omitted]
(b)* All telephones required to be accessible and complying with 4.31.2 through 4.31.8 shall be equipped with a volume control. In addition, 25 percent, but never less than one, of all other public telephones provided shall be equipped with a volume control and shall be dispersed among all types of public telephones, including closed circuit telephones, throughout the building or facility. Signage complying with applicable provisions of 4.30.7 shall be provided.
(c) The following shall be provided in accordance with 4.31.9:
(i) if a total number of four or more public pay telephones (including both interior and exterior phones) is provided at a site, and at least one is in an interior location, then at least one interior public text telephone shall be provided.
(d) Where a bank of telephones in the interior of a building consists of three or more public pay telephones, at least one public pay telephone in each such bank shall be equipped with a shelf and outlet in compliance with 4.31.9(2).
(19)* Assembly areas:
(b) This paragraph applies to assembly areas where audible communications are integral to the use of the space (e.g., concert and lecture halls, playhouses and movie theaters, meeting rooms, etc.). Such assembly areas, if (1) they accommodate at least 50 persons, or if they have audio-amplification systems, and (2) they have fixed seating, shall have a permanently installed assistive listening system complying with 4.33. For other assembly areas, a permanently installed assistive listening system, or an adequate number of electrical outlets or other supplementary wiring necessary to support a portable assistive listening system shall be provided. The minimum number of receivers to be provided shall be equal to 4 percent of the total number of seats, but in no case less than two. Signage complying with applicable provisions of 4.30 shall be installed to notify patrons of the availability of a listening system.
4.28 Alarms.
4.28.1 General. Alarm systems required to be accessible by 4.1 shall comply with 4.28. At a minimum, visual signal appliances shall be provided in buildings and facilities in each of the following areas: restrooms and any other general usage areas (e.g., meeting rooms), hallways, lobbies, and any other area for common use.
4.30.7* Symbols of Accessibility.
(1) Facilities and elements required to be identified as accessible by 4.1 shall use the international symbol of accessibility. The symbol shall be displayed as shown in Fig. 43(a) and (b).
(2) Volume Control Telephones. Telephones required to have a volume control by 4.1.3(17)(b) shall be identified by a sign containing a depiction of a telephone handset with radiating sound waves.
(3) Text Telephones. Text telephones required by 4.1.3(17)(c) shall be identified by the international TDD symbol (Fig 43(c)). In addition, if a facility has a public text telephone, directional signage indicating the location of the nearest text telephone shall be placed adjacent to all banks of telephones which do not contain a text telephone. Such directional signage shall include the international TDD symbol. If a facility has no banks of telephones, the directional signage shall be provided at the entrance (e.g., in a building directory).
(4) Assistive Listening Systems. In assembly areas where permanently installed assistive listening systems are required by 4.1.3(19)(b) the availability of such systems shall be identified with signage that includes the international symbol of access for hearing loss (Fig 43(d)).
4.31 Telephones.
4.31.1 General. Public telephones required to be accessible by 4.1 shall comply with 4.31.
4.31.5 Hearing Aid Compatible and Volume Control Telephones Required by 4.1.
(1) Telephones shall be hearing aid compatible.
(2) Volume controls, capable of a minimum of 12 dbA and a maximum of 18 dbA above normal, shall be provided in accordance with 4.1.3. If an automatic reset is provided then 18 dbA may be exceeded.
4.31.9* Text Telephones Required by 4.1.
(1) Text telephones used with a pay telephone shall be permanently affixed within, or adjacent to, the telephone enclosure. If an acoustic coupler is used, the telephone cord shall be sufficiently long to allow connection of the text telephone and the telephone receiver.
(2) Pay telephones designed to accommodate a portable text telephone shall be equipped with a shelf and an electrical outlet within or adjacent to the telephone enclosure. The telephone handset shall be capable of being placed flush on the surface of the shelf. The shelf shall be capable of accommodating a text telephone and shall have 6 in (152 mm) minimum vertical clearance in the area where the text telephone is to be placed.
