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Access to the Courts

A Guide to Reasonable Accommodations for People with Disabilities

Publication #5026.01
Second Edition - Updated April 2003

 

Computer research time donated by West Publishing.

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Table of Contents

Introduction

What is the purpose of this guide?
Why would I want to go to court, anyway?

Your Rights in State Courts

What are my rights to reasonable accommodations in state courts?
How do I know if I qualify for reasonable accommodations?
What is the definition of "disability?
What does the court have to do to accommodate my disability?
What should a court do to make sure that I can communicate?
What kinds of accommodations might be reasonable?

If I have a visual impairment?
If I have a hearing impairment?
If I have a mental impairment?
If I have a physical disability?
If I have another disability, or if I have more than one disability?

Do I have to ask for reasonable accommodations?
When should I ask for reasonable accommodations?
How do I fill out the form? What should I write in the blanks?
Can I keep my request confidential?
How will I know if the court will accommodate my disability?
What should I do if the court won't give me reasonable accommodations?

Your Rights in Federal Courts

What are my rights to reasonable accommodations in federal courts?
What are communication disabilities?
To whom should the court give an accommodation?
Should the court give me an accommodation if I am called to serve as a juror?
What types of accommodations could a federal court give me?
Who decides what accommodations the court should give me?
How do I request a reasonable accommodation?
Does the court have specific procedures to request an accommodation?
Can I appeal from the court’s decision if the court denies my request for accommodation or if I don't agree with the type of accommodation the court offers?
Where should I call if I need help?

Rule of Court Section 989.3

Judicial Council Form MC-410

Endnotes

It shall be the policy of the courts of this state to assure that qualified individuals with disabilities have equal and full access to the judicial system. California Rule of Court 989.3(a).

The solutions to reasonable accommodations are "as limitless as a willing imagination can conceive." Galloway v. Superior Court of the District of Columbia, 816 F.Supp. 12 (D.D.C. 1993).

 

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Introduction

What is the purpose of this guide?

The Guide describes your rights as a "person with a disability" to reasonable accom­modations in the courts when:

(1) You are a party (a plaintiff or a defendant) in a lawsuit;
(2) You are a witness in a lawsuit;
(3) You are called for jury duty; or
(4) You want to watch a hearing or a trial.

The Guide also describes:

(1) Your rights in state and federal courts, and how they are different;
(2) Who qualifies as a "person with a disability";
(3) How to ask for reasonable accommodations for your disability;
(4) Possible reasonable accommodations;
(5) How to appeal if the court denies your request; and
(6) What to do if you are not satisfied with the accommodations offered.

Why would I want to go to court, anyway?

Courts have many programs and services. You might want to file a document with the court. You might have to appear in court as a party in a case, as a witness, or as a juror.

 

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Your Rights in State Courts

What are my rights to reasonable accommodations in state courts?

The Americans with Disabilities Act (ADA)1 gives "qualified persons with a disa­bi­lity" broad rights. These rights include:

(1) The right to be free from discrimination; and
(2) The right to have reasonable accommodations in state courts. State courts include small claims courts, juvenile courts, municipal courts, probate courts, family courts, superior courts, district courts of appeal, and the California State Supreme Court.

In addition to the ADA, state law gives people with hearing impairments certain rights. If you are deaf of hearing impaired, and you are a party, a witness or a juror, you have a right to a court-appointed qualified interpreter. The court should not begin the proceeding until you can see the interpreter clearly.2 Also, if you are a party, a witness, a juror, or someone who wants to watch a proceeding, and if you have a hearing impairment, you have the right to an assistive listening system or a computer-aided transcription system.3

State law also gives you the right to bring a guide, signal or service dog into the courthouse.4

Also, the state courts have adopted Rule of Court 989.3, which states that the policy of the courts is to provide equal and free access to the courts for qualified people with disabilities.5 This policy is based on the ADA and state law. A copy of Rule 989.3 is at the end of this Guide.

You also have rights to reasonable accommodations in administrative hearings — like special education hearings. This Guide does not address your rights in those hearings. If you have questions about your rights in administrative hearings, call Disability Rights California at 1-800-776-5746.

How do I know if I qualify for reasonable accommodations?

