The Judicial Council Access and Fairness Advisory Committee, appointed by former Chief Justice Malcolm M. Lucas in March 1994, was created to make recommendations to improve and broaden access, fairness, and diversity in the judicial system. It is also part of the advisory committee's responsibility to ensure that the council's projects, pursuant to these goals, are implemented, or that new areas of focus are developed as appropriate. The full committee is organized into five subcommittees that address various access issues: racial and ethnic bias; gender fairness; access for persons with disabilities; and sexual orientation fairness. The fifth subcommittee deals with education and implementation and acts on the recommendations and projects from the other subcommittees.
The Access for Persons with Disabilities Subcommittee was created to study and address issues related to the accessibility of the judicial system to persons with apparent and nonapparent disabilities and those with chronic medical conditions. Specifically, the subcommittee is seeking to identify barriers to full and equal participation in the justice system for persons with disabilities, and to determine what accommodations, beyond those already in place, may be necessary. The subcommittee will also advise the council on implementation of the Americans with Disabilities Act (ADA) in the California court system.
A multiphase research program, sponsored by the subcommittee, was initiated in 1995 to document the perceptions and experiences of persons with and without disabilities who have had, and continue to have, business with the courts. The research program consisted of public hearings, a telephone survey, a mail survey, and qualitative interviews. The research effort sought to assess the treatment and access afforded to persons with disabilities who participate in court programs, activities, or services. The results and analysis of the telephone survey, the mail survey, qualitative interviews, and public hearings are presented in two separate reports.
Seven public hearings were conducted in six cities, Fresno, Los Angeles (two days), Oakland, Sacramento, San Diego, and San Francisco from August 1995 to October 1995. These six public hearing locations were chosen in order to produce geographic diversity, provide locations with large concentrations of various racial and ethnic minority groups, and offer for comparison large versus small urban centers. Most of the participants who testified at the public hearings were advocates for disability rights issues, individuals who believe they were the victims of discrimination, court professionals and court personnel, representatives from a diverse range of state/county agencies and commissions, and concerned citizens. Telephone testimony was also accepted to capture the opinions of persons in rural areas, individuals with mobility impairments that made it difficult for them to attend the public hearings, and those persons with little or no transportation available
The objectives of the public hearings were to (1) record and assess the perceptions and experiences of all persons regarding the access afforded persons with disabilities who use the courts or are employed by the courts; (2) determine the nature and extent of the needs of persons with disabilities; and (3) identify the barriers to full participation in the state court system for persons with disabilities.
The telephone survey was intended to objectively verify the issues and perceptions that were expressed in the public hearing testimony. A total of 1,200 people participated in the survey. The survey sample was inclusive of input from people with and without disabilities, and was representative of the state's general population in terms of age, gender, race and ethnicity. In order to achieve appropriate stratification and representation, two survey sample lists were used that included (1) a list of households of persons with disabilities, and (2) a random sample of the general public in households, aged 18 and older, throughout the state. For the telephone survey, demographics were evenly divided as to the respondents' disability status (i.e., persons who indicated that they did or did not have a disability). Approximately 48 percent of the respondents reported having a disability or chronic medical condition while 52 percent reported they did not. The median age of respondents was between 45 to 55 years old with 57 percent female and 43 percent male. The racial and ethnic composition of the telephone survey respondents was 73 percent White, 8 percent Hispanic, 5 percent Asian, 4 percent African American, 4 percent mixed race, 3 percent Native American, and 3 percent identified as Other.
The mail survey used a more quantitative framework to objectively verify public perceptions. Over 6,000 mail surveys were distributed to persons with and without disabilities. A total of 1,661 surveys were returned, which constitutes a response rate of 28 percent. The mail survey targeted court users in both law related and non law related professions. These court users included judges and other court professionals, court personnel, lawyers, legal employers, law schools, legal organizations, disability-related organizations, agencies, advocates, service providers and their clients or members. Disability-status demographics for mail survey participants revealed that 37 percent of the respondents did have a disability or chronic medical condition while 63 percent did not. The median age of the mail survey respondents was between 45 to 55 years old with 48 percent of the respondents being female and 52 percent male. The racial and ethnic composition of the mail survey respondents was 76 percent White, 11 percent Hispanic, 4 percent Asian, 4 percent African American, 3 percent mixed race, and 2 percent Native American.
