What happens if a state court system discriminates against a person with a disability? That was the situation in Prakel v. State of Indiana, 2013 WL 3287691 (S.D. Ind. June 28, 2013). In this case, a deaf individual (while the court refers to him as hearing impaired, I use the term deaf because you don’t think of a hearing impaired person knowing and using ASL as the primary means of communication), requested a sign language interpreter services for hearings in which his mother was a party but he was not nor was he a witness. He attended his mother’s hearing but there was no sign language interpreter provided. Defendant again requested interpreter services for an upcoming hearing before the same judge who then set a hearing to determine whether the County Court would provide interpreter services. However, no interpreter was present at that hearing. Further, the clerk’s office for that court refused to communicate with him in writing. Another hearing for his mother was set and he again requested interpreter services and once again the superior court refused to accept his relay call and also did not provide an interpreter for that hearing. He took it further by calling the chambers of a magistrate judge who told him that the circuit court did not provide interpreter for spectators. As a result, his mother wound up paying for interpreter services for her May 2010 hearing before the magistrate judge. The National Association for the Deaf then got involved and sent a letter requesting reimbursement for the interpreter services paid by the mother. The judge in the circuit court did not respond nor for that matter did the Chief Justice of the Indiana Supreme Court respond to a similar letter from the National Association for the Deaf. Suit was then brought alleging violation of title II of the ADA and section 504 of the Rehabilitation Act and seeking reimbursement for the mother’s expenditures on interpreter services, compensatory damages and attorneys fees.
This is all straightforward enough so far. Title II of the ADA applies to programs and activities of a governmental entity. Under title II of the ADA and § 504 of the Rehabilitation Act, reasonable modifications to programs and activities must be made unless to do so would constitute an undue burden or fundamentally alter the nature of the program or activity. Certainly, the court system is a program and/ or activity for which both title II of the ADA would apply to. Also, the State of Indiana court system takes federal funds and therefore, they are subject to § 504 of the Rehabilitation Act as well. The problem here is not in that the rules apply (hard to believe that an undue burden or a fundamental alteration could be shown here), but in how you go about proving the case considering the various privileges and immunities that the defense may trot out. Let’s look at some of those.
First, there is sovereign immunity, which we have talked about numerous times in various contexts elsewhere. That principle says that a sovereign cannot be sued without their consent. The two sovereigns that we have in the United States are the federal government and State governments. States are free to waive their sovereign immunity. However, you need to check your jurisdiction because it is possible that a State will not waive its sovereign immunity for all purposes with respect to the ADA. For example, Illinois is a State that has waived sovereign immunity with respect to the ADA but only for limited purposes. Thus, if you have a State that has not waived their sovereign immunity for situations involving access to the courts, a State may well defend on the grounds of sovereign immunity. If you are a plaintiff you can get around this in two ways. First, it is possible for a State to be forced to waive its sovereign immunity if Congress says so and if it is consistent with the enforcement clause of the equal protection clause to the U.S. Constitution. Fortunately, when it comes to the courts, a forced waiver is likely to be upheld because Congress has waived sovereign immunity with respect to the ADA and because access to the courts is a fundamental right. See Tennessee v. Lane, 541 U.S. 509, 522, 524, 529, 531, 534 (2004). The other avenue is to make sure that you also sue under § 504 of the Rehabilitation Act as there are court opinions out there that say receipt of federal funds waives sovereign immunity.
Second, once you get by sovereign immunity, you have other obstacles to consider as well. In this situation, the plaintiff wanted to depose sitting judges who were or may have been involved in the process of deciding not to accommodate the plaintiff. If you are going to depose an attorney or a sitting judge, you’re going to have to show that the information sought is unavailable from any other source, is relevant and central to the case and is unprivileged. In this situation, the court found that a magistrate judge and two judges were the only sources of information on whether the Dearborn courts complied with title II of the ADA and § 504 of the Rehabilitation Act when they refused the accommodation because in Indiana, County level courts have complete autonomy with respect to making decisions about accommodations for spectators. Further, the evidence showed that the Dearborn County Court did not provide official guidelines for judges and how to evaluate such requests.
