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. 01-00223 -2FACTS 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. 01-00224 -3wireless 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. 01-00225 -4At 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 01-00226 -5effective 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 01-00227

-6aid, 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. 01-00228 -7Finally, 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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