WSR 14-05-021

RULES OF COURT

[February 6, 2014]

The Access to Justice Board having recommended the adoption of amendments to GR 33, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in Washington Reports, Washington Register, and on the Washington State Bar Association and Office of the Administrator for the Courts' websites expeditiously.

(b) The purpose statements as required by GR 9(e), are published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2014. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929 or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 6th day of February, 2014.

Purpose: The proposed technical amendments to GR 33 are intended to more perfectly reflect the requirements of the Americans with Disabilities Act (ADA). In 2007 the ATJ Board approved, and the Supreme Court adopted, GR 33. The rule sets forth procedures for handling requests for accommodation from persons with disabilities. In 2011, after questions were raised by court clerks about the procedures for handling orders, the ATJ approved, and the Supreme Court adopted, an amended rule. In 2012 the Civil Rights Division of the U.S. Department of Justice (DOJ) contacted the ATJ Board to express concerns, including that the bifurcated process in the 2011 amendment did not satisfy the ADA. The original drafters of GR 33 engaged with the DOJ in a series of meetings and drafts, resulting in the proposed amended rule. The amended rule was approved by the ATJ Board on November 15, 2014. The proposed amendments are technical in nature, as no substantive changes are proposed.

GR 33

Requests for Accommodation by Persons with Disabilities

(a) Definitions. The following definitions shall apply under this rule:

(1) "Accommodation" means measures to make each court service, program, or activity, when viewed in its entirety, readily accessible to and usable by a person with a disability, and may include but is not limited to:

(A) making reasonable modifications in policies, practices, and procedures;

(B) furnishing, at no charge, auxiliary aids and services, including but not limited to equipment, devices, materials in alternative formats, qualified interpreters, or readers; and

(C) as to otherwise unrepresented parties to the proceedings, representation by counsel, as appropriate or necessary to making each service, program, or activity, when viewed in its entirety, readily accessible to and usable by a person with a disability.

(2) "Person with a disability" means a person with a sensory, mental or physical disability as defined by the Americans with Disabilities Act of 1990 (42 U.S.C. §§12101-12213), the Washington Law Against Discrimination (RCW 49.60 et seq.), or other similar local, state, or federal laws.

(b) Process for Requesting Accommodation.

(1) Persons seeking accommodation may proceed under this rule. Local procedures not inconsistent with this rule may be adopted by courts to supplement the requirements of this rule. A disputed or denied request for accommodation is automatically subject to review under the procedures set out in subsections (d) and (e) of this rule. Requests. Requests for aids, modifications and services will be addressed promptly and in accordance with the ADA and the Washington State Law Against Discrimination, with the objective of ensuring equal access to courts, court programs, and court proceedings.

(4) Procedure. An application requesting accommodation should be made on may be presented ex parte in writing, or orally and reduced to writing, on a form approved by the Administrative Office of the Courts, and may be presented ex parte in writing, or orally and reduced to writing, to the presiding judge or officer of the court or his or her designee.

(5) Content. An application for accommodation The request shall include a description of the accommodation sought, along with a statement of the disability necessitating the accommodation. The court may require the applicant person requesting accommodation to provide additional information about the qualifying disability to help assess the appropriate accommodation. Medical and other health information shall be submitted under a cover sheet created by the Administrative Office of the Courts for use by applicants designated "SEALED MEDICAL AND HEALTH INFORMATION" and such information shall be sealed automatically. accessible only to the court and the person requesting accommodation unless otherwise expressly ordered. The court may order that such information be sealed if it has not previously automatically been sealed.

(4) An application for accommodation should be made as far in advance as practical.

(c) Consideration and Decision. A request for accommodation shall be considered and acted upon as follows:

(1) Considerations. In determining whether to grant an accommodation and what accommodation to grant, the court shall:

(A) consider, but not be limited by, the provisions of the Americans with Disabilities Act of 1990 (§ 42 U.S.C. 12101 et seq.), RCW 49.60 et seq., and other similar local, state, and federal laws;

(B) give primary consideration to the accommodation requested by the applicant; and

(C) make its decision on an individual- and case-specific basis with due regard to the nature of the applicant's disability and the feasibility of the requested accommodation.

(1)(A). the applicant person requesting application has failed to satisfy the substantive requirements of this rule; or

(C) permitting the applicant to participate in the proceedings with the requested accommodation would create a direct threat to the health or well being of the applicant or others.

(i) An accommodation may be denied based on a fundamental alteration or undue burden only after considering all resources available for the funding and operation of the service, program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.

(ii) If a fundamental alteration or undue burden would result from fulfilling the request, the Court shall nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the Court.

(e) Decision: Proceedings Applicants. The court shall, in writing or on the record, inform the applicant person requesting an accommodation and the court personnel responsible for implementing accommodations that the request for accommodation has been granted or denied, in whole or in part, and the nature and scope of the accommodation to be provided, if any. The A written decision shall be entered in the proceedings file, if any, in which case the Court shall determine whether or not the decision should be sealed. If there be no proceedings filed the decision shall be entered in the court's administrative files, with the same determination about filing under seal. If the court denies a requested accommodation pursuant to subsection (d) of this rule, the decision shall specify the reasons for the denial. If a requested accommodation is not provided by the court under subsection (c)(2) or (c)(3) of this rule, the court shall state:

Comment

[1] Access to justice for all persons is a fundamental right. It is the policy of the courts of this state to assure that persons with disabilities have equal and meaningful access to the judicial system. Nothing in this rule shall be construed to limit or invalidate the remedies, rights, and procedures accorded to any person with a disability under local, state, or federal law.

[2] Supplemental informal procedures for handling accommodation requests may be less onerous for both applicants and court administration. Courts are strongly encouraged to adopt an informal grievance process for public applicants whose requested accommodation is denied.

[Adopted effective September 1, 2007; amended effective December 28, 010.]