SC09-1487 Appendix C - Florida Supreme Court

'Afarum committed to fostering diversity in the legal profession.THE R.ORIDA BAR

Ch8'RegkI8Id J. ~Clyne & A~ P A2600 S. ~ RO8d S'* 1100Coral Ga*-, FL 33134-8143305/446-3244 Fax: 305/44&-3638~ ~;;;:.v;:-~

April 5, 2007

Gary FoxChair, Rules of Judicial Administration CommitteeStuart, Tilghman, Fox, and Bianchi, P.A.I SE 3rd Ave, Ste 3000Miami Florida 33131-1711

Dear Mr. Fox,

Cheil'ElectHatley S. HermanDe Beattian. KnIght, SIImQ18.M61.iZiiI~.. & N.-PO Box 1233Vera. Fl34284-1233841/48G-18M Fax: 407/992-3885EmaiI: hherm8nOdbkSnW\.~

Sectwtary~ Feigela. ...".

Attached please find the text for proposed rule 2.540 to replace the former ruleregarding accommodations for persons with disabilities. This rule change issupported and sponsored by The Florida Bar Equal Opportunities in the LawSection. The present rule does not provide sufficient guidance for courts andthe public regarding their rights and remedies as required by Title II of theAmericans with Disabilities Act. 42 V.S.C. 12131. This rule change willensure uniformity with regard to accommodations provided to attorneys,parties, witnesses and other participants in the court system. If you have anyquestions, or need any further input. please feel free to contact any of us.

r,...,...Kimberly L R(xiger8, Saint PetIfIbI8V

~.;MCIa(. Put Ch8kArdyth Waller, Mw

BoenI LiaIson.Jenniei' R. ~, Y8rW

Budget~CI.-"T8rm'Y K. FIekja, Welt Pam Beach

COOf'dInation CommIttHJohn Kozyak, ~. ChaR'Elena Grigera. '-"', Vice CI.-

DlNbllitles CommitteeM~ Dietz. Coral Gables. a18'George RictI.o.. Fl Myers, VIce a. Very truly yours,

E~CwnmItteeP8neIa Guerrier. PBn 8-=t1. Ct*tLynn Sobnon. PBn ~. VIce C"*

information Committee ChWUndsay N. Oyewale. Oftando

L~ Cv ':::a6 ChaIry ~ CaIh J8ckIOn. Fl ~

NomIn«lng c-m.. ChWAllison K. Bethel. Fl lawn'"

PI8Ik Agency Cv..~ri Chell'Mk:tIeIe Ku. ar.ndo

Matthew W. DietzLaw Offices of Matthew Dietz2990 Southwest 35th Ave.Miami, FL 33133(305) 669-2822

George RichardsOffice of StatewideProsecutor2075 W. 1st StreetFort Myers, FL 33901(239) 338-2440

Reginald ClyneClyne & Associates, P .A.2600 S. Douglas Rd.Suite 1100Coral Gables, FL 33146(305) 446-3244

Craig ShawJack HarknessPaul Hill

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At L-.. ~-.:R8nOn A. ~. ~JoIeP1 F1erI*IO. M8niKImberly A. Glknour 0 Fl LauderdaleSh~ A. Gr8V88. Fllauderd8leHoII. L..- ~. ~

CheryI~C'-wMefJulet M. ~. Beth E. Su8V8\. T~

HonOfal)' ~HoII. Peggy Am O\8llCe. T~J~ McI(DIey BerWIe. Tal8fI888ee

Program A8nlnlstratorYvonne Shem)n. Talahassee

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THE FLORIDA BAR. 651 EAST JEFFERSON STREEi~ tALLAHASSEE, FLORIDA 32399-2300. (850) 561-5626

Old Rule:

RULE 2.540 (fonneriy RULE 2.065). NOTICES TO PERSONS WITH DISABILITIES

All notices of court proceedings to be held in a public facility, and all process compellingappearance at such proceedings, shall include the following:

"If you are a person with a disability who needs any accommodation in order to participate in thisproceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact[identify applicable court personnel by name, address, and telephone number] within 2 workingdays of your receipt of this [describe notice]; if you are hearing or voice impaired, call?ll."

Proposed Amended/or New Rule:

Rule 2.540. Requests for accommodations by persons with disabilities

(a) Definitions. As used in this rule:(I) "Persons with disabilities" means individuals covered by the Florida Civil Rights Act, § 760 etseq.; the Americans with Disabilities Act of 1990 (42 V.S.C. § 12101 et seq.); or other applicablestate and federal laws. This defInition includes persons who have a physical or mental impainnentthat limits one or more of the major life activities, have a record of such an impainnent, or areregarded as having such an impairment.(2) n Applicant" means any lawyer, party, witness, juror, or other person with an interest in

attending any proceeding before any court of this state.(3) n Accommodations" means actions that result in court services, programs, or activities being

readily accessible to and usable by persons with disabilities. Accommodations may include makingreasonable modifications in policies, practices, and procedures; furnishing, at no charge, to personswith disabilities, auxiliary aids and services, equipment, devices, materials in alternative formats,readers, or certified interpreters for persons with hearing impainnents; relocating services orprograms to accessible facilities; or providing services at alternative sites. Although not requiredwhere other actions are effective in providing access to court services, programs, or activities,alteration of existing facilities by the responsible entity may be an accommodation.(b) Policy. It is the policy of the courts of this state to ensure that persons with disabilities haveequal and full access to the judicial system. To ensure access to the courts for persons withdisabilities, each circuit and appellate division must delegate at least one person to be the ADAcoordinator, or designee to address requests for accommodations. This rule is not intended toimpose limitations or to invalidate the remedies, rights, and procedures accorded to persons withdisabilities under state or federal law.( c) Notice Requirement:All notices of court proceedings to be held in a public facility, and all process compellingappearance at such proceedings, shall include the following:

"If you are a person with a disability who needs any accommodation in order to attend thisproceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact[identify applicable court personnel by name, address, and telephone number] within 5 workingdays of your receipt of this [describe notice]; if you are hearing or voice impaired, call?ll."

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(c) Process for requesting accommodations. The process for requesting accommodations is asfollows:(1) Requests for accommodations under this rule may be presented ex parte on a form approvedby the Florida State Courts ADA Administrator, in another written format, or orally. Requestsmust be forwarded to the ADA coordinator, or designee, within the time frame provided in (cX3).(2) Requests for accommodations must include a description of the accommodation sought, alongwith a statement of the impairment that necessitates the accommodation. The court, in itsdiscretion, may require the applicant to provide additional information about the impainnent.(3) Requests for accommodations must be made as far in advance as possible, and in any eventmust be made no fewer than 5 court days before the requested implementation date. The courtmay, in its discretion, waive this requirement.(4) The court must keep confidential all information of the applicant concerning the request foraccommodation, unless confidentiality is waived in writing by the applicant or disclosure isrequired by law. The applicant's identity and confidential information may not be disclosed to thepublic or to persons other than those involved in the accommodation process. Confidentialinformation includes all medical information pertaining to the applicant, and all oral or writtencommunication from the applicant concerning the request for accommodation.(d) Permitted communication. Communications under this rule must address only theaccommodation requested by the applicant and must not address, in any manner, the subject matteror merits of the proceedings before the court.(e) Response to accommodation request. The court must respond to a request for accommodationas follows:(1) The court must consider, but is not limited by, the Florida Civil Rights Act section 760 et seq.,the provisions of the Americans with Disabilities Act of 1990, and other applicable state andfederal laws in detemlining whether to provide an accommodation or an appropriate alternativeaccommodation.(2) The court must inform the applicant in writing, as may be appropriate, and if applicable, in analternative format, of the following:

(A) That the request for accommodation is granted or denied, in whole or in part, and if therequest for accommodation is denied, the reason therefore; or that an alternative accommodation is

granted;(B) The nature of the accommodation to be provided, if any; and(C) The duration of the accommodation to be provided.

(f) Denial of accommodation request. A request for accommodation may be denied only when thecourt determines that:(1) The applicant has failed to satisfy the requirements of this rule;(2) The requested accommodation would create an undue financial or administrative burden on

the court; or(3) The requested accommodation 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 request has beendenied or granted may seek review of a determination made by nonjudicial court personnel within10 days of the date of the response by submitting, in writing, a request for review to the chief judgeof the circuit or designated judicial officer.

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(2) An applicant or any participant in the proceeding in which an accommodation request has beendenied or granted may seek review of a determination made by a presiding judge or anotherjudicial officer within 10 days of the date of the notice of detennination by filing a petition forextraordinary relief in the applicable district court of appeal.(h) Duration of accommodations The accommodation by the court must be provided for theduration indicated in the response to the request for accommodation and must remain in effect forthe period specified. The court may provide an accommodation for an indefinite period of time, fora limited period of time, or for a particular matter or appearance.

Explanation and legal justification

The purpose of this amended rule is to insure full compliance with Title II of the Americans withDisabilities Act ("ADA"), 42 U .S.C. § 12181, and to promote Access to the Courts, Article I, § 21,of the Florida Constitution. The public policy of the State of Florida and the Supreme Court ofFlorida is to ensure that persons with disabilities receive full and equal access to the benefits of theservices, programs, or activities of the Florida Courts. Current Florida Rule § 2.065 regarding"notice for persons with disabilities" fails to adequately define (1) a process in which a person witha disability may request an accommodation to attend or participate in judicial proceedings, (2) thetypes of accommodations that may be obtained; and (3) review procedures if an accommodation isrefused.

In Tennessee v. Lane, 541 U.S. 509; 124 S. Ct. 1978; 158 L. Ed. 2d 820 (2004), the United StatesSupreme Court found that Title II of the ADA can be applied to state court systems.

Title II's requirement of program accessibility, is congruent and proportional to its object ofenforcing the right of access to the courts. The unequal treatment of disabled persons in theadministration of judicial services has a long history, and has persisted despite several legislativeefforts to remedy the problem of disability discrimination. Faced with considerable evidence of theshortcomings of previous legislative responses, Congress was justified in concluding that this"difficult and intractable proble[m]" warranted "added prophylactic measures in response."

541 U.S. at 532; 124 S. Ct. at 1993; 158 L. Ed. 2d at 842. With regard to Title II, the Departmentof Justice established regulations required by a public entity to comply with the Americans withDisabilities Act in order to afford an equal opportunity for all to participate in the program offered.The fom areas in which the ADA applies are (1) notice to the public regarding accommodations;(2) a person who is designated as the coordinator with regard to disability related concerns; (3) aprocedme for obtaining accommodations; and (4) a complaint procedure if the person with adisability believes that he or she does not receive an appropriate accommodation.

The proposed rule change arises from a two year study including a recent survey of lawyerswith disabilities conducted by the Disability Independence Group which was conducted incollaboration with the Florida Bar. Survey results indicate that approximately thirty percent ofapplicable respondents had policy, practice or procedural issues in the court system that deniedthem equal access to the court system. This includes as follows: judges not allowing attendance by

telephone; lack of flexibility in scheduling; refusal to pay for interpreters; the general practice ofrequiring a lawyer to stand in court; refusal to have a fragrance-free policy and refusal toaccommodate a chemical sensitivity disorder with participation via videoconferencing; judgesusing sidebar conferences with attorneys with mobility impairments; and courts requiring a driver'slicense for quasi-judicial positions. Some of the most frequent accommodations requested byFlorida attorneys included additional time during proceedings; improved sound systems orreduction of background noise, and auxiliary aids or services, such as real-time captioning,listening systems, or sign language interpreters.

In order to provide adequate and clear guidance to ensure that persons with disabilitiesreceive equal treatment in the judicial system, a clear and comprehensive rule is necessary toachieve unifonnity in the provision of adequate accommodations. The rule as it presently standshas clearly placed an undue burden upon a number of lawyers with disabilities as they endeavor toengage in the practice of law. It is unknown at this time what chilling effect the existing rule hason the general population with disabilities, but anecdotal evidence would suggest the present ruledenies access to the court system for a number of people with varying types of disabilities. Theproposed rule is taken essentially from California Rules of Court 1.100 (2007) (formerly 989.3),with amendments to conform to the prior Florida requirement of notice, and Florida procedures.