(3) Equivalent facilitation may be provided. For example, a portable text telephone may be made available in a hotel at the registration desk if it is available on a 24-hour basis for use with nearby public pay telephones. In this instance, at least one pay telephone shall comply with paragraph 2 of this section. In addition, if an acoustic coupler is used, the telephone handset cord shall be sufficiently long so as to allow connection of the text telephone and the telephone receiver. Directional signage shall be provided and shall comply with 4.30.7.
4.33.6* Placement of Listening Systems. If the listening system provided serves individual fixed seats, then such seats shall be located within a 50 ft (15 m) viewing distance of the stage or playing area and shall have a complete view of the stage or playing area.
4.33.7* Types of Listening Systems. Assistive listening systems (ALS) are intended to augment standard public address and audio systems by providing signals which can be received directly by persons with special receivers or their own hearing aids and which eliminate or filter background noise. The type of assistive listening system appropriate for a particular application depends on the characteristics of the setting, the nature of the program, and the intended audience. Magnetic induction loops, infra-red and radio frequency systems are types of listening systems which are appropriate for various applications.
CALIFORNIA CIVIL CODE SECTION 54.8 - ASSISTIVE LISTENING SYSTEMS
(a) In any civil or criminal proceeding, including, but not limited to, traffic, small claims court, family court proceedings and services, and juvenile court proceedings, in any court-ordered or court-provided alternative dispute resolution, including mediation and arbitration, or in any administrative hearing of a public agency, where a party, witness, attorney, judicial employee, judge, juror, or other participant who is hearing impaired, the individual who is hearing impaired, upon his or her request, shall be provided with a functioning assistive listening system or a computer-aided transcription system. Any individual requiring this equipment shall give advance notice of his or her need to the appropriate court or agency at the time the hearing is set or not later than five days before the hearing.
(b) Assistive listening systems include but are not limited to, special devices which transmit amplified speech by means of audio-induction loops, radio frequency systems (AM or FM), or infrared transmission. Personal receivers, headphones, and neck loops shall be available upon request by individuals who are hearing impaired.
(c) If a computer-aided transcription system is requested, sufficient display terminals shall be provided to allow the individual who is hearing impaired to read the real time transcript of the proceeding without difficulty.
(d) A sign shall be posted in a prominent place indicating the availability of, and how to request, an assistive listening system and a computer-aided transcription system. Notice of the availability of the systems shall be posted with notice of trials.
(e) Each county shall have at least one portable assistive listening system for use by any court within the county. The system shall be in a location jointly determined by the county board of supervisors and the judges.
(f) The Judicial Council shall develop and approve official forms for notice of the availability of assistive listening systems and computer-aided transcription systems for individuals whoa re hearing impaired. The Judicial Council shall also develop and maintain a system to record utilization by the courts of these assistive listening systems and computer-aided transcription systems.
(g) If the individual who is hearing impaired is a juror, the jury deliberation room shall be equipped with an assistive listening system or a computer-aided transcription system upon the request of the juror.
(h) A court reporter may be present in the jury deliberating room during a jury deliberation if the services of a court reporter for the purpose of operating a computer-aided transcription are required for a juror who is hearing impaired.
(i) In any of the proceedings referred to in subdivision (a), or in any administrative hearing of a public agency, in which the individual who is hearing impaired is a party, witness, attorney, judicial employee, judge, juror or other participant, and has requested used of an assistive listening system or computer-aided transcription system, the proceedings shall not commence until the system is in place and functioning.
(j) As used in this action, "individual who is hearing impaired" means an individual with a hearing loss, who, with sufficient amplification or a computer-aided transcription system, is able to fully participate in the proceeding.
(k) In no case shall this section be construed to prescribe a lesser standard of accessibility or usability than that provided by Title II of the Americans With Disability Act of 1990 (Public Law 101 336) and federal regulations adopted pursuant to that act (1989 ch 1002, 1992 ch 913, 1993 ch 1214).
(a) As used in this section "individual who is deaf or hearing impaired" means an individual with a hearing loss so great as to prevent his or her understanding language spoken in a normal tone, but does not include an individual who is hearing impaired provided with, and able to fully participate in the proceedings through the use of an assistive listening system or computer-aided transcription equipment provided pursuant to Section 54.8 of the Civil Code.
