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 immun