In 1996, the Florida State Court System and the Department of Justice entered into asettlement agreement regarding the provision of effective Real Time Transcription Service to allparties, witnesses, attorneys, judicial employees, jurors or judges who require such auxiliaryservice. Since 1996, Florida Courts have maintained a practice in which the provision of auxiliaryservices for attorneys who practice before the courts is the responsibility of each attorney or theiremployer under Title I of the Americans with Disabilities Act. This may place an undue burden onsolo practitioners, on employees of small law firms, and even potentially may impact employmentopportunities. The responsibility of the courts under Title II has been clarified by the SupremeCourt under Tennessee v. Lane. As such, each person who wishes to have access to the courtsmust be provided the opportunity to do so without additional cost.

Notice to the public

The current rule, Rule 2.540, solely provides notice, but is misleading in that it onlyprovides that the recipient of the accommodation is the person who is compelled to appear in ajudicial proceeding. Accommodations should be made available to all persons who wish toparticipate in the programs and services of the court system. This includes lawyers, witnesses,parties, jurors, and spectators. Such notice is required pursuant to 28 C.F.R. § 35.106. While thenotice optimally would be in all programs and publications by the court, as well as on its website,the notices and subpoenas issued by the court or the parties would be the most frequent method ofdissemination of judicial programs.

ADA Coordinator

Each Circuit in Florida currently has an ADA coordinator, which is an employee of thelocal court system that is the person directly responsible for the provision of accommodations foreach circuit. 28 C.F.R. § 35.107 requires the designation of this ADA coordinator.

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Procedure for obtaining accommodations

A public entity has a duty to afford an individual with a disability an opportunity toparticipate in or benefit from the aid, benefit, or service that is equal to that afforded others. Thisincludes the provision of reasonable modifications in policies, practices or procedures, or theprovision of auxiliary aids or services, when such modifications are necessary to ensure that theperson with a disability obtains equal opportunity to participate in the programs and services of theentity. The proposed rule contains examples of accommodations that could be granted to aqualified individual with a disability for a physical, mental or sensory disability. A public entityshould give primary consideration to the requests of an individual with a disability. See 28 C.F.R.§35.130

The limit of the requirement is when the modification in policies or the procedures, or theprovision of the auxiliary aid or service would fundamentally alter the nature of the service orprogram. Further, there is no obligation to provide personal devices or services, such aswheelchairs, prescription eyeglasses or hearing aids. 28 C.F.R. § 35.135.

It is not pen1lissible to require a person wishing to access the services of the courts to pay for theirown accommodation. This would constitute a surcharge to cover the costs of measures, such asthe provision of auxiliary aids or program accessibility, that that the entity is required to providethat individual or group to comply with the nondiscriminatory treatment required by the ADA. 28C.F.R. § 35.130.

Appeals or Review Procedures

In addition to providing an ADA coordinator, the ADA requires a complaint procedure in which toquestion whether the accommodation granted is adequate. 28 C.F.R. § 35.107(b).

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ElJaabeth H. GoodnerState Courts AdmInistrator

R. Fred Lewis

ChIef Juat1ce

Office of the State Cow-ts Administrator

Phone: (8S0) 922-4370 Pax: (850) 488-O1S6o-mail: [email protected]&

MEMORANDUM

TO:

FROM:

The Honorable Lisa DavidsonChair) RJA Subcommittee on ADA Notice Rule

Debbie Howells ~~

Statewide ADA t'to~~r. Florida State Courts System

DATE: August 6, 2007

Rule 2.540, Notices to Persons with DisabilitiesSUBJECT:

As you requested, the Office of the State Courts Admini~tor has analyzed the proposedrole amendment submitted by the Equal Opportunities in the Law Section (EOLS). To assist theSubcommittee in its work, this memorandum: (I) addresses misconceptions reported in April I»2007» and August I» 2007» F1orida Bar News articles; (2) provides background infomiation aboutstate Com"ts System compliance with the ADA; and (3) reflects our analysis of the role proposal.

I. MISCONCEP110NS

The following infoImation is provided in response to misconceptions about the StateCourts System's implementation of the Americans with Disabilities Act of 1990 ("ADA j, asreported in recent Florida Bar News articles.

PIIrpoae of /be Notice RuleEOLS members appear to confuse Rule 2.540 with the Florida court system's overall

ADA policy. The Florida court system bas well-established policies and procedures foraccommodating persons with disabilities. In fact, the Florida courts provide thousands ofaccommodations each year without incident

Rule 2.540 is not the court system's entire ADA policy. The Florida Supreme Courtenacted Rule 2.540 (formerly Rule 2.065), Rules of Judicial Administration. Notices to Personswith Disabilities, in order to standardize the notice language used by courtS across the state. Thelanguage in the role, which is required to be included on all documents that require an individualto appear in court, ensmes that persons with disabilities receive notice of the availability of ADAaccommodations and are informed about who to contact to request accommodations.

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The Honorable Lisa DavidsonAugust 6, 2007Page 2

PersoD8 for WlIom AccommodatJoDs Are ProvidedEOLS members appear to mistakenly believe that Rule 2.540 limits the court system's

provision of ADA accommodations to individuals who are compelled to attend court. ("Richardsoutlined one shortcoming of Florida's current rule: Accommodations will be paid for' only ifpersons are compelled to attend court. '" Cow1houses Should Be More Accessible to the

Disabled. Florida Bar News, Aprill, 2007.)

The Florida court system' s practice of granting accommodations to qualified courtparticipants with disabilities was established within each trial and appellate court following the1990 enactment of the ADA. The Florida State Courts System recognizes our Title II obligationsby modifying policies, modifying architectural or communication barriers, and providingauxiliary aids and services for parties, jurors. witnesses, and other persons with disabilities whohave an interest in attending any state court proceeding or participating in other court services,programs, or activities, as required by the Ac~ regardless of whether those individuals werecompelled to attend court.

As further discussed below, it is our position that accommodations for individuals whoappear in the courtroom as part of their employment duties or professional practice are theprimary responsibility of the employer or the professional under Title I of the Americans withDisabilities Act.

GrlenDce ProceduresMatt Dietz was recently quoted as stating that "there is no grievance procedure" in the

State Courts System ~ilitv Advocates Seek Rule Chan2e to Promote Consistencv. FloridaBar News, August I, 2007). That is incorrect. ADA grievance procedures have been adopted inevery trial and appellate court, to provide for the prompt and equitable resolution of complaintsalleging any action prohibited by the Act. This information was conveyed to Matt Dietz on atleast two occasions. First, it is included on page 4 of my August 25, 2006, letter to Ed Lopackiwith a copy to Mr. Dietz (Attachment A). Apparently that letter was widely circulated within theDisability Independence Group (DIG) and the Equal Opportunities in the Law Section, since itwas quoted by EOLS members at their spring meeting. Second, during the November 29, 2006,meeting of the Court Accessibility Subcommittee, Matt Dietz was again informed of the StateCourts System's grievance procedme, via a slide show presentation (Attachment B).

AccoDUllod.tions for Attorneys with DiaabjJjueaAn issue that arises from time to time is the provision of accommodations for attorneys

who are not employed by the courts. It has long been the position of the Florida State CourtsSystem that Title II of the ADA does not require the cow1s to provide accommodations forindividuals who appear in the courtroom as part of their employment duties or professionalpractice. Based on the OSCA's analysis, we believe that responsibility rests with the employer orthe professional, pursuant to Title I of the ADA.

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The Honorable Lisa. DavidsonAugust 6, 2007Page 3

In May of this year, Laura Einstein and Phyllis Cohe~ attorneys with the U. S.r>eparbnent of Justice's Disabilities Rights Sectio~ served as faculty at four regional tIainingsessions sponsored by the Florida State Courts System. During the training sessions, Ms.Einstein and Ms. Cohen expressed the opinion that courtroom accommodations for attorneyswith disabilities are the employer's obligations pursuant to Title l, rather than the com system'sobligations pursuant to Title II. Matt Dietz and other members of the Disability IndependenceGroup attended the regional training sessions and therefore had the opportunity to hear theDepartment's position, which is contrary to Reginald Clyne's assertion at the spring EOLSmeeting that the federal regulations clearly require the courts to provide those accommodations.~e current [Florida] rule ... doesn't require the court system to make access for lawyers withdisabilities, which... the federal role requires." Courthouses Should Be More Accessible to theDisabl~ Florida Bar News, April 1, 2007.)

It should be noted that there is no case law on the application of the ADA with regard toaccommodations for attorneys, and that matter is currently pending in federal court.

If the State Courts System is not required by the ADA to accommodate attorneys withdisabilities, neither a change in court system policy nor an amendment to procedural court rolescould effectuate the change advocated by DIG and EOLS. It does not appear that Chapter 29,Florida Statutes, cwrently allows the expenditure of state funds for court disabilityaccommodations that are above and beyond the requirements of the ADA. In actual fact, thestate does not currently pay for all disability accommodations at the trial court level that ~required by the ADA. and those costs are borne by the counties (see Attachment C, Guidelines,Post-Revision 7 Funding Obligations for Court ADA Compliance). In order for the court systrmto be able to use state funds for accommodating attorneys with disabilities, amendments wouldbe n«,essary to substantive law and additional funding would also have to be secured.

Nevertheless, while we do not believe we are legally required to do so, the state comtsystem works with attorneys with disabilities and their employers to facilitate the provision ofreasonable accommodations in an efficient and cost effective manner. For example, the courtswould allow an attorney who needs a sign language interpreter to have his/her case heard first onthe docket, to avoid needless interpreter expense while waiting for the case to be called.

IMP r.m...fENT AnON OF THE AD A IN 11IE FLORIDA COURTSn.

The Americans with Disabilities Act (ADA) was enacted by Congress in 1990 to protectindividuals with disabilities from discrimin~tion in access to employment, governmental servicesand programs, public accommodations, transportation, and telecommunications. As stated in thelaw, the ADA is "an Act to establish a clear and comprehensive prohibition of discriminAtion onthe basis of disability." The ADA marks a milestone in our nation's quest to guarantee the civilrights of all citizens.

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OYerriew oftbe ADAThe Act has five titles, each of which defines and prohibits discrimination on the basis of

disability within a specific arena:

Title I applies to employment and provides protection for qualified applicants andemployees, including judges and court staff.Title II applies to programs and services of state and local governments, including thejudicial branch.Title ill applies to public accommodations and services operated by private entities.Examples include attorneys, mediators, physicians, hotels, transportation services,restaurants, stores, airlines, and shopping malls.Title IV applies to telecommunications.Title V contains miscellaneous provisions.

Title I - EmploymestThe purpose of Title I of the ADA is to ensure that all qualified individuals with

disabilities enjoy the same employment opportunities available to persons without disabilities.Generally speaking, Title I provides that no covered entity shall discrimi_nate against a qualifiedindividual with a disability, because of the disability of such individual, in regard to the jobapplication procedures; the hiring, advancement, or discharge of employees; employeecompensation; job ttaining; and other terms, conditions, and privileges of employment.

A "qualified individual with a disability" is an applicant or employee with a disability (asdefined by the Act) who satisfies the requisite skills, experience, and education requirements ofthe position the person holds or desires to hold, and who, with or without reasonableaccommodation, can perfOIUl the essential functions of the position. Essential functions are theprimary job duties intrinsic to the job. A reasonable accommodation is any modification oradjustment to a job, employment practice, or the work environment that makes it poSSlole for anindividual with a disability to enjoy an equal employment opportunity. Reasonableaccommodation is required in three areas: the application process; performance of the essentialfunctions of the job; and enjoyment of equal benefits and privileges of employment. Anemployer is not required to provide an accommodation that is unduly costly, extensive,substantial, or disruptive, or that would fundamentally alter the nature or operation of thebusiness.

The State Comis System recognizes our Title I obligations by providing accommodationsfor judicial officers and court employees. Examples include the provision of hearing systems forjudges (please note that a hearing system is distinct from a hearing aid, which is a personaldevice and therefore excluded under the ADA); modification of a work schedule to allow a courtemployee to go to doctor's appointments; provision of accessible parking; etc.


TiDe n - Access to State and Local Goyernment Services and ProgramsTitle n applies to programs and services of state and local governments, including the

judicial branch. Because more than four million cases are filed in Florida courts each year, Titlen by far accounts for the greatest nwnber of ADA requests received by the court system.

To be an individual protected by Title ll, the individual with a disability (disability isdefined as a mental or physical impainnent that substantially limits a major life activity) mustmeet the essential eligibility requirements for receipt of services or participation in a publicentity's program, activities, or services, with or without: (1) reasonable modifications to a publicentity's rules, policies, or practices; (2) removal of architectural, communication, ortransportation bmriers; or (3) provision of auxiliary aids and services. Title II entities are notrequired to take any action that would result in a fundamental alteration in the nature of a service,program, or activity, or take action that would result in undue financial and admini~trativeburdens. Public entities may not charge a fee or surcharge to the individual to cover the costs oflnaking its programs or services accessible.

