ADA

Any qualified person with a disability who has business in a state court, including attorneys, litigants, probationers, witnesses, jurors, and member of the public may request reasonable accommodation by contacting the local ADA Coordinator. 

Yes, the court must provide auxiliary aids to courtroom observers with disabilities to ensure their equal access to court proceedings. Access to these services must be provided unless the court can demonstrate that the accommodation would result in a fundamental alteration of the nature of a service, program, or activity or cause undue financial or administrative burden. For example, an untimely request for accommodation by an observer may not be made if it would require a continuation of the court proceedings, causing an undue administrative burden of rescheduling the parties, attorneys, and witnesses.

28 C.F.R. § 35.104 defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or 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.”

A person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a history or record of such an impairment (such as cancer that is in remission), or is perceived by others as having such an impairment (such as a person who has scars from a severe burn).

The term “substantially limits” is interpreted broadly and is not meant to be a demanding standard. But not every condition will meet this standard. An example of a condition that is not substantially limiting is a mild allergy to pollen.

Major life activities are the kind of activities that you do every day, including your body’s own internal processes. There are many major life activities in addition to the examples listed here. Some examples include:

• Actions like eating, sleeping, speaking, and breathing
• Movements like walking, standing, lifting, and bending
• Cognitive functions like thinking and concentrating
• Sensory functions like seeing and hearing
• Tasks like working, reading, learning, and communicating
• The operation of major bodily functions like circulation, reproduction, and individual organs

There are a wide variety of disabilities, and the ADA regulations do not list all of them. Some disabilities are visible, and some are not. Some examples of disabilities include:

• Cancer
• Diabetes
• Post-traumatic stress disorder
• HIV
• Autism
• Cerebral palsy
• Deafness or hearing loss
• Blindness or low vision
• Epilepsy
• Mobility disabilities such as those requiring the use of a wheelchair, walker, or cane
• Intellectual disabilities
• Major depressive disorder
• Traumatic brain injury

NOTE: The ADA covers many other disabilities not listed here.

California Rules of Court (CRC), rule 1.100(a)(2) defines an “Applicant” making a request for accommodations as “any lawyer, party, witness, juror, or other person with an interest in attending any proceeding before any court of this state.”

The court must facilitate access to its services for all court users and participants; this includes not just parties to a case, but also attorneys, contractors/vendors, reporters, and members of the public who wish to observe proceedings. For example, services like Assistive Listening Devices, Computer Aided Realtime Transcription (CART), or American Sign Language (ASL) interpreters should be made available to all qualified individuals to the extent possible, regardless of whether they are attorneys, jurors, or court observers.

The court also must ensure that its communications with people with disabilities are as effective as communications with others and that all can fully participate in the services and programs provided. The provision of auxiliary aids and services, at no charge, may be a reasonable accommodation to ensure effective communication for a person with a hearing, vision, or speech disability. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved and the individual’s specific disability and preferred mode of communication. Every effort shall be made to meet the specific needs of the individual.

The court is not responsible, however, for providing devices of a personal nature such as prescription eyeglasses, hearing aids, wheelchairs, and/or personal medical or attendant care, or assistance that may be characterized as personal assistance.  

Depending on the needs of the individual and the nature of the impairment, an accommodation may involve:

• Allowing the person to sit where he or she can hear better
• Providing a qualified sign interpreter appointed by the court
• Providing an assistive listening system 
• Computer Aided Realtime Transcription (CART) service.

Some d/Deaf and Hard-of-hearing people rely on written notes to communicate with hearing people. Although writing can supplement other modes of communication, using it exclusively is tedious, cumbersome, and time-consuming. Also, since literacy levels vary as with any population, it is not accurate to assume that written notes will work for all deaf or Hard-of-hearing people.  A common misconception is that all d/Deaf and Hard-of-hearing people can read lips. However, very few people can read lips well enough to understand speech, even under optimal conditions.

Below are several effective ways to telecommunicate with d/Deaf, Hard-of-hearing, and speech impaired people:

Effective communication includes providing ASL interpreters or CART services to people who are d/Deaf or Hard-of-hearing. It can also include providing document magnifiers or reading assistance to blind people and others with low vision.

An ASL interpreter is also guaranteed by the California Constitution and the California Evidence Code. Article I, section 14 of the California Constitution and Evidence Code section 754 guarantee interpreters for parties who do not speak English for any criminal proceeding. If funding is not available to provide an interpreter for every party who needs one, California Evidence Code section 756, subdivisions (b)(1)-(8) set out the order in which providing interpreters for non-criminal proceedings shall be prioritized.

Not all d/Deaf or Hard-of-hearing people are proficient in American Sign Language. Occasionally, it will be necessary to use other means of ensuring communication. For example, some d/Deaf and Hard-of-hearing people who do not use sign language but require an "oral" interpreter who silently mouths the speaker’s words to them, the court can provide Certified Deaf Interpreters (CDI) for individuals who seek ‘lip’ reading as accommodation with a 5-day or more advanced notice/request.