Under the ADA and the court rule, you qualify for reasonable accommodations in a state court if you are a "qualified individual with a disability." That means:

(1) You have a disability (see definition below); and
(2) You are eligible to receive services or take part in programs the court offers.

People with disabilities are eligible for a court's programs and services. However, you cannot serve as a witness unless you can express yourself, either directly or through an interpreter. You must also be capable of understanding your duty to tell the truth.6

What is the definition of "disability?

A "disability" is:

(1) A physical or mental impairment that substantially limits one or more of your major life activities — such as caring for yourself, using your hands, walking, seeing, hearing, speaking, breathing, learning, and working. Some disabilities are paraplegia, deafness, a respiratory problem that makes it hard to exert yourself, mental retardation, or a brain injury. The impairment makes it hard for you to do the same things as most people. It also restricts the way you do things, where you can do them, or how long you can do them in comparison to other people.
(2) A record of having such a physical or mental impairment. This could mean that:

(a) You had the impairment in the past, but you are recovering;
(b) You were treated for the impairment in the past; or
(c) You had an incorrect diagnosis, so that people thought you had the im­pairment. For example, you received mental health treatment in the past, you are a recovered alcoholic, you survived having cancer, or a doctor said you had cancer when you did not.

(3) Other people think you have an impairment. For example, you have a dis­fi­guring scar, or people think you have AIDS.7

What does the court have to do to accommodate my disability?

The court must make reasonable modifications to its policies, practices, or proce­dures when these modifications are necessary to avoid discriminating against you because of your disability. A court may not, because of your disability

(1) Keep you from participating in its services, programs or activities;
(2) Deny you the benefits of its services, programs or activities;
(3) Discriminate against you; or
(4) Make its facilities inaccessible or unusable to you.8

Also, the court must make sure that you can communicate in court.9

However, the court does not have to make modifications if it can show that the modi­fications:

(1) Would fundamentally change the service, program, or activity;
(2) Would be too expensive; or
(3) Would cause an undue administrative burden.10

The court does not necessarily have to make every existing facility accessible. It is enough to make sure that you have access to the court's services, programs, and activities. For example, the court does not have to make every courtroom accessible if it will move the proceeding you want to attend to an accessible room.11

What should a court do to make sure that I can communicate?

In a court proceeding, communication is very important. You, the court, and other people communicate with each other in writing or by speaking. If you cannot com­mu­nicate because of your disability, the court must:

(1) Find a way to make sure that you can communicate with the court and with other people in the court proceeding;
(2) Furnish appropriate auxiliary aids and services; and
(3) Consider what kind of aid or service you think you need to accommodate your disability.12

What kinds of accommodations might be reasonable?

That depends on your disability. Reasonable accommodations are "as limitless as a willing imagination can conceive."13 The following are examples of some accom­mo­dations, auxiliary aids and services that might be reasonable for different disabilities. However, you should not feel limited by these examples.14

If I have a visual impairment?

(1) You might ask the court or the judge to provide forms and instructions in Braille or on audiotape.
(2) In the courtroom, you could ask the judge, or someone else, to read written mate­rials out loud.
(3) If you have some vision, you could ask the judge to let you sit where you could see better.
(4) If it would help, you could ask the court for more light.

If I have a hearing impairment?

(1) Ask the judge to let you sit where you can hear better, or where you can see the sign language interpreter.
(2) If you are a party or a witness, you have the right to have the proceeding interpreted in a language you can understand, by a qualified interpreter appointed by the court.15
(3) The court must provide you with an assistive listening system or a computer-aided transcription device if you tell the court you need it at least five days before the proceeding.16

If I have a mental impairment?

(1) You can ask the court to let you have a coach or support person with you at the proceeding.
(2) If you are a witness, you can ask to have your testimony videotaped instead of appearing in person at a formal proceeding.

If I have a physical disability?

(1) If you have trouble getting to the courthouse to pick up forms, ask the clerk to mail them to you.
(2) If a room in the courthouse is inaccessible for you, ask the court to change the proceeding to a different room.
(3) If you are a witness, you can ask to have your testimony videotaped instead of appearing in person at a formal proceeding.