The Florida State Col.uts System recognizes our Title n obligations by modifyjngpolicies, removing architectural or communication barriers, and providing auxiliary aids andservices for parties, jurors, witnesses, and others, as required by the Act. An example ofmodifying a policy is that although animals are prohibited in the courthouse, we would allow anindividual with a disability to be accompanied by a service animal. Removal of acommunication barrier might involve providing comt forms in large print, Braille, electronicformat, or some other accessible format. An example of an auxiliary aid or service was theprovision of a qualified American Sign Language interpreter for a juror who served on a four-week asbestos trial in south Florida, at a cost to the col.uts system of more than $25,000.

Architectural barriers in courthouse facilities are not addressed in this memorandum, butadditional information will be provided if requested by the Subcommittee.

Title m..- Access to Public Accommodations and Commercial FacilitiesWhile Title ill does not directly apply to the state courts, it occasionally impacts upon

co"lnt-related activities. Law offices, private mediators, parenting courses, traffic schools,counseling services, and other private businesses that provide court-related services areobligated, pursuant to Title ill, to make their services accessible to persons with disabilities. Themost frequent issue that arises in the court context relates to when an individual with a disabilityis seeking to access these services and the vendor attempts to assert that the court is responsiblefor the ADA accommodation necessary for the individual's participation. However, thoseaccommodations are the responsibility of the Title ill service provider.

Court ADA CoordinatorsA public entity that employs 50 or more persons is required to designate at least one

employee to coordinate its efforts to comply with its ADA responsibilities (see s. 35.107(a), 28CPR Part 35). The Florida courts have gone above and beyond this requirement Almostimmediately after passage of the Act, the Florida State Courts System established a network of


local court ADA coordinators. At least one court employee in each trial and appellate court isdesignated to serve as the ADA coordinator. There is also a team within the OSCA who havedeveloped ADA expertise in various areas, such as employment, program accessibility, andfacilities. The OSCA team members are available to assist the trial and appellate courts in regardto compliance with the Act.

Grievance ProceduresA public entity that employs 50 or more persons is required to adopt and publish

grievance procedures providing for prompt and equitable resolution of complaints alleging anyaction prohibited by the ADA (see s. 35. 1 07(a), 28 CFRPart 35). Very early on, a model courtgrievance procedure was developed by a statewide work group, and procedures weresubsequently adopted in every trial and appellate court.

Statewide Policie.f aDd GuideJioesThe Florida State Courts System has adopted a Statewide Poligy on Real-Time

Transcri~tion Services for Persons Who Are Deaf or Hard ofHearine:. The Florida cow1s alsofrequently refer to guidelines for Provision of Intemreters for Persons with Hearin2 ImDairmmts.which were developed in 1994 by the Supreme Court Committee on Court-Related Needs of theElderly and Persons with Disabilities. The OSCA developed guidelines on Titles I and n of theADA, for use by judges and court staff, and these publications have been widely distributed andare now included in the Judges Manual.

However, while the Florida court system has well-established policies and proceduresrelating to accommodating persons with disabilities who participate in state court activities, wedo not currently have a written comprehensive statewide policy. The lack of a writtencomprehensive statewide policy appears to be contributing to the confusion experienced byEOLS members, DIG members, and likely others as well. We have heard these concerns andhope to publish a Statewide Policy on Title II Accommodations for Court Participants withDisabilities later this year.

EOLS RULE PROPOSALill.

Geoers! Concerns. As further explained below, in a few instances the proposed role may violate federal civil

rights law.. In several instances the rule proposal is substantive in nature, rather than procedural.. Policy statements governing the operations of the State Courts System that are not

procedural matters are normally developed through the internal adm;nistrative process.. The role proposal is not consistent with existing State Courts system policy ~ in someinstances, directly contradicts court policy.

. Implementation of the rule would require amendments to the Florida Statutes.. Implementation of the rule would require additional court funding.

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. In developing this proposal, DIG and EOLS indicate they looked to the California rule asa model. In order to fully evaluate the EOLS proposal, it would be beneficial to receivethe following information:

- What is the evidence that the California rule results in more uniform/stmKIardaccommodations?- Why has the California role been modified so many times since 1995?

- Does California state law differ from Florida state law with regard to disabilityaccommodations provided by the courts and, if so, how?

~ What is the rationale for adopting the California role, rather than the U.S.Department of Justice model issued on December 5, 2006 (See Chapter 2 ofthe ADA Tool Kit, ADA Coordinator, Notice & Grievance Procedure:Administrative Requirements Under Title n of the ADA)?

SpedJic CommentfThe EOLS role proposal is set forth below, followed by OSCA comments in bold.

Requests for accommodations by persons with disabilitiesRule 2.065.

(a) Definitions. As used in this rule:

(1) .Persons with disabilities" means individuals covered by the Florida Civil Rights Act,§ 760 et seq.; the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.);or other applicable state and federal laws. This definition includes persons who have aphysical or mental impairment that limits one or more of the major life activities, have arecord of such an impairment, or are regarded as having such an impairment.

This language does not track the definition in the ADA andsubstantially expands the right to an accommodation by thecourts. According to the ADA, an impairment must"substantially" limit a major life activity in order to rise to thelevel of disability protected by the law.

The Florida constitution and statutes are very specific withregard to state and county financial obligations for ADA costs(see Attachment C). State law does not currently allow thecourts to expend state funds or to require the counties toexpend funds for accommodating persons who are notqualified individuals with disabilities pursuant to the ADA.Implementation of this section, which expands the number ofindividuals who would be entitled to an accommodation,would require a substantive change to the Florida Statutes, aswell as additional court funding through both the state andcounties.

'jf:Ir~J;~ (~(J~


Requiring court ADA coordinators and judges to determinewho meets the definition of disability under a multitude of"state and federal laws" would be extremely difficult andburdensome. Examples of the many laws that include adefinition of disability include: workers comp, social security,IDEA, Fair Housing, Civil Rights of Institutionalized PersonsAct, Air Carriers Access Act, etc.

(2) "Applicant" means any lawyer, party, witness, juror, or other person with an interestin attending any proceeding before any court of this state.

As discussed above, the current court system position andpolicy are that accommodations for attorneys are the primaryresponsibility of the employer pursuant to Title I rather thanthe courts pursuant to Title II. Presenting an argument beforean appellate court or conducting a hearing or trial is one of themost essential functions performed by an attorney.Accordingly, it is our position that the employer is financiallyresponsible for the reasonable accommodations an attorneywith a disability requires in order to effectively represent theclient in a court proceeding. Attorneys with the U.S.Department of Justice expressed the same opinion at fourregional training sessions sponsored by the Florida courts inMay. This issue is currently being litigated in federal court.

If the courts are not legally required to accommodateattorneys with disabilities, it is not within court discretion toexpend funds for that purpose. Implementation of thissection, as currently written, would require a substantivechange to the Florida Statutes, as well as additional courtfunding through either the state or counties.

(3) "Accommodations" means actions that result in court services, programs, oractivities being readily accessible to and usable by persons with disabilities.Accommodations may include making reasonable modifications in policies, practices,and procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids andservices, equipment, devices, materials in alternative formats, readers, or certifiedinterpreters for persons with hearing impairments; relocating services or programs toaccessible facilities; or providing services at alternative sites. Although not requiredwhere other actions are effective in providing access to court services, programs, oractivities, alteration of existing facilities by the responsible entity may be anaccommodation.


The ADA does not require "certified" interpreters; it requires"qualified" interpreters. As previously discussed, the Floridacourts have guidelines on the use of sign languageinterpreters. There is a scarcity of sign language interpretersin our state. Requiring the use of certified interpreters in allsituations - including outside the courtroom - may limit thepool of available qualified interpreters, increase the cost ofsign language interpreter services, unintentionally hinder thepossible use of video interpreting, and unreasonably delay thoprocessing of court cases.

There are also various F.forida initiatives underway relating tothe qualifications of sign language interpreters (proposedlegislation for registration/oversight, Florida CoordinatingCouncil for the Deaf and Hard of Hearing Legal Task Force,internal court review of sign language contracting practices,internal court evaluation of the use of video interpreting insome court situations, etc.).

For these reasons, the proposed rule's change to currentpolicy on interpreters is not recommended at this time.

Additionally, the term "hearing impairmenf' is outdated andconsidered offensive by some. The more current terminologyis "deaf or hard of hearing" rather than "hearing impairments."

(b) Policy. It is the policy of the courts of this state to ensure that persons withdisabilities have equal and full access to the judicial system. To ensure access to thecourts for persons with disabilities, each superior and appellate court must delegate atleast one person to be the ADA coordinator, or designee to address requests foraccommodations. This rule is not intended to impose limitations or to invalidate theremedies, rights, and procedures accorded to persons with disabilities under state orfederal law.

Policy statements governing the operations of the StateCourts System that are not procedural matters are normallydeveloped through the internal administrative process, ratherthan a Florida Bar section.

Florida obviously does not have "superior" courts, so thatwould need to be corrected.

(c) Notice Requirement: All notices of court proceedings to be held in a public facility,and all process compelling appearance at such proceedings, shall include the following:

\5'fC':..y..A-~J-,~ (


"If you are a person with a disability who needs any accommodation in order toparticipate in this proceeding, you are entitled, at no cost to you, to the provision ofcertain assistance. Please contact [identify applicable court personnel by name,address, and telephone number] within 5 working days of your receipt of this [describenotice]; if you are hearing or voice impaired, call 711."

This proposed change could result in operational problems.In some instances, because of the nature of trial advocacy,subpoenas and notices of hearing are served very close to therequested appearance date. It is my understanding that RJAadopted the current rule language ("within 2 working days") inrecognition of the time sensitivity involved with subpoenasand notices of hearing. If the time frame is changed andindividuals are asked to contact the ADA coordinator "within 5working days of receipt" and the hearing is scheduled to goforth three days from the person's receipt of the subpoena, itmay lead to confusion or operational difficulties.

(c) Process for requesting accommodations. The process for requestingaccommodations is as follows:

(1) Requests for accommodations under this rule may be presented ex parte on a formapproved by the Florida State Courts ADA Administrator, in another written format, ororally. Requests must be forwarded to the ADA coordinator, or designee, within the timeframe provided in (c)(3).

(2) Requests for accommodations must incsought, along with a statement of the impaiThe court, in its discretion, may require theabout the impairment.

(3) Requests for accommodations must be made as far in advance as possible, and inany event must be made no fewer than 5 court days before the requestedimplementation date. The court may, in its discretion, waive this requirement.

(4) The court must keep confidential all information of the applicant concerning therequest for accommodation, unless confidentiality is waived in writing by the applicantor disclosure is required by law. The applicant's identity and confidential informationmay not be disclosed to the public or to persons other than those involved in theaccommodation process. Confidential information includes all medical informationpertaining to the applicant, and all oral or written communication from the applicantconcerning the request for accommodation.

(d) Permitted communication. Communications under this rule must address only

lude a description of the accommodationrment that necessitates the accommodation.applicant to provide additional information

The Honomble Lisa DavidsonAugust 6, 2007Page 11

the accommodation requested by the applicant and must not address, in anymanner, the subject matter or merits of the proceedings before the court.

(e) Response to accommodation request. The court must respond to a request foraccommodation as follows:

(1) The court must consider, but is not limited by. the Florida Civil RightsAct section 760 et seq., the provisions of the Americans with Disabilities Actof 1990, and other applicable state and federal laws in determining whether toprovide an accommodation or an appropriate alternative accommodation.

(2) The court must inform the applicant in writing, as may be appropriate, andif applicable, in an alternative format, of the following:

(A) That the request for accommodation is granted or denied, in whole or inpart, and if the request for accommodation is denied, the reason therefore; orthat an altemative accommodation is granted;

(8) The nature of the accommodation to be provided, if any; and

(C) The duration of the accommodation to be provided.

(f) Denial of accommodation request. A request for accommodation may be deniedonly when the court determines that:

(1) The applicant has failed to satisfy the requirements of this rule;

(2) The requested accommodation would create an undue financial oradministrative burden on the court; or

(3) The requested accommodation would fundamentally alter the nature of theservice, program, or activity. .

