March 26, 2019
Dear Justice Corner:
What do I do if a self-represented litigant asks for an accommodation to have a note taker be able to step up to the bench with him or her due to a memory disability?
Dear Judge Accomodateyou:
Title II of the Americans with Disabilities Act governs disability access to the courts. “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, and activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; Regulations at 28 C.F.R. Part 35.
The main way that court patrons can request an accommodation is through the Court Disability Coordinator (CDC). Every circuit has a CDC, and it is recommended that every courthouse has one. It is required that the contact information for the CDC be posted in every courthouse and on its website (28 C.F.R. § 35.107: Must include name, office address, and telephone number). Make sure you know who the CDC is in your court.
Courts must make reasonable modifications to policies, practices or procedures when a person with a disability requests, unless to do so would fundamentally alter the nature of the service, program, or activity. See 28 C.F.R. § 35.130(b)(7). A person's request for an accommodation does not have to be in writing, so orally requesting it at the bench is acceptable (and if the disability is obvious, they don't even have to make a request). The court can ask about the functional limitations of the person's disability if that is unclear, but cannot inquire about the specific disability or ask for medical documentation or proof.
Examples of what may be reasonable accommodations:
- Extending briefing schedule
- Taking frequent recesses/adjusting duration of hearings
- Adjusting hearing times
- Allowing food, drink, or medication supplies in the courtroom
- Modifying security procedures and electronics policies
- Permitting a support person to accompany the litigant
- Relocating hearings so restrooms are easily accessed
- Allowing appearance by teleconference for routine hearings
- Filling out court forms at the person’s direction
- Helping someone understand a form (without giving legal advice)
- Allowing use of a service animal, miniature horse
- Permitting other power-driven mobility devices (other than wheelchairs) in the courthouse
Courts do not have to provide personal devices, personal care assistance, readers for personal use or study (28 C.F.R. § 35.135) and can deny an accommodation request based on a legitimate safety concerns based on actual risks, not speculation (28 C.F.R. §§ 34.130(h) and 35.139) or if the court can demonstrate it would result in a fundamental alteration or undue financial or administrative burdens (such a decision must be in writing 28 C.F.R. 31.150(a)(3); 28 C.F.R. 35.164).
In this case, it appears reasonable that the litigant could bring their note taker up to the bench with them since doing so would not fundamentally alter the nature of the court proceeding. For further guidance on accommodations, you can read the Court Disability Coordinator Manual from the Illinois Attorney General's Office: http://www.illinoisattorneygeneral.gov/rights/Manual_Court_Disability_Coordinators.pdf or contact the AG's Disability Rights Bureau at Chicago: (312) 814-5684 or Springfield: (217) 524-2660.
As always, please email your questions, comments, concerns, suggestions, or stories about self-represented litigants to firstname.lastname@example.org.
-Justice Corner, Illinois Supreme Court Commission on Access to Justice's Court Guidance and Training Committee
- Chair, Judge Jo Beth Weber, Jefferson County
- Presiding Judge Clarence M. Darrow, Rock Island County
- Presiding Judge Sharon M. Sullivan, Cook County
- Associate Judge Elizabeth M. Rochford, Lake County
- Chief Judge Michael Kramer, Kankakee County
- Justice Michael Hyman, 1st Appellate District
- David Holtermann, Lawyers' Trust Fund, Chicago
- Wendy Vaughn, Clinical Professor NIU, Member of Access to Justice Commission