(b) In any civil or criminal action, including, but not limited to, any action involving a traffic or other infraction, any small claims court proceeding, any juvenile court proceeding, any family court proceeding or service, or any proceeding to determine the mental competency of a person, in any court-ordered or court-provided alternative dispute resolution, including mediation and arbitration, or any administrative hearing, where a party or witness is an individual who is deaf or hearing impaired and the individual who is deaf or hearing impaired is present and participating, the proceedings shall be interpreted in a language that the individual who is deaf or hearing impaired understands by a qualified interpreter appointed by the court or other appointing authority, or agreed upon.
(c) For purposes of this section, "appointing authority" means a court, department, board, commission, agency licensing or legislative body, or other body for proceedings requiring a qualified interpreter.
(d) For the purposes of this section, "interpreter" includes, but is not limited to, an oral interpreter, a sign language interpreter, of a deaf-blind interpreter, depending upon the needs of the individual who is dear or hearing impaired.
(e) For the purposes of this section, "intermediary interpreter" means an individual who is deaf or hearing impaired, or a hearing individual who is able to assist in providing an accurate interpretation between spoken English and sign language between variants of sign language or between American Sign Language and other foreign languages by acting as an intermediary between the individual who is deaf or hearing impaired and the qualified interpreter.
(f) For the purposes of this section "qualified interpreter" means an interpreter who has been certified as competent to interpret court proceedings by a testing organization, agency or education institution approved by the Judicial Council as qualified to administer tests to court interpreters for individuals who are deaf or hearing impaired.
(g) In the event that the appointed interpreter is not familiar with the use of the particular signs by the individual who is deaf or hearing impaired or his or her particular variant of sign language, the court or other appointing authority shall, in consultation with the individual who is deaf or hearing impaired or his or her representative, appoint an intermediary interpreter.
(i) Persons appointed to serve as interpreters under this section, shall be paid . . . the prevailing rate . . . . Payment of the interpreter's fee shall be a charge against the county, or other political subdivision of the state, in which that action is pending. Payment of the interpreter's fee in administrative proceedings shall be a charge against the appointing board or authority.
(n) In any action or proceeding in which an individual who is deaf or hearing impaired is a participant, the appointing authority shall not commence the proceedings until the appointed interpreter is in full view of and spatially situated to assure proper communication with the participating individual who is deaf or hearing impaired.
(o) Each superior court shall maintain a current roster of qualified interpreters certified pursuant to subdivision (f).
CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 203 & 224 - JURORS
Section 203:
(a) All persons are eligible and qualified to be prospective trial jurors except the following:
(6) Persons who are not possessed of sufficient knowledge of the English language, provided that no person shall be deemed incompetent solely because of the loss of sight or hearing in any degree or other disability which impedes the person's ability to communicate or which impairs or interferes with the person's mobility.
Section 224: Disabled jurors:
(a) If a party does not cause the removal by challenge of an individual juror who is deaf, hearing impaired, blind, visually impaired, or speech impaired and who requires auxiliary services to facilitate communication, the party shall (1) stipulate to the presence of a service provider in the jury room during jury deliberations, and (2) prepare and deliver to the court proposed jury instructions to the service provider.
(b) As used in this section, "service provider" includes, but is not limited to, a person who is a sign language interpreter, oral interpreter, deaf-blind interpreter, reader, or speech interpreter. If auxiliary services are required during the course of jury deliberations, the court shall instruct the jury and the service provider that the service provider for the juror with a disability is not to participate in the jury's deliberations in any manner except to facilitate communication between the juror with a disability and other jurors.
(c) The court shall appoint a service provider whose services are needed by a juror with a disability to facilitate communication or participation. A sign language interpreter, oral interpreter, or deaf-blind interpreter appointed pursuant to this section shall be a qualified interpreter, as defined in subdivision (f) of Section 754 of the Evidence Code. Service providers appointed by the court under this subdivision shall be compensated in the same manner as provided in subdivision (i) of Section 754 of the Evidence Code.
