US.

Department of Justice
Civil Rights Division
Coordination and Review Section

PO. Box 66118

Washington, D.C. 20035-6118

NOV 21 1994

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Honorable Joseph A. Thibodeau

Administrative Judge
Superior Court of the State of
Washington for Snohomish County
3000 Rockfeller, M/S #502
Everett, Washington 98201

Re: The Superior Court of the State of Washington for

Snohomish County - Department of Justice Number
XX (previously XX )

Dear Judge Thibodeau:

This letter constitutes our Letter of Findings under Title

II of the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. ​ 12131-12134. Title II of the ADA, and the Department
of Justice's implementing regulation at 28 C.F.R. Part 35,
prohibits public entities from discriminating against qualified
individuals with disabilities on the basis of disability. As an
instrumentality of a State or local government, the Superior
Court of the State of Washington for Snohomish County (the Court)
is a "public entity" subject to the requirements of Title II of
the ADA. 28 C.F.R. 35.104. Our office enforces Title II
requirements, as applied to State and local courts, through
investigation, negotiation, issuance of Letters of Findings, and,
if necessary, referral for possible litigation.

This matter was initiated by a complaint filed under Title

II against the Superior Court. The complainant, who is hard of
hearing, alleges that in juvenile proceedings involving his son
the Superior court discriminated against the complainant on the
basis of his disability. Specifically, he alleged that the Court
initially refused to consider his request for a wireless FM
system, which he said was necessary to ensure his effective
participation in the proceedings.
 We have completed our investigation of the complaint. As
discussed below, the Court corrected the areas alleged to be in
noncompliance with Title II of the ADA. Therefore, we conclude
that the Court is now in compliance with the ADA with respect to
the allegations.

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FACTS

Our investigation included a review of the Superior Court's

policies, procedures, pertinent records, and transcripts provided
by the Court and the complainant. Based on our inquiry, we find
as follows.

The information we obtained established that the complainant

is hard of hearing and has a cochlear implant.1 The complainant
can hear normal conversation only if there is no background
noise. The complainant can hear in office settings, but would
have difficulty doing so in a courtroom. He had previously used
a wireless FM system consisting of a transmitter and personal
receiver for meetings at work.

In the Fall of 1991, the complainant's son was named a

defendant in juvenile proceedings. The complainant informed the
Court that he was hard of hearing and requested that the Court
provide an auxiliary aid, a wireless FM system, in order for him
to participate effectively in the proceedings. In response, the
Court Administrator asked the complainant to let the
Administrator know when there was an actual court date so a
suitable accommodation could be provided. The complainant again
explained that an FM system was necessary in order for him, as a
parent, to participate in the proceedings. The Court
Administrator stated that he preferred to pursue other
accommodations that might not require a capital investment.

The Court scheduled an informational meeting for January 28,

1992. On January 24, 1992, the Court received a letter from the
complainant asking that the court provide a wireless FM system
for the January 28 meeting. The Court did not obtain the
______________________
1Cochlear implants are made of several components, one of
which is a speech processor. The processor does not amplify
sound as a hearing aid would. Rather, a processor directly
stimulates remaining auditory nerve fibers with an electrical
equivalent of sound. For many individuals who use cochlear
implants, frequency modulation (FM) systems are generally useful
for enhancing their listening abilities, especially in difficult
listening environments. FM systems often require the use of a
built-in telecoil, such as the telecoil that is a part of a
common hearing aid, which receives radio waves from an FM
transmitter. The complainant's processor, however, does not have
a built-in telecoil; thus, FM systems that use a telecoil would
be ineffective for the complainant's use. In order for the
complainant to use an FM system effectively, it would be
necessary to use a patch cord with a 1/8th inch male jack (e.g.,
audio input selector), which directly plugs the FM receiver into
his speech processor.

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wireless FM system2 or any other auxiliary aid or service for the

January 28 meeting. The Court stated that a hearing would be set
for February 3, 1992, but it would be rescheduled if the
auxiliary aid requested by the complainant could not be obtained
by that time.

On February 3, the complainant and his son appeared in

court, and requested a continuance because there was no auxiliary
aid or service provided. The Court continued the hearing until
March 2, 1992. On March 2, the complainant and his son appeared
in court, and due to the lack of provision of an auxiliary aid or
service, the Court again continued the proceedings for a
competency hearing and arraignment to April 27, 1994.

