260 F.3d 1124 (9th Cir. 2001), 99-35934, Duvall v. County of Kitsap

Docket Nº:99-35934
Citation:260 F.3d 1124
Party Name:CHRISTOPHER T. DUVALL, PLAINTIFF-APPELLANT, v. COUNTY OF KITSAP, A MUNICIPAL CORPORATION OF THE STATE OF WASHINGTON; LEONARD KRUSE, SUPERIOR COURT JUDGE; BARBARA RAZEY, KITSAP COUNTY RISK MANAGER AND ADA COORDINATOR; PATRICIA RICHARDSON, DEPUTY PROSECUTING ATTORNEY & CHAIRPERSON OF THE KITSAP COUNTY ADA COMMITTEE; MADELYN Page 1125 BOTTA, KITSAP
Case Date:March 15, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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260 F.3d 1124 (9th Cir. 2001)

CHRISTOPHER T. DUVALL, PLAINTIFF-APPELLANT,

v.

COUNTY OF KITSAP, A MUNICIPAL CORPORATION OF THE STATE OF WASHINGTON; LEONARD KRUSE, SUPERIOR COURT JUDGE; BARBARA RAZEY, KITSAP COUNTY RISK MANAGER AND ADA COORDINATOR; PATRICIA RICHARDSON, DEPUTY PROSECUTING ATTORNEY & CHAIRPERSON OF THE KITSAP COUNTY ADA COMMITTEE; MADELYN

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BOTTA, KITSAP COUNTY COURT ADMINISTRATOR; WIN GRANLUND, CHAIRMAN OF THE BOARD OF COMMISSIONERS; MATT RYAN, KITSAP COUNTY COMMISSIONER; PHIL BEST, KITSAP COUNTY COMMISSIONER, DEFENDANTS-APPELLEES.

No. 99-35934

United States Court of Appeals, Ninth Circuit

March 15, 2001

Argued and Submitted March 15, 2001--San Francisco, California

--San Francisco, California

August 14, 2001

Corrected October 11, 2001

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Counsel Lonnie Davis, Disabilities Law Project, Seattle, Washington and Christopher K. Steuart, Seattle, Washington, for the plaintiff-appellant.

Russell D. Hauge, Kitsap County Prosecuting Attorney and Jacquelyn M. Aufderheide, Deputy Prosecuting Attorney, Port Orchard, Washington, for the defendants-appellees.

Appeal from the United States District Court Western District of Washington J. Kelley Arnold, Magistrate, Presiding D.C. No. CV-98-05448-JKA

Before: Stephen Reinhardt, Pamela Ann Rymer, and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Rymer

Christopher Duvall brought this action against a superior court judge, Kitsap County, the County's Americans with Disabilities Act ("ADA") coordinator, the chairperson of the County's ADA committee, and the person who served as court administrator and court ADA coordinator. Duvall alleged that these defendants failed to accommodate his hearing impairment during the state court proceedings involving the dissolution of his marriage. Specifically, he contends that the defendants violated the ADA, Section 504 of the Rehabilitation Act, and the Washington Law against Discrimination (WLAD) by refusing to provide real-time transcription for his hearings.1 The district court granted summary judgment to all defendants as to all claims. Duvall appeals.

I. Background

Christopher Duvall is completely deaf in his left ear and has a severe hearing impairment in his right ear. Because he

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does not sign well enough to use American Sign Language or Signed English, Duvall's primary mode of receiving communication is through the written word. He wears custom-fitted hearing aids and is able to communicate effectively in one-on-one conversation in spoken English with the aid of visual cues and lip reading. He finds it extremely difficult, however, to follow a conversation in which he is not a participant. In such circumstance, he is unable to focus on a single speaker to study his facial expressions, body language, and lip movement; nor is he able to control the pace of the conversation, nor provide for a pause that would give him time to process the various aural and visual cues and interpret the speaker's message. Attempting to overhear or follow a conversation between others requires a great deal of concentration, and after approximately thirty minutes Duvall begins to suffer from tinnitus and headaches that further diminish his capacity to understand spoken communication.

