Letter 211

October 1, 1997

Robert J. Raubach, Esq.

Georgia Advocacy Office

999 Peachtree Street, N.E.

Suite 870

Atlanta, Georgia 30309

Re: Sign Language Interpreters in the Georgia Courts

Dear Mr. Raubach:

This responds to your letter of March 14, 1997, in which you raise concerns about Georgia law regarding the responsibility for payment of sign language interpreters in administrative and judicial proceedings. Specifically, you express concern about a provision of Georgia law that appears to permit the expense of providing a qualified interpreter in a civil proceeding to be assessed against a deaf litigant as part of the court costs that can be assessed against losing civil litigants. See, O.C.G.A. 24-9-108(c).

As we discussed, such a policy would violate title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12134 (ADA), which prohibits discrimination against qualified individuals with disabilities by state and local governmental entities, such as state courts and administrative agencies. The regulations implementing title II require public entities to provide auxiliary aids and services, such as interpreter services, where such services are necessary to afford an individual with a disability an equal opportunity to participate in the services, programs, or activities conducted by such entities. See, 28 C.F.R. § 35.160(b)(1). In addition, the title II regulations specifically prohibit covered entities from passing on the cost of measures required to comply with the ADA, such as interpreter services, by imposing a surcharge on "any particular individual with a disability or any group of individuals with disabilities." See, 28 C.F.R. § 35.130(f).

Thus, state courts and other entities covered by title II of the ADA cannot require individuals who are deaf or who have hearing impairments to pay the cost of interpreter services those entities are required to provide under the ADA. This is true whether the covered entity imposes such costs directly or by including them in court costs to be borne by the losing party in a civil lawsuit (even if they would also be imposed on losing parties who do not have hearing impairments). To the extent that O.C.G.A. 24-9-108(c) is used to impose such costs on a losing litigant who has a hearing impairment, the costs would be considered impermissible surcharges in violation of 28 C.F.R. § 35.130(f). Instead, the cost of providing sign language interpreters should be paid by the court and, as you suggest, such costs should be considered general expenses of court administration.

Although we have not reviewed other provisions of Georgia law governing the use of interpreter services, I would note in passing that a policy of refusing to provide and pay for interpreter services for a potential juror with a hearing impairment would also violate the ADA. See, 1987 Op. Att'y Gen. No. U87-11 (Att'y Gen. of Georgia), interpreting O.C.G.A. 24-9-102(a). In general, the ADA requires that persons who are deaf or hard of hearing have an equal opportunity to participate in and to benefit from the programs and services provided by state courts, including, but not limited to, the opportunity to participate as jurors, parties, witnesses, and spectators.

I have enclosed a copy of a settlement agreement the Department has entered into with Hancock County, Mississippi. The agreement addresses the obligation of the Hancock County court to provide effective communication to persons who are deaf or hard of hearing by securing, at the court's expense, the services of a qualified interpreter. We have entered into similar agreements with other courts and court systems including the Utah State Administrative Office of the Courts and the Florida State Court System (regarding transcription services). (Copies enclosed.)

I hope you will find this information useful in resolving your complaint regarding the Georgia courts. Access to the courts for persons with disabilities remains a significant interest of the Department. Please feel free to contact us if we can be of further assistance.

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