If I have another disability, or if I have more than one disability?

(1) If medication or fatigue limit your activities, ask the court to schedule the pro­ceeding for a time when you will be able to participate fully.
(2) If you are sensitive to chemicals, you can ask the court to have people who wear fragrances stay away from you.
(3) If you have aphasia or dyslexia and have problems with sequences of letters or numbers spoken out loud, you can ask the court to have people speak very slowly or to write down the words, letters or numbers for you.

Do I have to ask for reasonable accommodations?

Yes. You only have the right to reasonable accommodations if you ask for them. You can do this either in writing or orally. Most courts want you to make the request in writing.

In writing: Use the form called "Request for Accommodations by Persons with Disa­bilities and Order." The form is also called "Judicial Council Form MC 410." You will find a copy of the form at the end of this Guide. You can also get the form at the courthouse or in a book store that sells legal materials.

Orally: Call the Court Clerk, or go in person to the clerk's office. Tell the clerk what you need, and describe your disability and the accommodations you want. Try to be very specific and concise. Be polite. If the court insists that you fill out the form, you can ask for help.

The court staff might not want to help because they might be seen as advising you on the law. The staff cannot do that. So if the court wants you to fill out the form, you might want to find a family member, friend or advocate. You can also call Disability Rights California for help.

When should I ask for reasonable accommodations?

You should make your request as early as possible. The courts want you to ask at least five days before the day you will need the accommodations.17 If you cannot make the request five days before, make the request anyway. Be sure to explain why you did not ask for the accommodations sooner.

How do I fill out the form? What should I write in the blanks?

This section will guide you through the form, "REQUEST FOR ACCOM­MO­DA­TIONS BY PER­SONS WITH DISABILITIES and ORDER" from top to bottom. If you get a notice or sum­mons to appear in court, you should have it with you when you fill in the form. The first part of the form is the "caption." It has all the infor­mation about the case. If you do not know the information it asks for, leave the space blank.

When you file the form, the court clerk will stamp the form to show that it was filed and when. You should make a copy before it is file and have the court clerk stamp both the form and your copy. It will be helpful to have a copy if the court can't find it when it needs it or if you file an appeal.

Can I keep my request confidential?

Yes. If you ask, the court should keep your identity confidential in all oral or written communications, files and documents you submit as part of your application.18 If you want the request to be confidential, check the box at the top of the form, as described below.

[ ] FORM TO BE KEPT CONFIDENTIAL (if box checked)

APPLICANT (name): APPLICANT IS: [ ] Witness [ ] Juror [ ] Attorney [ ] Party [ ] Other Person submitting request (name): APPLICANT'S ADDRESS:	FOR COURT USE ONLY
TELEPHONE NO.: NAME OF COURT: STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE:
BRANCH NAME: NAME OF JUDGE:
CASE NAME:
REQUEST FOR ACCOMMODATIONS BY PERSONS WITH DISABILITIES and ORDER	CASE NUMBER

[ ] FORM TO BE KEPT CONFIDENTIAL
Put an "X" or check mark in the box if you do not want anyone else to know about the information on the form.

APPLICANT (name):
You are the applicant; write your name in the blank.

APPLICANT IS: [ ] Witness [ ] Juror [ ] Attorney [ ] Party [ ] Other
Check the box that tells why you need to be in court. Were you called as a witness or for jury duty? A "Party" is a person who is a plaintiff, defendant, cross-complainant, or cross-defendant. If you check "Other" be sure to write in why you will be in court.

Person submitting request (name):
If someone else fills out the form for you, that person's name goes here.

APPLICANT'S ADDRESS:
Write your address here.

TELEPHONE NO:
Write your telephone number here.

NAME OF COURT:
Write the name of the court where you will need the ac­com­modations.

STREET ADDRESS:
Write the street address of the court. If you received a notice or summons, it should have the court's name and street address on it.

MAILING ADDRESS:
If the court has a post office box, or a different address for mailing, write that address here.

CITY AND ZIP CODE:
This is part of the court's address.

BRANCH NAME:
If you will not be in the main courthouse, and you know the name of the branch courthouse where you will be, write it here.