(g) Review procedure

(1) An applicant or any participant in the proceeding in which an accommodationrequest has been denied or granted may seek review of a determination made bynonjudicial court personnel within 10 days of the date of the response bysubmitting, in writing, a request for review to the chief judge of the circuitor designated judicial officer.

(2) An applicant or any participant in the proceeding in which an accommodationrequest has been denied or granted may seek review of a determination made by apresiding judge or another judicial officer within 10 days of the date of thenotice of determination by filing a petition for extraordinary relief in the

(, &Q,L 17f}- ~ J-- ")C


applicable district court of appeal.

(h) Duration of accommodations The accommodation by the court must be providedfor the duration indicated in the response to the request for accommodation andmust remain in effect for the period specified. The court may provide anaccommodation for an indefinite period of time, for a limited period of time, orfor a particular matter or appearance.

The Florida court system has administrative procedures foraccommodating persons with disabilities, and this ruleproposal does not accurately reflect those procedures.Procedures governing the operations of the State CourtsSystem that are not procedural matters are normallydeveloped through the internal administrative process.

Requiring persons with disabilities to complete a written formis problematic. How would they obtain the form in a timelyfashion, if they have no fax, email, or Internet connection?How would they complete the form if they cannot see or write,etc. (they would require assistance from court staff, whichincreases the workload impact)? Also, how would they returnthe completed form to the court in a timely fashion? TheFlorida courts are not receiving public complaints indicatingthat people with disabilities would prefer a cumbersomewritten forms process over their current ability to call andrequest an accommodation.

Requiring a written determination of an accommodation by thecourt in every instance poses an additional burden on scarcecourt resources. The ADA only requires a writtendetermination if the court determines not to provide anyaccommodation.

. Confidentiality is not required by Title II of the ADA;accordingly, the confidentiality provision in the EOLS proposalwould violate Florida public records requirements. Thus, astatutory amendment would be required for implementation ofthis proposal.

Federal civil rights law (the ADA) does not allow the courts todeny a valid request for accommodations merely because theperson "failed to satisfy the requirements of the rule."Examples of ways an individual may fail to comply with theprovisions of the rule proposed but that would not render

if6'~


him/her ineligible for an accommodation include: violating theprohibition against addressing the merits of the case whendiscussing an accommodation, failure to request theaccommodation in advance, failure to complete the form, etc.Implementation of this recommendation would expose theFlorida courts to substantial liability risk.

Additionally, (c)(3) states that requests for accommodations"must be made no fewer than 5 court days before therequested implementation date." This appears to be contraryto notice language in the preceding section of the proposedrule. Additionally, this time frame is not consistent with DOJguidance. The U.S. Department of Justice model noticelanguage recommends requesting that the individual contactthe public entity as soon as possible, but "no later than 48hours before the scheduled event" See Chapter 2, ADA ToolKit, ADA Coordinator, Notice & Grievance Procedure:Administrative Requirements Under Title II of the ADA athttD :/Iwww. usdoi.aov/crt/ada/Dcatool kitlcha D2toolkit htm.

As stated above, the Florida court system long agoestablished an administrative grievance procedure. The EOLSproposal recommends replacement of the existing grievanceprocedure with the ability to appeal an ADA accommodationdecision to a judge or to the DCA. The State Courts Systemhas no legal authority to create a new cause of action. Thatwould require changes to substantive Florida law, as well asadditional court funding.

Based on my preliminary review, it appears that the existingState Courts System grievance procedures more closely alignwith the DOJ model issued in December 2006 than does theEOLS proposal.

Additionally, I do not believe the ADA would allow agrievance/appeal by anyone except the person with adisability. Nor do I understand the rationale of allowing theopposing party or others to appeal an accommodation that isprovided for a person with a disability. This recommendationexposes the Florida courts to substantial liability risk.

\Ct@--yCooff)r~ J', ~


CONCLUSIONSIV.

The OSCA intends to publish a written Statewide Policy on Title n Accommodations forCourt Participants with Disabilities later this year. Once that policy has been distributed, theRules of Judicial Administration Committee may wish to evaluate whether it is appropriate ornecessary to adopt a role that tracks court policy.

I appreciate this opportunity to provide input to the Subcommittee's important work andhope this memorandum is responsive to your inquiry. If the Subcommittee has any questions orwould like finther information on a particular matter, please let me know.

Enclosures

cc: Lisa Goodner, State Coln't9 AdministratorLaura Rush, General Counsel, Office of the State Courts Arlmini~tor

z.o,~

LAW OFFICES OF

MATTHEW W. DIETZ, P .L,2990 Southwest 35th Avcnue

Miami, FLORIDA 33133

MA 1THEW W. D IETZSTEPHANIE L LANGERMICHAEL D. WALRATH

TELEPHONE (305) 669-2822FACSIMILE (305) 442-4181

TIY (786) 621-5647

E-MAIL [email protected]

August 29,2007

Judge Lisa Davidson, ChairRJA Subcommittee DCircuit Court, 18th Judicial Circuit2825 Judge Fran Jamieson WayViera, FL 32940

Re: EOLS proposal regarding rules for accommodation for persons "'ith disabilities

Dear Judge Davidson,

Thank you for forwarding the memorandum of Ms. Howell of the Office of State CourtAdministration (OSCA) to my attention. With regard to Ms. Howell's objections, there are someaspects of which I agree and others which I disagree. For the benefit of the committee, wesubmit this memorandum involving the erroneous legal position of OSCA and the compellingimportance for this rule change to guaranty the rights of persons with disabilities in the State ofFlorida. .

I. The Americans w'ith Disabilities Act applies to all persons w'ho use the programand sen'ice of a governmental entit),

The operative portion of Title II of the Americans with Disabilities Act, provides as follows:

Subject to the provisions of this subchapter, no qualified individual with adisability shall, by reason of such disability, be excluded from participation in orbe denied the benefits of services, programs, or activities of a public entity, or besubjected to discrimination by any such entity.

42 V.S.C. 12132. Congress intended that this Act have a broad reach and in the Act and theregulations under this Act limit the scope of the protection to any category or profession of theuser of the program or service of a public entity. The only limitations that limit a public entity'sobligation to include a person with a disability is when providing such service would constitute a"fundamental alteration in the nature of a service, program, or activity or in undue financial andadministrative burdens." 28 C.F.R. 35.164 or 28 C.F.R. 35.150. To determine whether providing

(j~..1

Judge Lisa DavidsonAugust 28, 2007Page 2 of 9

a sign language interpreter or other communication aid is required to be produced, the standardto determine such burden is as follows:

In those circumstances where personnel of the public entity believe that theproposed action would fundamentally alter the service, program, or activity orwould result in undue financial and administrative burdens, a public entity has theburden of proving that compliance with this subpart would result in such alterationor burdens. The decision that compliance would result in such alteration orburdens must be made by the head of the public entity or his or her designee afterconsidering all resources available for use in the funding and operation of theservice, program, or activity and must be accompanied by a written statement ofthe reasons for reaching that conclusion. If an action required to comply with thissubpart would result in such an alteration or such burdens, a public entity shalltake any other action that would not result in such an alteration or such burdensbut would nevertheless ensure that, to the maximum extent possible, individualswith disabilities receive the benefits or services provided by the public entity.

28 CFR 35.164. As such, the standard for detennining a fundamental alteration or an undueburden is extremely high.

II. Courthouses

Courthouses are the locations in which individual citizens often have their most important andextensive contacts with the government. Wherever located, courthouses sit at the nexus of anarray of rights and obligations of citizenship, including the opportunity to seek redress aslitigants, to testify as witnesses, to participate as jurors, and to observe proceedings as membersof the interested public. When a state's courthouses are inaccessible to individuals withdisabilities, the state's actions effectively create a class of persons who are denied access to coreprivileges of citizenship. Such a result is intolerable under a Constitution that 'I' neither knowsnor tolerates classes among citizens. "'Romer v. Evans, 517 U.S. 620, 623; 116 S. Ct. 1620; 134L. Ed. 2d 855 517 U. S. (1996)(quoting Ples.'iY v. Ferguson, 163 U. S. 537, 539 (1896) (Harlan,J., dissenting)); cf. Saenz v. Roe, 526 U.S. 489, 506-07, 119 S. Ct. 1518; 143 L. Ed. 2d 689(Fourteenth Amendment's Citizenship and Privileges or Immunities Clauses do not allow fordegrees of citizenship or a hierarchy among citizens).

In fact, since 1994, the Department of Justice, the enforcing authority under the Americans withDisabilities Act (beside the private bar) has resolved over 100 cases with court systems acrossthe country. Attached hereto is a synopsis of many of the actions reported by the Department ofJustice describing the relief obtained in these cases. Many of the cases that involved solelyarchitectural barriers I removed and left only those cases that involved policies and procedures orprovision of auxiliary aids or services.

Ms. Howells advises that two attorneys from the disability rights section opined on the opinionof the Department of Justice on this issue. The Department of Justice has never issued anyfonnal or infonnal guidance on this issue, and the Department of Justice attorneys differ on thisissue as well. Last week, at the Florida Coordination Council For The Deaf And Hard Of

Law Offices of Matthew Dietz, P .L.*2990 Southwest 35111 A venue*Miami, Florida 33133Prfl~.);')( c I G>~ .2;2.


Hearing, Task Force Meeting On August 22, 2007, the following was stated by DOJ DisabilityRights Section Attorney Robert Mathers:

GEORGE RICHARDS: I'm a lawyer here in Florida, and I was told by arepresentative from DOl that a deaf attorney, a private attorney, if he goes tocourt representing a client, the court does not have to -- sorry. The court does nothave to provide CART, interpreters. He has to pay for that himself because he isa private individual.

And I asked about the rationale, and I was told, "Well, an attorney canafford to pay for those things," which is not true. If he is a deaf attorney inFlorida self-employed, he is probably one of the lowest-paid attorneys in Florida.

So my question is, is that really DOl's policy that the attorney does have topay for his own real time transcription, CART, interpreters if he is a privately-employed individual?ROBERT J. MATHER: DOJ has not made anv decision on that issue vet.To this point, DOl's position has been that the la\\tyer's employer was responsiblefor the accommodation. So if you had an attorney who worked for a state agency,let's say, like the public defender's office, suppose. And that the public defenderor that particular attorney was deaf, then the public defender's office would needto provide the accommodation. We have not reallv addressed situations likeYOU brou2ht UO. like if vou have a sole oractitioner. We have not vetaddressed that issue.

Next?DENISE WHISENANT: Adding to his question. Even though you say that theyhaven't addressed that issue yet, if it's an attorney, let's say, in private practice,one individual, wouldn't I think it would be Title III that would say 15 employeesor more you are required to supply a combination? One person doesn't meet thatI5-person requirement, and one person you should not be required toaccommodate yourself. And even if it's a private firm or an employer and they donot have 15 or more employees, isn't that a conflict?ROBERT J. MATHER: Employment issues apply to law firms that hire personswith disabilities. That is an employment practice issue.

So reasonable accommodations involving an employee is one issue.When you're talking about having access to a private service, like if I wanted tohave access to a private attorney to discuss a will, that would be a Title III case.When you are talking about access to the court, that's still a Title II issue. So hisoriginal question deals with access to the courts. So the Question is whether thecourts are reQuired to orovide an internreter for an attornev with a disabilityas Dart of access to the courthouse. We have not vet addressed that issue.

But suppose that if we look at it to this date, who takes the leadresponsibility if there is a law firm with 15 or more employees, or a state or localagency that hires an attorney, that employer would be required to provide aninterpreter or auxiliary aid for access to the courthouse.

Law Offices of Matthew Dietz, P.L.*2990 Southwest 35th Avenue*Miami, Florida 33133&Ir ~l~'X' C I <9~ .13


But like I said we have not addressed that issue other than what we've-- -- --- --done all alon2.

I have a lot of information about detention centers and jails as well. Wehave guidance for access to detention programs. Also dealing with workshopsthat are required. We had one case that involved a contract with a hospital wherethey sent an inmate for medical treatment, and that hospital refused to provideSign Language interpreters.

The county basically said, "Well, it's not my fault. That's the hospital'sproblem because they refused to provide an interpreter."

But what we told the county is, "You have the obligation as thecorrectional facility, you must make sure that your agreement with the hospitalclarifies that. And if they refuse to take the kind of action that you've requiredthem to take to be compliallt, you must terminate your relationship with thatprivate entity."

The only item that is clear is that the Department of Justice has not addressed that issue yetrelating to attorneys. It is clear from the attached actions of the Department that they haveapplied the law to all users of the Court system and have not discriminated against a personsolely on the basis of the type of user of the program or service of the Court, or the type ofdisability .

