Indiana argues it may discriminate in some court services

A deputy attorney general argued the state may discriminate in providing certain court services as Indiana appealed a ruling that a deaf man was discriminated against when Marion Superior Court denied him an interpreter for a mandatory mediation.

The statement came near the end of oral arguments Thursday before the 7th Circuit Court of Appeals, in which the state is appealing a ruling in favor Dustin King. Indiana asks the court to reverse Chief Judge Jane Magnus-Stinson’s ruling last May that the court violated the Americans with Disabilities Act by denying King a sign-language interpreter during a federally funded modest-means mediation program in his child custody case. By local court rule, civil litigants must mediate their disputes, but a judge waived the requirement that King participate when he asked for an interpreter in his mediation.

“Can the state discriminate against the disabled with respect to non-essential (court services)?” Circuit Judge David Hamilton asked Deputy Attorney General Kyle Hunter.

“Yes, with a rational basis,” Hunter said. “Under the Equal Protection Clause, with a rational basis.”

Hunter said the trial court, for instance, “has a rational basis to not pay an interpreter for an out-of-court proceeding.”

The exchange came after Judge Frank Easterbrook hammered advocates for King with questions about whether King’s fundamental right of access to the court had been violated. After all, he said, a judge had waived the requirement that King participate in the mediation, and his case was adjudicated. He also did participate in the mediation with the assistance of a family member who could interpret.

But King’s attorney, Andrea Ciobanu, supported by U.S. Justice Department Civil Rights Division attorney Dayna Zolle, argued that precluding King from court-mandated mediation services he wanted to participate in was not a reasonable accommodation under the ADA. They also said King’s family member wasn’t a court-certified interpreter, and they urged the panel to affirm Magnus-Stinson’s ruling.

“You’re just not remotely addressing what concerns me; maybe you don’t plan to,” Easterbrook challenged Ciobanu. “But the question is whether a particular thing is a fundamental right of access to the court?” He said the Supreme Court in Tennessee v. Lane, 541 U.S. 509 (2004), sought to distinguish between those services a court may provide and what constitutes fundamental access to courts.

“If Mr. King is not able to participate in the modest means mediation but for his disability, then it’s fundamentally unfair to him because everyone else can participate in the program,” Ciobanu said. “This is access to the court.”

“The right to access of the courts includes the right to access judicial services that are designed in the administration of justice,” Zolle argued.

“We argue this case falls squarely within Tennessee v. Lane as this case also implicates the accessibility of judicial services, this class of cases involving access to services that the court offers to adjudicate legal disputes,” she said.

“Is the United States saying there is no distinction at all between all court-related services and the fundamental right of access to the court?” Easterbrook asked Zolle. After she sought to draw a distinction and Easterbrook persisted in questioning whether King’s fundamental rights had been violated after the trial court judge waived the mediation requirement, Zolle asked Easterbrook to repeat his question. He did not, instead sighing in seeming exasperation.

“I think we have completely lost one another now, counsel. Thank you very much,” Easterbrook said.

The state is entitled to sovereign immunity, Hunter said, and King’s request for an interpreter in the program would fundamentally alter the nature of the mediation program. The state also argues King failed to show that the Marion Superior Court had intentionally discriminated against him.

“The choice to waive (the mediation requirement) is actually only important because it shows the court is mindful of that right of access to the courts,” Hunter said.

“Access to mediation is not a constitutional right, it’s not a due process right. When the individual has full access to the court, mediation is not required.” he said.

Audio of the 7th Circuit arguments in Dustin King v. Marion Circuit Court, 16-3726, is available here.

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