Response To Tad David Osca General Counsel Florida Disability Discrimination

Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator Supreme Court Building 500 South Duval Street Tallahassee, FL 32399 Phone: (850) 488-1824 Fax: (850) 410-5301 Disability Discrimination by the Florida Courts RE: Grace A. Fagan, the apparent ADA Coordinator for the Fifth Judicial Circuit, and my ADA Title II Accommodation Request submitted December 10, 2014 Mr. David, Your latest email (enclosed) is not responsive to the issues. Exhibit 1. Let me restate my complaint for your response: 1. I filed an ADA Title II accommodation request December 10, 2014 in Marion County, in connection with the foreclosure case shown below. I did not get a disability accommodation. I did not get a response to my an ADA Title II accommodation request. Action needed: I want a response now. Otherwise I want the OSCA to take action to get a response to which I am entitled.
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VIA UPS No. 1Z64589FP290332627 Via Email: [email protected] February 9, 2015 Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator Supreme Court Building 500 South Duval Street Tallahassee, FL 32399 Phone: (850) 488-1824 Fax: (850) 410-5301 RE: Grace A. Fagan, the apparent ADA Coordinator for the Fifth Judicial Circuit, and my ADA Title II Accommodation Request submitted December 10, 2014 Mr. David, Your latest email (enclosed) is not responsive to the issues. Exhibit 1. Let me restate my complaint for your response: 1. I filed an ADA Title II accommodation request December 10, 2014 in Marion County, in connection with the foreclosure case shown below. I did not get a disability accommodation. I did not get a response to my an ADA Title II accommodation request. Action needed: I want a response now. Otherwise I want the OSCA to take action to get a response to which I am entitled. Reverse Mortgage Solutions, Inc. v. Neil J. Gillespie, et al., Marion County Florida, Fifth Judicial Circuit, No. 42-2013CA-000115-AXXX-XX, a.k.a. case no. 2013-CA-000115. 2. Attached/enclosed are the documents I submitted December 10, 2014: Exhibit 2 FLORIDA STATE COURTS SYSTEM ADA TITLE II ACCOMMODATION REQUEST FORM June 28, 2010. I submitted the form by pushing a button on page 6 of the form, December 10, 2014 @11.2X AM. Exhibit 3 Email receipt from John Sullivan, [email protected] Dec-10-2014 @11.54 AM Exhibit 4 My email to Mr. Sullivan, [email protected] Dec-10-2014 @12.49 PM: Dear Mr. Sullivan, Thank you for acknowledging receipt of my ADA request. I appreciate your professionalism. As a courtesy, please find attached the following: Exhibit 5 The ADA One Avenue to Appointed Counsel Before a Full Civil Gideon (law review) Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator Exhibit 6 Exhibit 7 Exhibit 8 February 9, 2015 Page - 2 Brain injury leads to suspension for Maine lawyer; 'I couldn't stick to tasks,' he says (American Bar Association, composite) Notification from Social Security of full disability, 08-23-93, SSA to NJG-disabled. Pages from disability motion, US 11th Circuit 12-11213-C and ER report My full disability motion (251 pages) US 11th Circuit 12-11213-C is posted on Scribd, http://www.documento.com/doc/102585752/Amended-Disability-Motion-12-11213-C-C-A-11 My Scribd Disability "Collection" of documents is found here, https://www.documento.com/collections/3851318/Disability-and-the-Law If you require anything else, please contact me. Thanks again. Sincerely, Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida 34481 (352) 854-7807 3. On December 10, 2014 I provided by email @11.37 AM (Exhibit 9) a second time (Exhibit 10) the FLORIDA STATE COURTS SYSTEM ADA TITLE II ACCOMMODATION REQUEST FORM June 28, 2010, to the names shown, with the message below. Tellingly the link was broken to the ADA form on the 5th Judicial Circuit’s website. Thank you. I already submitted my ADA request on the attached form I just found from last year. Neil J. Gillespie. Judge Hale Ralph Stancil, Tameka Gordon, ADA Coordinator Fifth Circuit Chief Judge Don Briggs Fifth Circuit General Counsel and ADA Coordinator Grace Fagan Marion County General Counsel for the Clerk and Comptroller Greg Harrell John Sullivan, ADA Coordinator, Fifth Circuit, Citrus Co. John Anthony Tomasino, Clerk, Florida Supreme Court Silvester Dawson, ADA Coordinator, Florida Supreme Court McCalla Raymer E-service Patricia Ann Toro Savitz, Florida Bar Counsel Barry Rodney Davidson, attorney Jon Marshall Oden, attorney Frank Harlan Killgore Jr., attorney Robert J. Stovash, attorney Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator February 9, 2015 Page - 3 4. Grace A. Fagan is not shown as an ADA coordinator anywhere in the state of Florida on the attached (Exhibit 11) Directory of Florida Courts ADA Coordinators published by OSCA and found on the OSCA website at the link below. But she is acting as an ADA Coordinator. Question: Under what authority is Grace A. Fagan acting as ADA Coordinator? Question: When will OSCA correct the omission of Grace A. Fagan from its Directory of Florida Courts ADA Coordinators? http://www.flcourts.org/core/fileparse.php/243/urlt/ADA_directory.pdf 5. The attached Directory of Florida Courts ADA Coordinators (Exhibit 9) published by OSCA and found on the OSCA website shows five other ADA Coordinators for the Fifth Judicial Circuit for the respective counties of Marion, Citrus, Lake, Hernando and Bushnell. I have not gotten a response from Tameka Gordon, the ADA coordinator for Marion County to my ADA Title II accommodation request to her. Question: Why has Tameka Gordon not responded to my ADA Title II request? Ms. Tameka Gordon 110 N.W. 1st Avenue Ocala, FL 34475 Phone: 352-401-6710 (ADA line) Fax: 352-401-7883 ADA Duties: Marion County Mr. John D. Sullivan 110 N. Apopka Street Inverness, FL 34450-4231 Phone: 352-341-6700 Fax: 352-341-7008 ADA Duties: Citrus County Ms. Nicole Berg P. O. Box 7800 Tavares, FL 32778 Phone: 352-253-1604 Fax: 352-742-4370 ADA Duties: Lake County Ms. Peggy Welch 20 N. Main Street, Room 350 Brooksville, FL 34601 Phone: 352-754-4402 Fax: 352-754-4267 ADA Duties: Hernando County Ms. Lorna Barker 225 E. McCollum Avenue, Room 209 Bushnell, FL 33513 Phone: 352-569-6088 Fax: 352-569-6098 6. Grace A. Fagan, the apparent ADA Coordinator for the Fifth Circuit, has refused to accept my emailed request for a copy of my ADA Title II accommodation request showing it was received with the date stamp. Contrary to her assertion, I am not required to "put [my] public records requests in writing and addressed to [her] office. All public records are required to be hard copied via US Mail not email." There is no requirement that a records request be in writing or sent through the U.S. mail to her office. You know that Mr. David from my prior records request to you, made by email, and records provided by you or OSCA in PDF format by email to me. Also, Ms. Fagan has not provided a street address (that I can recall) and my shipper United Parcel Service (U.P.S.) can not legally deliver to a Post Office Box. So email is the efficient way to do a records request. Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator February 9, 2015 Page - 4 Action needed: Inform Ms. Fagan about Florida’s public records law, and her responsibility to provide records as a public employee of the Courts. “The mission of the judicial branch is to protect rights and liberties, uphold and interpret the law, and provide for the peaceful resolution of disputes.” - OSCA website. Article I, Section 24 of the Florida Constitution guarantees Access to public records and meetings. Public records are governed by Chapter 119, Florida Statutes. All public records requests shall be acknowledged promptly and in good faith, F.S. § 119.07(1)(c) Under F.S. § 119.10(2) Ms. Fagan is a person subject to violation and penalties. 119.10 Violation of chapter; penalties.— (1) Any public officer who: (a) Violates any provision of this chapter commits a noncriminal infraction, punishable by fine not exceeding $500. (b) Knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) Any person who willfully and knowingly violates: (a) Any of the provisions of this chapter commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (b) Section 119.105 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 7. The ADA Title II accommodation request process is not supposed to be part of the adversarial process, but it has been in this case. If you/OSCA believes the ADA Title II accommodation request is subject to the adversarial process, state your opinion or belief thereto, and provide citation(s) to law. Marion County and the Fifth Judicial Circuit openly refuse to obey The Americans With Disabilities Act (ADA) Amendment Act of 2008 (ADAAA), Public Law 110-325, as a matter of official policy, a deprivation of civil rights under color of law against 18 U.S.C. 242. An accommodation under the ADA TITLE II means the, Americans with Disabilities Act of 1990 (ADA) Public Law 101-336 Signed by President George Herbert Walker Bush on July 26, 1990 http://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 and major amendments to the ADA 1990, Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator February 9, 2015 Page - 5 ADA Amendments Act of 2008 (ADAAA) Public Law 110-325 Signed by President George W. Bush on September 25, 2008 http://en.wikipedia.org/wiki/ADA_Amendments_Act_of_2008 It has come to my attention that Florida’s judicial branch of government does not accept or follow the ADA Amendments Act of 2008, which was a major amendment to the Americans with Disabilities Act of 1990 (ADA). Tellingly Florida’s judiciary, including the Florida Supreme Court, pretend to support the civil rights of persons with disabilities by proclaiming its support of the Americans with Disabilities Act of 1990 (ADA). But that law is long outdated. The current state of the law is reflected by the ADA Amendments Act of 2008. In Marion County a Fifth Circuit Administrative Order A-2010-12-A specifically referred to the Americans With Disabilities Act 1990 (ADA) as “Public Law 101-336” and not to the current ADA Amendments Act of 2008 (ADAAA) “Public Law 110-325”. Fifth Circuit Administrative Order A-2010-12-A was signed October 14, 2011 by Chief Judge Daniel B. Merritt, Sr., long after the ADA Amendments Act of 2008 was the law of the land. The nine page Fifth Circuit Administrative Order A-2010-12-A is found online here, http://www.circuit5.org/c5/wp-admin/ao/A2010-12-A.pdf and is part of the internal grievance procedure that shall apply to all courts within the jurisdiction of the Fifth Judicial Circuit. On information and belief, the purpose of this internal grievance procedure is to deny the civil rights of persons with disabilities. Fifth Circuit Administrative Order A-2010-12-A appoints Grace A. Fagan, General Counsel of the Fifth Circuit, as the ADA Coordinator and requires all complaints shall be sent directly to her at the Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601. Ms. Fagan is not listed in the Directory of Florida Courts ADA Coordinators, revised 02/07/12 which is nine months after Chief Judge Merritt signed Fifth Circuit Administrative Order A2010-12-A into law. The Directory of Florida Courts ADA Coordinators is found linked on the Office of State Courts Administrators (OSCA) website, http://www.flcourts.org/core/fileparse.php/243/urlt/ADA_directory.pdf Ms. Fagan has obstructed my ADA Title II Accommodation Request submitted December 10, 2014. Ms. Fagan has failed to answer ordinary questions about the court/circuit’s civil procedures, how to schedule a hearing, or provide information on court reporters. The ADA Coordinator for Marion County is listed as Tameka Gordon in the Directory of Florida Courts ADA Coordinators, but Ms. Gordon has not responded to my request for accommodation. I emailed Ms. Fagan December 12, 2014 and got no response: Thomas A. "Tad" David, General Counsel Office of the State Courts Administrator February 9, 2015 Page - 6 “Today I attempted to contact Tameka Gordon by telephone at (352) 401-6701, but was greeted by the voice mail of another person. Does Ms. Gordon have another ADA telephone number? Has Ms. Gordon been replaced as ADA Coordinator by another person? This paragraph is not a records request, but related to the Americans with Disabilities Act, of which you are the ADA Coordinator for the Fifth Judicial Circuit.” 8. Mission & Vision - from the OSCA website http://www.flcourts.org/florida-courts/mission-and-vision.stml The mission of the judicial branch is to protect rights and liberties, uphold and interpret the law, and provide for the peaceful resolution of disputes. Vision of the Florida Judicial Branch Justice in Florida will be accessible, fair, effective, responsive, and accountable. • To be accessible, the Florida justice system will be convenient, understandable, timely, and affordable to everyone. • To be fair, it will respect the dignity of every person, regardless of race, class, gender or other characteristic, apply the law appropriately to the circumstances of individual cases, and include judges and court staff that reflect the community's diversity. • To be effective, it will uphold the law and apply rules and procedures consistently and in a timely manner, resolve cases with finality, and provide enforceable decisions. • To be responsive, it will anticipate and respond to the needs of all members of society, and provide a variety of dispute resolution methods. • To be accountable, the Florida justice system will use public resources efficiently, and in a way that the public can understand. Thank you in advance for the courtesy of a response. Sincerely, Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida Enclosures Telephone: (352) 854-7807 Email: [email protected] Page 1 of 5 Neil Gillespie From: To: Sent: Subject: "Tad David" "Neil Gillespie" Monday, February 09, 2015 5:26 PM RE: Shame on the Hale Ralph Stancil kangaroo court - listen for yourself Mr. Gillespie:   After reviewing your correspondence to me on December 18, 2014 (copied below), it does not appear that the correspondence requests anything other than my “view of the situation.”  This does not appear to be the type of correspondence to which I can properly respond, since it seeks to elicit my opinion or advice.  I cannot give you advice or my legal opinion since I am the general counsel for OSCA.  Otherwise, there are policies and procedure to follow when seeking ADA accommodations and when attempting to file a complaint against the various individuals and entities that may be involved.   Thank you for understanding.   Sincerely,   Thomas A. "Tad" David General Counsel Office of the State Courts Administrator Supreme Court Building 500 South Duval Street Tallahassee, FL 32399 Phone:  (850) 488-1824 Fax:  (850) 410-5301 [email protected]     “Dear Mr. David, The so-called ADA Coordinator for the Fifth Circuit is refusing to provide records by email. I am not mailing these criminals anything. I want the records, so I can bring them to justice. I would appreciate your view of this situation. Thank you in advance for the courtesy of a response.”   From: Neil Gillespie [mailto:[email protected]] Sent: Friday, February 6, 2015 2:39 PM To: ADA; osca; Tad David; Grace Fagan; Ramon A. Abadin; Adria E Quintela; Gregory W. Coleman; Jack Harkness; John Thomas Berry; Paul Hill; Public Information; Adam Putnam, Comm.; Gov. Rick Scott; Jeff Atwater, CFO; Pam Bondi, AG Cc: Neil Gillespie Subject: Fw: Shame on the Hale Ralph Stancil kangaroo court - listen for yourself Tad David, General Counsel OSCA Mr. David: As of today I do not show a response to my email to you December 18, 2014. The essence of my contact with you concerns the ADA request submitted in Marion County. What will OSCA do to assure compliance with the ADA Amendments Act of 2008? Neil J. Gillespie Dear Mr. David, No one has responded to my ADA request submitted in Marion County. What will OSCA do to assure compliance with the ADA Amendments Act of 2008? 