Rule 989.3 Requests for accommodations by persons with disabilities
(a) [Policy] It shall be the policy of the courts of this state to assure that qualified individuals with disabilities have equal and full access to the judicial system. Nothing in this rule shall be construed to impose limitations or to invalidate the remedies, rights, and procedures accorded to any qualified individuals with disabilities under state or federal law.
(b) [Definitions] The following definitions shall apply under this rule:
(1) "Qualified individuals with disabilities" means persons covered by the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.); Civil Code section 51 et Seq.; and other related state and federal laws; and includes individuals who have a physical or mental impairment that substantially limits one or more of the major life activities; have a record of such an impairment; or are regarded as having such an impairment.
(2) "Applicant" means any lawyer, party, witness, juror, or any other individual with an interest in attending any proceeding before any court of this state.
(3) "Accommodation(s)" may include, but are not limited to, making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to the qualified individuals with disabilities, auxiliary aids and services, which are not limited to equipment, devices materials in alternative formats, and qualified interpreters or readers; and making each service, program, or activity, when viewed in its entirety, readily accessible to and usable by qualified individuals with disabilities requesting accommodations. While not requiring that each existing facility be accessible, this standard, known as "program accessibility," must be provided by methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate sites.
(4) The "rule" means this rule regarding requests for accommodations in state courts by qualified individuals with disabilities.
(5) "Confidentiality" applies to the identity of the applicant in all oral or written communications, including all files and documents submitted by an applicant as part of the application process.
(c) [Process] The following process for requesting accommodations is established:
(1) Applications requesting accommodation(s) pursuant to this rule may be presented ex parte in writing, on a form approved by the Judicial Council and provided by the court, or orally as the court may allow. Applications should be made at the designated Office of the Clerk, or to the courtroom clerk or judicial assistant where the proceeding will take place, or to the judicial officer who will preside over the proceeding.
(2) All applications for accommodations shall include a description of the accommodation sought, along with a statement of the impairment that necessitates such accommodation. The court, in its discretion, may require the applicant to provide additional information about the qualifying impairment.
(3) Applications should be made as far in advance of the requested accommodations implementation date as possible, and in any event should be made no less that five court days prior to the requested implementation date. The court may, in its discretion, waive this requirement.
(d) [Permitted communication] An applicant may make ex parte communications with the court; such communications shall deal only with the accommodation(s) the applicant's disability requires and shall not deal in any manner with the subject matter or merits of the proceedings before the court.
(e) [Grant of accommodation] A court shall grant an accommodation as follows:
(1) In determining whether to grant an accommodation and what accommodation to grant, the court shall consider, but is not limited by, the provisions of the Americans with Disabilities Act of 1990 and related state and federal laws.
(2) The court shall inform the applicant in writing of findings of fact and orders, as may be appropriate, that the request for accommodations is granted or denied, in whole or in part, and the nature of the accommodation(s) to be provided, if any.
(f) [Denial of accommodation] An application may be denied only if the court finds that:
(1) The applicant has failed to satisfy the requirements of this rule; or
(2) The requested accommodation(s) would create an undue financial or administrative burden on the court; or
(3) The requested accommodation(s) would fundamentally alter the nature of the service, program, or activity.
(g) [Review procedure]
(1) An applicant or any participant in the proceeding in which an accommodation has been denied or granted may seek review of a determination made by nonjudicial court personnel within 10 days of the date of the notice of denial or grant by submitting a request for review to the judicial officer who will preside over the proceeding or to the presiding judge if the matter has not been assigned.
(2) An applicant or any participant in which an accommodation has been denied or granted may seek review of a determination made by a presiding judge or any other judicial officer of a court within 10 days of the date of the notice of denial or grant by filing a petition for extraordinary relief in a court of superior jurisdiction.
(h) [Duration of accommodations] The accommodations by the court shall commence on the date indicated in the notice of accommodation and shall remain in effect for the period specified in the notice of accommodation. The court may grant accommodations for indefinite periods of time or for a particular matter or appearance.
