Board backs access rule for the disabled.

A procedural rule clarifying the process for disabled Floridians to gain access to state courts has been endorsed by the Bar Board of Governors and is being forwarded to the Supreme Court.

After an extensive discussion, the board lent its unanimous support for an amendment to Rule of Judicial Administration 2.540, which in January had won the unanimous approval of the Rules of Judicial Administration Committee.

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Miami attorney Matt Dietz, chair-elect of the Equal Opportunities Law Section and chair of the Disability Independence Group, shepherded the rule through the committee and the board. He explained it is intended to bring uniformity to the state courts in providing disability access and guarantee that the courts comply with Title II of the Americans with Disabilities Act.

"We are trying to ensure that, number one, there is a person to whom a request [for a disability accommodation] can be made and, number two, there is a procedure which can be followed and the procedure meets the requisite tests," Dietz told the board. "What we're doing is implementing what is in federal law."

The rule will help court access for about 20 percent of Floridians--and an estimated 2,500 Bar members--who have a disability, he said. The rule requires a standard process for applying for an accommodation, that circuit ADA coordinators keep records of such requests, and that an appeal process be in place if those seeking an accommodation are turned down or are dissatisfied with the accommodation offered.

Board members fretted whether the rule could place additional financial burdens on the courts and state, which are facing record tight budgets and employee layoffs. But Dietz said there is no additional expense other than what the courts already face in order to meet the standards of the ADA. He added there's an estimated $17 million of improvements needed to courthouses around Florida to make them fully accessible.

He said accommodations must meet two standards. One is they must not alter fundamentally what the courts do and the second is they must not impose an undue burden. Dietz cited as an example someone with multiple chemical sensitivity, who could not demand an expensive sealing and air purification of a courtroom when it would be cheaper and easier to allow that person to appear in court by telephone.

He also said the rule could actually wind up saving money by preventing access lawsuits that the state and counties would lose.

Board member Gwynne Young said the Supreme Court can properly consider the cost factor when it gets the rule. But she added expense ultimately is not the issue.

"It seems to me that, like it or not, this rule is the right thing to do. Diversity is one of our biggest focuses on the board. As an organization we've worked very hard on that. People with disabilities are a significant part of our diverse population," she said. "Nothing is easy these days with money, but it seems to me this is something we need to do."

The board voted 37-0 to support the proposed rule, with an accompanying explanation that the rule merely carries out existing federal law. It will be sent to the court as an out-of-cycle amendment. The complete text of the rule is in a notice to the right. Any comments received will be considered by the Rules of Judicial Administration Committee at its September meeting.

The amendment had a contentious history. The Rules of Judicial Administration at first balked at passing Dietz's first draft, with members saying it contained both procedural and substantive issues.

After the initial presentation, the committee heard testimony from deaf attorney Scott Harrison on why he had sued the state. Harrison was denied real-time court reporting services in criminal trials unless he paid for it himself, an expense he said he couldn't afford.

That suit was eventually settled, and Supreme Court Justice Fred Lewis approved new guidelines to spell out that attorneys with hearing problems will be provided with real-time reporting services at state expense in criminal trials.

The rules committee then appointed a subcommittee to work with Dietz on redrafting his proposed rule, which resulted in an amendment that unanimously passed that panel in January.

By Gary Blankenship

Senior Editor