2/9/2015 1 Page 2 of 5 Civil counsel may be appointed "in any situation in which the court appoints counsel to protect a litigant’s due process rights" 29.007 Courtappointed counsel. ----- Original Message ----From: Neil Gillespie To: A. Lee Bentley ; DOJ ADA ; John Anthony Tomasino ; Tad David ; Paul F Hill ; John Thomas Berry ; John F Harkness ; Gregory William Coleman ; Adria E Quintela ; Ramon A. Abadin ; Gov. Rick Scott ; Pam Bondi, AG ; Adam Putnam, Comm. ; Jeff Atwater, CFO ; ADA OSCA ; Public Information Office ; Patricia Ann Toro Savitz ; Jon Marshall Oden ; Robert J. Stovash ; Barry Rodney Davidson ; Frank Harlan Killgore Jr. ; Michael Schneider ; Neil Gillespie Cc: Hon. Hale R Stancil ; Hon. Don F Briggs ; Grace Ann Fagan ; McCalla Raymer E-service ; Tameka Gordon, ADA Coordinator ; Jane Bond ; Robyn Katz ; Greg Harrell Sent: Thursday, December 18, 2014 5:11 PM Subject: Shame on the Hale Ralph Stancil kangaroo court - listen for yourself Arthur Lee Bentley, U.S. Attorney Middle District of Florida Congratulations on your Senate voice vote confirmation December 16, 2014. This is a request for assistance with the ADA Amendments Act 2008, and disability discrimination in the Florida Fifth Judicial Circuit John Anthony Tomasino Supreme Court of Florida [email protected] Tad David, General Counsel Office of State Courts Administration [email protected] Dear Mr. Tomasino, Please find attached a .wav recording of a hearing earlier today consented to by Judge Hale Stancil. What provision does the Supreme Court of Florida have to receive this recording in a proceeding? I am planning a motion for appointment of counsel under the ADA and want to show the Supreme Court the what passes as due process in certain rogue courts. While there are many issues with the way Judge Stancil conducted the hearing this morning, the judge said I cannot represent my interest in a family trust where I am the sole trustee. The only trust asset is the home in foreclosure. Because I am not able to obtain counsel, my only option is a counsel appointment under the ADA. I raised this during the Stancil’s "hearing" to no avail. Because of brain injury, I cannot participate in a hearing, which is obvious from the recording. There is a breakdown in my ability to put into spoken words what I am thinking. Judge Stancil feigned ignorance of civil counsel appointment under Florida law. He is wrong, but I was not able to put into spoken words what I was thinking, or knew from past research, set forth below in writing, after referring that earlier research: The Supreme Court of Florida currently has a duty and the authority to administratively provide legal counsel to unrepresented persons under the Sixth Amendment to the U.S. Constitution, and the ADA Amendments Act of 2008, and "in any situation in which the court appoints counsel to protect a litigant’s due process rights" 29.007 Court-appointed counsel. http://www.leg.state.fl.us/STATUTES/index.cfm? App_mode=Display_Statute&Search_String=&URL=0000-0099/0029/Sections/0029.007.html In addition, there is sufficient evidence to support universal counsel appointment under Powell vs. Alabama, 287 U.S. 45. MR. JUSTICE SUTHERLAND delivered the opinion of the Court...."If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense..." "...The right [p69] to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense..." Powell v. Alabama, 287 U.S. 45 Argued: October 10, 1932 Decided: November 7, 1932 224 Ala. 524, 531, 540, reversed. http://www.law.cornell.edu/supremecourt/text/287/45 During the hearing Judge Stancil announced his test for legal competency: The ability to drive a car. This is nonsensical, as I drive a car and never have to make a legal argument while driving. A person who cannot speak can drive a car, but could not represent themselves in court. Stancil also relies on the driver’s license test: If a person has a Florida driver’s license, then they are competent to represent themselves. Under that nonsense, my driver’s license should be sufficient proof to be admitted to The Florida Bar, without law school, bar exam or character check. 2/9/2015 Page 3 of 5 Currently Florida administratively provides legal counsel in compliance with the Sixth Amendment by and through the Florida Statutes, Title V, Judicial Branch, Chapter 27 State Attorneys; Public Defenders; Related Offices, Part III, Public Defenders and Other Court-Appointed Counsel. Section 27.40(1) Counsel shall be appointed to represent any individual in a criminal or civil proceeding entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law. The court shall appoint a public defender to represent indigent persons as authorized in s. 27.51. The office of criminal conflict and civil regional counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the public defender is unable to provide representation due to a conflict of interest or is not authorized to provide representation. (2)(a) Private counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the office of criminal conflict and civil regional counsel is unable to provide representation due to a conflict of interest. (b) Private counsel appointed by the court to provide representation shall be selected from a registry of individual attorneys maintained under this section. (3) In using a registry: (a) The chief judge of the circuit shall compile a list of attorneys in private practice, by county and by category of cases, and provide the list to the clerk of court in each county. The chief judge of the circuit may restrict the number of attorneys on the general registry list. To be included on a registry, an attorney must certify that he or she: 1. Meets any minimum requirements established by the chief judge and by general law for court appointment; 2. Is available to represent indigent defendants in cases requiring court appointment of private counsel; and 3. Is willing to abide by the terms of the contract for services. As for showing disability, Stancil took testimony from opposing counsel on my disability. That is beyond outrageous. Because I receive Social Security Disability benefits pursuant to Title II of the Social Security Act, and was eligible for vocational rehabilitation services, I am aware of a standard: 413.30 Eligibility for vocational rehabilitation services.— (2) Determinations by other state or federal agencies regarding whether an individual satisfies one or more factors relating to the determination that an individual has a disability may be used. Individuals determined to have a disability pursuant to Title II or Title XVI of the Social Security Act shall be considered to have a physical or mental impairment that constitutes or results in a substantial impediment to employment and a significant disability. Florida already administratively provides counsel, and could do so under the ADA upon "Determinations by other state or federal agencies regarding whether an individual satisfies one or more factors relating to the determination that an individual has a disability" Curtis Wilson for McCalla Raymer lied to the judge about pending motions. Wilson mentioned Defendants MOTION TO DISMISS filed, February 4, 2013, but did not tell the judge about Defendants' Rule 1.150 Motion to Strike Sham Pleadings, filed July 25, 2014. Wilson also lied about my motion to quash service. Wilson told the judge the motion was based on lack of ADA language. Wilson failed to tell the judge that the summons for me personally had the wrong date - by a year. Here are some paragraphs from my motion to quash summons: 4. Service of process must strictly comply with all relevant statutory provisions. Walker v. Fifth Third Mortgage Company, 2012 WL 5457220, No. 5D12-3187 (Fla. 5th Dist. Ct. App. 2012) citing Shurman v. Atlantic Mortgage & Investment Corp. (Fla. 2001) (holding that "statutes governing service of process are to be strictly construed and enforced") see also Re-Employment Services, Ltd v. National Acquisitions Co., 969 So. 2d 467 (Fla. 5th Dist. Ct. App. 2007) (holding that "courts require strict construction of, and compliance with, the provisions of statutes governing service of process"). Strict compliance? Not in the Hale Ralph Stancil kangaroo court. 7. The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). Burden of proof? Not in the Hale Ralph Stancil kangaroo court 9. Because Plaintiff failed to strictly comply with the requirements of Fla. Stat. §48.031(5), service of process must be quashed. Vidal, 41 So. 3d 401; see also Gamboa v. Jones, 455 So. 2d 6] 3 (Fla. 3d Dist. Ct. App. 1984). Service of process must be quashed. HA HA, Not in the Hale Ralph Stancil kangaroo court! Dear Mr. David, No one has responded to my ADA request submitted in Marion County. What will OSCA do to assure compliance with the ADA Amendments Act of 2008? Civil counsel may be appointed "in any situation in which the court appoints counsel to protect a litigant’s due process rights" 29.007 Courtappointed counsel. http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0029/Sections/0029.007.html 29.007 Court-appointed counsel.—For purposes of implementing s. 14, Art. V of the State Constitution, the elements of court-appointed counsel to be provided from state revenues appropriated by general law are as follows: (1) Private attorneys appointed by the court to handle cases where the defendant is indigent and cannot be represented by the public defender or the office of criminal conflict and civil regional counsel. (2) When the office of criminal conflict and civil regional counsel has a conflict of interest, private attorneys appointed by the court to represent 2/9/2015 Page 4 of 5 indigents or other classes of litigants in civil proceedings requiring court-appointed counsel in accordance with state and federal constitutional guarantees and federal and state statutes. Subsections (3), (4), (5), (6), and (7) apply when court-appointed counsel is appointed; when the court determines that the litigant is indigent for costs; or when the litigant is acting pro se and the court determines that the litigant is indigent for costs at the trial or appellate level. This section applies in any situation in which the court appoints counsel to protect a litigant’s due process rights. Unfortunately Hale Ralph Stancil knowingly failed to protect my due process rights. I consider that a deprivation of rights under the color of law, in violation of 18 USC 242. http://www.justice.gov/crt/about/crm/242fin.php THE BANKS DESTROYING AMERICA, Florida attorney Matt Weidner, http://youtu.be/BsLoG4Q8k58 An Occupy.com Profile: Captain Ray Lewis, http://youtu.be/jv_CcmRZ7zc The American Bar Association (ABA) recently added a "Civil Right to Counsel" page, "Law Governing Appointment of Counsel in State Civil Proceedings", http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/civil_right_to_counsel.html with 50 research reports, one for each state detailing existing authority for appointment of counsel in various types of civil proceedings. There is an Appendix: International Law Relating to Appointment of Counsel in Civil Proceedings. http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manual_appendix.authcheckdam.pdf Florida law for civil counsel appointment. http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manual_fl.authcheckdam.pdf Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally State Statutes and Court Decisions Interpreting Statutes Fla. Stat. § 29.007 (2011) ("Court-appointed counsel") provides: For purposes of implementing s. 14, Art. V of the State Constitution [relating to funding of the judiciary], the elements of court-appointed counsel to be provided from state revenues appropriated by general law are as follows: (1) Private attorneys appointed by the court to handle cases where the defendant is indigent and cannot be represented by the public defender or the office of criminal conflict and civil regional counsel. (2) When the office of criminal conflict and civil regional counsel has a conflict of interest, private attorneys appointed by the court to represent indigents or other classes of litigants in civil proceedings requiring court-appointed counsel in accordance with state and federal constitutional guarantees and federal and state statutes. ... This section applies in any situation in which the court appoints counsel to protect a litigant’s due process rights. A private attorney appointed by a court pursuant to § 29.007 (2011) "shall be reimbursed for reasonable and necessary expenses" incurred during representation. Fla. Stat. § 27.5304 (2011). Fla. Stat. § 27.5304 lists the fat fees to be awarded to private attorneys. Counsel may seek compensation in excess of the fat fees listed in § 27.5304 only if "compensation on an hourly basis at a rate of $75.00 would be at least double the fat fee." Justice Admin. Comm'n v. Shaman, 59 So. 3d 1231 (Fla. App. 2011). The ABA report shows Florida is authorized to appoint counsel in Specific Types of Civil Proceedings, page 2, Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. Shelter Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court…." 42 U.S.C. § 3613 (a)(1)(A). Further, "[u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may-- (1) appoint an attorney for such person…." 42 U.S.C. § 3613(b). On December 10, 2013 I filed a civil rights complaint against McCalla Raymer LLC, et al. and others with the Florida Commission on Human Relations (FCHR) the complaint was ignored and dismissed. However my HUD complaint also claimed under civil rights. Forward http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manual_foreword.authcheckdam.pdf "It is a commonplace for courts throughout the United States to announce, "there is no right to counsel in civil cases in this state." Yet, in truth, in every state there are at least a few categories of civil cases in which indigent litigants have a right to counsel. Indeed in some jurisdictions there are many such rights. It also is not unusual for state law to grant judges a discretionary power to appoint counsel for such litigants in still other kinds of cases, or even for all civil cases." Sincerely, Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida 34481 352-854-7807 [email protected] 2/9/2015 Page 5 of 5 ----- Original Message ----From: Neil Gillespie To: Hon. Hale R Stancil ; DOJ ADA ; Hon. Don F Briggs ; Grace Ann Fagan ; McCalla Raymer E-service ; Tameka Gordon, ADA Coordinator ; Jane Bond ; Robyn Katz ; Patricia Ann Toro Savitz ; Barry Rodney Davidson ; Frank Harlan Killgore Jr. ; Robert J. Stovash ; Jon Marshall Oden Cc: Hon. Don F Briggs ; Grace Ann Fagan ; McCalla Raymer E-service ; Neil Gillespie Sent: Thursday, December 18, 2014 10:03 AM Subject: Motion-Disqualif-JUDGE-Stancil-Filing 21743681 Filed 12-18-2014 05.23.27 AM Judge Stancil, This email is to confirm that Sue Starling received my faxed motion to disqualify you, that was served on you at 5.23 AM today by the Florida Courts E-filing portal. Sue said you were going ahead with the hearing anyway. That is contrary to law. I left a message that I can attend telephonically. A copy of the motion to disqualify you is attached. Neil J. Gillespie, 8092 SW 115th Loop, Ocala, Florida 34481 2/9/2015 FLORIDA STATE COURTS SYSTEM ADA TITLE II ACCOMMODATION REQUEST FORM 1 June 28, 2010 RIGHT TO AN ACCOMMODATION If you are an individual with a disability who needs an accommodation in order to participate in a court proceeding or other court service, program, or activity, you are entitled, at no cost to you, to the provision of certain assistance. Requests for accommodations may be presented on this form, in another written format, or orally. Please complete the attached form and return it to the following: Citrus County – John Sullivan, Citrus County Courthouse, 110 N. Apopka Ave, Inverness, Fl, 34450, phone 352-341-6700, fax 352-341-7008, [email protected] Hernando County-Peggy Welch, Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601, phone 352-754-4402, fax 352-754-4035, [email protected] Lake County-Nicole Berg, Lake County Judicial Center, PO Box 7800, Tavares, FL 32778, phone 352-253-1604, fax 352-253-1630, [email protected] Marion County-Tameka Gordon, Marion County Judicial Center, 110 NW 1st Ave, Ocala, FL 34475, phone 352-401-3710, fax 352-401-7883, [email protected] Sumter County-Lorna Barker, Sumter County Judicial Complex, 225 E. McCollum Ave, Bushnell, FL 33513, phone 352-569-6012, fax 352-569-6098, [email protected] This should be done as far in advance as possible, but preferably at least seven (7) days before your scheduled court appearance or other court activity. Upon request by a qualified individual with a disability, this document will be made available in an alternate format. If you need assistance in completing this form due to your disability, or to request this document in an alternate format, please contact Citrus County – John Sullivan, Citrus County Courthouse, 110 N. Apopka Ave, Inverness, Fl, 34450, phone 352-341-6700, fax 352-341-7008, [email protected] 1 This form was developed for use by individuals with disabilities who may require a modification in a policy, provision of an auxiliary aid or service, or assignment to an accessible location in order to participate in a court proceeding or other court service, program, or activity that is covered by Title II of the Americans with Disabilities Act. Court employees with disabilities who need a reasonable accommodation to be able to perform the essential functions of their jobs should contact their immediate supervisor, the ADA coordinator for their court, the OSCA Office of Personnel Services, or the State Courts ADA Coordinator. 