Qualitative interviews were utilized in order to ensure that all other relevant access issues were included in the study. In order to obtain a pool of interviewees, a tear-off sheet was attached to each mail survey, providing each respondent the option of further participation in the research program. Respondents who returned a completed tear-off sheet were invited to participate in qualitative interviews. A total of 373 mail survey respondents indicated interest in participating in qualitative interviews. Of these responses, 183 persons (a 49 percent response rate) agreed to be interviewed or participate further by fax, electronic mail, or regular U.S. mail. The structure of the qualitative interviews was based on preliminary analysis of data from both the telephone and the mail surveys, and addressed areas that the subcommittee believed needed further clarification.
In particular, the qualitative interviews emphasized (1) perceptions of the most important problems faced by persons with disabilities when using the courts, (2) experiences relating to the attitudes among people working in the courts toward persons with disabilities, and (3) perceptions of the effectiveness of the state courts in complying with the requirements of the Americans with Disabilities Act (ADA).
Analysis of public hearing testimony and survey results
Speakers at the public hearings discussed many issues regarding the experiences of persons with disabilities in the court system. Testimony revealed that the primary concerns facing persons with disabilities pertained to the problems of physical access to the courts, court policies and procedures necessary to participate in court proceedings, and knowledge and awareness of disability issues among court personnel.
Physical mobility in and out of court facilities generated considerable comment from public hearing and survey participants. Speakers at the hearings noted that physical access to court facilities, navigating passageways and common rooms inside court buildings, using physical structures within court facilities or parking near court buildings was exceedingly difficult and not always available for persons with disabilities. Public hearing testimony also pointed out that accessibility for persons with disabilities in the courts did not refer to architectural accommodations only. Many speakers stressed the importance of improving other types of accommodations such as increasing the availability and quantity of assistive listening devices, print enlargers and sign language interpreters.
Another sentiment echoed at the hearings was that some court policies and procedures create obstacles for persons with disabilities when they try to participate in court proceedings. Persons with disabilities were more apt to face barriers to the court system due to court scheduling and jury selection policies. Some speakers noted that certain polices made it difficult for persons with disabilities to be included in jury pools while others stated that they were experiencing problems in obtaining legal representation. The difficulty in obtaining legal representation was cited as an ongoing problem for persons with disabilities. Many speakers indicated that greater efforts were needed to accommodate persons with disabilities by adjusting court scheduling policies.
While a substantial number of survey respondents (44 percent) indicated that the California courts were somewhat successful in meeting the tenets of the ADA, the overall impression among those polled was that the courts have achieved limited success in accommodating the needs of persons with disabilities who come before the courts. Persons without disabilities were more likely than persons with disabilities (49 percent as compared to 38 percent) to rate the California courts as somewhat successful at providing access for persons with disabilities.
A majority of respondents believed that persons with disabilities have less access to court programs, activities and services than persons without disabilities. Major problems cited by survey respondents with disabilities were inaccessible architectural features ( such as paths of travel, doors and entrances, restrooms, and parking areas) and furniture and fixtures (such as door handles, telephones and counter-tops) that make physical access to the courts difficult.
Survey respondents corroborated public hearing testimony that there is a general lack of knowledge and awareness of disability issues among court personnel. This is reflected in the general lack of alternative formats for court documents and forms (such as Braille, large print, computer disks, or audio cassettes). Most respondents also noted that the courts generally do not have assistive devices (such as print enlargers, listening devices, real-time reporting and telephones designed for the use of individuals with a hearing impairment) available to permit persons with disabilities to participate fully in court proceedings.
Some respondents, with and without disabilities, expressed concern about hiring practices in the courts and questioned whether there is a bias against employing persons with disabilities. There was no consensus on this issue. Nevertheless, respondents would like the courts to make greater efforts to employ persons with disabilities.
Opinion was also divided on whether the courts generally provide the accommodations requested by court users. This concern was coupled with comments about negative attitudes toward persons with disabilities. An overwhelming majority of respondents (82 percent) have not heard any comments or remarks in the courts that could be considered biased. Among those who have witnessed negative behavior, attorneys were more likely to be the source than judges or court staff although judges and court staff were perceived as sometimes guilty of such behavior. Also an issue is the perception that judges and court staff do not take action to prevent the negative behavior of attorneys.
