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Right to equal access at center of federal lawsuit

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A courtroom spectator’s persistent requests to two trial courts for an interpreter raises questions of how accessible Indiana courts should be for people who have disabilities as well as how much control the state judiciary has over local judges.

The questions escalated into a lawsuit filed in April 2012 in U.S. District Court for the Southern District of Indiana, New Albany Division, naming two county judges, the Indiana Supreme Court and Chief Justice Brent Dickson among the defendants.

Vargas Vargas

Dueling motions for judgment – one for partial, the other for summary – have been filed and the U.S. Department of Justice weighed in Jan. 7 with a statement of interest.

Plaintiffs Steven Prakel and his mother, Carolyn Prakel, claim the defendants violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by denying the family equal access to the courts.

They want the state to reimburse them for the money they spent to hire a sign language interpreter and to have a trial to consider compensatory damages for the discrimination. They also want the District Court to declare that the defendants were required to provide auxiliary aids and services to ensure Steven Prakel had access to court proceedings.

The central issue in this case, said the Prakels’ attorney Mary Vargas, is access to open public proceedings for all members of the public, regardless of whether the individual is a party to the case, a family member or someone who is interested in the proceeding.

“This is not rocket science,” Vargas said. “The law, certainly according to the Department of Justice, is very clear that courts need to provide equal access.”

Along with asserting they have immunity, the defendants argue the plaintiffs have no standing because they have failed to show they suffered injury from the defendants’ actions.

“The judges are faced with challenges in providing full access to the courts within the limited resources that are appropriated,” Indiana Attorney General Greg Zoeller said in a statement about the case. “My office will represent the decisions of our court officials in the judiciary as we do the actions in the other two branches of state government.”

Requests and denials

In 2010 and 2011, Steven Prakel, who is deaf and uses American Sign Language to communicate, wanted to attend his mother’s court hearings that stemmed from a previous plea to driving while intoxicated causing serious bodily injury.

Prior to a number of hearings, Steven Prakel repeatedly contacted Dearborn Superior Court No. 1 and Dearborn Circuit Court, requesting a sign language interpreter be provided for him. The courts denied his requests, maintaining since he was not a party or witness in the case, they were not obligated to provide an interpreter.

Steven Prakel was unable to access the hearings until his mother paid $264 to have a sign language interpreter attend.

In Steven Prakel and Carolyn Prakel v. the State of Indiana, Chief Justice Brent E. Dickson, Indiana Supreme Court, Division of State Court Administration and Magistrate Judge Kimberly A. Schmaltz, Judge James D. Humphrey, and Judge Jonathan N. Cleary, 4:12-CV-045, the plaintiffs claim the defendants intentionally discriminated against Steven Prakel.

The defendants argue, in part, Title II of the ADA requires the defendants to only make “reasonable accommodations” for the Prakels. Just as the ADA does not require public entities to provide disabled individuals with wheelchairs, prescription eyeglasses and assistance with eating and dressing, the courts should not be required to provide sign language interpreters for a spectator.

The Department of Justice scoffed at that argument. It asserted the provision the defendants cite is not applicable. Instead, according to the DOJ, the request for an interpreter is governed by the communication provisions of Title II which states that public entities “shall furnish appropriate auxiliary aids and services” to give qualified disabled individuals access.

“Mr. Prakel repeatedly sought, but was denied, his rights under Title II and Section 504,” the DOJ stated. “The Defendants refused to even engage in the process of determining what auxiliary aids and services were necessary for effective communication as required by Title II. Consequently, the record is clear that the Defendants were deliberately indifferent to Mr. Prakel’s federally protected rights.”

On June 23, 2010, Dearborn Superior Judge Jonathan Cleary convened a hearing specifically to determine whether the court had to provide an interpreter. During the proceeding, Cleary asked Carolyn Prakel’s defense attorney, Timothy Day, if there was any need for the court to provide an interpreter.

Day replied that it was a gray area and that he could not answer if the court was required to provide an interpreter when Steven Prakel was not a witness or party to the case.

Vargas, attorney at Stein & Vargas LLP in Maryland, said that asking whether an interpreter was needed to conduct the hearing is different from what this case is about. The main issue, she said, is his right to be present during his mother’s hearings.

In November 2010, the National Association of the Deaf wrote a letter to Circuit Judge James Humphrey, requesting the Dearborn Circuit Court reimburse Carolyn Prakel for the cost of the interpreter. When the association received no response, it sent a letter to then-Chief Justice Randall Shepard but again did not get a reply.

Who is responsible?

The defendants in the Prakel matter took issue with the request for a declaration on providing auxiliary aids and services. Arguing the case should be limited to what happened in Dearborn County, the defendants contend the plaintiffs sprung this request only in the motion for partial summary judgment.

Asserting that requiring interpreters for all spectators at all court proceeding throughout the state would involve different proof and considerations, the defendants asked the District Court to not expand the scope of the lawsuit and focus only on the Prakels’ request for reimbursement for the interpreter they had to hire.

The plaintiffs point out they do not have legal standing to ask that all Indiana courts be made to supply sign language interpreters going forward, but rather they want a declaration from the District Court that the trial courts were required to provide an interpreter for Prakel.

However, who in the Indiana judicial system is accountable for assuring compliance with accessibility requirements is a central question in the Prakel case, said New Albany attorney Matthew Lorch, who also is representing the Prakels. He feels like the Supreme Court, Division of State Court Administration and the county courts are all pointing to each other when asked who has responsibility.

The attorney general argued the state courts should not be named defendants because Indiana does not have a unified court system. The Supreme Court and State Court Administration do not have any role in the day-to-day operations or governance of the local and county courts.

Humphrey did contact the State Court Administration on the Prakel matter, but the state has not released the content of those conversations, saying the discussions were privileged.

Lorch noted the effort by Shepard to make Indiana courthouses more accessible. This effort, he said, was not enough to help Prakel and his mother.

“Here was someone so passionately trying to understand and follow (the court proceedings) and he got shut out,” Lorch said. “That is not in line with the whole notion of making courts accessible that we’ve been pushing.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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