2 Hernando County-Peggy Welch, Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601, phone 352-754-4402, fax 352-754-4035, [email protected] Lake County-Nicole Berg, Lake County Judicial Center, PO Box 7800, Tavares, FL 32778, phone 352-253-1604, fax 352-253-1630, [email protected] Marion County-Tameka Gordon, Marion County Judicial Center, 110 NW 1st Ave, Ocala, FL 34475, phone 352-401-3710, fax 352-401-7883, [email protected] Sumter County-Lorna Barker, Sumter County Judicial Complex, 225 E. McCollum Ave, Bushnell, FL 33513, phone 352-569-6012, fax 352-569-6098, [email protected] ADA ACCOMMODATIONS PROVIDED BY FLORIDA COURTS Pursuant to Title II of the Americans with Disabilities Act the Florida State Courts System will make reasonable modifications in policies, practices, and procedures; furnish auxiliary aids and services; and afford program accessibility through the provision of accessible facilities, the relocation of services or programs, or the provision of services at alternative sites, as appropriate and necessary. Examples of auxiliary aids or services that the State Courts System may provide for qualified individuals with disabilities include: ƒ ƒ ƒ ƒ ƒ Assistive listening devices Qualified ASL or other types of interpreters for persons with hearing loss Communication access real-time translation / Real-time transcription services Accessible formats such as large print, Braille, electronic document, or audio tapes Qualified readers Accommodations that are granted by the state courts are made at no cost to qualified individuals with disabilities. 2 2 Please note that providing accommodations for some individuals with disabilities who appear in the courtroom as part of their employment duties or professional practice is a responsibility that appropriately may be shared by the individual’s employer and the courts. Title I of the Americans with Disabilities Act requires employers of 15 or more employees and Title II of the Americans with Disabilities Act requires all state and local government employers to provide reasonable accommodations to qualified employees with disabilities. In addition, Section 504 of the Rehabilitation Act of 1973, as amended, covers recipients of federal funding, and requires all covered organizations to provide accommodations for their employees. These responsibilities are concomitant with the courts’ responsibility under Title II of the ADA. It is to everyone’s benefit when employers and the court system work together to ensure that reasonable accommodations for individuals with disabilities are provided in the most efficient and cost effective manner. Florida State Courts System Page 2 ADA Accommodation Request Form AIDS/SERVICES COURTS CANNOT ADMINISTRATIVELY GRANT AS ADA ACCOMMODATIONS Examples of aids or services the Florida State Courts System cannot provide as an accommodation under Title II of the Americans with Disabilities Act include: ƒ ƒ ƒ ƒ ƒ ƒ Transportation to and from the courthouse Legal counsel or advice An official transcript of a court proceeding Personal devices such as wheelchairs, hearing aids, or prescription eyeglasses Personal services such as medical or attendant care Readers for personal use or study Additionally, the courts cannot administratively grant, as an ADA accommodation, requests that impact court procedures within a specific case. Requests for an extension of time, a change of venue, or participation in court proceedings by telephone or videoconferencing must be submitted by written motion to the presiding judge as part of the case. The judge may consider an individual’s disability, along with other relevant factors, in granting or denying the motion. Furthermore, the court cannot exceed the law in granting a request for an accommodation. For example, the court cannot extend the statute of limitations for filing an action because someone claims that he or she could not make it to the court on time due to a disability, nor can the court modify the terms of agreements among parties as an ADA accommodation. Finally, the Americans with Disabilities Act (ADA) does not require the court system to take any action that would fundamentally alter the nature of court programs, services, or activities, or that would impose an undue financial or administrative burden on the courts. DOCUMENTATION OF THE NEED FOR AUXILIARY AIDS AND SERVICES If an individual has a disability that is not obvious, or when it is not readily apparent how a requested accommodation relates to an individual’s impairment, it may be necessary for the court to require the individual to provide documentation from a qualified health care provider in order for the court to fully and fairly evaluate the accommodation request. These information requests will be limited to documentation that (a) establishes the existence of a disability; (b) identifies the individual’s functional limitations; and (c) describes how the requested accommodation addresses those limitations. Any cost to obtain such documentation is the obligation of the person requesting the accommodation. Florida State Courts System Page 3 ADA Accommodation Request Form FLORIDA STATE COURTS SYSTEM TITLE II ADA ACCOMMODATION REQUEST FORM Please return this completed form to: Citrus County – John Sullivan, Citrus County Courthouse, 110 N. Apopka Ave, Inverness, Fl, 34450, phone 352-341-6700, fax 352-341-7008, [email protected] Hernando County-Peggy Welch, Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601, phone 352-754-4402, fax 352-754-4035, [email protected] Lake County-Nicole Berg, Lake County Judicial Center, PO Box 7800, Tavares, FL 32778, phone 352-253-1604, fax 352-253-1630, [email protected] Marion County-Tameka Gordon, Marion County Judicial Center, 110 NW 1st Ave, Ocala, FL 34475, phone 352-401-3710, fax 352-401-7883, [email protected] Sumter County-Lorna Barker, Sumter County Judicial Complex, 225 E. McCollum Ave, Bushnell, FL 33513, phone 352-569-6012, fax 352-569-6098, [email protected] This should be done as far in advance as possible, but preferably at least seven (7) days before your scheduled court appearance or other court activity. 12 10 2014 1. Date request submitted: ______/______/______ 2. Person needing accommodation Neil J. Gillespie Name: _________________________________________________________________ Are you (please check one of the following seven options): [ ] Defendant [✔] Litigant/Party [ ] Witness [ ] Juror [ ] Victim [ ] Attorney [ ] Other (please specify): __________________________________________________ 3. Contact information for person needing accommodation 8092 SW 115th Loop Street or P.O. Box: ________________________________________________________ Ocala City: ___________________________________________________________________ Florida 34481 State: ___________________________________ Zip Code: _____________________ 352-854-7807 Telephone Number (include area code): ______________________________________ [email protected] Email Address: ___________________________________________________________ 4. Person making request (if other than the person needing the accommodation) n/a Name: _________________________________________________________________ n/a Telephone Number (include area code): ______________________________________ n/a Email Address: __________________________________________________________ n/a Relationship to person needing an accommodation: ____________________________ Florida State Courts System Page 4 ADA Accommodation Request Form 5. Case information (if applicable) Reverse Mortgage Solutions Inc v Neil J Gillespie et al Style of case (case title), if known: __________________________________________ 2013-CA-000115 or 42-2013-CA-000115-AXXX-XX Case number, if known: __________________________________________________ Hon. Hale Stancil Judge, if known: ________________________________________________________ Hearing Dec-18-2014 and duration of this case Date accommodation needed: ______________________________________________ The hearing is 10:00 AM Time accommodation needed: ______________________________________________ County Judicial Location (courthouse/courtroom) accommodation needed: Marion _______________________ duration of this case. Duration for which the accommodation is requested: ____________________________ Type of case, if known (please check one of the following ten options): [ ] appeal [ ] circuit criminal [ ] circuit civil [ ] probate, guardianship, or mental health [ ] traffic court [ ] small claim [ ] family court [ ] county criminal [ ] county civil home foreclosure [✔] other (please specify) HECM ____________________ Type of proceeding, if known (please check one of the following six options): [ ] arraignment [ ] bond hearing [ ] hearing [ ] trial [ ] appellate oral argument Case management conference [✔] other (please specify) __________________________________________________ 6. Accommodations requested TBI traumatic brain injury, see Nature of disability that necessitates accommodation: ___________________________ Amended Disability Motion, US 11th Circuit, 12-11213-C, Neil J Gillespie copy available ________________________________________________________________________ Accommodation requested (please check one of the following six options): [ ] Assistive listening device (Assistive listening systems work by increasing the loudness of sounds, minimizing background noise, reducing the effect of distance, and overriding poor acoustics. The listener uses a receiver with headphones or a neckloop to hear the speaker.) [ ] Communication access real-time translation/real-time transcription services (CART is a word-for-word speech-to-text interpreting service for people who need communication access. A rendering of everything said in the courtroom will appear on a computer screen. CART is not an official transcript of a court proceeding.) [ ] Sign Language Interpreter (Please specify American Sign Language, oral interpreter, signed English, or other type of signing system used by persons with hearing loss.):_______________________________________________________ ___________________________________________________________________ [ ] Assignment to a courtroom that is accessible to a person using a mobility device (Please specify wheelchair, scooter, walker, or other mobility device that is used.):_ ___________________________________________________________________ [ ] Provision of court documents in an alternative format (Please specify Braille, large print, accessible electronic document, or other accessible format used by persons who are blind or have low vision.): _________________________________ Florida State Courts System Page 5 ADA Accommodation Request Form Counsel Appointment w/o conflict, see [✔ ] Other accommodation (please specify): _____________________________________ "The ADA: One Avenue to Appointed Counsel Before a Full Civil Gideon," ________________________________________________________________________ Seattle Journal for Social Justice: Vol. 2: Iss. 2, Article 30, copy on request. ________________________________________________________________________ The ADA Amendments Act of 2008 (Public Law 110-325, ADAAA), also see ________________________________________________________________________ Amended Disability Motion, US 11th Circuit, 12-11213-C, Neil J Gillespie copy available ________________________________________________________________________ 7. Use the Submit Button (immediately following) to send us your request: Submit THE FOLLOWING SECTION IS TO BE COMPLETED BY COURT PERSONNEL ONLY 8. Date request was received: ______/______/______ 9. Additional oral or written information requested? [ ] Yes [ ] No If so, describe information: ____________________________________________________ ___________________________________________________________________________ 10. Describe the accommodation(s) granted by the court: ______________________________ __________________________________________________________________________ 11. Indicate the duration the accommodation will be provided: __________________________ ___________________________________________________________________________ 12. If an accommodation is denied, indicate reason(s) for denial:3 [ ] Based on the information provided, it appears the person does not have a disability as defined by the ADA [ ] Requested accommodation does not directly correlate to functional limitations [ ] Request relates to a service, program, or activity outside the court system (transportation, legal representation, mental health counseling, parenting course, etc.) 3 If the request is denied, granted only in part, or if an alternative accommodation is granted, Rule of Judicial Administration 2.540 requires the court to respond in writing to the individual with a disability. Transmittal of a copy of this section of the accommodation request form by email or by U.S. Mail delivery is one means of providing the written response required by rule 2.540. If an accommodation is denied due to a finding of undue burden or fundamental alteration, the Americans with Disabilities Act requires that such determination be made in writing by the chief judge or chief judge’s designee. Florida State Courts System Page 6 ADA Accommodation Request Form [ ] Request is for an aid/service the courts cannot administratively grant as an accommodation pursuant to Title II of the ADA (official transcript, extension of time, etc.) [ ] Requested accommodation would result in an undue burden [ ] Requested accommodation would result in a fundamental alteration [ ] Other (please specify): _____________________________________________________ 13. Remarks: __________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 14. Court staff responding to request: ______________________________________________ 15. Date person notified of determination: ______/______/______ Florida State Courts System Page 7 ADA Accommodation Request Form Page 1 of 1 Neil Gillespie From: "Sullivan, John" To: "Neil Gillespie" Sent: Wednesday, December 10, 2014 11:54 AM ATT00165.txt Attach: Subject: Read: Public records; request for ADA/disability Accommodation Your message To: Sullivan, John Subject: Fw: Public records; request for ADA/disability Accommodation Sent: Wednesday, December 10, 2014 11:42:40 AM (UTC-05:00) Eastern Time (US & Canada) was read on Wednesday, December 10, 2014 11:54:21 AM (UTC-05:00) Eastern Time (US & Canada). 