STANDARDS OF JUDICIAL ADMINISTRATION:
Sec. 18. Procedures for determining the need for an interpreter and a pre-appearance interview
(a) [When an interpreter is needed] An interpreter is needed if, after an examination of a party or witness, the court concludes that:
(1) the party cannot understand and speak English well enough to participate fully in the proceedings and to assist counsel; or
(2) the witness cannot speak English so as to be understood directly by counsel, court, and jury.
(b) [When an examination is required] The court should examine a party or witness on the record to determine whether an interpreter is needed if:
(1) a party or counsel requests such an examination; or
(2) it appears to the court that the party or witness may not understand and speak English well enough to participate fully in the proceedings.
(c) [Examination of party or witness] To determine if an interpreter is needed the court should normally include questions on the following:
(1) Identification (for example: name, address, birthdate, age, place of birth);
(2) Active vocabulary in vernacular English (for example: "How did you come to the court today?" "What kind of work do you do?" "Where did you go to school?" "What was the highest grade you completed?" "Describe what you see in the courtroom." "What have you eaten today?"). Questions should be phrased to avoid "yes or no" replies;
(3) The court proceedings (for example: the nature of the charge or the type of case before the court, the purpose of the proceedings and function of the court, the rights of a party or criminal defendant, and the responsibilities of a witness).
(d) [Record of examination] After the examination, the court should state its conclusion on the record, and the file in the case should be clearly marked and data entered electronically when appropriate by court personnel to ensure that an interpreter will be present when needed in any subsequent proceeding.
(e) [Good cause for preappearance interview] For good cause, the court should authorize a preappearance interview between the interpreter and the party or witness. Good cause exists if the interpreter needs clarification on any interpreting issues, including but not limited to: colloquialisms, culturalisms, dialects, idioms, linguistic capabilities and traits, regionalisms, register, slang, speech patterns, or technical terms.
Sec. 18.1. Interpreted proceedings-instructing participants on procedure
(a) [Instructions to interpreters] The court or the court's designee should give the following instructions to interpreters, either orally or in writing:
(1) Do not discuss the pending proceedings with a party or witness.
(2) Do not disclose communications between counsel and client.
(3) Do not give legal advice to a party or witness. Refer legal questions to the attorney or to the court.
(4) Inform the court if you are unable to interpret a word, expression, special terminology, or dialect, or have doubts about your linguistic expertise or ability to perform adequately in a particular case.
(5) Interpret all words, including slang, vulgarisms, and epithets, to convey the intended meaning.
(6) Use the first person when interpreting statements made in the first person. (For example, a statement or question should not be introduced with the words, "He says. . . .")
(7) Direct all inquiries or problems to the court and not to the witness or counsel. If necessary you may request permission to approach the bench with counsel to discuss a problem.
(8) Position yourself near the witness or party without blocking the view of the judge, jury, or counsel.
(9) Inform the court if you become fatigued during the proceedings.
(10) When interpreting for a party at counsel table, speak loudly enough to be heard by the party or counsel but not so loudly as to interfere with the proceedings.
(11) Interpret everything, including objections.
(12) If the court finds good cause under rule 984.4(e), hold a preappearance interview with the party or witness to become familiar with speech patterns and linguistic traits and to determine what technical or special terms may be used. Counsel may be present at the preappearance interview.
(13) During the preappearance interview with a non-English-speaking witness, give the witness the following instructions on the procedure to be followed when the witness is testifying:
(A) The witness must speak in a loud, clear voice so that the entire court and not just the interpreter can hear.
(B) The witness must direct all responses to the person asking the question, not to the interpreter.
(C) The witness must direct all questions to counsel or to the court and not to the interpreter. The witness may not seek advice from or engage in any discussion with the interpreter.
(14) During the preappearance interview with a non-English-speaking party, give the following instructions on the procedure to be used when the non-English-speaking party is not testifying:
(A) The interpreter will interpret all statements made in open court.
(B) The party must direct any questions to counsel. The interpreter will interpret all questions to counsel and the responses. The party may not seek advice from or engage in discussion with the interpreter.
