DeLong v. Brumbaugh, Civ. A. No. 87-369.

• Decision Date: 12 January 1989
• Docket Number: Civ. A. No. 87-369.
• Parties: JoAnn DeLONG, Plaintiff, v. R. Bruce BRUMBAUGH, Judge of Common Pleas for the Commonwealth of Pennsylvania and the Commonwealth of Pennsylvania, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

703 F. Supp. 399

JoAnn DeLONG, Plaintiff, v. R. Bruce BRUMBAUGH, Judge of Common Pleas for the Commonwealth of Pennsylvania and the Commonwealth of Pennsylvania, Defendant.

Civ. A. No. 87-369.

United States District Court, W.D. Pennsylvania.

January 12, 1989.

COPYRIGHT MATERIAL OMITTED

Robert W. Lape, Jr., Roaring Spring, Pa., for plaintiff.

Kenneth J. Benson, Nancy E. Gilberg, for defendant.

OPINION

ZIEGLER, District Judge.

Pending before the court are two questions in this civil action for declaratory and equitable relief predicated on the Fourteenth Amendment, 42 U.S.C. § 1983, and the Rehabilitation Act of 1973. First, whether 42 Pa.C.S.A. § 4502, which sets forth the qualifications for jury service in the state courts of Pennsylvania, is unconstitutional on its face. Second, whether the application of the qualifications to JoAnn DeLong, a deaf citizen otherwise qualified to serve as a juror, was violative of plaintiff's right to equal protection and due process, and Section 504 of the Rehabilitation Act of 1973. Following a hearing on plaintiff's motion for a preliminary injunction, the parties agreed to consolidate that hearing with a trial on the merits. See Fed.R. Civ.P. 65(a)(2).

We hold that plaintiff's facial challenge cannot prevail because the statute is neither overbroad nor invalid in all applications. We further hold that all claims of plaintiff against the Commonwealth of Pennsylvania are barred by the Eleventh Amendment. Finally, we hold that plaintiff has established, by a preponderance of the evidence, that the state court violated Section 504 of the Rehabilitation Act when it disqualified JoAnn DeLong from the jury array of the Court of Common Pleas of Blair County, Pennsylvania, solely because she is deaf. As a result, we need not address the remaining constitutional claims of plaintiff.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

(1) Plaintiff, JoAnn DeLong, is a deaf, adult citizen of the Commonwealth of Pennsylvania who resides at 933 Chestnut Street, Roaring Spring, Blair County, Pennsylvania.

(2) Plaintiff is able to read, write and understand the English language; she suffers from no mental infirmity; and she has reached the required minimum age for voting in all state and local elections.

(3) Defendant, Honorable R. Bruce Brumbaugh, was elected judge of the Court of Common Pleas of Blair County, Pennsylvania, and assumed the duties of office on January 7, 1980. At all relevant times, defendant was acting in an official capacity, under color of state law, and within the scope of his employment as a judicial officer.

(4) In 1986, the County of Blair, Pennsylvania, received approximately $855,000 in unrestricted federal revenue sharing funds which were used, in part, to defray the capital expenditures of the Court of Common Pleas of Blair County, Pennsylvania.

(5) Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343.

(6) The Commonwealth of Pennsylvania has enacted a statute which provides in relevant part:

Qualifications of Jurors.

Every citizen of this Commonwealth who is of the required minimum age for voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen:

(1) is unable to read, write, speak and understand the English language;

(2) is incapable, by reason of mental or physical infirmity to render efficient jury service ... 42 Pa.C.S.A. § 4502.

(7) On October 6, 1986, JoAnn DeLong reported as directed by local officials to the Blair County Courthouse at Hollidaysburg, as a member of the civil jury array. See Plaintiff's Ex. 2. Plaintiff was accompanied by an experienced interpreter of American Sign Language.

(8) American Sign Language is the language used by the deaf community in the United States and the English speaking provinces of Canada. It is a language that is visual and gestural in nature. American Sign Language includes such variations as Signed English, Pidgin Sign English and Manually Coded English.

(9) Plaintiff understands the English language and speaks to the hearing world by using Pidgin Sign English and an interpreter.

(10) The interpreter was prepared to transliterate for plaintiff the spoken instructions of the state court to the array by using Pidgin Sign English. Plaintiff then communicates her response, if any, to the interpreter by using Pidgin Sign English, and the interpreter conveys the sign in spoken English.