NAME OF JUDGE:
If you know the name of the judge in the case, write it here.

CASE NAME:
If you are going to court because of a case, and you know the name of the case, write it here.

CASE NUMBER:
If you know the case number, write it here.

Applicant requests accommodation under California Rules of Court, rule 989.3, as follows:
1. Type of proceeding: [ ] Criminal [ ] Civil

2. Proceedings to be covered: (e.g., bail hearing, preliminary hearing, particular witnesses at trial, sentencing hearing):

3. Dates accommodations needed:

4. Impairment necessitating accommodations:

5. Type of accommodations:

6. Special requests or anticipated problems:

7. I request that my identity [ ] be kept CONFIDENTIAL [ ] NOT be kept CONFIDENTIAL.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:

…................................................................................
(TYPE OR PRINT NAME) (SIGNATURE OF APPLICANT)

1. Type of proceeding: [ ] Criminal [ ] Civil
If you know, check the box saying whether the case is Criminal or Civil.

2. Proceedings to be covered (e.g., bail hearing, preliminary hearing, par­ti­cular witnesses at trial, sentencing hearing):
If you know, write in what kind of pro­cee­ding it is — a trial, juvenile depen­dency hearing, preliminary hearing, bail hearing, etc.

3. Dates accommodations needed:
If you need accommodations for a specific date, write in that date. If you need accommodations for an entire proceeding, write in the dates for the time you think the proceeding will last. For example, from 10/1/96 to 10/15/96. If you do not know the dates, state that you do not know; the court may not know either.

4. Impairment necessitating accommodations:
This is where you tell the court about your disability. Describe your disa­bi­lity so the court can under­stand why you want accommodations and that the accommodations fit your disability. For example, if you have a visual impairment you could say that you are legally blind and you cannot see documents, if that is appropriate. If you have dyslexia, you could say that you have aphasia and you cannot understand spoken numbers because you cannot sequence them quickly.

5. Type of accommodations:
Write in exactly what kind of accommodations you need. Be specific. For example, if you have a hearing impairment, you might want the court to pro­vide a sign language interpreter. Other possible types of accommodations are described below.

6. Special requests or anticipated problems:
Describe any circumstances that might require the court to change its usual pro­cedure. For example, you might get a notice to go to court for a short hearing in the afternoon. If your disability makes you very tired in the after­noon, you might ask the court to schedule a morning hearing instead.

7. "I request that my identity . . ."
Check the first box if you want to keep your request a secret. If you do not check the box "be kept CONFIDENTIAL" the court will not keep your request confidential.

"I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct."
This line says that everything you put on this form is the truth and is correct. If the court learns that something you wrote on the form is not true, it can pro­secute you for perjury.

DATE:
Write the date you are signing the form.

Type or print your name on the dotted line on the left; sign the form after the arrow­­head on the line above (SIGNATURE OF APPLICANT).

ORDER

Everything below the word "ORDER" is for the judge to fill in and sign. Do not check any of the boxes at the bottom of the form.

When you finish filling out and signing the REQUEST FOR ACCOM­MO­DA­TIONS BY PERSONS WITH DISABILITIES and ORDER form, send it to the jury commissioner or court department that sent you the notice or summons.

How will I know if the court will accommodate my disability?

You should get a notice in writing that tells you whether the court granted or denied your request for accommodations. It will also tell you what accom­mo­da­tions the court will provide, if any.19

What should I do if the court won't give me reasonable accommodations?

You have the right to appeal. The steps you take depend on who denied your request for accommodations, or offered accommodations you think are not right.

(1) If a non-judicial court employee (a clerk or jury commissioner) denied your request, you can ask a judicial officer (a judge or court commissioner) to review the decision. You can also ask a judicial officer to review the deci­sion if you do not think the accommodations a non-judicial employee offered are adequate. The judicial officer should be the one who will preside at the hearing or trial. If the hearing or trial does not yet have an assigned judge, you can ask the presiding judge of the court to review the decision. In either case, you must ask for review within 10 days of the date on the notice of denial or accommodations.20

