April 2006
Ensuring Equal Access to the Courts for People with Disabilities
by Allison Peryea with Judge Anne Ellington
Washington courts already know the destination: Equal access to justice for all, regardless of physical or mental disability.
To help get them there, the Access to Justice (ATJ) Board is finishing up what many hope will become a frequently consulted roadmap: a guidebook identifying common barriers to courtrooms and court services, and suggesting solutions for overcoming those obstacles.
"Steps leading up to the courtroom can be just as much of a barrier as a sign saying 'No people with disabilities are allowed,'" said attorney David Lord of the Washington Protection and Advocacy System. "People do not realize how easy it is to remove these kinds of barriers. But they often don't know what to do, so they tend to ignore the problem."
Members of the ATJ Impediments Committee prepared the guide. Lord and two other committee members — attorneys Ann Glynn, of the Eastern Washington Center for the Deaf and Hard of Hearing, and Lonnie Davis, of the Washington Coalition of Citizens with Disabilities — were the three chief drafters. Judge Anne Ellington of the Washington State Court of Appeals, Division I, oversaw the project and served as editor.
The guide will be distributed to judges, administrative officials, and staff members by the end of the year, anticipates Judge Catherine Shaffer of the King County Superior Court, Impediments Committee co-chair. The guide will also be posted on various websites, including those of the ATJ Board, the WSBA, and the Administrative Office for the Courts.
Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts addresses four major categories of disability: mobility, vision, hearing/communication, and cognition. The guide explains courts' duties under federal and state law, provides basic information on the four major categories of disability, and suggests solutions for providing effective access. An appendix provides a directory of resources and other information.
The guide is not a tool for individuals needing to obtain access to the courts, noted Davis, but rather is a means to help courts figure out how to assist those individuals. The guide's recommendations are not binding on the courts, he added, but he noted the suggestions are backed by a vast amount of "judicial experience."
Impediments Committee members point out that universal access to the judicial process is not simply an ideal — it is a legal obligation. Under Title II of the Americans with Disabilities Act (ADA), states are required to take "reasonable measures" to remove barriers to courtroom access for people with disabilities.
"It is important to ensure access when constructing a new building or renovating an old one," said Judge Shaffer, "but more often we face a case-specific determination of what is a 'reasonable' accommodation for a particular individual in the programs and buildings we already have."
"Courts are not required to bankrupt themselves," Shaffer added, "but reasonable accommodation is required, and the costs of accommodation may not be passed on to the individual with a disability. Courts must be creative and resourceful."
In 2004, the U.S. Supreme Court upheld the constitutionality of Title II as applied to courts in Tennessee v. Lane, 124 S.Ct. 1978, which involved a man with paraplegia who had to crawl up two flights of stairs to reach a courtroom. That case served as the inspiration for the guide, said Judge Shaffer. Though similar guides have been made available to Washington courts in the past, including a benchbook prepared by the Superior Court Judges' Association, they became outdated as technological and other advances have expanded options for accommodations, she said.
This guide will supply the most current information, she said, and the online version will undergo periodic updates to ensure that the guide remains a relevant resource to the courts.
The need for adequate accommodations is part of the daily experience for Spokane County Superior Court Judge Gregory Sypolt, who uses crutches. His courtroom has been fully ADA-equipped since a September 2003 remodel, which included installation of ramps and technological equipment to assist people with vision or hearing loss. Judge Sypolt has worked in far less accessible courtrooms during his legal career, he said, noting that in some courtrooms it can be particularly difficult to reach the bench from the judge's chambers due to narrow stairways and a lack of rails. He emphasized that accommodations do not exclusively deal with courtroom architecture, however. Guides such as this help explain to people who are not disabled "how to operate in a way that is helpful but inoffensive," he said.
The guide advises against touching a person's wheelchair without permission, for example, and recommends addressing a person with a disability directly, rather than communicating through that person's personal assistant.
"The level of accessibility in Judge Sypolt's courtroom is a benchmark many Washington courts have not yet reached," said Joan Fairbanks, WSBA justice programs manager and liaison to the ATJ Board. "A number of courthouses in the state are historic buildings constructed before the ADA era," she said, "and it would take a significant amount of money to make capital improvements to facilitate access. The guide offers suggestions short of drastic capital improvements which are not always feasible," she said.
Meanwhile, courts in this state often fail to provide assistance for those who are hard of hearing "because they do not budget for it beforehand," said Glynn. Many courts do not offer hearing-impairment accommodations, such as an interpreter or real-time captioning, until someone who needs the assistance first contacts an advocacy organization such as the one she represents, she said. Nevertheless, courts have typically provided the needed assistance once advocacy groups "come in and educate the courts," she said.
Don Horowitz, chair of the ATJ Technology Bill of Rights Committee, cites a "big learning curve" as the reason Washington courts are "not even close" to using technology to the extent they could to increase access. "Money is no real obstacle," he added. "Once courts install and understand how to use the technological instruments that are available, such as streaming audio and infrared sound-transmitters, the cost of operating them will be minimal." The guide provides detailed explanations of the types of assistive devices for hearing and vision loss, along with the benefits and drawbacks of each type. The ATJ Board, which approved the guide last September, is pursuing outside sources of funding in order to finance publication and distribution of the guide. This year, Impediments Committee members will present the guide at various judicial conferences. The development of training programs for court personnel is also on the committee's agenda.
"Educating administrative hearing officers about access is particularly crucial," Fairbanks said, since many people requiring accommodations "never appear in the courts, but instead come before administrative tribunals."
Guide developers concede that broader access will translate to longer hearings and trials, "likely increasing the total time of a proceeding by one third to one half," according to the guide. This cost should not even be calculated into the equation, said Judge Shaffer.
"If it takes longer because someone is using a sign-language interpreter, or because we accommodate someone with a vision disability, that is simply part of the regular court process," she said. "There is no requirement that each type of trial has to take the same amount of time, but there is a strong requirement of absolute equality."
Judge Shaffer acknowledged that distribution of the guide will not automatically pave the way to universal access in the state, but said that each effort to remove barriers is a step in the right direction. "We may never reach perfection when providing access to people with disabilities, but we can always work to get closer to perfection," she concluded.
Allison Peryea is a former journalist and second-year student at the UW School of Law. She externed in 2005 with Judge Catherine Shaffer of King County Superior Court, co-chair of the ATJ Impediments to Access Committee. Judge Anne Ellington serves on Division I of the Court of Appeals.