(b) [Instructions to counsel] The court or the court's designee should give the following instructions to counsel, either orally or in writing:
(1) When examining a non-English-speaking witness, direct all questions to the witness and not to the interpreter. (For example, do not say to the interpreter, "Ask him if. . . .")
(2) If there is a disagreement with the interpretation, direct any objection to the court and not to the interpreter. Ask permission to approach the bench to discuss the problem.
(3) If you have a question regarding the qualifications of the interpreter, you may request permission to conduct a supplemental examination on the interpreter's qualifications.
(a) [General] To preserve the integrity and impartiality of the judicial system, each judge should:
(1) (Ensure fairness) Ensure that courtroom proceedings are conducted in a manner that is fair and impartial to all of the participants;
(2) (Refrain from and prohibit biased conduct) In all courtroom proceedings, refrain from engaging in conduct and prohibit others from engaging in conduct that exhibits bias, including but not limited to bias based on disability, gender, race, religion, ethnicity, and sexual orientation, whether that bias is directed toward counsel, court personnel, witnesses, parties, jurors, or any other participants;
(3) (Ensure unbiased decisions) Ensure that all orders, rulings, and decisions are based on the sound exercise of judicial discretion and the balancing of competing rights and interests and are not influenced by stereotypes or biases.
(b) [Creation of local committees] Each court should establish a local committee with local bar associations to assist in maintaining a courtroom environment free of bias or the appearance of bias. Courts within one or more counties may choose to form a single committee. The local committee should:
(1) Be composed of representative members of the court community, including but not limited to judges, lawyers, court administrators, and representatives and individuals from minority, women's, and gay and lesbian bar associations and from organizations that represent persons with disabilities;
(2) Sponsor or support educational programs designed to eliminate bias within the court and legal communities, including but not limited to bias based on disability, gender, race, religion, ethnicity, and sexual orientation;
(3) Develop and maintain an informal procedure for receiving complaints relating to bias in the courtroom, including but not limited to bias based on disability, gender, race, religion, ethnicity, and sexual orientation.
(c) [Minimum components of a complaint procedure] An informal procedure developed and maintained by a local committee on bias should:
(1) Contain a provision specifying that the intent of the procedure is to educate with the purpose of ameliorating the problem rather than disciplining the person who is the subject of the complaint;
(2) Accommodate local needs and allow for local flexibility;
(3) Apply to all participants in courtroom proceedings;
(4) Apply only to complaints as to which the identity of the complainant is known;
(5) To the extent possible and unless disclosure is required by law, protect the confidentiality of the complainant, the person who is the subject of the complaint, and other interested persons;
(6) Relate to incidents of behavior or conduct occurring in courtroom proceedings;
(7) Apply to incidents of bias whether they relate to race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status;
(8) Contain a provision that exempts activities constituting legitimate advocacy when matters of race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status are relevant to issues in the courtroom proceeding;
(9) Focus on incidents that do not warrant discipline but that should be corrected;
(10) With respect to those incidents that if substantiated would warrant discipline, advise the complaining party of the appropriate disciplinary authority;
(11) Contain a provision specifying that nothing in the procedure in any way limits the ability of any person to submit a complaint of misconduct to the appropriate disciplinary body; and
(12) To the extent possible and unless disclosure is required by law, prohibit retention of written records of complaints received but permit collection of data on types of complaints or underlying anecdotes that might be useful in educational programs.
(d) [Application of local rules] The existence of the committee, its purpose, and the features of the informal complaint procedure should be memorialized in the applicable local rules of court.
A qualified RID certified interpreter can bridge the communication gap between legal professionals and deaf individuals they encounter. In legal settings, clear and accurate communication among all involved parties is essential. When the legal professional and the consumer of legal services do not share a common language or communication method, a hazardous gap exists. The legal professional can jeopardize an entire legal process or proceeding by using an unqualified interpreter.
Deaf individuals appear in all kinds of legal settings and on both sides of the legal fence. Whether complainants, defendants, victims, or the accused, or simply taking care of personal business that involves legal issues, deaf individuals have the right to full and clear communication. Attorney-client meetings, settlement conferences, real estate closings, administrative hearings, depositions, and the courts are some of the legal settings that may require sign language or oral interpretation by a qualified interpreter.