(2) If a judicial officer (a judge or court commissioner) denied your request, you would file a petition for extraordinary relief in a higher court. You would file the same petition if you thought the judicial officer granted you inadequate accommodations. In either case, you have 10 days from the date on the notice of denial or accommodations to file the petition. You would probably need help from a lawyer to file this petition.21

(3) Instead of filing a petition for extraordinary relief in a higher court, you may file a complaint with the:

Civil Rights Division
Disability Rights – NYAVE
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Your complaint must be in writing. Be sure to include your name and address. Describe in detail what the court did (or did not do) that you feel dis­criminated against you because of your disability. Include the date of each violation. Sign your name. If you cannot sign your name, an autho­rized person must sign for you. You have 180 days from the date of the alleged discrimination to file this complaint.22
(4) You could also file an action in federal court against the state court or its rep­resentatives. You would probably need help from a lawyer to file an action in federal court.

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Your Rights in Federal Courts

What are my rights to reasonable accommodations in federal courts?

Neither the ADA nor any other federal law gives you the right to a reasonable accommodation for your disability in federal court proceedings. Federal courts include district courts, bankruptcy courts, circuit courts of appeals, and the United States Supreme Court. In California, there are four district courts: the Northern (Bay Area), Central (Southern California), Eastern (the greater Central Valley) and Southern (San Diego).

However, the federal courts have adopted the policy that they will provide reasonable accommodations to you if you have a communication disability. This means that courts have said that they should give persons with a communication disability an accommodation, but you can’t force a federal court to give you an accommodation. You will find the federal courts’ policy in a booklet that federal judges keep called Guidelines to Judiciary Policies and Procedures.23 The Guidelines apply in trials, hearings, ceremonies and other public programs or activities conducted by a court.

What are communication disabilities?

The types of disabilities that might affect communication include problems seeing, hearing, talking, or understanding. If you think your disabilities affect your ability to communicate with the judge or court employees, witnesses or others, you should ask for a reasonable accommodation.

It is the policy that federal courts provide reasonable accommodations to persons with communications disabilities. Guide to Judicial Policies and Procedures, Volume I, Chapter III, Part H, page 37, Judicial Conference of the United States

To whom should the court give an accommodation?

The court should give the accommodation to:

(1) A party in a lawsuit (the plaintiff or defendant),
(2) A witness, or
(3) An attorney.

The court doesn’t have to give an accommodation to a spectator. However, the court might do that if it seems appropriate. For example, the court might give the spouse of a criminal defendant an interpreter so the spouse can follow the trial.

Should the court give me an accommodation if I am called to serve as a juror?

If you are qualified to serve on a jury and you need an accommodation for your communication disability, the court should give you one. One of the requirements to serve is that you don’t have a mental or physical disability that would make you unable to give "satisfactory" jury service.24 Generally, that means that you can understand the issues and take part in the jury deliberations.25

What types of accommodations could a federal court give me?

A federal court could give you the same types of accommodations for commu­ni­ca­tion disabilities that state courts might give you.

Who decides what accommodations the court should give me?

The court decides what accommodation it should give you. However, the court should honor your choice of an accommodation unless an equally effective means for communication is available. The court does not have to give you the accommodation you want if:

(1) It would fundamentally change the nature of the court proceeding; or
(2) It would be too expensive; or
(3) It would cause an undue administrative burden.

How do I request a reasonable accommodation?

Each court must have an access coordinator. You should contact the access coor­di­nator. To find out who the access coordinator is, call the court clerk (district court, bankruptcy court, or circuit court of appeals) and ask.

Does the court have specific procedures to request an accommodation?

The court might have a set procedure. Ask the access coordinator.

Can I appeal from the court’s decision if the court denies my request for accommodation or if I don't agree with the type of accommodation the court offers?

The court may have a procedure to appeal. Ask the access coordinator. However, if the court does not have a procedure, or if you do not like the court's decision on appeal, there is no right to further appeal.

Where should I call if I need help?

You can contact Disability Rights California at:

1-800-776-5746, or

You can contact Disability Rights Education and Defense Fund (DREDF) at:

1-800-466-4232, or

You can also contact one of the other organizations listed inside the front cover of this Guide.