Attached to this report are the combined findings, conclusions, and recommendations to the Judicial Council based on the research reports. The conclusions highlight the key themes and issues derived from the speakers testifying at the six public hearings, and from all survey and interview results. Also outlined are the objectives and recommendations for the Judicial Council to consider in order to implement programmatic, communicative, or architectural changes that will accommodate the needs of persons with disabilities who use or work in the courts.
These recommendations are consistent with the council's 1995 to 1996 long-range strategic plan in which access and fairness in the state court system are targeted as primary goals. Implementation of these recommendations is of primary importance because they can serve to change attitudes and behavior on the part of court personnel and members of the bar that interfere with access to justice, fair treatment, and full and equal participation in the justice system for persons with disabilities.
(e.g., equipment, alternative formats, interpreters, personal assistance, etc.)
Request that the Judicial Council, in conjunction with the Center for Judicial Education and Research (CJER), establish methods to familiarize judges and non-judicial court personnel with the Americans with Disabilities Act (ADA), ADA compliance requirements, and related federal and state laws. Further, request the council to instruct the Access and Fairness Advisory Committee, in consultation with the Administrative Office of the Courts (AOC), to publish some simple, easy-to-read guidelines for court personnel on different aspects of ADA compliance.
(a) (Print and electronic media) The AOC should distribute this information in pamphlet, other print, or other media format: such as the Internet, other electronic transmissions, videos, etc.
(b) (Monitoring compliance) The AOC, in consultation with the trial courts, should monitor all state courts to determine the status of compliance with the ADA, and related state and federal laws, including but not limited to physical, environmental, communications, transportation, and programmatic access; and, develop transition plans for all courts to achieve compliance.
(c) (Monitoring contracts) The courts and the AOC should monitor and ensure that all programs, activities, and services provided to the courts and the AOC by independent contractors adhere to compliance requirements under the ADA and related state and federal laws, and cancel such contracts where noncompliance is found.
(Education about Disabilities)
Request that the Judicial Council, in cooperation with the courts, CJER, and other organizations implement programs to develop and provide information, training, and education for all persons employed in the courts concerning persons with disabilities who may need accommodation. The training should include the types, scope, and nature of accommodations needed and available.
(a) (All court personnel) It is recommended that CJER and the Judicial Administration Institute of California (JAIC), working with the Access and Fairness Advisory Committee and the California Judges Association (CJA), offer educational courses on issues concerning persons with disabilities for both new and sitting judicial officers, court staff, and persons working in the justice system. The purpose of the program would be to improve access to and fairness in the courts for persons with disabilities.
(b) (Training for judges) The program should include specific learning objectives, a progression of learning experiences, and a prioritized set of measurable results. It should be introduced initially at the New Judicial Officer Orientation Program, the Mentor Judge Program, the B.E. Witkin Judicial College of California, and at any formal training for judges.
(c) (Training for court staff) JAIC in association with the Access and Fairness Advisory Committee should develop a comparable program for court staff that would be delivered, on a statewide or regional basis, within six months of initial employment for new employees. Current employees would receive instruction during continuing education programs. The course should include a discussion of apparent and non-apparent disabilities and the various accommodations that are appropriate.
(d) (Methodology) In conjunction with CJER, JAIC, and others the advisory committee should develop educational programs that include audio and video presentations, modules using interactive techniques, and innovative communication techniques. Part of the educational program should include the development of centralized fairness libraries and resource centers.
(Referrals to State Bar and Law Schools)
Request that the Judicial Council transmit to and urge consideration by the California State Bar of the following: a Mandatory Continuing Legal Education (MCLE) component that covers access issues for persons with disabilities and examines state and federal laws that address this issue. It is also requested that the council transmit to the appropriate law school associations the recommendation that internship programs in the area of disability law should compliment the education of law students.
(Assess Available Resources)
Request that the Judicial Council assist the courts in assessing the preparedness of court personnel to assist persons with disabilities, and establish a plan to achieve full preparedness, including updating the skills of court personnel to assist persons with disabilities.
