Settlement Agreement Between The United States Of America And The Judiciary Of The State Of Hawaii

DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-21-9
  1. This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act (ADA), 42 U.S.C. ァァ 12131-12134, with the United States Department of Justice (the Department) against the Judiciary, State of Hawai`i (the Judiciary). The complaint alleges that in 1992 the Judiciary failed to secure the services of a qualified interpreter for a defendant charged with a traffic violation who was deaf and communicated in sign language. Pursuant to the provision of the ADA entitled, "Alternative Means of Dispute Resolution," 42 U.S.C. ァ 12212, the parties have entered into this Settlement Agreement.
  2. The Department is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter, to determine the compliance of the Judiciary with title II of the ADA and the Department's implementing regulation, issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized under 42 U.S.C. ァ 12133 to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to subpart F. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter.
  3. The parties to this Agreement are the United States of America and the Judiciary, State of Hawai`i. In order to secure compliance by voluntary means, the parties hereby agree as follows:
  4. The Judiciary does not admit by the signing of this Agreement that its current policies and practices are in violation in any respect with the ADA or its implementing regulation.
  5. The ADA applies to the Judiciary because it is a public entity as defined in title II of the ADA and the title II regulation. 42 U.S.C. ァ 12131 and 28 C.F.R. ァ 35.104.
  6. The subject of this Settlement Agreement is the development of a policy to ensure that an otherwise qualified participant, including party, witness, juror, or spectator, who is deaf or hard of hearing, may not be denied an equal opportunity to participate in, or benefit from, the services, programs, or activities of the Judiciary because of the disability or because of the need for interpreting services.
  7. The Judiciary has developed a written policy (attached), providing that in those proceedings where an interpreter is required to ensure effective participation by any individual who is deaf or hard of hearing, the Judiciary will, upon reasonable notice, secure the services of a qualified interpreter(s), provided that, with regard to spectators, such services shall not create an undue financial and administrative burden or result in a fundamental alteration in the nature of the service, program, or activity conducted by the Judiciary. In those circumstances where the Judiciary believes that the services would result in such a burden or alteration, the Judiciary shall take any other action that would not result in such a burden or such an alteration but would nevertheless ensure that, to the fullest extent possible, individuals with disabilities receive the benefits or services provided by the Judiciary.
  8. Within twenty (20) days of the effective date of this Agreement, the Judiciary shall instruct all appropriate Judiciary officials responsible for conducting proceedings to comply with the provisions of this Agreement.
  9. Copies of the policy shall be provided to members of the public upon request.
  10. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person. The Judiciary shall provide a copy of this Agreement to any person upon request.
  11. The Department may review compliance with this Agreement at any time. If it determines that this Agreement or any requirement thereof has been violated, it may institute a civil action seeking specific performance of the provisions of this Agreement in an appropriate federal court.
  12. Failure by the Department to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
  13. The effective date of this Agreement is the date of the last signature below.
  14. This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable. This Agreement is limited to the facts set forth in the first paragraph, and it does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the continuing responsibility of the Judiciary to comply with all aspects of the ADA.

For the Judiciary:

RONALD T. Y. MOON
Chief Justice



__________________________       Date ______________
MICHAEL F. BRODERICK
Administrative Director of the Courts

SUSAN L. GOCHROS
Judiciary Staff Attorney
State of Hawai`i Judiciary
417 South King Street
Honolulu, Hawai`i 96813

For the United States:

BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division



__________________________        Date ____________
JOHN L. WODATCH, Chief

RENEE WOHLENHOUS
Deputy Chief

ROBERT J. MATHER, Attorney

Disability Rights Section
Civil Rights Division
U.S Department of Justice
Washington, D.C. 20035-6738

Attachment

POLICY FOR INTERPRETING SERVICES IN JUDICIAL PROCEEDINGS

INVOLVING INDIVIDUALS WHO ARE DEAF OR HARD OF HEARING

It is the policy of the Judiciary of the State of Hawai`i that in those judicial proceedings where an interpreter is necessary to ensure effective participation by any party, witness, juror, or spectator who is deaf or hard of hearing, the Judiciary shall, upon reasonable notice, secure the services of a qualified interpreter. A "qualified interpreter" is one who interprets effectively, accurately, and impartially both receptively

and expressively, using any necessary specialized vocabulary. The "Judiciary" includes a justice, judge, or designated individual. This policy applies to those situations where other auxiliary aids and services, such as real-time transcription, are not equally effective means of communication or are unavailable. This policy does not apply to those situations where providing interpreters to spectators creates an undue financial and administrative burden or in a fundamental alteration in the nature of the service, program, or activity conducted by the courts.

Before determining the type of interpreting services to be secured, the Judiciary shall confer with the individual with a disability regarding the individual's preferred mode of communication (i.e., American Sign Language, Signed English, or oral interpreting). The Judiciary shall then determine the type of the services and the date, time, and place those services are required. The Judiciary shall, at its own expense, secure an interpreter(s) to provide those services.

Upon the date, place, and time noted, and prior to continuing with any proceeding, the Judiciary shall ask the individual, through the interpreter, whether the individual is confident that the interpreter's skills ensure an adequate and accurate interpretation of the communication of the proceeding, and whether the individual is confident of the interpreter's impartiality. If either of those questions are answered in the negative, further efforts shall be made by the Judiciary to acquire the services of a qualified interpreter. If those two questions are answered in the affirmative, the Judiciary shall ask the interpreter whether he or she is able to interpret the proceedings. The proceedings shall continue unless the interpreter becomes unable or unwilling to satisfy the criteria for a qualified interpreter, at which time a qualified interpreter shall be obtained. The final determination of whether an interpreter is qualified rests with the Judiciary.

An individual who is deaf or hard of hearing shall not be required to bring a family member(s) or friend(s) to interpret a proceeding. If the individual chooses to bring his or her own interpreter to a proceeding, the Judiciary shall ask the individual and the interpreter whether the individual is confident that the interpreter's skills ensure an adequate and accurate interpretation of the communication of the proceeding, andwhether the individual is confident of the interpreter's impartiality. The Judiciary may disallow the use of a family member or friend as an interpreter if impartiality based upon the relationship of the individual and the interpreter cannot reasonably be assurd. If the Judiciary and the individual are satisfied that the interpreter is qualified and is able and willing to interpret impartially, the Judiciary may pay for the interpreting services pursuant to the Judiciary's fee schedules and the proceedings shall continue. If not, the Judiciary or its designee shall obtain a qualified interpreter.

The Judiciary, by and through the Chief Justice, shall distribute this policy to all judges and appropriate judiciary staff. Upon request, the coordinator for the Americans with Disabilities Act shall be available to answer inquiries and provide appropriate training materials concerning effective communication requirements.

The Judiciary shall endeavor to notify individuals who are deaf or hard of hearing about the availability of auxiliary aids and services to ensure effective participation, and the procedures for securing them. The Judiciary shall distribute this information through pamphlets, posters or other appropriate means.

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Updated August 6, 2015

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