In 1994 and 1995 Duvall was a party to a family law case in the superior court of Kitsap County, Washington involving the dissolution of his marriage. In his declaration, he states that he was initially able to participate meaningfully in several pre-trial hearings because the hearings were short, there was no oral testimony, and the discussion centered on written materials that he had reviewed prior to the hearing. Thereafter, however, he experienced difficulty in following the one pre-trial hearing that included extensive oral testimony. That hearing took place in courtroom 269, the courtroom designated for hearing-impaired individuals because of its small size, superior acoustics, and special equipment, including an assistive-listening device, for hearing-impaired individuals. Nevertheless, Duvall could not understand the testimony of his ex-wife, even though he knows her speech patterns very well. Subsequently, after he continued to experience difficulty understanding the proceedings in two further pre-trial hearings, Duvall realized that he would not be able to participate meaningfully when the case came to trial without some form of accommodation. He then contacted the U.S. Department of Justice and was advised that he should request videotext display from the ADA Coordinator for Kitsap County.

The parties dispute when Duvall first requested videotext display for his court proceedings. Duvall contends that he contacted Barbara Razey, the county's ADA coordinator, in April, 1995, and spoke to her several times in the six weeks preceding his trial about his need for accommodation. According to Duvall, he explained to Razey that he had examined the equipment in courtroom 269 and had concluded that it would not effectively accommodate his hearing impairment, and specifically requested real-time transcription for his trial, which was scheduled to begin in late June. He asserts that when he called Razey shortly before the trial to emphasize the importance of his request he was instructed to contact Patricia Richardson, the Chairperson of the Kitsap County ADA Committee, because Razey was on vacation. According to Duvall, Richardson took no action with regard to his request but, instead, directed him to contact Madelyn Botta, who was both the Director of the Superior Court Administrative Services and the ADA coordinator for the superior court. 2

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Duvall asserts that he telephoned Botta twice in mid-May. While the substance of their conversations is disputed, Duvall contends that he requested real-time transcription. Subsequently, Botta contacted Duvall's attorney, Michael Alvarado, and told him that the trial would be held in a courtroom equipped for the hearing impaired, that neither she nor the judge would speak directly to Duvall, and that Duvall could file a motion with the court regarding accommodation if he wished.3 None of the court or county officials attempted to determine whether the facilities in courtroom 269 would accommodate Duvall's hearing impairment, or whether it would be possible to provide videotext display through a court-reporting service, although, according to Duvall, he had informed them that the accommodations provided in Courtroom 269 were inadequate, given the nature of his particular hearing problems.

The trial for the marriage dissolution action was held before Judge Leonard Kruse on June 21, 22, and 23 in courtroom 269. That courtroom was equipped with the "Telex Soundmate," an assistive audio system for hearing-impaired individuals. Duvall contends that this device was inappropriate for an individual like himself who uses hearing aids that are precisely adjusted to the user's hearing needs. Telex-Soundmate did not contain an inductive loop system that would transmit to Duvall's hearing aids and make use of their customized settings. He further declares that the facilities in courtroom 269 required him to remove his hearing aids and to use earbuds, which provided only general amplification and impeded the use of his natural hearing ability. By Duvall's account, requiring him to remove his hearing aids to use the inferior Soundmate system was equivalent to requiring a person with an artificial leg to remove the leg and use crutches.

Duvall's attorney made a motion to the court on the first day of trial requesting videotext display to accommodate Duvall's hearing impairment. Judge Kruse stated in his deposition that this was the first time that he had heard about Duvall's request for that accommodation. In any event, Judge Kruse denied the motion, stating,

[T]hat's the way humans happen to communicate, I guess up until a very recent time, with one another is orally. And I know that some courts in some places have the ability to have, in effect, an on-line screen available through the court reporter. We have not progressed to that technical degree in this county, and I can only assume that if Mr. Duvall wished to have that service available he can provide that service for himself.

Judge Kruse did, however, permit Duvall to move around the courtroom freely and position himself wherever he could best hear the proceedings. Duvall sat in the jury box for a portion of the trial. Although this permitted him to understand the witnesses somewhat better, he was unable to communicate easily with his lawyer, who was sitting at the counsel table. He testified that he made extensive notes to preserve his thoughts for his lawyer, but that he missed the testimony that occurred while he was looking down to write notes. When Duvall's ex-wife took the stand on the first day of trial, Judge Kruse stated that the parties and attorneys could move about the courtroom "unless it . . . starts to be disconcerting in some regard

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or intimidating or something." Duvall states in his declaration that he interpreted this remark to imply that he was sitting too close to the witnesses, and moved several seats away from the witness box, putting him out of effective aural range of the witnesses and attorneys. According to Duvall, at this point he "gave up" and returned to his seat next to his attorney for the remainder of the trial. The intense concentration required to attempt to follow the proceedings resulted in exhaustion, headaches, and tinnitus, further impeding his ability to hear. In sum, Duvall avers that his hearing impairment prevented...

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