With respect to the necessity of relevance of the information sought, the plaintiff said that they needed to question the two judges and the magistrate judge about the Dearborn courts procedures, whether they were on notice of plaintiff’s request and whether they attempted to obtain interpreters. The court said that they agreed with the plaintiff that the subject matter in which they sought to depose the defendant was absolutely essential to proving their claims of intentional discrimination and that the issues of the Dearborn court and Indiana’s respective title II of the ADA and § 504 policies and procedures was information that could not be obtained in any other way and therefore, was relevant and necessary. Finally, the court did conclude that deposing the former Chief Justice of the Indiana Supreme Court imposed too great a burden in light of the relevant information sought because there were no statewide standards for ensuring compliance with title II of the ADA or § 504 the Rehabilitation Act and that ensuring compliance with those laws did not fall within the job of the Chief Justice. Instead, the court believed that a representative of a county division, was better equipped to testify as to the state of Indiana’s policies and procedures regarding title II of the ADA and § 504 of the Rehabilitation Act regarding accommodations and reimbursement requests. Also affecting the calculus of why the former Chief Justice should not have to testify, were the facts that the case was not a class action, minimal damages were sought, and that the Chief Justice had never been a party to the case.
Finally, the State of Indiana said that the information sought could not be obtained because of the deliberative process privilege. Think of that privilege the same way you might think of as a work product privilege. That is, the mental impressions, thoughts and reasoning of judges in deciding how they ruled are privileged information. However, plaintiff successfully argued that the privilege did not apply because the subject matter of the deposition was to be focused on factual matters: policies and training for title II of the ADA and § 504 of the Rehabilitation Act; the notice each defendant had of the request for an interpreter and reimbursement and the action, if any they took; and the role the division plays in providing sign language interpreter to Dearborn courts.
In the end, to conserve judicial resources, the court did hold that one of the judges could fairly represent the Circuit Court with respect to discussing title II of the ADA and § 504 policies and procedures and how those policies were applied to plaintiff’s request to the Dearborn courts and that it wasn’t necessary for the magistrate judge to get involved. The court also said that unless the State of Indiana took the position that they had a unified court system, that another judge, who would represent the Superior Court and not the Circuit Court, would need to testify as to the same thing. With respect to the state of Indiana, the court said that a person had to be designated who would then be able to discuss the State’s title II of the ADA obligations and its § 504 policies and procedures.
The need for preventive systems and concluding thoughts:
First, if this case illustrates anything, it is the need for preventive systems. The State, Superior Court, and Circuit Courts, should have a § 504 compliance system in place as well as a compliance system in place for title II of the ADA matters (since all these entities have more than 50 employees, by law they are required to have a § 504/ADA coordinator designated and a § 504/ADA grievance procedure). If that system had been in place or utilized, including proper training of course, then in the end, all the judges and administrators being deposed would not have been necessary. It is hard to believe on the merits (both § 504 and title II of the ADA), that an interpreter should not of been provided in the first place. Further, the cost of providing the interpreter was very little. Certainly, the costs of defending this case cost many thousands of dollars more than if they had simply furnished the interpreter services (where, as mentioned above, a very strong argument, if not a slam dunk, suggests that the applicable law required such interpreter services to be furnished).
Second, it is certainly appropriate to sue a State court system if they discriminate against persons with disabilities in terms of how they carry out their operations. If this case illustrates anything else, it is the merits of the case may be one thing but proving it up may be quite another. That is, the plaintiff may have to overcome a reticence to have certain people testify as well as the assertion of sovereign immunity and numerous other privileges. In the right situation, such as this case, those immunities and privileges can be overcome but that doesn’t make it easy to do so.