Our investigation shows that prior to the April 27 hearing,

the Court contacted the complainants employer -- without the
complainant's knowledge -- to request that the employer lend to
the Court the FM system that the complainant used at work. The
employer declined to lend the system. On April 25, 1992, the
complainant called the Court about the status of his request for
a FM system. The Court explained that it decided--without prior
consultation with the complainant--to use a Pocket Talker3, with
modifications in the proceedings by holding the hearing in a
smaller setting where the background noise could be reduced,
having the complainant sit in the witness chair, and having
speakers face the complainant during the proceedings. The
complainant informed the Court that the Pocket Talker and such
modifications would not be effective for him in the courtroom.
_______________________________________________________________________

2 This system uses a transmitter, which can be connected to

the existing sound system. The transmitter can also be used with
its own microphone. Listeners use a compact, portable receiver
and earphone to hear clearly and easily from anywhere in the
seating area. This system is generally helpful in larger areas
such as auditoriums and meeting rooms. The system can be used by
individuals with hearing aids with direct audio input or
telecoils for neckloop operation. Background noise is virtually
eliminated using this system.

3 The Pocket Talker is a small device that has its own

microphone, and is used with a headphone or neckloop. It is
primarily designed for "one-on-one" conversations between persons
who are in relatively close physical proximity. When the Pocket
Talker is used in group situations, each person must speak
directly into the microphone, and hand it to the next speaker.
Two basic disadvantages of using this device in a court room
environment are: (1) it is not designed to be plugged into a
public address (PA) system, and (2) unwanted background noise is
inadvertently transmitted along with each individuals spoken
statements.
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At the April 27 hearing, the Court Administrator called the

complainant to his bench, and told the complainant, "This
proceeding is an arraignment and a competency hearing, and I'm
going to proceed with it today as best we can. You are able to
hear me right now; is that correct?" The complainant replied,
"Yes." The Court Administrator told the complainant to stand in
front of the bench and informed the parties in the courtroom to
speak loudly while facing the complainant. The complainant
informed the Court that it was apparent that the Court did not
understand that when the Court speaks loudly to him, words become
distorted, making it more difficult for him to hear. Also the
complainant said that at that time, he felt very uncomfortable
and embarrassed while in front of the bench. He did what he was
told out of fear. The complainant's lawyer requested a
continuance because the Court did not provide the FM system. The
Court would not allow another continuance. The Court decided
that it would proceed with the arraignment and enter a "not
guilty" plea only, would continue the proceedings for trial and
disposition at a later date, and would hold a hearing on June 15,
1992.

For the June 15, 1992, hearing, the Court provided the
wireless FM system that the complainant had originally requested.
Information received during the investigation showed that at this
hearing, both the Court and the complainant had effective
communication. The case was concluded.

APPLICABLE LEGAL STANDARDS

Individual with a Disability

The Title II regulation at 28 C.F.R. 35.104 defines an

"individual with a disability" as any individual who has a
physical or mental impairment that substantially limits one or
more major life activity, has a record of such an impairment, or
is regarded as having such an impairment. Major life activities,
as defined in section 35.104, include hearing.

Qualified Individual with a Disability

The Title II regulation at 28 C.F.R. 35.104 defines a

"qualified individual with a disability" as an individual with a
disability who, with or without the provision of auxiliary aids
and services, meets the essential eligibility requirements for
the receipt of services or the participation in programs or
activities provided by a public entity.

Appropriate Steps To Ensure Effective Communication

The Title II regulation at 28 C.F.R. 35.160(a) requires

that a public entity take appropriate steps to ensure that
communications with participants with disabilities are as
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effective as communications with others. Section 35.160(b)(1)

requires a public entity to provide appropriate auxiliary aids
and services whenever necessary to afford an individual with a
disability an equal opportunity to participate in, and enjoy the
benefits of, a service, program, or activity conducted by a
public entity.

Section 35.160(b)(2) provides that in determining what type

of auxiliary aid or service is necessary, a public entity must
give primary consideration to the requests of the individual with
a disability. The preamble to section 35.160(b)(2) explains that
"primary consideration" means that the public entity must honor
the individuals expressed choice of auxiliary aid "unless it
[the public entity] can demonstrate that another effective means
of communication exists or that use of the means chosen would not
be required under 35.164 [because it would result in a
fundamental alteration in the nature of the program or in undue
financial and administrative burdens]."