One of the first enforcement actions reported by the Department of Justice is in 1994 against theSixth Circuit which provided as follows:

Pinellas County, Florida -- The Sixth Judicial District of Floridaentered into an agreement requiring the courts in that district toestablish a written policy on providing qualified interpreters forparticipants, including parties, witnesses, jurors, and spectators,who are deaf or hard of hearing; secure the services of a qualifiedinterpreter when necessary to ensure effective participation; notifythe public about the policy; and inform and instruct all appropriatedistrict court officials to comply with the policy,)

Notwithstanding the seventeen years after the enactment of the ADA and the 13 years after thisagreement, there still is no recognition by the Courts that a written policy is required to provideinterpreters for all participants of the process and provide a grievance process to addressviolations of the law,

m. Tennessee v. Lane, 541 U.S. 509; 124 S. Ct. 1978; 158 L. Ed. 2d 820 (2004)

Tennessee v. Lane was the Supreme Court confirmation of Congresses broad intent that stategovernments are not immune from suits under Title II under the 11 th Amendment and that Title

II of the ADA can be applied to state court systems.

1 As a result, the Sixth Circuit published Administrative Order No. P A/PI-CIR-96-61 S1786061,

and includes "party, witness, juror, or spectator",

Law Offices of Matthew Dietz, P.L.*2990 Southwest 35th Avenue*Miami, Florida 33133

A-~.);~ C") ~'1L)"'\

Judge Lisa DavidsonAugust 28, 2007Page 5 of9

Title II's requirement of program accessibility, is congruent andproportional to its object of enforcing the right of access to thecourts. The unequal treatment of disabled persons in theadministration of judicial services has a long history, and haspersisted despite several legislative efforts to remedy the problemof disability discrimination. Faced with considerable evidence ofthe shortcomings of previous legislative responses, Congress wasjustified in concluding that this "difficult and intractableproble[m] " warranted "added prophylactic measures in response."

541 U.S. at 532; 124 S. Ct. at 1993; 158 L. Ed. 2d at 842. In~, the Court recognizedhistorical discrimination against persons with disabilities in the courts, voting, education, andother functions of local and state government. However, since Lane involved court services, it isimportant for our use to examine the parties in cases joined with Ms. Jones' and Mr. Lane's casewho were entitled to an accommodation under the law.2

1 George Lane is a paraplegic man who was a defendant in a criminalproceeding.

2. Beverly Jones has paraplegia and uses a wheelchair for mobility. Sheworks for parties to judicial proceedings as a certified court reporter, butbecause courthouses in many Tennessee counties are inaccessible, heropportunity to perform her work has been significantly impeded

3. Ann Marie Zappola has a spinal cord injury that makes it extremelypainful if not impossible for her to climb stairs. In two cases in 1997and 1998 (a civil proceeding in which she was a defendant, and a juvenileproceeding in which she was the complainant), Zappola was forced toclimb the steps to the third floor of the courthouse to attend proceedings.

4. Ralph E. Ramsey, who has a venous condition that makes him unable toclimb stairs, was likewise a defendant in a civil proceeding. When hearrived at the courthouse for a hearing on that case in 1995, Ramseydiscovered that the courtroom was located on the second floor, up a flightof stairs; although Ramsey sent word that he was in the courthouse butcould not get to the courtroom, the trial court entered judgment againsthim for failure to appear.

5. Dennis Cantre.I, who has paraplegia, was forced to crawl up the stairs ofthe courthouse to attend a County Commission meeting

6. Russell Larson, an attorney with a condition that makes it "difficult toimpossible to climb stairs," was required to provide pretrial representationto his clients in first-floor courthouse hallways and was unable to provideeffective representation to clients whose cases went to trial.

1 See the Brief of the Private Respondents, Tennessee v. Lane,

Law Offices of Matthew Dietz, P.L.*2990 Southwest 35th Avenue*Miami, Florida 33133Pr~~} "7< (, 6'-"'~ :2.,


Lane involved not only a right of a defendant to be able to participate in the legal process, it alsoinvolved the right of a whole range of participants, including a civil litigant, a criminaldefendant, a spectator, a court reporter, and an attorney.

There is no reason to deny access to the court for any citizen. There is no question that denyinga person an accommodation due to their disability thereby preventing a full and fair opportunityto participate in a proceeding may constitute a violation of due process under the XIVAmendment. Further, as Mr. Russell Larson's experience demonstrates inaccessible courts canalso deny criminal defendants who choose to be represented by attorneys with disabilities theirSixth Amendment right to the counsel of their choice. See, e. g., Wheat v. United States, 486 U.S. 153, 159 (1988).

As demonstrated in the settlements with the Department of Justice, as noted in the appendixattached hereto, the settlements do not distinguish between the users of the facilities, whether thespectator is a parent or child of a litigant, or even a spectator. Even those who are spectators arecovered. In the 1994 amendment to the technical assistance manual for Title II of the ADA, theDepartment of Justice specifically addressing the rights of spectators

II- 7.1000 Equally effective communication.

The obligation of public entities to provide necessary auxiliary aids and servicesis not limited to individuals with a direct interest in the proceedings or outcome.Courtroom spectators with disabilities are also participants in the court programand are entitled to such aids or services as will afford them an equal opportunityto follow the court proceedings.

ILLUSTRATION: B, an individual who is hard of hearing, wishes to observeproceedings in the county courthouse. Even though the county believes that B hasno personal or direct involvement in the courtroom proceedings at issue, thecounty must provide effective communication, which in this case may involve theprovision of an assistive listening device, unless it can demonstrate that unduefInancial and administrative burdens would result.

1994 Supplement to the Technical Assistance Manual, § 11-7.1000.

When gadflies are allowed to have accommodations, it is difficult to understand how directparticipants and officers of the court are not allowed accommodations, if they do not providesuch accommodations at their own expense.

As noted above, it is a clear violation of the Sixth Amendment to refuse to allow a defendant toselect a counsel of his choice solely as a result of his counscl's disability. Further, OSCA'sposition that it is a Title I accommodation is an argument without merit, as most private legalemployers are not encompassed within Title I. Title I defmes an employer as an entity with atleast fifteen employees in each of 20 or more calendar weeks in the current or preceding calendaryear. 42 V.S.C. § 12111(5). Further, the law with regards to the number of employees forprofessional associations is murky as partners may not be considered within the 15 person

Law Offices of Matthew Dietz, P.L,.2990 Southwest 35th Avenue*Miami, Florida 33133A-~ J\1C Co, (j~ 2'


threshold. See Clackamas Gastroenterolol2.v Assoc. v. Well~, 538 U.S. 440, 123 S. Ct. 1673, 155L.Ed. 2d 615 (2003).

IJI: Grievance procedures

Notably in OSCA's memorandum, nor in the letter from Debbie Howells to Ed Lopacki, there isno cite nor describe the any grievance procedures in any circuit. While each circuit has an ADAcoordinator, I was unable to find any grievance procedure compliant with 28 C.F.R.35.107(b)("Complaint procedure. A public entity that employs 50 or more persons shall adoptand publish grievance procedures providing for prompt and equitable resolution of complaintsalleging any action that would be prohibited by this part.") According to the guidance on theregulation, such grievance procedures should provide for a mechanism for resolution ofcomplaints at the local level without requiring the complainant to resort to the Federal complaintprocedures.

As a result of Ms. Howells letter, I visited with the ADA coordinator for the 11 th Judicial Circuit.While the 11 th Judicial Circuit is very accommodating for persons with disabilities, there is no

official mechanism for grieving decisions made by the ADA coordinator. Further, OSCA admitsthat it does not have such a procedure which is mandated by Title II. The fact that OSCA planson publishing a policy on accommodations does not address the requirement for written andpublished grievance policies that litigants can use.

The fact that there is not a grievance procedure is of massive importance as this involved accessto the court which is an issue of due process and must have an immediate remedy available. Allother public entities with 50 or more employees are required to have a grievance procedure underthe ADA. However, the importance the law places on grievance procedures relates to employerswho are subject to equal employment opportunity laws, most employers have strong EEOpolicies that have an internal grievance procedure as endorsed by the U.S. Supreme Court inFaragher v. City a/Boca Raton, 524 U.S. 775, 806-807 (1 998)("An employer may, for example,have provided a proven, effective mechanism for reporting and resolving complaints of sexualharassment, available to the employee without undue risk or expense. If the plaintiffunreasonably failed to avail herself of the employer's preventive or remedial apparatus, sheshould not recover damages that could have been avoided if she had done so. If the victim couldhave avoided harm, no liability should be found against the employer who had taken reasonablecare, and if damages could reasonably have been mitigated no award against a liable employershould reward a plaintiff for what her own efforts could have avoided.")

While grievance procedures are not required under Title II of the ADA, damages are minimizedif such preventive actions are not taken.

v. OSCA's specific comments

There is no question that Florida Courts provide thousands of accommodations per year forpersons with disabilities. The issue remains that the decision whether or not to grant a disability,and to whom the disability should be granted is an ad hoc decisions.

Law Offices of Matthew Dietz, P.L.*2990 Southwest 35th Avenue*Miami, Florida 331334861""'-~" )I. C. Ij ~ ~..,


. There is no question that the rule can be revised to refer to the definitions in the ADArather than restate the definitions therein

. Certified interpreters would guaranty a certain level of proficiency for courtproceedings where important rights are at issue. Further, Rule 2.560, Rules of JudicialAdministration provides "Whenever possible, a certified or duly qualified interpreter,as defmed in the Rules for Certification and Regulation of Court Interpreters, shall beappointed."

. The policy section tracks the ADA regulations with regards to a complainant not beinglimited to state procedures, but also other legal rights.

. With regard to the difference between five working days and two working days, EOLShas no problem to raise the obligations of the Court if such obligation will not cause anoperational difficulty.

. The request for accommodation may be oral or written, as stated in the proposed rule,however, written documentation of the provision of an accommodation is to ensure thatthere is some basis to grieve the decision of the ADA coordinator, or also to protect thecourt system against allegations that they refused to offer any accommodations, wherethere is clearly a record of an offer.

Confidentiality would protect the confidential medical information of a requestor of anaccommodation. If adopted, EaLS plans on submitting a request to the legislature toamend Section 119.07 to add such private medical information to the list of othersimilar medical information that is held not subject to public disclosure.

.

VI. Conclusion

For the past 17 years, there has been no published policies from OSCA regarding a "writtenstatewide policy on the accommodations for court participants with disabilities" and nogrievance procedure as required by Title II of the ADA. Furthermore, a written statewide policydoes not have the effect of an administrative rule and is not binding upon parties, attorneys,litigants, or spectators and not enforceable. The Rules of Judicial Administration contain allsimilar rules regarding ensuring that persons who speak languages other than English obtaininterpreters, ensures that communication equipment is used to allow attorneys or parties toappear, ensures that court reporting is uniform and accurate, and other issues that facilitate theorderly work of the court. There is no reason why accommodating persons with disabilities doesnot merit equal treatment and is only limited to a non-binding policy on accommodations with nogrievance procedures.

We do, however, agree that the rule can be simplified and split into three different rules in theinterests of brevity, right to make a request and notice, procedure for making a request, andgrievance procedures.

Law Offices of Matthew Dietz, P.L.*2990 Southwest 35th Avenue*Miami, Florida 33133A~j\'II (, 9~ )&'"

Judge Lisa DavidsonAugust 28, 2007Page 9 of9

I would be happy to respond to any questions during the meeting next Thursday.

Very truly yours,

sl Matthew W. Dietz

Matthew W. Dietz

cc:

George Richards, EOLSReggie Clyne, EOLSHarley Herman, EOLSDebbie HowellsMembers of the Workgroup for RJA Subcommittee DRene Wollenhaus, DOl Disability Rights Sectionlan Pudlow, Florida Bar NewsCraig Shaw, Florida Bar

Law Offices of Matthew Dietz, P.L.*2990 Southwest 35th Avenue*Miami, Florida 33133A ~d jx- CJ &cf jt: ')q

"Matthew Dietz"<[email protected]>

09/20/200712:34 PM

To <[email protected]>

cc

bcc

Subject New Rule 2.065

HIStOry: ~ This message has been replied to.

Craig - this is the latest draft of the proposed rule. I am still getting comments from my Section, but, otherthan gramatical issues, this may be close to it. I made it so much shorter. What do you think?