(a) (Interpreters) All courts should identify and acquire the services of qualified interpreters for hearing-impaired persons or those with other communication disabilities who are hearing impaired, and stipulate that no court should use family members or friends to communicate "for," i.e., on behalf of, the person who has a communications limitation.
(b) (Assistive devices) California courts should provide adequate numbers of assistive listening devices, print enlargers, and real-time reporting to meet the needs of persons with disabilities using their facilities, through the resources of each court system or by pooling arrangements between court systems where such arrangements are feasible.
(c) (Court personnel) All courts should provide sufficient court personnel to meet the need for personal assistance to transmit information between persons with disabilities and the courts, which may include reading court rules or instructions or court forms and to assist with filling out court forms or other documents.
(d) (Court personnel) Bench officers, jury commissioners, and court staff should receive training as part of CJER and JAIC courses on how to accommodate jurors with different disabling conditions so that persons with disabilities are able to fulfill their civic responsibilities.
Request that the Judicial Council develop a protocol to enable judges and nonjudicial court personnel to identify available resources to accommodate persons with disabilities. The courts should collaborate with the counties to identify funding sources to meet federal and state disability-related legal compliance requirements (e.g., physical modifications, programmatic accommodations, etc.).
Request that the Judicial Council establish as a priority the substantial improvement in physical access. High priority should be given to improving access into and through court facilities with an emphasis on the following:
(a) Parking (including a sufficient number and in close proximity to the courthouse);
(b) Entrances (including ramps, handrails, automatic doors, and accessible security screening);
(c) Interior facilities (including rest rooms, doorways, passage areas in halls, courtrooms, offices between floors; information/clerk windows and counter tops, dining areas, waiting areas, courtrooms, witness boxes, jury boxes, counsel areas, chambers, jury deliberation rooms, holding and detention areas;
(d) Courtrooms (including sufficient maneuvering space and integrated seating for wheelchairs).
Request that the Judicial Council direct its staff to work with the courts to provide adequate, effective, and diverse methods to disseminate directions and information to persons with a variety of disabilities, including Braille, large print, color-coded, and even standard-print signage at the entry of the courthouse and throughout the building. The staff, in consultation with the courts, should develop a protocol for communications within the courthouse and between it and persons with disabilities.
(a) (Signage) The courts should post adequate, effective, and diverse signs that alert the public to the availability of accommodations regarding equipment and services for persons with disabilities.
(b) (Communication within the courthouse) All courts should provide adequate, appropriate, and effective methods of communication within the courthouse and between it and persons with disabilities who use nontraditional means of communication, such as interpreters, assistive-listening systems like real time and TDDs, as well as a variety of other methods to assist with communications.
(c) (Alternative language) All courts should provide bilingual sign language interpreters, as needed.
(d) (Assistive-equipment) All courts should be familiar with the use of assistive equipment such as assistive-listening devices, real-time print enlargers, and other equipment used by persons with disabilities, and maintain such equipment in good working condition.
(e) (Availability) All courts should provide sufficient and well maintained assistive listening systems, real time captioning, print enlargers and other technological communications devices to meet the needs of persons with disabilities either through resources of each court system or by pooling arrangements between court systems where such arrangements are feasible.
Request that the Judicial Council require that when courts provide transportation for jurors, trial participants, and others, that the courts effectively accommodate the transportation needs of persons with disabilities and make every effort to assist this population with finding alternative means of transportation to and from court when persons with disabilities have difficulty obtaining accessible transportation.
Request that the Judicial Council direct its staff to work with the courts to develop a protocol for accommodating persons with environmental sensitivities. Further request that the council encourage all courts to accommodate the environmental and chemical sensitivities of persons with disabilities by providing an alternative setting free of noxious scents and substances, adjustable heating and cooling systems, adequate ventilation, adjustable lighting, and alternative lighting sources. Request that the council also urge the courts to consider alternative methods of participation in court proceedings, such as telephone appearance, video appearances, or alternative, suitable locations for those with environmental or chemical sensitivities.
Request that the Judicial Council affirm the need for all courts to provide accommodations for qualified persons with disabilities, as required by state and federal law, and California Rule of Court, rule 989.3. Further, request that the council direct its staff to draft a Standard of Judicial Administration concerning courtroom conduct toward persons with disabilities.