The Title II regulation does not require the public entity

to provide the specific auxiliary aid requested by the individual
with a disability so long as it provides an equally effective
auxiliary aid. As noted in section 35.104, auxiliary aids and
services include qualified interpreters, notetakers, assistive
listening devices, assistive listening systems, transcription
services, or other effective methods of making orally delivered
materials available to individuals with disabilities.

ANALYSIS AND CONCLUSION

The Court does not dispute the complainant's hearing

condition. Because the complainant's major life activity of
hearing is substantially impaired, he meets the definition of an
individual with a disability in accordance with section 35.104.
Generally, in juvenile proceedings, the parents of the child are
entitled to be present. Thus, the complainant meets the
essential eligibility requirements and, therefore, is a qualified
individual with a disability as defined in the Title II
regulation at 28 C.F.R. 35.104.

In evaluating the Court's compliance with the Title II

requirement for effective communication, we must determine
whether the Court had notice of the requirement for auxiliary
aids, and whether the Court provided effective auxiliary aids.
The facts established that as of the Fall of 1991, the Court had
adequate notice that a wireless FM system--or at least an
auxiliary aid--was required for the complainant to participate in
the juvenile proceedings.

The Court did not provide an auxiliary aid for the January
28, 1992, informational meeting. With respect to the February 3
and March 2 proceedings, the Court did not provide an auxiliary

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aid, but the Court continued those proceedings in order to obtain

an auxiliary aid. Two days before the April 27 proceedings, the
complainant informed the Court that the Pocket Talker provided by
the Court would not be effective in the courtroom. At the April
27 hearing, the Court asked him to stand in front of the bench,
and the parties in the courtroom to speak loudly while facing the
complainant.

We find that the Court attempted to comply with the ADA by

continuing the proceedings of February 3 and March 2; by holding
the April 27 hearing only for the purposes of arraignment and
competency hearing and by asking the complainant to stand in
front of the bench; and by holding the June 15 proceedings with
the provision of a wireless FM system. At the same time,
however, we find that, with respect to the February 3, March 2,
and April 27, proceedings, the Court, in determining what type of
auxiliary aid was necessary, failed to give primary consideration
to the request of the complainant, or otherwise provide an
effective means of communication. The facts showed that when the
complainant inquired about the status of his request for a
wireless FM system at the April 27 hearing, the Court responded
that it could not borrow such a system from the complainant's
employer, and, therefore, it had decided to provide a different
auxiliary aid (a Pocket Talker), even though the complainant
informed the Court that a Pocket Talker would not be effective.

We find that the Court's failure on January 28, February 3,

March 2, and April 27, 1992, to provide the wireless FM system
that the complainant had requested combined with and its failure
to provide another equally effective means of communication
constituted a violation of section 35.160 of the Title II rule.

We would further like to note our strong concern that the

Court proceeded to contact the complainant's employer without
previously discussing the issue with him. While entities are
allowed to seek the assistance of outside agencies to secure
auxiliary aids to ensure effective communication, it is
inappropriate for a public entity to contact the employer
of an individual with a disability in order to avoid the rental or
purchase of an assistive listening device or system, without
first seeking the consent of the individual.

Snohomish County has now taken several steps to remedy the

violation. First, the County has acquired real-time captioning
that prints the Court proceedings on a large screen. Second, the
County has issued a written policy for ensuring effective
communication, which requires the Court to consult with
individuals with hearing impairments to ascertain what auxiliary
aids would meet their requirements. The County has also made
several methods available to communicate with individuals with
hearing impairments, including video text display (real-time
captioning), assistive listening devices, and interpreters.

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Finally, the County has also established a policy for giving

primary consideration to the individual's expressed choice of
auxiliary aid.

Based on all of the above, we find the Court now to be in

compliance with Title II and its implementing regulation, as to
the allegations in the complaint. This case is closed as of the
date of this letter. This determination is not intended and
should not be construed to cover any other issues regarding
compliance with the Title II regulation which may exist but are
not specifically discussed herein.

Under the Freedom of Information Act, it may be necessary to

release this document and related correspondence and records upon
request. In the event that this office receives such a request,
we will seek to protect, to the extent provided by law, personal
information which, if released, could constitute an invasion of
privacy.

We appreciate the cooperation and assistance that your staff

extended to our office during the course of the investigation.
If you have any questions about this matter, please contact
Robert J. Mather at (202) 307-2236.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division
cc: Mr. XX

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