(11) After a side bar conference with the interpreter, the court concluded that plaintiff did not meet the statutory qualifications of 42 Pa.C.S.A. § 4502(1) because she was unable to speak the English language and 4502(2) because she was unable to render efficient jury service due to a physical infirmity, namely, deafness. See Plaintiff's Ex. 4 at 22. Plaintiff was excluded from the array and discharged.

(12) Plaintiff was excluded from the array without objection from any lawyer or challenge from any party.

(13) Plaintiff was excluded from the array without a meaningful opportunity to explain to the court that she met all the statutory requirements of state law for service as a juror.

(14) Plaintiff was excluded from the array without a meaningful opportunity to explain to the court that she was able to meet the statutory requirement that she "speak and understand the English language."

(15) Plaintiff was excluded from the array without a meaningful opportunity to present evidence concerning American Sign Language and the use of idioms, emotion and emphasis of Pidgin Sign English to communicate to the deaf, including plaintiff, the intent, thought and spirit of the exact spoken word.

(16) Plaintiff was excluded from the array without a meaningful opportunity to present evidence that the interpreter could be placed in a courtroom in a position so that plaintiff could observe the court, counsel or witness, and the interpreter, without distraction to other participants.

(17) Plaintiff was excluded from the array without a meaningful opportunity to present evidence that deaf persons, including plaintiff, can and do make credibility determinations on a daily basis by use of signed interpretations, lip reading, observing facial and bodily expressions, context, consistency and personal demeanor of the speaker, and other observable factors.

(18) Pidgin Sign English is a distinct language employed by interpreters and deaf persons, such as plaintiff, to understand and speak the English language. An interpreter transliterates the spoken English word by signed messages to the deaf individual, while mouthing, at the same time, the exact spoken words. The deaf person receives the content of the spoken word by viewing the lip formations and the signed words. The deaf person communicates with the hearing world by signing. An interpreter interprets the sign and conveys the thought in spoken English to the hearing person.

(19) Pidgin Sign English is used to place idioms in context, such as "out of his mind," or "nutty as a fruitcake," so that a deaf person, such as plaintiff, recognizes that some words should not be taken literally.

(20) Pidgin Sign English can be used to explain emotion, anger, passion, love or disdain by use of intensity signs or by facial expressions. While there is no sign for every English word, finger spelling can be used, if necessary, to convey precise scientific terms without undue delay in the judicial proceeding.

(21) Pidgin Sign English, in conjunction with other senses, permits deaf persons, including plaintiff, to make credibility determinations and participate in the judicial process by use of signed interpretations, lip reading, observation of facial and bodily expressions, context, consistency and personal demeanor of the speaker and other observable factors.

(22) Qualified interpreters are available from the Registry of Interpreters for the Deaf, Inc., who are bound by oath and a code of ethics to interpret and transliterate in highly specialized situations. Plaintiff's Ex. 1; see also 42 PA.C.S.A. § 7103(c).

(23) Plaintiff, JoAnn DeLong, is an adult, educated, deaf person who resides and works in Blair County, Pennsylvania. On October 6, 1986, she was qualified to vote in all state and local elections, and was and is able to read, write and understand the English language. Because she was born without an impairment, plaintiff is able to speak to some degree and is able to communicate fluently through an interpreter.

(24) The evidence establishes that plaintiff became deaf at age seven and now communicates with a hearing person by use of writings, signs, expressions and an interpreter, when necessary. If plaintiff had been selected by the parties to serve as a juror in a case, the spoken word in the courtroom and jury room would have been conveyed to plaintiff by an interpreter using Pidgin Sign English. Plaintiff then would have communicated to the interpreter by Pidgin Sign English and the interpreter would have conveyed the sign in spoken English.

(25) Plaintiff was excluded from the array despite the persuasive evidence that she understands through sign language and other skills the emotion, emphasis, intent, thought, and use of the English language, that she is capable of making credibility determinations, and that she is able to speak to a hearing person through an interpreter.

(26) The interpreter could have been placed in the courtroom in such a position so that plaintiff could have observed the interpreter and the behavior of the speaker or witness, without distraction to other participants.

(27) The interpreter could have functioned under oath, in the jury deliberating process to convey to plaintiff, the spoken words of the hearing jurors, and the contributions of plaintiff without violating the secrecy of the jury's deliberations.

(28) The interpreter could have functioned, under oath, in the jury deliberating process to convey to plaintiff the spoken words of the hearing jurors, and the contributions of pla...