Old rule:

RULE 2.065. NOTICES TO PERSONS WITH DISABILITIES

All notices of court proceedings to be held in a public facility, and all process compellingappearance at such proceedings, shall include the following:

"If you are a person with a disability who needs any accommodation in order to participate in thisproceeding, you are entitled, at no cost to you, to the provision of certain assistance. Pleasecontact [identify applicable court personnel by name, address, and telephone number] within 2working days of your receipt of this [describe notice]; if you are hearing or voice impaired, call711."

Proposed Amended/or New Rule:

Rule 2.065. Requests for accommodations by persons ~'ith disabilities

(a) General Rule: Qualified individuals with a disability will be provided, at the court's expense,accommodations, reasonable modifications to rules, policies, or practices, or the provision ofauxiliary aids and services, in order to participate in programs or activities provided by the courtsof this state.

(b) Definitions: The definitions encompassed in the Americans with Disabilities Act of 1990,42 V.S.C. § 12201, et seq., are incorporated into this Rule.

(c) Notice Requirement:(1) All notices of court proceedings to be held in a public facility, and all processcompelling appearance at such proceedings, shall include the following:

"If you are a person with a disability who needs any accommodation in order toparticipate in this proceeding, you are entitled, at no cost to you, to the provision ofcertain assistance. Please contact [identify applicable court personnel by name, address,and telephone number] within two (2) working days of your receipt of this [describenotice]; if you are hearing or voice impaired, call 711."

?o/)-ttr'-"'-~ ~I ~ C G7

(2) Each circuit shall publish in each court facility the procedure for obtaining anaccommodation as well as the grievance procedure adopted by each circuit.

(d) Process for requesting accommodations. The process for requesting accommodations is asfollows:

(1) Requests for accommodations under this rule may be presented ex parteon a form approved by the Florida State Courts ADA Administrator, in another writtenformat, or orally. Requests must be forwarded to the ADA coordinator, or designee,within the time frame provided in 2.065(c).(2) Requests for accommodations must include a description of the accommodationsought, along with a statement of the impairment that necessitates the accommodationand the duration that the accommodation is to be provided. The court, in its discretion,may require the applicant to provide additional information about the impairment.(3) Requests for accommodations must be made as far in advance as possible, and inany event must be made no fewer than two court days before the requestedimplementation date. The court may, in its discretion, waive this requirement.(4) The court must keep confidential all information of the applicant concerning therequest for accommodation, unless confidentiality is waived in writing by the applicant ordisclosure is required by law. The applicant's identity and confidential information maynot be disclosed to the public or to persons other than those involved in theaccommodation process. Confidential information includes all medical informationpertaining to the applicant, and all oral or written communication from the applicantconcerning the request for accommodation.

(e) Permitted communication. Communications under this rule must address only theaccommodation requested by the applicant and must not address, in any manner, the subjectmatter or merits of the proceedings before the court.

(f) Response to accommodation request. The court must respond to a request foraccommodation as follows:

(1) The court must consider, but is not limited by the provisions of the Americanswith Disabilities Act of 1990 in determining whether to provide an accommodation or anappropriate alternative accommodation.(2) The court must ilUorm the applicant in writing, as may be appropriate, and ifapplicable, in an alternative format, of the following:

(A) That the request for accommodation is granted or denied, in whole or inpart, and if the request for accommodation is denied, the reason therefore; or thatan alternative accommodation is granted;(B) The nature of the accommodation to be provided, if any; and(C) The duration of the accommodation to be provided.

(g) Denial of accommodation request. A request for accommodation may be denied only whenthe court determines that:

(1) The applicant has failed to satisfy the requirements of this rule;(2) The requested accommodation would create an undue financial or administrative

burden on the court; or(3) The requested accommodation would fundamentally alter the nature of theservice, program, or activity.

(h) Review procedure(1) Each circuit shall establish and publish a grievance procedure in where a

person denied an accommodation could request a review of such decision.(2) If such grievance involves a matter that effects the orderly administration

of justice or a person's due process rights, such grievance will receive expedited reviewand brought to the immediate attention of the chief judge of the circuit.

Explanation and legal justificatio

The purpose of this amended rule is to insure full compliance with Title II ofthe Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, and to promoteAccess to the Courts, Article I, § 21, of the Florida Constitution. Thepublic policy of the State of Florida and the Supreme Court of Florida is toensure that persons with disabilities receive full and equal access to thebenefits of the services, programs, or activities of the Florida Courts.Current Florida Rule § 2.065 regarding "notice for persons with disabilities"fails to adequately define (1) a process in which a person with a disabilitymay request an accommodation to attend or participate in judicial proceedings,(2) the types of accommodations that may be obtained; and (3) reviewprocedures if an accommodation is refused.

It is the policy of the courts of this state to ensure that persons withdisabilities have equal and full access to the judicial system. To ensureaccess to the courts for persons with disabilities, each superior andappellate court must delegate at least one person to be the ADA coordinator,or designee to address requests for accommodations. This rule is not intendedto impose limitations or to invalidate the remedies, rights, and proceduresaccorded to persons with disabilities under state or federal law.

In Tennessee v. Lane, 541 U.S. 509; 124 S. Ct. 1978; 158 L. Ed. 2d 820 (2004),the United States Supreme Court found that Title II of the ADA can be appliedto state court systems.

Title II's requirement of program accessibility, is congruent and proportionalto its object of enforcing the right of access to the courts. The unequaltreatment of disabled persons in the administration of judicial services has along history, and has persisted despite several legislative efforts to remedythe problem of disability discrimination. Faced with considerable evidence ofthe shortcomings of previous legislative responses, Congress was justified inconcluding that this "difficult and intractable proble [m]" warranted "addedprophylactic measures in response."

541 U.S. at 532; 124 S. Ct. at 1993; 158 L. Ed. 2d at 842. With regard toTitle II, the Department of Justice established regulations required by apublic entity to comply with the Americans with Disabilities Act in order toafford an equal opportunity for all to participate in the program offered.The four areas in which the ADA applies are (1) notice to the public regardingaccommodations; (2) a person who is designated as the coordinator with regardto disability related concerns; (3) a procedure for obtaining accommodations;and (4) a complaint procedure if the person with a disability believes that heor she does not receive an appropriate accommodation.

tJ.~~ I"> c9A?- )).

The proposed rule change arises from a two year study including a recentsurvey of lawyers with disabilities conducted by the Disability IndependenceGroup which was conducted in collaboration with the Florida Bar. Surveyresults indicate that approximately thirty percent of applicable respondentshad policy, practice or procedural issues in the court system that denied themequal access to the court system. This includes as follows: judges notallowing attendance by telephone; lack of flexibility in scheduling; refusalto pay for interpreters; the general practice of requiring a lawyer to standin court; refusal to have a fragrance-free policy and refusal to accommodate achemical sensitivity disorder with participation via videoconferencing; judgesusing sidebar conferences with attorneys with mobility impairments; and courtsrequiring a driver's license for quasi-judicial positions. Some of the mostfrequent accommodations requested by Florida attorneys included additionaltime during proceedings; improved sound systems or reduction of backgroundnoise, and auxiliary aids or services, such as real-time captioning, listeningsystems, or sign language interpreters.

In order to provide adequate and clear guidance to ensure that personswith disabilities receive equal treatment in the judicial system, a clear andcomprehensive rule is necessary to achieve uniformity in the provision ofadequate accommodations. The rule as it presently stands has clearly placedan undue burden upon a number of lawyers with disabilities as they endeavor toengage in the practice of law. It is unknown at this time what chilling effectthe existing rule 2.540 has on the general population with disabilities, butanecdotal evidence would suggest the present rule denies access to the courtsystem for a number of people with varying types of disabilities.

Notice to the public

The current rule, Rule 2.065, solely provides notice, but is misleadingin that it only provides that the recipient of the accommodation is the personwho is compelled to appear in a judicial proceeding. Accommodations should bemade available as to all persons who with to participate in the programs andservices of the court system. This includes lawyers, witnesses, parties,jurors, and spectators. Such notice is required pursuant to 28 C.F.R. §35.106. While the notice optimally would be in all programs and publicationsby the court, as well on its website, the notices and subpoenas issued by thecourt or the parties would be the most frequent method of dissemination ofjudicial programs.

ADA Coordinator

Each Circuit in Florida currently has an ADA coordinator, which is anemployee of the local court system that is the person directly responsible forthe provision of accommodations for each circuit. 28 C.F.R. § 35.107 requiresthe designation of this ADA coordinator.

Procedure for obtaining accommodations

A public entity has a duty to afford an individual with a disability anopportunity to participate in or benefit from the aid, benefit, or servicethat is equal to that afforded others. This includes the provision ofreasonable modifications in policies, practices or procedures, or theprovision of auxiliary aids or services, when such modifications are necessaryto ensure that the person with a disability obtains equal opportunity toparticipate in the programs and services of the entity. The proposed rulecontains examples of accommodations that could be granted to a qualifiedindividual with a disability for a physical, mental or sensory disability. Apublic entity should give primary consideration to the requests of an

3]P-~J\)( C, i~

See 28 C.F.R §35.130individual with a disability.

The limit of the requirement is when the modification in policies or theprocedures, or the provision of the auxiliary aid or service wouldfundamentally alter the nature of the service or program. Further, there isno obligation to provide personal devices or services, such as wheelchairs,prescription eyeglasses or hearing aids. 28 C.F.R. § 35.135.

It is not permissible to require a person wishing to access the services ofthe courts to pay for their own accommodation. This would constitute asurcharge to cover the costs of measures, such as the provision of auxiliaryaids or program accessibility, that that the entity is required to providethat individual or group to comply with the nondiscriminatory treatmentrequired by the ADA. 28 C.F.R. § 35.130.

Appeals or Review Procedures

In addition to providing an ADA coordinator, the ADA requires a complaintprocedure in which to question whether the accommodation granted is adequate28 C.F.R. § 35.107(b).

Matthew W. DietzLaw Offices of Matthew W. Dietz, P.L.2990 Southwest 35th AvenueMiami, FL 33133Tel: (305) 669-2822Fax: (305) 442-4181TTY: (786) 621-5647e-mail: matthewdietz~usdisabilitvlaw.comweb: www.usdisabilitylaw.com

R. Fred LewisChief Justice

$;~i: ;..'

Office of the State Courts Administrator

Phone: (850) 922-4370 Fax: (850) 488-0156e-mail: [email protected]

MEMORANDUM

TO:

FROM:

The Honorable Lisa DavidsonChair, RJA Subcommittee on ADA Notice Rule

Debbie Howells ~N}

Statewide ADA ~~~r~inator, Florida State Courts System

DATE: October 10, 2007

SUBJECT: Rule 2.540, Notices to Persons with Disabilities

As the committee requested, the Office of the State Courts Administrator reviewed the revisedrule amendment submitted by Matthew Dietz on September 25, 2007. The revised rule proposalis set forth below, followed by OSCA comments.

RYbB 2.ge~. ~~G+lbBS +G PB~~SG~JS ','1!I+H 1)IS,A.£lbI+IBS&eee~~~edatie:".::; e~' f3efSeftS ',';i+..k. disaeilities RULE 2.xxx. ReEJt:lests f~fPERSONS WITH DISABILITIES REQUESTS FOR ACCOMMODATIONS BY

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(a) Duties of Court. Qualified individuals with a disability will be provided, at the court'sexpense, with accommodations, reasonable modifications to rules, policies, or practices, or theprovision of auxiliary aids and services, in order to participate in programs or activities providedby the courts of this state.

For clarity and for consistency with the ADA, this paragraph shouldinclude language indicating that the court is not required to take any

A~J'~ (, t-..y. 'J). Tallahassee. Florida 32399. 1 900Sup~ Court Building 500 South Duval Street http:/ /www.flcouru.o~

The Honorable Lisa DavidsonOctober 10, 2007Page 2

action that would result in a fundamental alteration in the nature of acourt service, program, or activity, or take action that would result inan undue financial or administrative burden on the court.

(b) Definitions,: The definitions encompassed in the Americans with Disabilities Act of1990,42 V.S.C. § 12201, et seq., are incorporated into this rule.

(c) Notice Requirement,;

(1) All notices of court proceedings to be held in a public facility, and all processcompelling appearance at such proceedings, shall include the following:

"If you are a person with a disability who needs any accommodation in order toparticipate in this proceeding, you are entitled, at no cost to you, to the provision of certainassistance. Please contact [identify applicable court personnel by name, address, and telephonenumber] within 2 working days of your receipt of this [describe notice]; if you are hearing orvoice impaired, call?ll."