3 2/9/2015 Page 1 of 1 Neil Gillespie From: To: Cc: Sent: Attach: Subject: "Neil Gillespie" "John Sullivan" "Neil Gillespie" Wednesday, December 10, 2014 12:49 PM 1993, 08-23-93, SSA to NJG-disabled..pdf; Brain injury leads to suspension for Maine lawyer; 'I couldn't stick to tasks,' he says.pdf; Pages from disability motion, US 11th Circuit 12-11213-C and ER report.pdf; The ADA_ One Avenue to Appointed Counsel Before a Full Civil Gide.pdf Thank you for acknowledging receipt of my ADA request. I appreciate your professionalism. Dear Mr. Sullivan, Thank you for acknowledging receipt of my ADA request. I appreciate your professionalism. As a courtesy, please find attached the following: The ADA_ One Avenue to Appointed Counsel Before a Full Civil Gideon (law review) Brain injury leads to suspension for Maine lawyer; 'I couldn't stick to tasks,' he says (American Bar Association, composite) Notification from Social Security of full disability, 1993, 08-23-93, SSA to NJG-disabled. Pages from disability motion, US 11th Circuit 12-11213-C and ER report My full disability motion (251 pages) US 11th Circuit 12-11213-C is posted on Scribd, http://www.documento.com/doc/102585752/Amended-Disability-Motion-12-11213-C-C-A-11 My Scribd Disability "Collection" of documents is found here, https://www.documento.com/collections/3851318/Disability-and-the-Law If you require anything else, please contact me. Thanks again. Sincerely, Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida 34481 (352) 854-7807 4 2/9/2015 Seattle Journal for Social Justice Volume 2 | Issue 2 Article 30 5-1-2004 The ADA: One Avenue to Appointed Counsel Before a Full Civil Gideon Lisa Brodoff Susan McClellan Elizabeth Anderson Follow this and additional works at: http://digitalcommons.law.seattleu.edu/sjsj Recommended Citation Brodoff, Lisa; McClellan, Susan; and Anderson, Elizabeth (2004) "The ADA: One Avenue to Appointed Counsel Before a Full Civil Gideon," Seattle Journal for Social Justice: Vol. 2: Iss. 2, Article 30. Available at: http://digitalcommons.law.seattleu.edu/sjsj/vol2/iss2/30 This Article is brought to you for free and open access by the Student Publications and Programs at Seattle University School of Law Digital Commons. It has been accepted for inclusion in Seattle Journal for Social Justice by an authorized administrator of Seattle University School of Law Digital Commons. 5 609 The ADA: One Avenue to Appointed Counsel Before a Full Civil Gideon Lisa Brodoff, Susan McClellan & Elizabeth Anderson1 The United States is witnessing a growing advocacy for universal “civil Gideon,”2 the constitutional right to free legal counsel for low-income people involved in civil litigation.3 The right to counsel has long been recognized in the criminal context in this country.4 In the civil arena, however, those who cannot afford to hire attorneys are left to fight to protect their rights on their own, sometimes against legally represented federal, state, and local governments attempting to take away their homes, assets, income, children, or health care.5 This fight for a broad-based right to counsel in the civil arena will likely be long and hard, with success far from guaranteed. In recent decisions on both coasts, courts have avoided reaching the civil Gideon issue. For example, the Maryland Court of Appeals, the state’s highest court, when given the opportunity to decide whether its state constitution supports providing attorneys to indigent civil litigants, instead ruled on the underlying claim.6 In Washington State, a brain-injured litigant directly raised the issue of a civil right to counsel when the government sues individuals, but the Court of Appeals found the case moot because the lowincome defendant died while the case was on appeal.7 These cases indicate that the courts, at least in the short term, may be reluctant even to reach the merits of the civil Gideon issue, let alone find a sweeping right to free representation. In the meantime, low-income clients, unable to afford representation or to find free legal assistance that they desperately need to protect their rights, are going to state and federal courts and administrative hearings on their own. These clients are being evicted, having their homes foreclosed, and 610 SEATTLE JOURNAL FOR SOCIAL JUSTICE losing health care and public assistance. Until the larger battle for free civil representation is fought and won, the legal community must seek other remedies for low-income clients that, although not sweeping in nature, may provide relief for at least the most vulnerable and those least able to represent themselves. Who are the litigants least able to represent themselves in court, who would be denied access to our system of justice unless provided with an attorney to advocate for them? Are there litigants who, once inside the courtroom, simply cannot understand what is happening or cannot meaningfully participate in the proceedings, not because they lack education or experience, but because mental or physical disabilities impair their understanding? Any attorney who has represented disabled clients in court, or any judge who has seen litigants with these disabilities attempt to put on a case or defense, knows that the answer to this question is frequently a resounding “yes.” Certain mental disabilities prevent a person from comprehending what is happening in the courtroom or mustering a case. Some examples come readily to mind: mental retardation, dementia, schizophrenia, and severe depression.8 Similarly, certain physical disabilities sap energy or vitality to the extent that a person is unable to participate meaningfully in court. Some individuals with brain injuries, terminal illnesses, Parkinson’s disease, multiple sclerosis, AIDS,9 apraxia,10 and end-stage alcoholism11 may qualify. Simply put, clients with these disabling conditions may be denied access to our justice system without legal representation. Most people easily understand why clients with physical disabilities, such as blindness or hearing loss, need accommodations to get in the courthouse door and to participate meaningfully in the justice system. For instance, some deaf individuals are denied access to justice through denial of a sign-language interpreter in the courtroom.12 Only an interpreter can translate the conversation in the proceeding and allow the hearing-impaired person to have her voice heard. Similarly, a person with impaired vision ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 611 may be unable to read critical court documents and exhibits without accommodations such as Brailled materials, large-printed court documents, or human readers.13 Without these accommodations, including human accommodations like readers and interpreters, civil litigants with these disabling conditions would lose their day in court because they would not be able to communicate with the court or to understand fully the case and its consequences. The Americans with Disabilities Act (ADA)14 is the central law recognizing this reality for those with such disabilities.15 Complementing the ADA and its predecessor, the federal Rehabilitation Act,16 some state anti-discrimination statutes17 provide enhanced protections for individuals with disabilities in the court system.18 These state and federal laws require that sign-language interpreters, readers, large print documents, widened doorways, and wheelchair ramps be provided to people with disabilities whose access to the system would otherwise be blocked. In this article, we argue that people whose disabilities prevent them from understanding the proceedings or vigorously participating in their cases need accommodations to access the court system, just as do those with disabilities that require ramps, interpreters, and readers. We argue that the only reasonable accommodation under Title II of the ADA, under the Rehabilitation Act, and under state anti-discrimination statutes for litigants with these disabling conditions is an attorney. Only an attorney can provide the knowledge, energy, strategy, translation, and understanding to mount a case or provide a defense for those whose disabilities block their ability to do so pro se. Using the ADA to argue for free legal representation as a courthouse accommodation for certain disabled individuals is both more restrictive and yet broader than arguing for a full civil Gideon. By definition, ADA accommodations are available only to persons with perceived or actual disabilities that affect their ability to participate in the judicial system. Arguments for a civil Gideon right to counsel for civil litigants does not VOLUME 2 • ISSUE 2 • 2004 612 SEATTLE JOURNAL FOR SOCIAL JUSTICE restrict that right only to disabled individuals. Rather, a full civil Gideon would provide counsel to all litigants who are unable to afford their own attorney, regardless of disability. On the other hand, the ADA affords a broader remedy because its provisions are not “needs based”; that is, ADA accommodations are available to rich and poor alike, and are not restricted by a litigant’s ability to pay for an attorney accommodation.19 No financial application is required to receive an ADA accommodation. The likely reality, however, is that those disabled individuals who need legal representation to defend or to pursue a claim, and who have the financial means to hire private counsel of their own choice will do so, even if, theoretically, they may be provided an attorney as a reasonable accommodation by the courts free of charge. Finally, individuals with disabilities are by and large more likely to be poorer than the population as a whole.20 Thus, the impact of providing legal representation as an accommodation will most likely benefit those who are financially most in need.21 As a result, we argue that all civil litigants with disabilities that prevent them from understanding or participating in the legal system should receive appointed counsel. The first section of this article discusses the basic arguments and procedures for proving a disability under the ADA and seeking legal representation as a reasonable accommodation for clients in courts. The second section addresses representation for clients in administrative hearings. In administrative hearings, clients with disabilities are most often left to fight alone for rights to food (such as Food Stamps), income (such as Temporary Assistance for Needy Families, General Assistance, Supplemental Security Income, and Social Security), and health care (such as Medicare and Medicaid). The third section discusses additional policy arguments supporting the case for legal representation under antidiscrimination laws. The final section suggests ways to present these arguments to courts so that eligible litigants can access free legal representation in appropriate cases. ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 613 I. COURTS VIOLATE THE ADA BY DENYING APPOINTED COUNSEL AS A REASONABLE ACCOMMODATION FOR CERTAIN DISABLED CIVIL LITIGANTS. More than 49.7 million Americans, roughly one in five of the 257.2 million people in the United States age five or older, have mental or physical disabilities or other long-lasting impairments.22 Before the enactment of the ADA, Congress recognized that current laws were “‘inadequate’ to combat the ‘pervasive problems of discrimination that people with disabilities are facing.’”23 As a result of this discrimination, Congress enacted the ADA in 1990, seeking to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”24 Title I of the ADA addresses discrimination in employment and applies to “persons engaged in an industry affecting commerce” who have at least fifteen employees (the United States and bona fide private membership clubs other than labor unions are exempt).25 Title II addresses discrimination in public services and applies to state and local governments, their departments, agencies, and other instrumentalities.26 In fact, Title II covers all public agencies, regardless of whether they receive federal financial assistance.27 Title III of the ADA addresses discrimination in places of public accommodation and services operated by private entities.28 Businesses governed by Title III include banks, restaurants, supermarkets, hotels, shopping centers, privately owned sports arenas, movie theaters, private day-care centers, schools and colleges, accounting or insurance offices, lawyers’ and doctors’ offices, museums, and health clubs.29 Title IV of the ADA addresses telecommunications, including closed captioning and relay services for people with hearing impairments.30 Denying appointed counsel for certain disabled civil litigants violates Title II, the Public Services section, of the ADA.31 Title II prohibits discrimination against disabled individuals in public services.32 Specifically, Title II provides that, “no qualified individual with a disability VOLUME 2 • ISSUE 2 • 2004 614 SEATTLE JOURNAL FOR SOCIAL JUSTICE shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity,33 or be subjected to discrimination by any such entity.”34 State courts, as public entities, must comply with Title II of the ADA35 by ensuring that all of their services, programs, and activities are available to qualified individuals with disabilities. Federal courts must meet the same standard under Section 504 of the Rehabilitation Act.36 In fact, Title II of the ADA was “expressly modeled after”37 sec. 504 of the Rehabilitation Act of 197338 and extends those principles to state and local governments.39 Failing to make state court facilities available to disabled individuals violates the ADA, while failing to make federal court facilities available violates the Rehabilitation Act.40 The critical importance of the ADA in providing individuals with disabilities access to the justice system is clearly illustrated by the facts and legal arguments in Tennessee v. Lane,41 which is currently awaiting a decision by the U.S. Supreme Court. The State of Tennessee charged George Lane, a paraplegic who requires a wheelchair to ambulate, with two criminal misdemeanors and summoned him to court to appear and answer the charges. When George Lane showed up at the Polk County Courthouse with a crushed hip and pelvis, he had a problem. His hearing was on the second floor, there was no elevator, and the judge said he had better get upstairs. Mr. Lane, both of whose legs were in casts, somehow managed to get out of his wheelchair and crawl up two flights of stairs. “On a pain scale of 1 to 10, it was way past 10,” he says. While Mr. Lane crawled up, he says, the judge and other courthouse employees “stood at the top of the stairs and laughed at me.” His case was not heard in the morning session, he says, and at the lunch break he crawled back down. That afternoon, when he refused to crawl upstairs again, he was arrested for failing to appear, and put in jail.42 ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 615 Mr. Lane and another plaintiff, a wheel-chair bound court reporter who could not work in many Tennessee courtrooms because they were inaccessible, sued the state on behalf of a class of physically disabled persons. They argued for injunctive relief and damages under Title II of the ADA. The State argued that Eleventh Amendment immunity applies, thereby protecting the State from private suits for money damages. The Sixth Circuit held that the Eleventh Amendment immunity of the states to private damages suits did not apply to claims under Title II of the ADA, when the claim involved the Due Process Clause. Parties in civil litigation have an analogous due process right to be present in the courtroom and to meaningfully participate in the process unless their exclusion furthers important governmental interests. . . . These guarantees are protective of equal justice and fair treatment before the courts. The evidence before Congress when it enacted Title II of the Americans with Disabilities Act established that physical barriers in government buildings, including courthouses and in the courtrooms themselves, have had the effect of denying disabled people the opportunity to access vital services and to exercise fundamental rights guaranteed by the Due Process Clause.43 In this article, we argue that the denial of equal justice and fair treatment before the courts applies with equal vigor when a person’s mental or physical disabilities prevent him not from mounting the stairs to the courtroom, but from mounting the case itself. Here, the appropriate and reasonable accommodation is attorney representation rather than elevator access to the court proceedings. The failure to make court facilities available to disabled individuals also violates the Washington Law Against Discrimination (WLAD).44 Generally, WLAD bans discrimination on the basis of “any sensory, mental, or physical disability.”45 Further, the WLAD makes the right to be free from discrimination a civil right46 and protects “the right to the full enjoyment of any of the accommodations, advantages, facilities, or VOLUME 2 • ISSUE 2 • 2004 616 SEATTLE JOURNAL FOR SOCIAL JUSTICE privileges of any place of public resort, accommodation, assemblage, or amusement.”47 The ADA provides guidance for interpreting a public entity’s obligations under WLAD.48 To prove that a public program or service violates the ADA, a litigant need only show that (1) she is a “qualified individual with a disability”; (2) she “was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity”; and (3) “such exclusion, denial of benefits, or discrimination was by reason of his [or her] disability.”49 After a litigant establishes discrimination by a public entity under Title II, the court must determine the appropriate remedy.50 The ADA provides three ways to prove that a litigant is a “qualified individual with a disability.” A “person with a disability” is defined as someone who has “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”51 Once a litigant proves a disability, she must prove that the disability excluded her from participating in or denied her the benefits of the court’s services, programs, or activities. The regulations require that these services, “when viewed in [their] entirety,” be readily accessible to and usable by individuals with disabilities.52 Exceptions exist only when compliance results in “undue financial or administrative burdens” or results in a “fundamental alteration” in the program.53 The public entity must also provide notice to individuals with disabilities of the “protections against discrimination assured them” and “disseminate sufficient information” to those individuals “to inform them of the rights and protections afforded by the ADA.”54 Altogether, “the program access requirement of Title II should enable individuals with disabilities to participate in and benefit from the services, programs, or activities of public entities in all but the most unusual ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 617 cases.”55 Trial courts, as services within the meaning of Title II,56 must provide these protections. The third step in establishing disability discrimination under Title II requires showing that such exclusion or denial of a service or benefit was by reason of an individual’s disability.57 Courts fail to make their services accessible to litigants who are not able to use the system effectively because of mental or physical impairments. Meaningful access does not exist when a litigant’s inability to understand or to participate in proceedings because of a disability surpasses the mere confusion many lay persons experience when participating in the legal system. As the Honorable Robert W. Sweet, in proposing full civil Gideon, has noted: As every trial judge knows, the task of determining the correct legal outcome is rendered almost impossible without effective counsel. Courts have neither the time nor the capacity to be both litigants and impartial judges on any issue of genuine complexity. As recognized by the Lassiter dissent, “By intimidation, inarticulateness or confusion, a [litigant] can lose forever” the right she sought to protect.58 When confusion stems from a disability, Judge Sweet’s admonition carries even more force. A disabled litigant may be physically present in the courtroom but have little understanding of the law and proceedings and little ability to advocate for her rights. A factual showing that a litigant does not understand proceedings and cannot meaningfully participate because of a disability compels the court to consider providing reasonable accommodations.59 A public entity, including a court, must reasonably accommodate a qualified individual with a disability.60 Mere equality of treatment is insufficient.61 Upon receiving a request for an accommodation, a public entity’s duty is well settled by state and federal case law and by the applicable regulations.62 First, the public entity must undertake a fact-specific investigation to determine what constitutes a reasonable accommodation VOLUME 2 • ISSUE 2 • 2004 618 SEATTLE JOURNAL FOR SOCIAL JUSTICE and must provide the criteria by which to determine whether the evaluation is adequate.63 The ADA and the Rehabilitation Act attempt to provide whatever services or actions are necessary to ensure that disabled persons are not discriminated against as a result of their disabilities. One court noted, “mere speculation that a suggested accommodation is not feasible falls short of the reasonable accommodation requirement; the Acts create a duty to gather sufficient information from the disabled individual and qualified experts as needed to determine what accommodations [are] necessary.”64 Necessary accommodations include effective courtroom communications: “a public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.”65 Appointment of counsel, which would allow the individual with a disability to communicate with the court, could qualify as a reasonable accommodation because it is similar to the following sample aids and services provided in the regulations: 1. Qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD’s), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments [for example, talking calculators and real time transcription]; 2. Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments; 3. Acquisition or modification of equipment or devices; and other similar services or actions.66 ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 619 This extensive list and the final, separate category for “other similar services or actions” suggest a broadly-based evaluation of appropriate auxiliary aids and services. These services include the assistance of trained individuals, such as sign-language interpreters for the deaf and readers for the blind. Appointed counsel for some litigants with certain disabilities would serve the same interpretive function and would allow the litigants to participate in the proceedings. Appointed counsel would not be necessary for all litigants who suffer from certain disabilities. The degree of impairment matters, as does the specific setting and alternative accommodations available. For this reason, the ADA does not prescribe the appropriate accommodation for each disability because an appropriate accommodation for one person might be inappropriate for another. For example, while one visually-impaired person might need a reader, another might need materials in Braille.67 The public entity, however, must consider available options and furnish “appropriate auxiliary aids and services where necessary.”68 In determining the appropriate aid or service, the public entity shall give “primary consideration” to the requests of the individual with disabilities.69 Accordingly, a court cannot offer a blanket accommodation for all individuals with a specific disability; it must consider the particular individual’s need when determining which accommodations are reasonable.70 For some litigants with disabilities—those who cannot understand or participate in the legal proceedings—interpreters are the only appropriate accommodation. Other options would not ensure that a court’s communications with such individuals are “as effective as communications with others,”71 as required by law.72 For example, although one commentator has suggested that the best current option for providing legal assistance for the poor lies in improving pro se assistance projects,73 that proposal would provide no benefit to litigants whose disabilities impair their ability to understand or to partake in the legal process. Similarly, VOLUME 2 • ISSUE 2 • 2004 620 SEATTLE JOURNAL FOR SOCIAL JUSTICE simplifying the legal process by redrafting forms and restructuring procedures would not help litigants with such disabilities, even though simplification might help some indigent civil litigants.74 Even if individuals with such disabilities could understand simplified forms, they are unlikely to understand the underlying legal issues. Furthermore, if individuals’ disabilities weaken them to the extent they cannot participate in the process, a simplified procedure would still preclude meaningful access to the courts. Arguments that the cost of appointed counsel renders the accommodation unreasonable lack merit. Providing an attorney for litigants with these disabilities is not only appropriate but also reasonable in terms of cost,75 and would neither create an “undue burden” for the courts nor “fundamentally alter” the nature of the court system.76 “Title II ensures that the refusal to accommodate an individual with a disability is genuinely based on unreasonable cost or actual inability to accommodate, not on inconvenience or unfounded concerns about costs.”77 In addressing the cost issue in the employment context under Title I of the Rehabilitation Act,78 courts have focused on the big picture, namely the overall costs to society stemming from lack of funding, rather than simply the dollars required to pay for legal services.79 For example, in Nelson v. Thornburgh, the Third Circuit concluded that a large state agency was required to accommodate a group of entry-level welfare agency workers with visual impairments by providing readers for one-half of the working day and emergency access to a reader the remainder of the day.80 The court reasoned that “when one considers the social costs which would flow from the exclusion of persons such as the plaintiffs from the pursuit of their profession, the modest cost of accommodation—a cost which seems likely to diminish, as technology advances and proliferates—seems, by comparison, quite small.”81 While providing specialists to assist disabled litigants might be an undue hardship for some small agencies or businesses, providing them for large businesses or agencies is reasonable.82 ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 621 Other considerations also indicate that providing attorneys for litigants with certain disabling conditions would not bankrupt the system. First, the number of litigants with such disabilities is relatively small compared to the pool of indigent civil litigants. Commentators argue that costs, even for full civil Gideon, are not unduly burdensome and that, in fact, some resources will be conserved.83 For example, Justice Earl Johnson notes that other countries have provided free counsel as a matter of right in civil cases, as have several pre-paid legal insurance programs in this country.84 Bidran and Ben-Cohen argue that providing counsel for indigent civil defendants would save society money in the long run85 by reducing litigation and eliminating the delays prevalent in pro se representation.86 This prediction is consistent with a study finding that funding legal services programs saves significant state funds.87 Finally, additional societal benefits, perhaps worth more than the cost, could accrue, with the primary benefit being restored confidence in the justice system.88 II. REPRESENTATION FOR APPELLANTS IN ADMINISTRATIVE HEARINGS The arguments under the ADA and Rehabilitation Act for legal representation as a reasonable accommodation apply, in almost the same manner, to the administrative hearing context. People with disabilities are regularly appellants in administrative hearings, appealing a state or federal agency’s denial, reduction, or termination of critical public assistance benefits involving access to food, shelter, income, and health care. Appeals of benefits like Unemployment Compensation, Worker’s Compensation, Food Stamps, Social Security, Supplemental Security Income (SSI), General Assistance, Temporary Assistance for Needy Families (TANF), Medicaid, and Medicare often involve disabled individuals because disability is frequently a prerequisite to eligibility for these benefits.89 The law in these areas can be complex, involving federal and state statutes and regulations and cases interpreting them. In addition, these hearings can be VOLUME 2 • ISSUE 2 • 2004 622 SEATTLE JOURNAL FOR SOCIAL JUSTICE factually complicated, requiring appellants to put on evidence of their disabilities, work records, medical records, and finances. In most instances, appellants with disabilities appear pro se at their administrative hearings to fight for these significant benefits.90 Appellants navigating the hearings process whose disabilities prevent them from understanding the proceedings or putting on a case would greatly benefit from the ADA and Rehabilitation Act arguments. State agencies that hold administrative hearings are, by definition, “public entities” under the ADA, as are federal agencies under the Rehabilitation Act.91 Like state and federal courts, executive branch agencies are required by law to include qualified individuals with disabilities in the provision of all services.92 Courts have applied the Acts to the accessibility of public meetings,93 community mental health board of trustee meetings,94 and access to the child welfare system.95 Surely, if accommodations are required in these settings, they are also required in all administrative hearings.96 In fact, the Washington State Office of Administrative Hearings (OAH)—the state agency responsible for conducting hearings for the state Department of Social and Health Services (DSHS),97 the Employment Security Department, and the Office of Superintendent of Public Instruction (for special education benefits hearings), among forty others—tells public assistance appellants in the “Hearing Rights” pamphlet it sends with every Notice of Hearing that it is subject to the ADA and Rehabilitation Act and will provide reasonable accommodations for disabled litigants to access the hearing system.98 In the administrative hearings situation, reasonable accommodation might require attorneys for the hearings of some agencies, but not others. Unlike the state and federal courts, the administrative hearing setting does not always require that a legal representative be a licensed attorney.99 For example, in Washington State, OAH hearings on behalf of DSHS and Employment Security allow representatives who are not licensed attorneys to represent appellants.100 For those hearings, arguably, a trained lay ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 623 representative, law student, or paralegal, rather than a lawyer, would be a reasonable accommodation. In those state101 and federal102 hearings where only lawyers can act as representatives, however, the only allowable accommodation is to provide attorney representation. Legal representation seems critical for public benefits hearings in particular because they involve access to critical “brutal needs”103 assistance for low-income and disabled litigants, and the law is particularly complex and difficult to parse. Moreover, because low-income people who rely on public benefits to meet basic needs lack the resources to hire lawyers to take their appeals to the court system, the administrative hearing process is likely the only justice system available to them. Without legal representation at the hearing, appellants with disabilities that prevent them from making cogent legal arguments will likely lose.104 Using the ADA to get representation for these clients as a reasonable accommodation could be the difference between hunger and adequate nutrition, illness and health care, or homelessness and shelter. III. POLICY ARGUMENTS DEMONSTRATING THE REASONABLENESS OF APPOINTED COUNSEL Several policy concerns, both national and international, support appointing counsel for certain individuals with disabilities who are involved in judicial or administrative proceedings. Moreover, arguments supporting counsel for indigent civil litigants apply with even greater vigor to the plight of civil litigants with certain disabilities. These arguments are based on the historical development of the right to appointed counsel in both criminal and civil contexts in the United States; the disparity between the protections afforded to civil litigants by all other major Western nations and the utter lack of systemic protections for civil litigants in the United States; and notions of fundamental fairness, both actual and perceived.105 Civil litigants who are disabled to such an extent that they cannot comprehend or participate in court proceedings have a greater need for VOLUME 2 • ISSUE 2 • 2004 624 SEATTLE JOURNAL FOR SOCIAL JUSTICE counsel than other civil litigants, yet courts in the United States have been reluctant to recognize this need. This reluctance follows a pattern of incremental recognition of the right to counsel in both the criminal and civil contexts. Even though the Sixth Amendment unequivocally guarantees the right to counsel for criminal defendants, only those defendants charged with capital offenses enjoyed the right prior to the 1930’s.106 From the 1930’s through the 1960’s, the Supreme Court expanded coverage, first by