(a) (Attitudes, court programs) The Judicial Council should encourage each court to develop an ongoing program of training and evaluation to improve staff awareness of disability issues, as well as techniques to address those issues on a programmatic basis.
(b) (Training trainers) CJER and JAIC should conduct statewide educational programs, with the emphasis on training trainers in the courts, to raise awareness of barriers facing persons with disabilities and the techniques, skills, and equipment necessary to overcome those barriers.
Request that the Judicial Council direct staff to draft a rule of court to (1) designate an ADA Coordinator for courts at all levels to advise the court about the ADA and related state and federal laws and their requirements; (2) design and implement related programs; (3) act as court liaison with the disability community; and (4) organize and utilize as advisors the expertise of persons representative of various disabilities and disability organizations.
(a) (For court users) Every court should provide for the training of a central person to act as an information and referral resource and as ombudsperson for people with disabilities who participate or want to participate in court activities, programs and services. These persons should receive training about the ADA, related state and federal laws, and compliance requirements.
Request that the Judicial Council direct staff to draft a Standard of Judicial Administration to provide flexible scheduling to accommodate disability-related delays that may involve stamina or time limitations, time of day, or transportation problems unique to persons with disabilities, and which make it difficult to participate in court activities, and programs including, "fast track" programs, motions, trials, and other court business.
(a) (Effective accommodations) No court should permit proceedings to begin until effective accommodations, such as communications, scheduling, and physical access is provided for persons who are interested in or affected by the proceedings.
(Recruitment, Hiring, Promotion)
Request that the Judicial Council direct the Access and Fairness Advisory Committee to do further study and report on bias or lack of fairness in the recruitment, hiring, and promotion of court employees. Further, request that the council encourage the courts to employ more bench officers and other personnel with disabilities.
(Accommodations for Court Personnel)
Request that the Judicial Council instruct staff to develop a Standard of Judicial Administration providing that court personnel, including judges, should be provided reasonable accommodations.
Request that the Judicial Council seek legislation to amend Code of Civil Procedure section 203(b) to add that "[N]o court should exclude qualified persons with disabilities as jurors." Additionally, request the council to direct staff to draft an interim rule on persons with disabilities and jury service until such time as section 203(b) is amended. Further, jury commissioners should determine what physical, communications, environmental, and transportation accommodations are available to persons summoned for jury service, and establish a protocol for addressing this issue.
(a) (Information) All courts should provide information concerning jury service, both before actual service and during jury service, in an effective fashion or in alternative formats to persons who communicate by other means.
(b) (Utilizing individuals with disabilities) The California courts should take further steps to utilize individuals with disabilities as jurors.
(c) (Communications) All courts should provide effective communications assistance to persons with alternative communications requirements who are prospective jurors or participating jurors. Assistance includes certified, real- time captioning, and translators for persons who are deaf or blind, as well as other kinds of communications assistance.
Request that the Judicial Council undertake a study of specialty courts to determine whether there is bias or unfairness against persons with disabilities on an institutional basis in cases involving child custody and visitation, conservatorships and guardianships, dissolutions, criminal law, and public accommodations.
Request that the Judicial Council undertake data and information collection to determine baseline data on the current state of the courts' ability to respond to disability issues, including but not limited to:
(a) A regular (biennial) survey of courts, reflecting the number of employees with disabilities;
(b) Identification of ADA coordinators for each court;
(c) Lists of accommodations available from each court;
(d) Assessment data on awareness of court personnel and compliance;
(e) Survey of information and attitudes of court staff;
(f) Data reflecting the use of each court by persons with disabilities;
(g) Survey of education and training made available in each court; and
(h) A survey of complaint mechanisms.
(Case Outcome Study)
Request that the Judicial Council underwrite studies of case outcomes to determine whether persons with disabilities experience unfairness with respect to court orders, judgments, and settlements in:
(a) Settlements in criminal and civil cases;
(b) Orders in family courts, juvenile courts, probate, and other specialty courts;
(c) Verdicts in criminal and civil cases;
(d) Equitable and general orders; and
(e) ADR, arbitration, and other forms of case resolution.
Request that the Judicial Council undertake a comprehensive compliance review of the court process to quantify the extent to which persons with disabilities face barriers to participation in the legal system. The compliance review should track all recommendations made by this committee and identify any new issues that have arisen in the interim.