 

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Rule of Court Section 989.3

Rule 989.3 Requests for accommodations by persons with disabilities

(a) [Policy] It shall be the policy of the courts of this state to assure that qualified individuals with disabilities have equal and full access to the judicial system. Nothing in this rule shall be construed to impose limitations or to invalidate the remedies, rights, and procedures accorded to any qualified individuals with disabilities under state or federal law.

(b) [Definitions] The following definitions shall apply under this rule:  

(1) "Qualified individuals with disabilities" means persons covered by the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.); Civil Code section 51 et Seq.; and other related state and federal laws; and includes individuals who have a physical or mental impairment that substantially limits one or more of the major life activities; have a record of such an impairment; or are regarded as having such an impairment.  

(2) "Applicant" means any lawyer, party, witness, juror, or any other individual with an interest in attending any proceeding before any court of this state.  

(3) "Accommodation(s)" may include, but are not limited to, making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to the qualified individuals with disabilities, auxiliary aids and services, which are not limited to equipment, devices materials in alternative formats, and qualified interpreters or readers; and making each service, program, or activity, when viewed in its entirety, readily accessible to and usable by qualified individuals with disabilities requesting accommodations. While not requiring that each existing facility be accessible, this standard, known as "program accessibility," must be provided by methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate sites.  

(4) The "rule" means this rule regarding requests for accommodations in state courts by qualified individuals with disabilities.

(5) "Confidentiality" applies to the identity of the applicant in all oral or written communications, including all files and documents submitted by an applicant as part of the application process.

(c) [Process] The following process for requesting accommodations is established:

(1) Applications requesting accommodation(s) pursuant to this rule may be presented ex parte in writing, on a form approved by the Judicial Council and provided by the court, or orally as the court may allow. Applications should be made at the designated Office of the Clerk, or to the courtroom clerk or judicial assistant where the proceeding will take place, or to the judicial officer who will preside over the proceeding.

(2) All applications for accommodations shall include a description of the accommodation sought, along with a statement of the impairment that necessitates such accommodation. The court, in its discretion, may require the applicant to provide additional information about the qualifying impairment.

(3) Applications should be made as far in advance of the requested accommodations implementation date as possible, and in any event should be made no less that five court days prior to the requested implementation date. The court may, in its discretion, waive this requirement.

(d) [Permitted communication] An applicant may make ex parte communications with the court; such communications shall deal only with the accommodation(s) the applicant's disability requires and shall not deal in any manner with the subject matter or merits of the proceedings before the court.

(e) [ Grant of accommodation] A court shall grant an accommodation as follows:

(1) In determining whether to grant an accommodation and what accommodation to grant, the court shall consider, but is not limited by, the provisions of the Americans with Disabilities Act of 1990 and related state and federal laws.

(2) The court shall inform the applicant in writing of findings of fact and orders, as may be appropriate, that the request for accommodations is granted or denied, in whole or in part, and the nature of the accommodation(s) to be provided, if any.

(f) [Denial of accommodation] An application may be denied only if the court finds that:

(1) The applicant has failed to satisfy the requirements of this rule; or

(2) The requested accommodation(s) would create an undue financial or administrative burden on the court; or

(3) The requested accommodation(s) would fundamentally alter the nature of the service, program, or activity.

(g) [Review procedure]

(1) An applicant or any participant in the proceeding in which an accommodation has been denied or granted may seek review of a determination made by nonjudicial court personnel within 10 days of the date of the notice of denial or grant by submitting a request for review to the judicial officer who will preside over the proceeding or to the presiding judge if the matter has not been assigned.

(2) An applicant or any participant in which an accommodation has been denied or granted may seek review of a determination made by a presiding judge or any other judicial officer of a court within 10 days of the date of the notice of denial or grant by filing a petition for extraordinary relief in a court of superior jurisdiction.

(h) [Duration of accommodations] The accommodations by the court shall commence on the date indicated in the notice of accommodation and shall remain in effect for the period specified in the notice of accommodation. The court may grant accommodations for indefinite periods of time or for a particular matter or appearance.

(Adopted, eff. Jan. 1, 1996.)

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Library References

 

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Judicial Council Form MC-410

Request for Accommodations By Persons with Disabilities and Order

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Endnotes

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• Last Updated: June 10, 2009
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