recognizing the right to counsel for all federal defendants, then by extending the right to defendants in state courts in specific situations.107 Appointment of counsel in civil matters, though lagging behind appointment of counsel for criminal defendants, is not a new concept in the United States. In 1948, Congress granted the federal courts statutory authority to appoint counsel for indigent civil litigants.108 The Third Circuit Court of Appeals interpreted 28 U.S.C. § 1915 as affording district courts “broad discretion” to determine whether appointment of counsel in a civil case would be appropriate.109 The Third Circuit rejected several courts’ interpretations that appointment of counsel in civil cases should be granted only under “exceptional circumstances.”110 Yet even under the exceptional circumstances analysis, courts have found that, in the balance of factors, the standard was met to allow appointment of counsel. For example, the Fourth Circuit found exceptional circumstances existed where the plaintiff lacked education in legal matters, his incarceration status prevented contact with witnesses, the testimony was conflicting, and the plaintiff lacked training in cross-examination.111 In determining whether a district court should order appointment of counsel, the Third Circuit articulated a number of factors to consider, without reference to the stringent exceptional circumstances standard.112 The threshold consideration here is whether the plaintiff’s claims have “arguable merit in fact and law.”113 If the court determines a claim has sufficient merit, then it must consider factors regarding the plaintiff’s ability to present her case, such as “education, literacy, prior work experience, and ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 625 prior litigation experience.”114 The court should also weigh the complexities of the legal issues and the need for factual investigation.115 The appointment of counsel may be appropriate when the likelihood exists that extensive discovery or expert testimony will be required, or that credibility determinations will play a significant role in the trial. The Third Circuit’s test, known as the Tabron test, has been adopted by one court in a Title II ADA action.116 While the court ultimately held that the plaintiff was not entitled to appointment of counsel, the court found her claim sufficiently meritorious to warrant consideration of the additional factors relevant to the appointment of counsel.117 In weighing the factors, the court determined that the plaintiff had, at a minimum, a college education; she presumably had access to public law libraries where she could conduct any necessary research; expert testimony was unlikely to be required; and the case did not present unusually complex legal issues.118 These factors weighed against the appointment of counsel in that case. The door was left open, however, for the appointment of counsel in civil matters with more compelling circumstances. Arguments for appointed counsel may prevail, for example, when expert testimony is required, the case presents unusually complex issues, and the plaintiff does not have a college education and has a mental disability that prevents her from comprehending complex matters in the courtroom. When some of these circumstances exist, plaintiffs should request the assistance of counsel. Title VII of the Civil Rights Act of 1964119 also permits courts to appoint counsel for the plaintiff on request in an employment discrimination suit.120 In making the determination, courts consider three factors: the financial resources of the plaintiff, efforts made to secure counsel, and the merit of the plaintiff’s claim.121 Commentators have noted a key conundrum inherent in the test: the problem of determining the merits of a case before the case has been presented, especially without counsel to assess and present the merits.122 This problem is compounded when a litigant has a disability that prevents or impairs understanding and participating in court VOLUME 2 • ISSUE 2 • 2004 626 SEATTLE JOURNAL FOR SOCIAL JUSTICE proceedings. This additional consideration might assist a plaintiff with such a disability in obtaining counsel in employment discrimination cases. This individualized, piecemeal approach to achieving the right to counsel for civil litigants with certain disabilities will likely parallel the same slow, incremental advancements that have marked the development of the right for both criminal and civil litigants in this country. While the United States struggles for incremental advancements, many developed countries provide appointed counsel for indigent civil litigants,123 even if they are not disabled. Courts in these countries ground their analyses in statutes, as in England;124 in constitutions, as in Switzerland; or in a combination of the two, as in Germany.125 Moreover, the European Convention of Human Rights “guarantees the right to counsel in civil cases, recognizing it as a fundamental right.”126 Although United States courts and citizens have generally rejected any notion that our country is not the world leader in issues of justice,127 some justices are willing to consider approaches and reasoning of other nations.128 As Justice Earl Johnson noted, United States Supreme Court Justices Ruth Bader Ginsburg, Sandra Day O’Connor, and Anthony Kennedy, while speaking at conferences, have all suggested that the Court is willing to consider jurisprudence from other nations.129 In fact, as Justice Johnson observed, Justice Kennedy, writing for a six-justice majority in Lawrence v. Texas,130 “relied heavily on foreign decisions.”131 With so many countries recognizing that the right to counsel in civil cases is fundamental, courts in the United States should follow their lead and conclude, at the very least, that a disabled individual who cannot understand or participate in court proceedings is entitled to an attorney. While the average indigent civil litigant has some understanding of court processes and proceedings, the person with certain disabilities does not. In this respect, the United States cannot continue to lag so far behind the other major Western nations of the world.132 ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 627 Three additional notions of fairness, which commentators have noted for all civil litigants,133 apply with equal or greater force in the present context. First, in some contexts, civil litigants who may be more disadvantaged by lack of counsel than criminal litigants.134 For example, the loss of custody of a child or civil commitment as an incompetent, may, in the long run, be far more agonizing than incarceration for a short period of time.135 Second, where the state brings a suit against a disabled defendant to deprive access to food, shelter, children, or health care, the civil preponderance-of-theevidence standard is much easier to prove than the beyond-a-reasonabledoubt standard for criminal cases.136 As a result, in a civil suit, the state could more easily prevail and deprive a person of critical benefits. Finally, citizens lose faith in our justice system when it seems to be unfair.137 Few acts are more unfair than denying the appointment of counsel for a civil litigant whose disability prevents her from understanding or participating effectively in the proceedings. IV. PRACTICAL CONSIDERATIONS IN OBTAINING ATTORNEY REPRESENTATION FOR DISABLED CLIENTS These ADA arguments may never be made for those most in need unless an organized approach to evaluating a litigant’s need for an accommodation and a referral system is in place to get representation for disabled clients. Yet, finding the litigants that need an attorney accommodation may be difficult because of the very nature of their disabilities. Litigants whose disabilities cause them to be too confused or weak to forward their causes in court may also be unable to ask the court, effectively, for legal representation. Furthermore, because of their disabling conditions, these litigants are also unlikely to be able to put forth the sophisticated legal arguments required to make the case for an attorney accommodation. How, then, will these cases be brought to the attention of legal services providers who can then make these arguments on behalf of clients? VOLUME 2 • ISSUE 2 • 2004 628 SEATTLE JOURNAL FOR SOCIAL JUSTICE Advocates for the disabled should take a more proactive and organized approach in identifying these clients and providing this accommodation by meeting with court personnel, administrative agency management, and judges to discuss these issues. Additionally, ADA coordinators in the courts and in administrative agencies should be assigned the task of evaluating the need for an attorney accommodation and creating an internal appeal process for challenging an accommodation denial in the same way other disability accommodations are evaluated and appealed. Judges and administrative hearing officers—the people who may be in the best position to initially identify whether a litigant needs an attorney accommodation—should be trained to identify and refer litigants to courthouse ADA coordinators for arranging representation. Courts and administrative agencies must then develop contracts with legal services providers to supply legal representation in these cases. Before such a system is in place, non-profit legal services organizations may have to create a caller-screening system to identify clients to represent solely for the purpose of arguing for attorney accommodation in their legal disputes. Such screening systems are already being developed to find appropriate plaintiffs to bring litigation to establish a general civil Gideon.138 To make the argument for an attorney accommodation for disabled litigants who come to the attention of providers through a screening process, legal services organizations, advocacy groups for the elderly and disabled, or pro bono attorneys might have to make special appearances in identified cases, appearing for the sole purpose of arguing for an ADA accommodation. Making a limited appearance, however, has inherent dangers. In a recent Maryland case, the argument that a free lawyer must be provided to all lowincome civil litigants under the Maryland Constitution was raised. Although the court did not reach the merits of the issue, it did comment that “Ms. Frase, as noted, is well represented by counsel in this appeal, and there is no assurance that, should any further litigation be brought by or against ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 629 Ms. Frase, she would not be represented in that litigation.”139 Further, the court noted that it would not make the assumption that the five attorneys and numerous pro bono organizations that specially appeared in the case to argue for civil Gideon would “then abandon her,” should she need further representation on the underlying merits of her case.140 Therefore, courts may, as did the Maryland Court of Appeals, ignore the special appearance and require that the attorney provide representation in the underlying case. Advocacy groups and justice systems must address these issues regarding client identification and referral so that those litigants who need representation are served. No isolated group can address these issues effectively. To solve these issues, courts, administrative agencies, nonprofit legal service organizations, bar associations, pro bono attorneys, and advocacy groups for the disabled must work together to obtain meaningful results. V. CONCLUSION With full civil Gideon still on the distant horizon, advocates should use the ADA and the Rehabilitation Act to argue that appointed counsel is necessary for civil litigants with certain disabilities. Both state and federal courts are required to make their services equally accessible to those with disabilities. Currently, neither courts nor administrative hearings are accessible for those whose disabilities impair their capacity either to understand or to partake in the proceedings. Although alternative aids or services might be appropriate for some of these litigants, others will require attorney representation. Appointed counsel for these civil litigants is not only appropriate but also reasonable. The number of these litigants is relatively small when compared to the total number of indigent civil litigants in the country. The costs seem even smaller compared with the almost certain loss of crucial needs, such as food, housing, income benefits, and property if the litigant is without attorney representation. Moreover, greater loss accrues from VOLUME 2 • ISSUE 2 • 2004 630 SEATTLE JOURNAL FOR SOCIAL JUSTICE citizens’ lost faith in the justice system. With all the major European nations and the European Court of Human Rights granting free attorney representation in civil cases, the United States must be able to protect its most vulnerable civil litigants: those whose disabilities prevent them from understanding or fully participating in judicial and administrative proceedings. Advocates and the justice system, working together, can remedy this problem. By focusing on the true meaning of the ADA’s requirement of reasonable accommodation, the bench and bar can devise methods for screening and evaluating clients, creating contracts in order to represent them, and devising systems for administering and evaluating the program. Only then will civil litigants with certain disabilities have real access to the justice system. 1 Lisa Brodoff, Clinical Professor of Law, and Susan McClellan, Legal Writing Professor, both teach at Seattle University School of Law; Elizabeth Anderson is a 2003 graduate of Seattle University School of Law. The authors wish to thank Sarabeth Zemel for her editorial assistance and law librarian Stephanie Wilson for her extraordinary research skills and support. 2 “Civil Gideon” is a term used to describe efforts to establish a right to counsel in civil cases. The case that established this right in the criminal context was Gideon v. Wainwright, 372 U.S. 335 (1963). Anthony Lewis popularized Mr. Gideon’s story in his book Gideon’s Trumpet. ANTHONY LEWIS, GIDEON’S TRUMPET (Vintage Books, 1989) (1966). 3 See, e.g., Earl Johnson, Jr., Will Gideon’s Trumpet Sound a New Melody? The Globalization of Constitutional Values and Its Implications for a Right to Equal Justice in Civil Cases, 2 SEATTLE J. SOC. JUST. 201 (2003) [hereinafter New Melody?] (the author has served as a Justice for the California Court of Appeal since 1982); Earl Johnson, Jr., Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies, 24 FORDHAM INT’L L.J. 83 (2000); Robert W. Sweet, Civil Gideon and Confidence in a Just Society, 17 YALE L. & POL’Y REV. 503 (1998); Deborah Perluss, Washington’s Constitutional Right to Counsel in Civil Cases: Access to Justice v. Fundamental Interest, 2 SEATTLE J. SOC. JUST. 571 (2004). 4 Gideon v. Wainwright, 372 U.S. 335, 342–43 (1963) and its progeny (see, e.g., Argersinger v. Hamlin, 407 U.S. 25 (1972) (extending right to counsel to misdemeanor cases); Escobedo v. Illinois, 378 U.S. 478, 490–91 (1964) (extending right to counsel to uncharged suspect); Douglas v. California, 372 U.S. 353, 357–58 (1963) (extending right to counsel to direct appeals)). ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 631 5 See MAURO CAPPELLETTI, ET AL., TOWARD EQUAL JUSTICE: A COMPARATIVE STUDY OF LEGAL AID IN MODERN SOCIETIES 140–66 (Vincenzo Varano ed., 1975); Earl Johnson, Jr., The Right to Counsel in Civil Cases: An International Perspective, 19 LOY. L.A. L. REV. 341 (1985); Francis William O’Brien, Why Not Appointed Counsel in Civil Cases? The Swiss Approach, 28 OHIO ST. L.J. 1, 5 (1967). Some state statutes and court rules do provide appointed counsel for indigent litigants in certain circumstances, such as juvenile dependency and termination of parental rights. See, e.g., WASH. REV. CODE § 13.34.090 (2002). 6 Frase v. Barnhart, 840 A.2d 114 (Md. Dec. 11, 2003). In a four-three decision, the majority declared it “inappropriate” to rule on the litigant’s claim of a “right to counsel,” citing the litigation’s commencement, among other reasons; however, the three concurring judges not only would have addressed the civil Gideon issue but also would have found that a constitutional right to counsel exists. Id. at 115, 138. 