(2) Each circuit shall publish in each court facility the procedure for obtaining anaccommodation as well as the grievance procedure adopted by each circuit.

Why is this proposal limited to the circuits?

The language "publish in each court facility" raises logisticalquestions. Additionally, many persons with disabilities now obtaincourt information via the Internet. For these reasons, I suggest thissection be modified to indicate that:

"Each trial and appellate court shall post on its respective websiteand make available in each court facility the procedures for obtainingan accommodation as well as the grievance procedure adopted bythat court."

Providing electronic notice via the Internet and making theinformation available at the courthouse, along with inclusion ofexisting language on documents compelling appearance at court,will achieve the objective of broad and easy-to-access notice to courtusers.

(d) Process for Requesting Accommodations. The process for requestingaccommodations is as follows:

(1) Requests for accommodations under this rule may be presented ex parte on a formapproved by the Statewide ADA Coordinator of the Office of the State Courts Administrator, in


another written format, or orally. Requests must be forwarded to the ADA coordinator, ordesignee, within the time frame provided in 2.xxx( c).

I suggest the committee consider plain language since manylitigants, witnesses, victims, and other non-attorney court users maynot be familiar with legal terminology such as "ex parte."

Any reference should be to the Office of the State CourtsAdministrator, rather than a specific individual/position.

(2) Requests for accommodations must include a description of the accommodationsought, along with a statement of the impairment that necessitates the accommodation and theduration that the accommodation is to be provided. The court, in its discretion, may require theapplicant to provide additional information about the impairment.

"Applicant" is no longer defined in the proposed rule and is not aterm generally used in connection with Title II of the ADA. Therefore,perhaps it should be replaced throughout this rule with "individualwith a disability."

suggest that thisFor clarity and for consistency with the ADA,section be reworded as follows:

"Requests for accommodations must include a description of theaccommodation requested, along with a description of theindividual's disability that necessitates the accommodation. In orderto fully and fairly evaluate a request for accommodations, it may benecessary for the court to require the individual to providedocumentation about the impairment, including a statement from aqualified health care provider that identifies the individual'sfunctional limitations and describes how the requestedaccommodation addresses those limitations,"

(3) Requests for accommodations must be made as far in advance as possible, and in anyevent must be made no fewer than two court days before the requested implementation date. Thecourt may, in its discretion, waive this requirement.

(4) The court must keep confidential all information of the applicant concerning therequest for accommodation, unless confidentiality is waived in writing by the applicant ordisclosure is required by law. The applicant's identity and confidential information may not bedisclosed to the public or to persons other than those involved in the accommodation process.Confidential information includes all medical information pertaining to the applicant, and all oralor written communication from the applicant concerning the request for accommodation.

Coo, 11.-,e. '3 7r;).~ :


This proposal may be contrary to the current Florida publicrecords requirements and, if so, would necessitate a statutoryamendment prior to implementation.

Replace "applicant" with "individual" or "individual with adisability."

(e) Permitted Communication. Communications under this rule must address only theaccommodation requested by the applicant and must not address, in any manner, the subjectmatter or merits of the proceedings before the court.

Replace "applicant" with "individual" or "individual with adisability."

(I) Response to Accommodation Request. The court must respond to a request foraccommodation as follows:

(1) The court must consider, but is not limited by~ the provisions of the Americans withDisabilities Act of 1990 in determining whether to provide an accommodation or an appropriatealternative accommodation.

(2) The court must infonn the applicant in writing, as may be appropriate, and ifapplicable, in an alternative fonnat, of the following:

(A) That the request for accommodation is granted or denied, in whole or in part,and if the request for accommodation is denied, the reason therefor; or that an alternativeaccommodation is granted;

The nature of the accommodation to be provided, if any; and

The duration of the accommodation to be provided.

The ADA requires a written determination only if the court denies arequest for accommodations based on fundamental alteration orundue burden. This section might be revised as follows:

"(2) The court will inform the individual with a disability whether therequest for accommodation is granted or denied as well as thenature and duration of the accommodation to be provided, if any.

(3) If the request for accommodation is denied, the court will informthe individual of the reason for denial.


(4) If the court denies a request for accommodation because itwould fundamentally alter the nature of court programs, services, oractivities, or impose an undue financial or administrative burden, thechief judge or his/her designee will inform the individual in writing ofthat decision."

(g) Denial of Accommodation Request. A request for accommodation may be denied onlywhen the court determines that:

Please note the court is not obligated to provide an accommodationif the person is not entitled to the protections of the ADA.Additionally, an accommodation must be directly related to theindividual's disability. For these reasons, this section should berevised something along the lines of:

"(g) Denial of Accommodation Request. A request by a qualifiedindividual with a disability for an accommodation that directlyaddresses the individual's functional limitations and is necessary toensure effective participation in a court program, service, or activity,and when no equally effective alternative accommodation isprovided, may only be denied when the court determines that:"

Also, if my proposed revisions to sections (a) and (d) are acceptedby the subcommittee, section (g) may be duplicative of othersections of the rule and may no longer be necessary.

(1) The applicant has failed to satisfy the requirements of this rule

The Americans with Disabilities Act does not allow the courts todeny a valid request for accommodations merely because the person"has failed to satisfy the requirements of this rule." Examples ofways an individual may fail to comply with the provisions of theproposed rule but that would not render him/her ineligible for anaccommodation include: violating the prohibition against talkingabout the merits of the case when discussing an accommodation,failure to complete the form, etc. Implementation of thisrecommendation would expose the Florida courts to substantialliability risk. Therefore, I suggest striking current subsection (1)hereinabove.

(2) The requested accommodation would create an undue financial or administrativeburden on the court; or

(I Af 3 c;A H1.C"Y'- t i ~ c.


(3) The requested accommodation would fundamentally alter the nature of the service,program, or activity.

(h) Grievance Procedure.

(1) Each circuit shall establish and publish a grievance procedure under which a persondenied an accommodation could request a review of such decision.

Why is this rule proposal limited to the circuits?

Grievance procedures provide for the prompt and equitableresolution of complaints alleging any action prohibited by theAmericans with Disabilities Act. I suggest that the language in therule track that broader statement of purpose. Perhaps somethingalong the lines of:

"Each trial and appellate court shall establish and publish grievanceprocedures that allow for the resolution of complaints withoutresorting to federal complaint procedures. Those procedures maybe used by anyone who wishes to file a complaint allegingdiscrimination on the basis of disability in the provision of services,activities, programs, or benefits by the Florida State Courts System."

(2) If such grievance involves a matter that affects the orderly administration of justiceor a person's due process rights, such grievance will receive expedited review and be brought tothe immediate attention of the chief judge of the circuit.

Why is this rule proposal limited to the circuits?

Allegations that a person's due process rights have been violated bythe court should properly be addressed through the normal appellateprocess. This proposal seems to infer that the chief judge isexpected to intervene in decisions made by a judge with regard to anindividual case, which may present legal issues or ramifications.Perhaps this section could be restated something along the lines of:

"If such grievance involves a matter that may affect the orderlyadministration of justice, it is within the discretion of the presidingjudge to stay the proceeding and seek expedited resolution of thegrievance."

J:t.~J;.~ c I P' ~ yc


I appreciate this opportunity to provide input to the Subcommittee's important work. If theSubcommittee has any questions or would like further information on a particular matter, pleaselet me know.

cc: Lisa Goodner, State Courts AdministratorLaura Rush, General Counsel, Office of the State Courts Administrator

~('1"-~? (, ~-?-~)

MINUTES OF TELEPHONE CONFERENCE OFDISABILITIES WORKGROUP OF THE RULES OFJUDICIAL ADMINISTRATION COMMITTEE ON

NOVEMBER 6, 2007

The Disabilities Workgroup met by telephone on November 6,2007 at 12:00 noon todiscuss the revised proposal to amend Rule 2.540 submitted by Matthew Dietz, and theresponses to that proposal forwarded to the Workgroup by the Office of State CourtsAdministrator (OSCA). The meeting was chaired by Judge Lisa Davidson. Also attendingfor all or part of the conference were RJA Chair Judge Bob Benton and Workgroupmembers Matthew Dietz, Bill Garrett, Judge Shelley Kravitz, Richard Levenstein, ElaineNew, Peter Sartes, and Judge Alan Schwartz. Florida Bar employees Craig Shaw and JanPudlow also attended.

At the request of Judge Davidson, Mr. Dietz went through the proposed rule beginningwith subdivision (a), responding in each instance to any objections to the proposal orobservations made by OSCA.

Proposed subdivision (a) provides:

a Duties of Court. ualified individuals with a disabilit will be rovided at thecourt's expense. with accommodations. reasonable modifications to rules. policies. orpractices. or the provision of auxiliarv aids and services. in order to Dartici~ate inprograms or activities provided bv the courts of this state.

OSCA's objection was that the paragraph should include language indicating that thecourt is not required to take any action that would result in a fundamental alteration in thenature of a court service, program, or activity, or take action that would result in an unduefinancial or administrative burden on the court. Mr. Dietz stated that he was opposed toincluding that language because it was duplicative of subdivision (g) and that it would beout of place in (a). After discussion, the Workgroup approved adding the followingsentence at the end of (a): The court mav denv a reauest onlv in accordance withsubdivision (g).

Proposed subdivision (b) provides:

b Definitions. The definiti ed in the Americans with Disabilities Actof 1990 42 V.S.C. 12201 et se orated into this rule.

OSCA had no comment on the subdivision. Ms. New questioned whether it wasappropriate to include specific statutory references within a rule. The consensus of theWorkgroup was that definitions are important to proper interpretation of the rule and thatthe reference should remain in the rule.

Proposed subdivision (c) provides:

p~ L{ ~

(c) Notice Requirement.,

1 All notices of court roceedin s to be held in a ublic facilit rocesscompellinsz aooearance at such QroceedinQs. shall include the following:

"If YOU are a person with a disability who needs any accommodation in order toparticipate in this Droceedin!!. YOU are entitled. at no cost to YOU. to the Drovision ofcertain assistance. Please contact [identify aDDlicable court personnel bv name. address.and tele hone number within 2 workin da s of our recei t of this describe notice' ifYOU are hearinQ: or voice imgaired. call 7110""

2 Each circuit shall ublish in each court facilit the rocedure for obtainin anaccommodation as well as the Qrievance procedure adopted by each circuit.

The discussion first focused on the time period of2 days in (c)(l). Mr. Dietz hadinitially proposed a 5-day period in an earlier version of the rule. He pointed outthat OSCA then asked that it revert to 2 days as in the current rule, but that OSCAthen issued recent Guidelines providing for 5 days. Mr. Sartes and otherscommented that 2 days was an insufficient amount of time for requests to beprocessed, and the Workgroup agreed to amend the proposal to change the periodback to 5 days.OSCA suggested that (c )(2) be modified to provide: "Each trial and appellatecourt shall post on its respective website and make available in each court facilitythe procedures for obtaining an accommodation as well as the grievanceprocedure adopted by that court." Mr. Dietz stated that he had no objection to thischange, but a discussion ensued about the phrase "make available," and it wasdecided that the rule would read better if that phrase was deleted. As amended, themodification was accepted.

Proposed subdivision (d) provides:

d Process for Re . Accommodations. The rocess for re .

accommodations is as follows:

(1) ReQuests for accommodations under this rule may be Dresented ex Darte on aform aDDroved bv the Statewide ADA Coordinator of the Office of the State CourtsAdministrator. in another written format. or orally. ReQuests must be forwarded to theADA coordinator. or desiQnee. within the time frame Drovided in 2.xxx( c ).

2 Re uests for accommodations must include a descri tion of theaccommodation soueht. alone with a statement of the imoairment that necessitates theaccommodation and the duration that the accommodation is to be Droyided. The court. inits discretion. may reauire the aDDlicant to oroyide additional information about theimQairment.

A~di~ (, p~43

3 Re uests for accommodations must be made as far in advance as ossibleand in any event must be made no fewer than two court days before the reQuestedimplementation date. The court mav. in its discretion. waive this reQuirement.

4 The court must kee confidential all information of the a licant conceminthe reQuest for accommodation. unless confidentialitY is waived in writing by theapplicant or disclosure is reQuired bv law. The annlicant's identity and confidentialinformation mav not be disclosed to the nublic or to nersons other than those involved inthe accommodation process. Confidential information includes all medical informationnertaining to the annlicant. and all oral or written communication from the aRRlicantconcerning the reQuest for accommodation.

