IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 33-REQUESTS FOR ACCOMMODATION BY PERSONS WITH DISABILITIES

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ORDER NO. 25700-A-962

     The Impediments Committee of the Washington State Access to Justice Board having recommended the adoption of the proposed amendments to GR 33-Requests for Accommodation by Persons with Disabilities, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

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

     (b) The purpose statement as required by GR 9(e), is 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 90 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 8th day of July, 2010.

	For the Court
	Madsen, C.J.
	CHIEF JUSTICE

     The proposed technical changes are:

•	Conforms the definition of "person with a disability" to the definition adopted by Congress in the American Disability Act Amendments of 2008 and the Washington state Legislature RCW 49.60.040 (7)(a). Subsection (1)(2).
•	Omit the definition of "court" as independently elected County Clerks, who are substantially responsible for carrying out the functions under the Rule, are a politically separate entity and the definition could be interpreted as impairing their independent authority.
•	Clarifies that there are two distinct types of applicants who are entitled to be accommodated by courts, applicants who are directly involved in a pending judicial proceeding and other members of the public who need to or want to access courts but are not directly affected by a pending proceeding. The intent of the rule was to set up a process by which persons directly involved in a judicial proceeding could seek an accommodation. However, in the absence of other informal procedures by which accommodations could be requested for other public access to courts, members of the public were seeking assistance under the rule, resulting in public recordkeeping and file management problems for Clerks and Court Administrators. Thus, the rule revises the definition of "Applicants" by separating the two potential types of applicants and defining them distinctly as "Proceedings Applicant" and "Public Applicant". New subsections (a)(3) and (4).
•	Clarifies that local procedures may be adopted to supplement the requirements of the rule and that applicants may proceed either under the rule or available local procedures. However, any disputed or denied request for an accommodation would automatically be reviewed under the requirements of the rule. This change flows from the fact that at the time GR 33 was adopted some courts had in place very efficient procedures for accommodating persons with disabilities and several other courts have since adopted administrative procedures that avoid the need for judicial involvement in the first instance. The proponents of GR 33 did not intend to disrupt those procedures. The goal was to assure that any disputed accommodation would be subject to judicial determination. The technical change recognizes the value of the efficiencies and allows them to remain in place, but protects the rights of persons with disabilities to seek review under the rule if a requested accommodation is denied. Subsection (b)(1).
•	Substitutes the word "submitted" for the word "filed" in subsections (c)(2) and (3) to address expressed by Court Clerks regarding having all applications for accommodation be considered public records and related recordkeeping requirements for "filed" documents. Subsections (c)(2) and (3).
•	Adds a Comment encouraging courts to adopt informal procedures for the handling of requests for accommodations made by members of the general public as distinct from persons involved with pending judicial proceedings.

     (1) "Accommodation" means measures to make each court service, program, or activity, when viewed in its entirety, readily accessible to and usable by an applicant who is a qualified 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 qualified person with a disability.

     (2) "Person with a disability" means a person covered by the Americans with Disabilities Act of 1990 (§ 42 U.S.C. 12101 et seq.), RCW 49.60 et seq., or other similar local, state, or federal laws. This term means the presence of a sensory, mental, or physical impairment that: Is medically cognizable or diagnosable; or exists as a record or history; is perceived to exist whether or not it exists in fact.

     (2) (3) "Proceedings Applicant" means any lawyer, party, witness, juror, or any other individual who has a specific interest in or is participating in any proceeding before any court.

     (3) "Court" means any court or other agency or body subject to the rulemaking authority of the Supreme Court.

     (4) "Public Applicant" means any other person seeking accommodation.

     (4) "Person with a disability" means a person covered by the Americans with Disabilities Act of 1990 (§ 42 U.S.C. 12101 et seq.), RCW 49.60 et seq., or other similar local, state, or federal laws. This term includes but is not limited to an individual who has a physical or mental impairment that limits one or more major life activities, has a documented history of such an impairment, or is regarded as having such an impairment.

     (5) "Qualified person with a disability" means a person with a disability who is otherwise entitled to participate in any program, service, or activity made available by of any court.

     (b) Process for Requesting Accommodation.

     (1) Persons seeking accommodation may proceed under the procedures set out in this rule. Local procedures 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.

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

     (2) (3) An application for accommodation shall include a description of the accommodation sought, along with a statement of the impairment disability necessitating the accommodation. The court may require the applicant to provide additional information about the qualifying impairment 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. 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. of the proceeding for which the accommodation is sought.

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

     (1) 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.

     (2) If an application for accommodation by a proceedings applicant is filed submitted five (5) or more court days prior to the scheduled date of the proceeding for which the accommodation is sought, and if the applicant otherwise is entitled under this rule to the accommodation requested, the accommodation shall be provided unless:

     (A) it is impossible for the court to provide the requested accommodation on the date of the proceeding; and

     (B) the proceeding cannot be continued without prejudice to a party to the proceeding.

     (3) If an application for accommodation by a proceedings applicant is filed submitted fewer than five (5) court days prior to the scheduled date of the proceeding for which the accommodation is requested, and if the applicant otherwise is entitled under this rule to the accommodation requested, the accommodation shall be provided unless:

     (A) it is impractical for the court to provide the requested accommodation on the date of the proceeding; and

     (B) the proceeding cannot be continued without prejudice to a party to the proceeding.

     (4) If a requested accommodation is not provided by the court under subsection (c)(2) or (c)(3) of this rule, the court must offer the applicant an alternative accommodation.

     (d) Denial. A public applicant should be accommodated to the fullest extent possible under the circumstances. Except as otherwise set forth in subsection (c)(2) (d)(1) or (c)(3) (d)(2) of this rule, an application for accommodation by a proceedings applicant may be denied only if the court finds that:

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

     (2) the requested accommodation would create an undue financial or administrative burden;

     (3) the requested accommodation would fundamentally alter the nature of the court service, program, or activity; or

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

     (e) Order Decision. The court shall, in writing, inform the applicant 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 decision shall be entered in the proceedings file, if any, or in the court's administrative files. The court shall issue an order consistent with its decision. If the court denies a requested accommodation pursuant to section (d) of this rule, the order 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's shall state order shall include a description of:

     (1) the facts and/or circumstances that make the accommodation impossible under subsection (c)(2) or impractical under subsection (c)(3); and

     (2) the reasons why the proceeding cannot be continued without prejudicing a party to the proceeding.

     The court shall inform the applicant 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 of the accommodation to be provided, if any.

     (f) Duration of Accommodation. The accommodation ordered shall commence on the date set forth in the order granting the accommodation and shall remain in effect for the period specified in the order, which may be extended as the court deems appropriate. The court may grant an accommodation for an indefinite period or for a particular proceeding or appearance.

     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.

     [3] Determinations as to the practicability or feasibility of any accommodation are to be based on the standards applicable under the Americans with Disabilities Act and the Washington Law Against Discrimination, i.e., undue administrative burdens; fundamental alteration of the court service, program, or activity; and direct threat to the health and safety of the applicant or others.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

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