7 City of Moses Lake v. Smith, No. 21783-3-III, slip op. (Wash. Ct. App. May 21, 2003) (dismissed as moot by Order Denying Motion to Modify Commissioner’s Ruling). 8 Depression and other mental disorders are considered disabilities under the ADA. Olson v. Gen. Elec. Astrospace, 966 F. Supp. 312, 316 (D.N.J. 1997). See, e.g., Pritchard v. Southern County Servs., 92 F.3d 1130, 1132 (11th Cir.1996), amended on reh’g, 102 F.3d 1118 (11th Cir.1996); Shea v. Tisch, 870 F.2d 786, 789 (1st Cir.1989); Doe v. Region 13 Mental Health-Mental Retardation Comm’n, 704 F.2d 1402, 1408 (5th Cir.1983). 9 See Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 206 (E.D.N.Y. 2000) (finding city program failed to provide meaningful access to public assistance programs, benefits, and services to individuals suffering from AIDS). 10 See, e.g., Arneson v. Sullivan, 946 F.2d 90, 92–93 (8th Cir. 1991) (holding that the Social Security Administration must reinstate a former employee who suffers from apraxia, provide him with computer training at least equal to that received by other employees with disabilities, make reasonable efforts to provide a distraction-free environment, and provide him with a “reader” to ensure he receives assistance at a level given to other employees with disabilities). Apraxia is a neurological disorder that results in “difficulty in bringing ideas together, difficulties in writing, distractibility, [and] motor awkwardness.” Id. at 91 (quoting Arneson v. Heckler, 879 F.2d 393, 399 (8th Cir. 1989)). 11 Office of Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102, 1105–06 (Fed. Cir. 1996). See also 29 C.F.R. App. § 1630.16(b) (2003). 12 Soto v. City of Newark, 72 F. Supp. 2d 489, 494–95 (D.N.J. 1999) (holding that the court violated Title II of the ADA when deaf litigants were denied a sign-language interpreter at municipal court wedding). See also, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001); Bravin v. Mount Sinai Med. Ctr., 58 F. Supp. 2d 269, 273 (S.D.N.Y. 1999) (holding that a hospital violated the ADA when it denied a deaf father the use of a qualified interpreter during Lamaze classes, which he attended with his wife); DeVinney v. Me. Med. Ctr., 1998 WL 271495, 1 (D. Me. 1998) (approving a consent decree whereby Maine Medical Center would provide appropriate auxiliary aids and services where such aids and services were necessary to ensure effective communication with persons who were deaf). VOLUME 2 • ISSUE 2 • 2004 632 SEATTLE JOURNAL FOR SOCIAL JUSTICE 13 ADA Title II Technical Assistance Manual II–7.1000 (2003), at http://www.usdoj.gov/crt/ada/taman2.html (last viewed Feb. 29, 2004). See also Engle v. Gallas, No. CIV. A. 93-3324, 1994 WL 263347, *1–2 (E.D. Pa. June 10, 1994); Fink v. N.Y. Dep’t of Pers., 53 F.3d 565, 568–69 (2d Cir. 1995) (city personnel satisfied its obligation to reasonably accommodate blind employees who took civil service promotion exams when it provided them with taped versions of the exam, a tape player, a reader, and extra time); Galloway v. Super. Ct., 816 F. Supp. 12, 18 (D.C. Cir. 1993) (court system is a “public entity” under the ADA and must provide reasonable accommodations for juror’s visual limitations). 14 Americans with Disabilities Act of 1990, Pub. L. No. 101–336 (codified as amended at 42 U.S.C. §§ 12101–12213 (2000)). 15 The Court Interpreters Act also recognizes the right of the hearing impaired to have an interpreter in proceedings instituted by the United States when the impairment inhibits “such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer.” 28 U.S.C. § 1827(d)(1)(B) (2000). 16 29 U.S.C. §§ 701–796l (2003). 17 The Washington Law Against Discrimination, WASH. REV. CODE §§ 49.60.010–.401 (2002). See also, e.g., WASH. REV. CODE § 11.88.045(1)(a) (2002) (providing indigent “allegedly incapacitated individuals” with “the right to be represented by willing counsel of their choosing at any stage in guardianship proceedings.”). 18 Several states, including Washington, Alabama, Connecticut, Minnesota, New Jersey, North Carolina, and North Dakota, have more expansive state anti-discrimination statutes. See WASH. REV. CODE §§ 49.60.010–.401 (2002); ALA. CODE § 12–1–23 (2003); “Unruh Civil Rights Act,” CAL. CIVIL CODE § 51 (West 2004); CAL. CIVIL CODE § 54 (a) (West 2004); CONN. GEN. STAT. §§ 46a–64 (2003); “Minnesota Human Rights Act,” MINN. STAT. § 363A.01 (2003); “New Jersey Law against Discrimination,” N.J. STAT. ANN. § 10:5–4.1 (West 2003); “North Carolina Persons with Disabilities Protection Act,” N.C. GEN. STAT. § 168A–7 (2003); N.D. CENT. CODE § 14–02.4–15 (2003). 19 28 C.F.R. § 35.130(f) (2003). This regulation forbids a public entity from charging disabled persons “to cover the costs of measures . . . required to provide . . . the nondiscriminatory treatment required by the . . . [ADA or implementing regulations].” 20 Stephen Kaye, Is the Status of People with Disabilities Improving?, Disability Statistics Center (May 1998), available at http://dsc.ucsf.edu/publication.php?pub_id=7. 21 In 1994, 30% of disabled working-age adults lived in poverty. Id. 22 Brief of Amici Curiae American Bar Association, Tennessee v. Lane, 315 F.3d 680 (6th Cir. 2003), (No. 02-1667), cert. granted in part, 123 S. Ct. 2622 (citing U.S. Census Bureau, Disability Status: 2000, available at http://www.census.gov/hhes/www/disable/disabstat2k/disabstat2ktxt.html (last visited Feb. 22, 2004)). 23 Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995) (citing S. Rep. No. 116, 101st Cong., 1st Sess. 18 (1989); H.R.Rep. No 485 (II), 101st Cong., 2d Sess. 47 (1990)). 24 42 U.S.C. § 12101(b)(1) (2000). 25 Id. §§ 12111–12117. 26 Id. §§ 12131–12134. ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 633 27 Id. § 12131. Id. §§ 12181–12189. 29 Id. § 12181. 30 47 U.S.C. § 225 (2000). 31 42 U.S.C. § 12132 (2000). 32 42 U.S.C. § 12143 (2000). 33 The ADA defines “public entities” to include state and local governments and any department, agency, special purpose district, or other instrumentality of a state or local government. 42 U.S.C. § 12131(1). 34 42 U.S.C. § 12132 (2000). 35 See, e.g., Soto, 72 F. Supp. 2d at 494–95 (holding that a wedding ceremony performed in municipal court is a “service” within the meaning of the ADA). See also Saunders v. Horn, 960 F. Supp. 893, 899 (E.D. Pa. 1997) (finding that management of court systems is a state or local responsibility of great importance that is routinely understood to be covered by the ADA); Galloway, 816 F. Supp. at 18 (holding that a court system is a “public entity” under the ADA); People v. Caldwell, 603 N.Y.S.2d 713, 714 (N.Y. Crim. Ct. 1993) (finding that the court system, as a government entity, is required pursuant to the ADA to make all of its services, programs, and activities available to qualified individuals with disabilities). The Department of Justice regulations state that the ADA’s coverage extends to “all services . . . made available by public entities.” 28 C.F.R. § 35.102(a) (2003). 36 29 U.S.C. §§ 701–796l (2000). 37 See Duvall, 260 F.3d at 1135–36; McDonald v. Com. of Mass., 901 F.Supp. 471, 478 (D. Mass. 1995); Helen L. v. DiDario, 46 F.3d 325, 330 (3d Cir. 1995). 38 Sec. 504 provides, “No otherwise qualified individual with a disability… shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. 39 Sec. 504 of the Rehabilitation Act and the ADA impose identical requirements. Lincoln Cercpac v. Health & Hosps. Corp., 147 F.3d 165, 167 (2d Cir. 1998). 40 The remainder of the article refers primarily to state courts and the ADA, but the analysis applies equally in federal courts. 41 Lane, 315 F.3d 680. 42 Adam Cohen, Can Disabled People Be Forced to Crawl Up the Courthouse Steps?, N.Y. TIMES, Jan. 11, 2004, § 4 (Editorial Desk), at 14. 43 Lane, 315 F.3d at 682. 44 WASH. REV. CODE §§ 49.60.010–.401 (2002). 45 WASH. REV. CODE § 49.60.030(1) (2002). 46 Id. 47 WASH. REV. CODE § 49.60.030(1)(b) (2002). 48 See, e.g., Fell v. Spokane Transit Auth., 911 P.2d 1319, 1328 (Wash. 1996). 49 42 U.S.C. § 12132 (2000). See also Duvall, 260 F.3d at 1135 (citing Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)). 50 See, e.g., Duvall, 260 F.3d at 1139; Soto, 72 F. Supp. 2d at 495. 51 42 U.S.C. §§ 12102(2) (2000); see also Duvall, 260 F.3d at 1135. 28 VOLUME 2 • ISSUE 2 • 2004 634 SEATTLE JOURNAL FOR SOCIAL JUSTICE 52 28 C.F.R. § 35.150(a) (2003). 28 C.F.R. § 35.150(a)(3) (stating that the public entity has the burden of proving that compliance would require a “fundamental alteration” or “undue financial or administrative burdens”). 54 Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. § 35.106 (2003); 56 Fed. Reg. 35694 (1991). 55 Id. 56 Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (citing Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998)). 57 42 U.S.C. § 12132 (2000); Duvall, 260 F.3d at 1135. 58 Sweet, supra note 3, 505 (quoting Lassiter v. Dept. of Soc. Servs. of Durham County, 452 U.S. 18, 47 (1981)) (emphasis added). 59 42 U.S.C. § 12132 (2000). 60 Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003) (holding that a litigant with disabilities suing under the ADA or Rehabilitation Act may show that she has been excluded from or denied the benefits of a public entity’s services or programs “by reason of such disability,” even if there are other contributory causes for the exclusion or denial, as long as the plaintiff can show that the disability was a substantial cause of the exclusion or denial). 61 Henrietta D., 119 F. Supp. 2d at 212–13. 62 Duvall, 260 F.3d at 1139. 63 42 U.S.C. § 12132 (2000). 64 Duvall, 260 F.3d at 1136–37 (citing Wong v. Regents of the U. of Cal., 192 F.3d 807, 818 (9th Cir. 1999)). 65 28 C.F.R. § 35.160(a) (2003). 66 28 C.F.R. § 35.104 (2003); see, e.g., Duvall, 260 F.3d at 1135. 67 1 Disability Discrimination in the Workplace § 8:16 (citing the Technical Assistance Manual on the Employment Provisions (Title I) of the ADA, EEOC § 3.10(8)), available at http://www.ada-infonet.org/documents/titleI/tech-assist-man.asp (last visited Feb. 29, 2004), “Depending on the nature of the visual impairment and the job tasks, print magnification equipment or a talking computer may be more effective for the individual and less costly for an employer than providing another employee as a reader.” On the other hand, “a reader who transcribes documents onto tapes may be a more effective accommodation” when a person must read lengthy documents. Technical Assistance Manual at § 3.10(8). Similarly, “people with hearing impairments have different communication needs and use different modes of communication. Some use signing in American Sign Language but others use sign language that has different manual codes. Some people rely on an oral interpreter who silently mouths words spoken by others to make them easier to lip read. Many hearing-impaired people use their voices to communicate, and some combine talking and signing.” Id. at § 3.10(9). An employer might also be required to offer an attendant or helper as an accommodation for an employee with a disability. See, e.g., Roberts v. Progressive Independents, Inc., 183 F.3d 1215, 1220–21 (10th Cir. 1999) (holding that a jury could find that an employer’s refusal to pay for a personal attendant during an airline trip was “not reasonable”). 68 28 C.F.R. § 35.160 (2003). 53 ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 635 69 28 C.F.R. § 35.160(b)(2) (2003). Duvall, 260 F.3d at 1139. 71 28 C.F.R. § 35.160(a) (2003). 72 The Court Interpreters Act, 28 U.S.C. § 1827(d)(1)(B) (2000). 73 Deborah J. Cantrell, Justice for Interests of the Poor: The Problem of Navigating the System Without Counsel, 70 FORDHAM L. REV. 1573, 1574, 1581 (2002); Deborah L. Rhode, Access to Justice, 69 FORDHAM L. REV. 1785, 1816 (2001). 74 See Cantrell, supra note 73, at 1578–80 (arguing that simplification, though admirable, is insufficient for addressing the needs of indigent civil litigants); Rhode, supra note 73, at 1816. 75 The cost aspect matters, as a number of commentators have noted, because opponents of civil Gideon argue the expense of such a program would bankrupt the government. See, e.g., Rhode, supra note 73, at 1787–88; Earl Johnson, Jr., Toward Equal Justice: Where the United States Stands Two Decades Later, 5 MD. J. CONTEMP. LEGAL ISSUES 199, 210–21 (1994) [hereinafter Toward Equal Justice]. 76 There is no reasonable argument that providing legal representation as an accommodation within the court system would fundamentally alter the nature of that public entity. Attorneys regularly represent litigants in the court setting, so having representation for a disabled litigant would not be a change in the system. 77 Lane, 315 F.3d at 683. 78 See, e.g., Nelson v. Thornburgh, 567 F. Supp. 369, 381 (E.D. Pa. 1983), aff’d, 732 F.2d 146–47 (3d Cir. 1984). Decisions based on the Rehabilitation Act provide guidance because the ADA regulations “borrowed” the “reasonable accommodation” and “undue hardship” definitions from the regulations promulgated by the EEOC under the Rehabilitation Act. 79 Id. at 381–82. 80 Id. 81 Id. at 382. 82 Id. 83 Simran Bindra & Pedram Ben-Cohen, Public Civil Defenders: A Right to Counsel for Indigent Civil Defendants, 10 GEO. J. ON POVERTY L. & POL’Y 1, 19, 31–35 (2003); Johnson, Toward Equal Justice, supra note 75, at 219. 84 Johnson, Toward Equal Justice, supra note 75, at 219. See also Bindra & Ben-Cohen, supra note 83, at 32–33 (comparing the funding in other countries to the funding in the United States). 85 Bindra & Ben-Cohen, supra note 83, at 33; see also Brief of Amici Curiae American Bar Association, Lane, 315 F.3d 680. 86 Bindra & Ben-Cohen, supra note 83, at 33. 87 Id. (citing Helaine M. Barnett, An Innovative Approach to Permanent State Funding of Civil Legal Services: One State’s Experience – So Far, 17 YALE L. & POL’Y REV. 469, 472 (1998), citing Legal Services Project, Funding Civil Legal Services for the Poor 11 (1998)). 88 See Bindra & Ben-Cohen, supra note 83, at 32 (noting that “forty-seven percent of Americans feel that the legal system is biased against the poor and minorities, and nearly ninety percent feel that the affluent and corporate have the upper hand”). 70 VOLUME 2 • ISSUE 2 • 2004 636 SEATTLE JOURNAL FOR SOCIAL JUSTICE 89 See e.g., Unemployment Compensation, WASH. REV. CODE § 50.06.010 (2003); Worker’s Compensation, 5 U.S.C. § 8102 (2000); Social Security, 42 U.S.C. § 402 (2000); Supplemental Security Income (SSI), 42 U.S.C. § 1381a (2000); General Assistance, WASH. REV. CODE § 74.04.005 (2003); Medicaid, 42 U.S.C. § 1396 (2000); Medicare, 42 U.S.C. § 1395c (2000), § 1395j. 90 See Washington State Supreme Court, The Washington State Civil Legal Needs Study, Task Force on Civil Equal Justice Funding, at http://www.courts.wa.gov (Sept. 2003) (finding that less than 12% of low-income clients with public benefits disputes receive legal representation of any kind). 91 State agencies are “public entities” under the ADA. 42 U.S.C. § 12131(1) (2000). Federal agencies are “public entities” under the Rehabilitation Act. 29 U.S.C. § 794(a) (2000). 92 Id.; see 28 C.F.R. §§ 35.102(a) and 104 (2003) (public entities subject to the ADA are defined as including “[a]ny department, agency . . . or other instrumentality of a State or States.”). 93 Kansas Hosp. Ass’n v. Whiteman, 835 F. Supp. 1556 (D. Kan. 1993) (holding that a state Medicaid agency’s notice of public hearing regarding an increase in the Medicaid co-payment was not defective under the ADA for failure to communicate to disabled persons about their opportunity to participate in the hearing. However, the court observed that the state had made the hearing accessible to the disabled by providing a sign-language interpreter at the public hearing, and that the hearing was held in a facility accessible to the mobility impaired). 94 Dees v. Austin Travis County Mental Health & Mental Retardation, 860 F. Supp. 1186 (W.D. Texas 1994). (holding that the mental health center’s board of trustees is a public entity as defined by the ADA, and that it discriminated against mentally ill client recipients of its services by holding board meetings at a time that made it impossible for patients who suffered drowsiness from the effects of medication for mental illness to attend). 95 Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) (holding that plaintiffs alleged sufficient facts to support claims that state welfare officials violated the ADA when they mishandled children’s cases by failing to take modest affirmative steps to ensure that the children had meaningful access to the child welfare system). 