Who is responsible for providing interpreters?
State and local courts and administrative agencies are subject to Title II of the Americans with Disabilities Act (ADA) and other state and federal statues. They are required to provide interpreters or other auxiliary aids and services for persons who are deaf or hard of hearing. Under Title III of the ADA, law offices are places of public accommodation that must provide interpreters when necessary to render effective communication. Neither courts nor attorneys may pass along the cost of interpreting service to the individual who is deaf, either directly or indirectly. Law offices may be entitled to an income tax credit for interpreter fees expended in compliance with the ADA.
In instances of court ordered activities, such as alcohol and drug assessment, domestic violence group sessions, and traffic school, the responsibility for providing interpreting service is not so clearly placed. The provision of interpreting services may be the responsibility of the ordering court, under Title II. Or, the agency providing the court ordered services may be responsible under their own Title III obligation. For complete information on the ADA, contact the U.S. Department of Justice, ADA Information Hotline at 1-800-514-0301 for voice or 1-800-514-0383 for TDD. ADA Technical Assistance Manuals are also available from the Department of Justice.
In addition to federal laws such as the ADA, some state and local jurisdictions may have statutory requirements relating to the use of interpreters in the legal system. Federal, state, and local statutes requiring use of interpreters may apply to legal situations in which deaf persons are not direct parties, but are related to the situation in some significant way. An example of this would be the deaf parent or guardian of a minor or person who is incompetent and becomes involved in a legal situation. In addition, people who are deaf may serve on juries and attorneys who are deaf may use interpreters in many job-related situations other than the courtroom.
What are the responsibilities of the interpreter?
An interpreter's first responsibility is to weigh the information regarding the circumstances judiciously to determine whether or not she/he is qualified for the particular situation. Some reasons for declining the assignment could be related to the communication mode of the deaf people involved or personal knowledge or bias in the case. Once the interpreter has accepted an assignment, he or she has the responsibility to facilitate communication accurately and impartially between the parties. The interpreter must execute this role with total absence of bias and must maintain strict confidentiality. Whether communications are covered by legal privilege or not, the interpreter is under professional obligation to maintain confidentiality. The professional ethics1 of the interpreter requires that the interpreter maintain a singular role. If an interpreter in a case is asked to provide expert testimony, such as on language, deafness, or matters related to the case, or to act as advocate or consultant for any involved party, the interpreter must either decline to do so, or withdraw as an interpreter from the case. As professionals, interpreters are responsible for making arrangements in advance for compensation.2
How many interpreters are needed?
Each situation requiring interpretation should be assessed to determine the number of interpreters needed. Often, because of the length or complexity of an assignment, interpreters will work in teams of two or more.3 Interpreting is more mentally and physically demanding than most people realize, and the first thing to suffer as a result of interpreter fatigue is accuracy. Besides fatigue, there may be legal or logistical reasons to have more than one interpreter. For example, if more than one deaf individual is involved, one team of interpreters may be interpreting for a witness while a second team is at the defense table with a deaf defendant and the defense attorney. In some instances, the communication mode of an individual who is deaf may be so unique that it cannot be accessed by interpreters who are hearing. Such cases may require the use of a Certified Deaf Interpreter who is able to meet the special communication need.4
How do you know if an interpreter is qualified?
In the field of interpreting, as in other professions, appropriate credentials are an important indicator of an interpreter's qualifications. The RID awards certification to interpreters who successfully pass national tests. The tests assess not only language knowledge and communication skills, but also knowledge and judgment on issues of ethics, culture, and professionalism. The most common RID certifications are:
An interpreter who obtains a CI, CT, or CSC, and meets other requirements through training and experience, and passes a rigorous testing process, can obtain the SC:L - Specialist Certificate: Legal. The best choice for any legal situation is an interpreter who possesses an SC:L. Unfortunately, the supply of SC:L interpreters cannot meet the demand. If an interpreter holding the SC:L is not available, an interpreter with previously mentioned generalist certifications and training in legal interpreting should be able to provide satisfactory service.