Assistive Listening Systems, sometimes called Assistive Listening Devices, transmit sound as directly as possible to a hearing aid. Such systems should not be confused with audio systems that are designed to make the sound louder. Rather than enhancing all the sounds in the room, an assistive listening device can bring specific sounds directly to the user's ears by use of a headset that rests over the person’s ears. 

CART works effectively for individuals who have strong reading skills and for those who do not know sign language. Because of the speed of the transcription, it does not work well for slow readers.

Depending on the needs of the individual and the nature of the disability, accommodation may involve:

• Providing assistance at the counter in filling out necessary paperwork or explaining paperwork without providing legal advice or guidance
• At the discretion of the judicial officer, an applicant can be accompanied by a support person
• Allowing the person with limited vision to sit closer than usual
• Provide additional lighting or modify lighting if the lighting is a problem
• Loan a magnifier

This is a common request that under California Code of Civil Procedure (CCP) section 116.540, subdivision (l) gives judicial officers discretion to allow other individuals to assist litigants in court as an accommodation for a person’s disability. While an individual can assist with a litigant’s disability, they cannot give legal advice or act as lawyers for the litigant unless they are a licensed attorney appearing on behalf of the litigant.

Depending on the needs of the individual and the nature of the disability, accommodation may include:

• Holding a proceeding in a more accessible location.
• Allowing a support person at the proceeding to provide personal assistance.  Support persons cannot speak on behalf of litigant and cannot provide legal advice or guidance.
• At the discretion of the judicial officer, an applicant can be accompanied by a support person.
• Allowing a remote appearance in lieu of a personal appearance.

“Developmental disability” is an umbrella term referring to disabilities present before an individual reaches 22 years of age. Examples of developmental disabilities are cerebral palsy, epilepsy, autism, hearing loss, Down syndrome, mental retardation, spinal injury, or brain injury. “Cognitive disability” refers to any disability affecting mental processes. Examples include mental retardation, attention deficit hyperactivity disorder (ADHD), dyslexia, Alzheimer's disease, aphasia, brain injury, language delay, and learning disabilities.

Remember that many individuals with developmental and cognitive disabilities may not have limited intellectual functioning and those who do may require an accommodation.  Depending on the needs of the individual, and the nature of the disability, an accommodation may include:

• Having the court and witnesses talk slowly or write things down
• If necessary, repeat information using different wording or a different communication approach
• Allowing time for information to be fully understood
• Allow time to respond to questions being asked
• Presenting information in a clear, concise, concrete, and simple manner.
• If necessary, taking periodic breaks
• Presenting tasks in a step-by-step manner, letting the individual perform each step after the explanation
• Scheduling court proceedings at a different time to meet the medical needs of the individual
• At the discretion of the judicial officer, an applicant can be accompanied by a support person
• Allowing remote appearance in lieu of a personal appearance

A person with a psychiatric disability is someone with a mental illness that significantly disrupts their ability to perform major life activities, such as learning, thinking, communicating, and sleeping. Common mental illnesses leading to psychiatric disabilities include anxiety disorders, depressive disorders, and schizophrenia.

Anxiety disorders are the most common group of mental illnesses and include panic disorder, phobias, obsessive-compulsive disorder, and post-traumatic stress disorder characterized by severe fear or anxiety associated with particular objects and situations. 

Depressive disorders include major depression, bipolar disorder, and seasonal affective disorder (SAD), and are characterized by significant mood disturbances. Schizophrenia, a highly complex illness, involves fragmented thoughts and difficulties in processing information. Depending on the individual's needs and the nature of the disability, accommodations may be required.

• Scheduling court proceedings at certain time to coincide with medication requirements or effects.
• Presenting information in a different manner to be better processed by the individual, such as providing instructions in a written or recorded format.
• Changing procedures as they relate to the interaction with witnesses and court staff in the courtroom.
• Eliminating distractions.
• Speaking slowly and distinctly.
• Allowing remote appearance in lieu of a personal appearance.

The ADA Coordinator can work with the applicant and make recommendations that would be suitable for the applicant. The judicial officer decides what reasonable accommodation can be made.  Primary consideration is given to the request of the individual with the disability; however, an alternative accommodation may be offered if it is equally effective. The court is not required to make modifications that would fundamentally alter the service or program or cause an undue administrative or financial burden on the court. When the court evaluates a request, resources available are to be considered at the local level as well as at the judicial level. With respect to court facilities, the court is not required to make every existing facility accessible so long as there is accessibility to the particular service or program. For example, the court does not have to make every courtroom accessible if the particular proceeding can be held in an accessible room.

