Metropolitan News-Enterprise


Wednesday, August 15, 2001


Page 3


Hearing-Impaired Litigant May Have Right to Close Captioning—Court


By a MetNews Staff Writer


A hearing-impaired litigant who claims he was discriminated against because the court that tried his divorce case didn’t provide instantaneous videotext transcription—also known as close captioning—has a triable claim under the Americans With Disabilities Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reinstating a suit against officials in Kitsap County, Wash., a divided panel held that a district judge erred in ruling that because the county possessed no such technology at the time of his trial, Christopher Duvall wasn’t discriminated against as a matter of law.

Duvall sued a number of court and county officials, including the judge who heard his divorce case, claiming that the lack of videotext transcription prevented him from understanding the testimony and thus from effectively participating in the case. Such transcription was made available in the county for the first time after Duvall’s trial, yesterday’s opinion noted, and was used during post-trial hearings in Duvall’s case.

(Hearing impaired litigants in Los Angeles Superior Court have the benefit of videotext transcription through a program known as CART, or Communication Access Realtime Translation, court spokesman Kyle Christopher­­­son said. Participation in the program, which makes use of portable equipment, is available through the court reporter assignment office at 213-974-5451. The court also provides sign-language interpreters through the court interpreter office.)

The defendants responded that they were absolutely immune, and disputed Duvall’s claim that he had specifically requested real-time transcription before trial, although it is undisputed that his attorney made such a request at the outset of trial.

Regardless of immunity, the defendants argued, they had reasonably accommodated Duvall by providing him with a sound-enhancement system and allowing him to move about the courtroom in order to better see the witnesses and read their lips. The court offered a sign-language interpreter in accordance with state law, but Duvall said he didn’t understand American Sign Language or Signed English well enough to use interpretive services.

Duvall contends that the “Telex Soundmate” system was of no benefit, because he uses hearing aids specifically adjusted to his needs, which he would have had to remove in order to use the system.

Moving around the courtroom wasn’t very helpful either, he said, because he still missed parts of the testimony,  couldn’t communicate with his lawyer, and was unable to read lips for long periods of time without getting a headache.

Duvall also presented evidence that firms in Seattle and Tacoma could have provided the videotext technology if Kitsap County officials had requested it.

Magistrate Judge J. Kelley Arnold of the Western District of Washington granted the defendants’ motion for summary judgment. He ruled that the judge had absolute immunity, that the court administrator was acting in a quasi-judicial capacity and thus had absolute immunity as well, and that the other defendants—county administrators and commissioners—had reasonably accommodated the plaintiff’s disability.

Judge Stephen Reinhardt, writing for the Ninth Circuit, agreed that the state judge had absolute immunity. But the court administrator was acting in an administrative capacity when she turned down Duvall’s request for close captioning, the judge said, and isn’t immune.

Reinhardt cited deposition testimony in which the court administrator suggested that if there had been a statute requiring that a particular form of equipment be provided to assist hearing-impaired litigants, it would be her responsibility to locate the equipment and make arrangements to obtain it.

As for the remaining defendants, the appellate jurist said, their possible liability is a question of fact that must be tried.

Under federal regulations applying the ADA, Reinhardt explained, a public entity faced with a request to accommodate a disability must make “a fact-specific investigation to determine what constitutes a reasonable accommodation.” The defendants didn’t establish that they had done so and shouldn’t have been granted summary judgment, Reinhardt said.

“Viewing the facts in the light most favorable to Duvall, Duvall telephoned [court administrator Madelyn] Botta to request videotext display, she failed to investigate whether such display was available (despite already having witnessed a demonstration of that system in the courthouse), and she deliberately made the decision, instead, to ‘accommodate’ his disability by rescheduling the trial in [Soundmate-equipped] Courtroom 269,” the judge wrote.

Reinhardt also cited testimony that the county ADA coordinator was told of Duvall’s difficulties and took no steps, prior to trial, to determine whether videotext equipment could be obtained.

Judge Raymond C. Fisher concurred in Reinhardt’s opinion. Judge Pamela Ann Rymer dissented.

Rymer agreed with the district judge that the court administrator was immune.

“However you slice it, determining whether a particular hearing impaired individual needs accommodation for a court proceeding, and what kind of accommodation is reasonable, entails the power of decision,” Rymer wrote. “It is either a judicial function, or comparable to one.”

Because the function of deciding how to accommodate Duvall was judicial, the dissenting judge went on to argue, the non-court defendants had no control over the decision and can’t be liable. 

The case is Duvall v. County of Kitsap, 99-35934.


Copyright 2001, Metropolitan News Company