How do you find a qualified interpreter?
You can engage a private practice interpreter directly or through an interpreter service agency that will find an interpreter to meet your needs. If you are unable to find qualified interpreters in your area, contact the national RID, who can refer you to a contact person or agency in your area. In some instances, a person who is deaf can provide names of interpreters or agencies.
What can you do in order to work effectively with an interpreter?
As you work with an interpreter, you can facilitate communication in several ways:
The Association believes that the only way that the legal rights of deaf people can be assured and the integrity of the legal process be safeguarded is by having qualified RID certified interpreters who have received rigorous training in legal interpreting interpret in legal settings.
RID has a series of Standard Practice Papers available upon request. Footnotes frequently reference these materials.
1 see RID Code of Ethics
2 see Business Practices: Billing Considerations
3 see Team Interpreting
4 see Use of a Certified Deaf Interpreter
National Court Reporter Association CART PROVIDERS MANUAL
Introduction:
Communication Access Realtime Translation (CART) is a word-for-word speech-to-text interpreting service for people who need communication access. CART consumers include: people with hearing loss; individuals with cognitive or motor challenges . . . . The Americans with Disabilities (ADA) specifically recognizes CART as an assistive technology that affords effective communication access.
A CART provider is sensitive to the varying needs of consumers and has had training in conveying a speaker's message, complete with environmental cues. This expertise distinguishes a CART provider from a court reporter in a traditional litigation setting.
NCRA's Registered Professional Reporter (RPR) designation is nationally recognized and at this time is considered a requisite for CART providers. Attainment of the Certified Realtime Reporter (CRR) designation is recommended.
I. Professionalism:
Sensitivity: The CART provider has general knowledge about "capital D" Deaf culture, and understands that the preferred communication mode of a person with a hearing loss differs depending on whether that individual identifies himself as Deaf, deaf, late-deafened, or hard of hearing. Generally, CART consumers are individuals who have developed a hearing loss post-lingually (i.e., after the acquisition of language)
There is a certain etiquette required when communicating with CART consumers. A CART provider should acquire training in communication techniques through court reporting association seminars, disability agencies, sign language courses, et cetera. Membership in organizations such as the Association of Late-Deafened Adults, Self-Help for the Hard of Hearing, and the National Association of the Deaf is recommended.
The CART provider should be aware of the sign language interpreter. Very often an interpreter will be present to serve deaf/hard-of-hearing individuals who prefer using sign language, or to voice for a non-oral individual. It should be stressed that the CART provider and interpreter work as a team, never in competition.
Staying in Role: A CART provider's role is to facilitate communication. The CART provider will at all times stay in role and perform in a manner appropriate to the situation. A CART provider should decline any invitation or suggestion to comment, interject, advise, respond to inquiries, or in any way become involved in the proceedings outside the role of CART provider. If necessary, the CART provider should politely explain the necessity to stay "in role".
Confidentiality: Courtesy and discretion are required of the CART provider at all times, lest a casual word or action betray a consumer's confidence or violate a client's privacy. Confidentiality of the consumer's information and privacy of the person must be maintained.
IV. The Legal Setting: The court reporter for a trial or deposition and the CART provider perform different functions. For example, a CART provider may accompany a consumer into the jury room or into confidential discussions with attorneys.
Additionally, when providing communication access, the CART provider must include parentheticals to describe environmental sounds (i.e., alarm ringing), laughter, or anything that detracts attention from the proceeding. Necessary synonyms may be used to assure effective communication. The synonyms and environmental sounds would not ordinarily appear in an official certified verbatim transcript.
The CART provider should discuss with the judge and the attorney his/her role as an interpreter before the proceedings begin and agree on a method of interrupting if the CART provider cannot hear or understand a speaker.
Remote CART: When providing remote CART, the provider is in one location and the consumer is in another. The CART provider is usually listening to a voice via the phone line, writing on the steno machine, and transmitting the text to the other location. This is particularly helpful in areas where there is a lack of CART providers. Special technical training and support is necessary when providing this service.