If a person has a disability and needs an accommodation, the person may request an accommodation by using the Judicial Council Form MC-410, Request for Accommodation by Persons with Disability and Response.  Instructions to fill the form are available at Judicial Council Form MC-410 Info, How to Request a Disability Accommodation for Court. A person can also obtain assistance at a local Court. An accommodation request should be made as far in advance as possible, but at least five (5) days before the requested implementation. More time allows the Court to better respond to requests for accommodation. A person may submit your completed form:

• Via e-mail to the Court’s ADA Coordinator at ADAInformation@OCCourts.org  or via the postal address below
• Via e-filing in the court record for your case.
• In person at the clerk’s office filing window or to the ADA Coordinator at the courthouse
• By submitting it to the Department or courtroom hearing the case.

If the request relates to a jury summons, the individual should contact Jury Services as far in advance as possible by contacting (657) 622-7000.   For more information about Jury Services, please visit our website at www.occourts.org/divisions/jurorsjury-service

The court allows assistance animals into court facilities when legally mandated and/or necessary for a member of the public to conduct court business. If the assistance animal at any time disrupts court functions, is not under control of the handler, or is not housebroken, the animal may be denied access or removed from the premises.

To allow fair and accessible access to conduct court business for those with functional and access needs requiring an assistance animal.

Terminology

“Assistance animals” include service animals, and support animals. An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of an individual with a disability, or provides emotional, cognitive, or similar support that alleviates one or more identified symptoms or effects of an individual's disability. (See 2 Cal. Code Regs.  § 14331(a).)

“Service animals” are animals that have been individually trained to perform specific tasks to assist individuals with disabilities, including individuals with mental health disabilities. Service animals include guide dogs, signal dogs, service dogs, or other animal individually trained to meet the requirements of an individual with a disability under California Civil Code, section 54.1 or the Americans with Disability Act of 1990. These procedures also apply to service animals in training. (2 Cal. Code Regs. § 14020(f)(1).)

“Support animals” are animals that provide emotional, cognitive, or other similar support to an individual with a disability. Support animals are also known as comfort animals or emotional support animals. A support animal does not need to be trained or certified to perform specific acts related to an individual’s disability. (See 2 Cal. Code Regs. § 14020 (f)(2).)

Service Animals: The court permits services animals to accompany people with disabilities in all areas where members of the public are allowed to go. No disability accommodation request forms are required to admit service animals into the court. Service animals do not require a special vest, uniform, or documentation. In situations where it is not obvious that an animal is a service animal, court staff may only ask the following questions:

1. “Is the animal required because of a disability?” and
2.  “What disability-related work or task has the animal been trained to perform?” 

Staff cannot ask about the person’s disability, require medical documentation, require training documentation for the animal, or ask that it demonstrate its ability to perform the work or task.

Support Animals: A person may make a request to allow a support animal into court facilities as a reasonable accommodation related to the person’s disability. (2 Cal. Code Regs. § 14331(c).) Requests for such accommodation can be made orally, in writing, or on Judicial Council Form MC-410 – Disability Accommodation Request. Court staff may request additional documentation related to an individual’s need for a support animal. Each request will be assessed on a case-by-case basis. Requests for support animals may be denied if the animal creates an undue burden on the court or constitutes a direct threat to others. (2 Cal. Code Regs. § 14331(c).)

To establish if an animal is a support animal, court staff may request that the person complete an MC-410 form, or can ask the following: 

1. “Is the animal required because of a disability?” and
2. Does the animal provide emotional, cognitive, or other similar support for your disability?    
3. Is the animal under your control?

Animal Under Control: An assistance animal must be under the control of its handler. Assistance animals must be harnessed, leashed or tethered, unless these devices interfere with the assistance animal’s function or the individual’s disability prevents using these devices, in which case the assistance animal must be otherwise under the handler’s control. (28 C.F.R. § 35.136(d).) Reasonable conditions may be imposed on the use of an assistance animal to ensure it is under the control of the handler. (See 2 Cal. Code. Regs. § 14331(d)(6).)

Cause for Denial of Entry or Removal of Animal: Any assistance animal may be denied access or removed from court facilities or premises if the assistance animal at any time:

• Disrupts court functions
• Is not under the control of the handler
• Is not housebroken
• Exhibits animal behavior that may constitute a nuisance
• Constitutes a direct threat to the health or safety of others or a significant risk of bodily harm based on an individualized assessment or
• Would cause substantial physical damage to the property of others that cannot be sufficiently mitigated or eliminated by a reasonable accommodation based on an individualized assessment. 

If an individual with a disability is denied permission to have an assistance animal in or on court premises, the individual is still entitled to have access to court facilities and services as long as the individual no longer has the assistance animal in or on court premises.

Damages: An individual with an assistance animal may be required to cover the costs of repairs for damage the animal causes to any Court premises. 

Multiple Animals: An individual may have more than one service animal. An individual may also have more than one support animal, but when an individual already has a support animal as an accommodation and requests an additional support animal as a reasonable accommodation, court staff may consider whether the cumulative impact of multiple animals constitutes an undue burden or fundamental alteration of court services. 

For more information, please visit our website www.occourts.org.