As to the language of (d)(l), concern was expressed by several members about theimplications of the term "ex parte" and it was agreed to drop that term from the rule asbeing unnecessary. OSCA objected to inclusion of the phrase "the Statewide ADACoordinator" and Mr. Dietz and the rest of Workgroup agreed to delete that phrase. Alengthy discussion then ensued about who would be responsible for approving the formto request accommodations and whether the form should be uniform throughout allcircuits. The Workgroup finally agreed to amend the first sentence of (d)( 1) so that itreads: "Requests for accommodations under this rule may be presented ex parte on a formapproved by or substantially similar to one aQQroved by the gtate'::iee .A.9.A. Geefeiftatefefthe Office of the State Courts Administrator, in another written format, or orally."

As to the language of (d)(2), OSCA suggested that "applicant," which is not a tenngenerally used in connection with Title II of the ADA, be replaced by "individual with adisability." Mr. Dietz and the rest of the Workgroup agreed to adopt that changethroughout the proposed rule.

In (d)(3), the Workgroup agreed to replace "two days" with "five days" to confonn thesubdivision to the change agreed to earlier regarding the time period in subdivision (c )(1).

In discussing the provisions of proposed (d)(4), several members agreed with OSCA'sobservation that the proposal to keep confidential all information furnished by oneseeking an accommodation could be contrary to Florida's public records requirementsand might require a statutory amendment. After discussion, the Workgroup agreed todelete all of proposed (d)(4).

Proposed subdivision (e) provides:

e Permitted Communication. Communications under this rule must address onIthe accommodation reauested by the aoolicant and must not address. in anx manner. thesubject matter or merits of the oroceedin1!s before the court.

The Workgroup was not comfortable with the language of (e) and instead voted to delete(e) and include the following new sentence at the end of proposed (d)(2): Reguests foraccommodation shall not include anv information regarding the merits of the case.

"/4A-~~~ \, ,,~

Due to time constraints, no further business was conducted. The Workgroup agreed tomeet again by conference call on either November 26 or 27, 2007. The meeting wasadjourned at 1 p.m.

Respectfully submitted,

Craig ShawActing Secretary

MINUTES OF TELEPHONE CONFERENCE OFDISABILITIES WORKGROUP OF THE RULES OFJUDICIAL ADMINISTRATION COMMITTEE ON

NOVEMBER 26, 2007

The Disabilities Workgroup met by telephone on November 26,2007 at 12:05 p.m. tocontinue its discussion of the revised proposal to amend Rule 2.540 submitted byMatthew Dietz, and the responses to that proposal forwarded to the Workgroup by theOffice of State Courts Administrator (OSCA). The meeting was chaired by Judge LisaDavidson. Also attending for all or part of the conference were Workgroup membersMatthew Dietz, Scott Dimond, Bill Garrett, Judge Shelley Kravitz, Judge Jon Morgan,Rob Pritchard, and Peter Sartes, and Bar staff liaison Craig Shaw.

Mr. Dietz continued his presentation of the proposed rule beginning with renumberedsubdivisions (e) and (t), which were considered jointly. Proposed subdivisions (e) and (t)provide:

(e) Response to Accommodation ReQuest. The court must resDond to a reQuest foraccommodation as fo110\\'s:

(1) The court must consider. but is not limited bX. the Qrovisions of theAmericans with Disabilities Act of 1990 in determining whether to Qrovide anaccommodation or an aDDroQriate alternative accommodation.

(2) The court must inform the aQQlicant in \\'Titing. as may be aQQroQriate. and ifaQQlicable. in an alternative fornlat. of the following:

(A) That the request for accommodation is sz:ranted or denied. in whole or inpart. and if the reQuest for accommodation is denied. the reason therefor: or that analternative accommodation is granted:

(B) The nature of the accommodation to be grovided. if anx: and

(C) The duration of the accommodation to be Qrovided.

m Denial of Accommodation Request. A request for accommodation may bedenied only when the court determines that:

(1) The aQQlicant has failed to satisfy the reQuirements of this rule~

(2) The reguested accommodation would create an undue financial oradministrative burden on the court~ or

(3) The reQuested accommodation would fundamentally alter the nature of theservice. Qrogram. or activity.

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After discussion, there was general consensus that the subdivisions both fell under thecategory of responses to requests and that subdivision (f) could be relettered as new(e)(3). There was agreement with OSCA's position that existing (f)(l) could be deleted asunnecessary. The remaining 2 two subparts of former (f) were then integrated into onesentence, so that revised (e)(3) would read as follows:

3 A re uest for accommodation ma be denied onl when the court determines thatthe reQuested accommodation would create an undue financial or administrative burdenon the court or would fundamentallv alter the nature of the service. DrOfIfam. or activitY.

The Workgroup unanimously approved the contents of the subdivision as revised.!

The final subdivision considered was (relettered) subdivision (f) (fonnerly (g», whichwas proposed to be amended as follows:

(1) Each circuit shall establish and publish a Qrievance Drocedure under which aperson denied an accommodation could reQuest a review of such decision.

2 If such rievance involves a matter that affects the orderl administration ofjustice or a person's due Drocess riQhts. such grievance will receive exDedited review andbe brought to the immediate attention of the chiefiudge of the circuit.

The Workgroup noted OSCA's concern that the provision should not be limited to thecircuit court level only, and that it should incorporate a broader statement of purpose. TheWorkgroup adopted most ofOSCA's suggested language replacing (f)(1) as follows:

(1) Each judicial circuit and aooellate court shall establish and oublish grievanceorocedures that allow for the resolution of comQlaints. [The Workgroup omitted OSCA'ssuggested language here: "... without resorting to federal complaint procedures"] ~orocedures may be used bv anyone who wishes to file a comQlaint alleging

or benefits by the Florida State Courts Sxstem.

As to subdivision (f)(2), responding to OSCA's concerns that the proposed languagemight imply that the chief judge is expected to intervene in decisions made by a judgewith regard to an individual case, which may present legal issues or ramifications, theWorkgroup adopted OSCA's proposed alternative language as follows:

2 If such. evance involves a matter that ma affect the orderl administrationof justice. it is within the discretion of the DresidinQ iudQe to stav the ~roceeding and seekexDedited resolution of the grievance.

ISubdivision (e)(3) was subsequently amended by email vote (5-0-1). The amendment reads: "If the court determinesthat a oerson is disabled and an accommodation is needed. a A-rcquest for accommodation may be denied only whenthe court determines that '

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The Workgroup unanimously approved the contents of the subdivision as revised.The consensus was that the revised proposal is now ready for consideration by the entireWorkgroup (including members not attending today's conference), and Craig Shaw wasdirected to circulate the proposal for a vote. After the vote is recorded, the matter will beplaced on the agenda for consideration by the RJA Committee, and Mr. Dietz indicatedthat he would be attending the Committee's January 17,2008 meeting in Miami to speakon behalf of the proposal.

There being no further business, the meeting was adjourned at 12:30 p.m

Respectfully submitted,

Craig ShawActing Secretary

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"Matthew Dietz"<matthewd [email protected]>

11/29/200704:06 PM

To <[email protected]>. <[email protected]>.<[email protected]>. <[email protected]>.<[email protected]>. <[email protected]>,

cc <[email protected]>

bcc

Subject RE: Late-Breaking Development re Proposed Rule 2.540

Again, the provision was in my original proposal for that same reason; however, OSCA objected to thison the fact that for a minor procedural failure may lead to a person's rights being denied.

Is following the rule for requesting an accommodation an assumed precondition to requesting theaccommodation? Or on the other hand, are we going to assume that the ADA coordinator or otherofficial is going to be as petty in saying that the person failed to fill in a form properly and is thereforebeing denied their required accommodation. We may want to state as follows:

A request for accommodation, made pursuant to the reQuirements of this rule. may be denied onlywhen the court determines that:

How's that?

Matt

Matthew W. DietzLaw Offices of Matthew W. Dietz, P. L.2990 Southwest 35th AvenueMiami, FL 33133Tel: (305) 669-2822Fax: (305) 442-4181TTY: (786) 621-5647e-mail: [email protected]: www.usdisabilitvlaw.com

From: [email protected] [mailto:[email protected]]Sent: Tuesday, November 27,20075:30 PMTo: [email protected]; [email protected]; [email protected]; [email protected];[email protected]; [email protected]; Matthew Dietz; [email protected];[email protected]; [email protected]; [email protected]; [email protected]: [email protected]: Late-Breaking Development re Proposed Rule 2.540

Elaine New, who was not able to attend the Workgroup's conference call on Monday, has pointed out anapparent problem with proposed subdivision (e) of Rule 2.540, which I forwarded to you earlier thisafternoon. Those of you who participated in yesterday's conference will recall that the group decided tomake the following edit to what is now (e)(3):

A request for accommodation may be denied only when the court determines that:

(~) +~e appliGaAt ~as faileg te satis.l"; t~e fe~~ifemeAts ef t~is f~le; (2) +~e ~ requested accommodationwould create an undue financial or administrative burden on the court or (3) +~e fe~~estegaGOOmmooatieA would fundamentally alter the nature of the service, program, or activity.

Elaine feels that a provision similar to the deleted language in (1) above is necessary, because otherwisethe court has no authority to require proof of a disability in those few instances where court personnel mayfeel that an applicant is abusing the rule and may not in fact be disabled. (Elaine points to instances in hercircuit, for example, when the court has required a doctor's statement before granting an accommodation.This is not a frequent occurrence, but could be necessary.) The rule as it currently stands is written insuch a way that the only grounds for rejecting the request are that the request creates a burden or altersthe nature of the service.

Elaine offers the following proposed amendment to the lead-in language above:"If the court determines that a oerson is disabled and an accommodation is needed. a A-request foraccommodation may be denied only when the court determines that: "

Judge Davidson has approved this proposal and is asking that I circulate it to the Workgroup for approvalas an amendment to the rule. If everyone approves (or abstains from approving) the change. it will beadded to the overall proposal. if anyone dissents, however, we will schedule a further conference call todiscuss the proposed additional language. Please reply by 5 p.m. tomorrow (Wed.) as to this matter only.At that point, we will either schedule a call, or again ask for a final vote on the proposal, as amendedabove.

Craig

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Mailing Address

PMB 152

9858 Glades Road

Boca Raton, Florida 33434

(561) 883-7806 (Telephone)

(561) 939-1996 (Facsimile)

[email protected]

Lloyd A. Comiter, EsquireFlorida Supreme Court Certified County Court Mediator

January -' 2008

J. Craig ShawStaff Liaison to RJA CommitteeThe Florida Bar651 E. Jefferson St.Tallahassee, FL 32399-2300

Re: Rules of Judicial Administration Rule 2.540

Dear Mr. Shaw:

At a recent Small Claims Rules Committee ("Committee") meeting, a subcommittee made arecommendation to add certain language to Rule 2.540 of the Rules of Judicial Administration relatingto font size on the notice to persons with disabilities. The consensus of the full committee was that thefont size of the notice to person$with disabilitieswassomethirigthe Rules of Judicial AdministrationCommittee may want to consider at itS next meeting. In essence, the Committee believed there was nouniformity throughout thes~te as to printing the notice and that at times, when preparing the notice top~rsons with disabilities, suchasmaU!ont size is sometimes used that some individuals may finddIfficult to read.

With ~:foregoingllimind, on behalf of the Small Claims Rules Committee, the suggestedlanguage is "~1f~rth below, in1~gtslative format, for the RJA's consideration.

":c::::RULE 2.54Q~NOTICES TO PERSONS WITH DISABILITIES

(a) All notic~sof court proceedings to be held in a public facility, and all processcompelling appearance at such proceedings, shall include the following:

"If you are a person with a disability who needs any accommodation inorder to participate in this proceeding, you are entitled, at no cost to you,to the provision of certain assistance. Please contact [identify applicablecourt personnel by name, address, and telephone number] within 2working days of your receipt of this [describe notice]; if you are hearing orvoice impaired, call?!!."

(b) The notice referred to in subdivision (a) shall be in bold face and must be inTimes New Roman 14-Qoint font or Courier 14-Doint font.

Should you have any questions, or wish to discuss this matter further, please do not hesitate tocontact me.

Respectfully yours,

LA W OFFICES OF COMITER, P .A.

Lloyd Comiter

LAC:lccc: Madelon Horwich, Florida Bar liaison to the Small Claims Rules Co~ittee

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Documents

SC09-1487 Appendix C - Florida Supreme Court