96 In one analogous case involving whether or not a school district must accommodate a disabled parent’s request to tape record a hearing-like meeting involving planning and placement for her handicapped child, a Connecticut federal district court held that “participation [in the planning meeting by the parent] means something more than mere presence; it means being afforded the opportunity to be an equal collaborator, whose views are entitled to as much consideration and weight as those of other members of the team, in the formulation and evaluation of their child’s education.” V.W. v. Favolise, 131 F.R.D. 654, 659 (1990). 97 DSHS provides “necessary supplemental accommodations” to disabled clients who have a “mental, neurological, physical or sensory impairment . . . that prevent [clients] from getting program benefits in the same way that an unimpaired person would get them.” WASH. ADMIN. CODE § 388-472-0010 (2003). See also WASH. ADMIN. CODE § 388-472-0020 to 0050 (2003) for the parameters of the NSA program. These accommo- ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 637 dations should also be required for hearings involving DSHS administered public benefits. 98 See OFFICE OF ADMIN. HEARINGS, “Your Hearing Rights in a DSHS Case,” OAH pamphlet #100, DSHS pamphlet #22-092, at http://www.oah.wa.gov/shs_appeals_en.pdf (last visited on Mar. 29, 2004). The pamphlet tells appellants to contact the OAH office listed on their Notice of Hearing to arrange for accommodations in the hearing. Id. at 4. 99 For example, in SSI and Social Security administrative hearings, the only obligation of the Social Security Administration is to inform the appellant of the right to have legal representation at the hearing, but there is no right to have it provided free of charge and no requirement that the appellant appear with only a licensed attorney. See Frank v. Chater, 924 F.Supp. 416, 422, (E.D.N.Y. 1996) (“[a]s an initial matter, it is necessary to clarify what the cases in this and other Circuits casually refer to as the ‘right to representation’ in a benefits proceeding. This ‘right’ does not rise to constitutional dimensions.”); see, e.g., Brandyburg v. Sullivan, 959 F.2d 555, 562 (5th Cir.1992) (citing Clark, 652 F.2d at 403) (“The Supreme Court has never recognized a constitutional right to counsel at a SSA hearing.”); Evangelista v. Secretary of Health & Human Servs., 826 F.2d 136, 142 (1st Cir.1987) (“[T]he applicable standard in these ‘nonadversarial’ proceedings is well below the Sixth Amendment threshold.”). As a result, HHS is not obligated to provide counsel for the claimant, see Lopez, 728 F.2d at 149, or even to “guarantee the availability of free legal services.” Clark, 652 F.2d at 403. Rather, the “right to representation” articulated in these cases refers to a claimant’s freedom to choose to be represented by counsel in a benefits proceeding. 100 For DSHS hearings, see WASH. ADMIN. CODE § 388-02-0155: “Who represents you during the hearing process? (1) You may represent yourself or have anyone represent you, except a DSHS employee. (2) Your representative may be a friend, relative, community advocate, attorney, or paralegal.” For Employment Security hearings, see WASH. ADMIN. CODE § 192-04-110. 101 For example, in Washington State, the Administrative Procedures Act provides that “any party may be advised and represented at the party’s own expense by counsel or, if permitted by provision of law, other representative” (emphasis added). WASH. REV. CODE § 34.05.428(2) (2002). Therefore, unless an agency specifically authorizes the use of non-attorney representatives, it appears that only attorneys can act. Some Washington state agencies do allow for lay representation. See, e.g., DSHS, WASH. ADMIN. CODE § 388-02-0155 (2003); Employment Security, WASH. ADMIN. CODE § 192-04-110 (2003). Other state agencies, however, essentially only allow for attorney representation. See, e.g., Environmental Hearings Board Forest Practices Hearings, WASH. ADMIN. CODE § 223-08-050 (2003); Pollution Control Hearings, WASH. ADMIN. CODE § 371-08-365 (2003); Shoreline Hearings, WASH. ADMIN. CODE § 461-08-385 (2003). 102 On the federal level, in Social Security, SSI, and Medicare hearings held before Social Security Administration ALJs, the federal regulations covering these hearings allow for lay representation. See 20 C.F.R. §§ 404.1705, 416.1505 (2003). 103 Goldberg v. Kelly, 397 U.S. 254, 261 (1970) (finding that the due process right includes the right to a fair hearing for public assistance denials, using “brutal needs” to VOLUME 2 • ISSUE 2 • 2004 638 SEATTLE JOURNAL FOR SOCIAL JUSTICE describe access to food, clothing, shelter, income, and health care). “For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Thus the crucial factor in this context . . . is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.” Id. at 264. 104 Courts agree that attorney representation in the context of establishing eligibility for SSI and Social Security Disability can be critical to obtaining benefits. See Frank, 924 F. Supp. at 427–28: The potential benefits of having counsel at a benefits proceeding are well recognized. Indeed, the heightened duty placed on the ALJ by this Circuit is an attempt to compensate for the disadvantage of proceeding without counsel. . . . The high rate of remand may well be a function of the fact that, “[u]nder our system of adjudication, no hearing officer (or judge) will ever be an equivalent substitute for a lawyer devoted exclusively to a party’s interests. Cases such as the present one will repeatedly arise until the legal services bar translates into action the now commonplace observation that agency cases are usually won or lost at the agency level.” See also Guzman v. Califano, 480 F.Supp. 735, 737 (1979). 105 See Joan Grace Ritchey, Limits on Justice: The United States’ Failure to Recognize a Right to Counsel in Civil Litigation, 79 WASH. U. L.Q. 317, 331–32, 336–38 (2001); Johnson, New Melody?, supra note 3 at 222–29 (comparing the legal bases for the right to appointment of counsel in European countries with those in the United States). 106 Ritchey, supra note 105, at 318–19. 107 Id. at 323. 108 28 U.S.C. § 1915(a) (2004). 109 See Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993); see also McKeever v. Israel, 689 F.2d 1315, 1318 (7th Cir. 1982); United States v. McQuade, 579 F.2d 1180, 1181 (9th Cir. 1978). 110 Tabron, 6 F.3d at 155 (stating that “nothing in this clear language [of the statute] suggests that appointment is permissible only in some limited set of circumstances. Nor have we found any indication in the legislative history of the provision to support such a limitation.” The court refers to 28 U.S.C. § 1915(d) (2000) “the court may request an attorney to represent any such person unable to afford counsel.”) 111 Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984); see also Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984). 112 Tabron, 6 F.3d at 153. 113 Id. at 155. 114 Id. at 156. 115 Id. 116 Ackridge v. Comm. Dep’t of Human Servs., 5 Nat’l Disability Law Rep. ¶ 236 (E.D. Pa. May 5, 1994). 117 Id. ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON One Avenue to Appointed Counsel Before a Full Civil Gideon 639 118 Id. 42 U.S.C. §§ 2000e–2000e17 (2000). 120 42 U.S.C. § 2000e-5(f)(1). See also Bindra & Ben-Cohen, supra note 83, at 22 (discussing the statute and subsequent case law). 121 Bindra & Ben-Cohen, supra note 83, at 22 (discussing, primarily, Brown v. Continental Can Co., 765 F.2d 810, 814 (9th Cir. 1985)). 122 Id. at 22–23. The authors reason that if a plaintiff proficiently presents the merits of the case, the court will deny counsel because the plaintiff is competent. On the other hand, if the plaintiff inadequately presents the merits, the court will conclude that the case is frivolous and deny counsel. Id. While the latter proposition is true, under factor three, the first proposition is not necessarily true. In applying the three-factor test, as articulated in Brown, courts do not address the plaintiff’s competence. If the plaintiff can show financial need, inability to obtain counsel, and a meritorious case, then the court should appoint counsel in employment discrimination cases regardless of the plaintiff’s competence. For cases brought under other statutes or constitutional provisions, however, the authors’ point is well-taken, as illustrated in their discussion of Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). In Fowler, the Eleventh Circuit applied an exceptional circumstances test in denying a prison inmate appointed counsel in his civil rights suit against prison officials. 123 Ritchey, supra note 105, at 331–32. 124 Id. at 333. 125 Id. at 334–36. 126 Id. at 332. 127 Johnson, Toward Equal Justice, supra note 75, at 218. 128 Johnson, New Melody?, supra note 3, at 223–26. 129 Id. at 223–24. 130 See Lawrence v. Texas, 123 S. Ct. 2472 (2003). 131 Johnson, New Melody?, supra note 3, at 224. 132 See Ritchey, supra note 105, at 332 (“the United States is the only major Western nation that does not provide a right to counsel in civil matters,” (quoting Earl Johnson, Jr., The Right to Counsel in Civil Cases: An International Perspective, 19 LOY. L.A. L. REV. 341, 352–55 (1985))). 133 Id. at 338. 134 Id. 135 Id. But note that some states do provide counsel in similar situations. See, e.g., WASH. R. APP. P. 15.2 (providing the right of appointed counsel for indigents in commitment proceedings under WASH. REV. CODE §§ 71.05, 71.09 (2002) and for dependency and termination of parental rights cases under WASH. REV. CODE § 13.34). 136 Ritchey, supra note 105, at 338. 137 Id. 138 See CIRCLE manifesto: “The Coalition for Indigent Representation and Civil Legal Equality (CIRCLE) is comprised of individuals who are committed to the principle of equal justice for all as fundamental to the system of justice in the state of Washington.” Memorandum from the Coalition for Indigent and Civil Legal Equality (CIRCLE), to all 119 VOLUME 2 • ISSUE 2 • 2004 640 SEATTLE JOURNAL FOR SOCIAL JUSTICE Equal Justice Legal Service Providers; “CIRCLE Case Identification Information Form” used to identify potential clients (on file with Seattle Journal for Social Justice). 139 Frase, 840 A.2d at 130. 140 Id. ACCESS TO JUSTICE—A CALL FOR CIVIL GIDEON http://www.abajournal.com/news/article/brain_injury_leads_to_suspension_for_maine_lawyer_i_couldnt_stick_to_tasks/?utm_source=maestro&utm_... Legal Ethics Brain injury leads to suspension for Maine lawyer; ‘I couldn’t stick to tasks,’ he says Posted Jun 25, 2014 5:45 AM CDT By Debra Cassens Weiss A Maine lawyer says he can no longer function effectively as a trial lawyer and he agrees with his indefinite suspension, imposed by a Maine Supreme Judicial Court justice on May 27. Newport lawyer Dale Thistle, 66, attributes his problems to a traumatic brain injury caused by a November 2011 car accident, CentralMaine.com reports. Complaints made to the bar about his handling of cases “are serious and meritorious and directly stem from my brain injury,” he told the publication. “I even self-reported a misfiling in federal court.” Thistle says his intelligence is intact but his ability to perform executive functions is impaired. He suffers from minor seizures and small blackouts. “I couldn’t organize my day-to-day life,” he told CentralMaine.com. “I couldn’t stick to the tasks. It’s just the result o the brain injury.” The Bangor Daily News calls Thistle a well-known lawyer in its earlier coverage of the suspension. He represented a former Newport official accused of embezzlement, a 14-year-old girl accused of stabbing her aunt 106 times, and class-action clients who claimed they were illegally strip-searched at the Knox County jail. Thistle can regain his license if his condition improves, but he’s not optimistic. “I have no plans at the moment,” he told CentralMaine.com. “I don’t know what I’m going to do." Copyright 2014 American Bar Association. All rights reserved. 6 SUPREME JUDICIAL COURT Docket No. BAR 14-10 STATE OF MAINE BOARD OF OVERSEERS OF THE BAR Phn:rdff ORDER OF SUSPENSION M. Bar R. 7.s(e)(2)(B) (DISABILITY) DALE F. THISTLE, ESQ. of Newport, Maine Me. Bar #7483 Defendant By filing dated May 27,2014, the Board of Overseers of the Bar (the Board) petitioned this Court for al immediate Order suspending Dale F Thistle for disability-related reasons from the practice of iaw in the State of Maine. Included with the Board's Petition was a Confidentia-l Affrdavit of Bar Counsel. For good cause shown by the Board., Dale F. Thistle, Esq. appears to be a disabled attorney; as a result, he has comrnitted apparent vioiations of the Maine Rules of Professional conduct, thereby serving as a threat to ciients, the pubiic ard to the administration ofjustice. The court finds that Attorney Thistle's actions constitute vioiations of M. R. prof. Conduct i.3; 1.4(a); 1. - 1s(a)(b)(d)(e); and 8.4 (a)(c)(d). Accordingly, this court oRDERS that Da-.e F. Thistle be suspended from t,.e practice of Iaw in Maine pursualt to M. Bar R. 7.3(e)(2)(B) untii further Order of this Court. The Court further ORDERS that Attorney Michael A. Wiers of Newport, Maine is appointed as the Receiver of Attorney Thistle,s practice. The separate Order for the Appointment of Receiver is incorporated herern by reference. o"t a, 1/,{,(.rl ?8,. RECEIVE JUN 0 6 ?nt/ Ellen Go Maine Justice Court r""" ?01 r""JiJ[""?[i? http://bangordailynews.com/2014/06/09/news/augusta/newport-lawyer-suspended-from-practice-because-of-disability/print/ Gabor Degre | BDN Cindy Dunton of Newburgh sits in the courtroom with her attorney Dale Thistle during her sentencing at the Penobscot Judicial Center in Bangor in this July 2011 file photo. By Judy Harrison, BDN Staff Posted June 09, 2014, at 6:46 p.m. AUGUSTA, Maine — A well-known Newport lawyer has been suspended from the practice of law because of a disability, according to the Maine Board of Overseers of the Bar. Dale Thistle, 66, was suspended indefinitely on May 27, according to information released Monday by the board. The nature of his disability was not disclosed. Thistle’s order of suspension, signed by Maine Supreme Judicial Court Justice Ellen Gorman, said that he “appears to be a disabled attorney; as a result, he has committed apparent violations of the Maine Rules of Professional conduct, thereby serving as a threat to clients, the public and to the administration of justice.” His practice was placed into a receivership to be overseen by Michael A. Wiers, 65, of Hartland. He is to deal with Thistle’s clients and report to the court about the financial shape of the practice, http://bangordailynews.com/2014/06/09/news/augusta/newport-lawyer-suspended-from-practice-because-of-disability/print/ among other duties. To be reinstated, Thistle must apply to the state supreme court. The suspension was recommended by the legal staff at the Board of Overseers. Thistle has represented many high profile defendants over the years, including Cindy Dunton, 52, the former deputy clerk and treasurer in Newburgh. She was sentenced July 1, 2011, at the Penobscot Judicial Center to to five years in prison with all but 20 months suspended for embezzling nearly $200,000 from the town since 2006. Dunton, who pleaded guilty in April 2011 to Class B theft by unauthorized taking, also was ordered to be placed on probation for three years after serving her sentence and to pay about $252,000 in restitution — which is the sum of the money she stole plus attorney and forensic auditor fees. Dunton was released Oct. 12, 2012, after serving 15 months of her sentence, according to previously published reports. Thistle also represented clients in at least half a dozen federal lawsuits alleging illegal strip searches at county jails. http://bangordailynews.com/2014/06/09/news/augusta/newport-lawyer-suspendedfrom-practice-because-of-disability/ printed on June 25, 2014 http://www.centralmaine.com/2014/06/20/newport-lawyer-agrees-with-his-suspension-over-disability-concerns/ PRESSHERALD MAINETODAY 25, 2014 Public Notices WEDNESDAY JUNESUBSCRIBE: KENNEBEC JOURNAL MORNING SENTINEL 67° LIGHT RAIN High: 70° | Low: 63° FIVE DAY FORECAST HOME NEWS SPORTS OPINION CARS NEWS Posted June 20 BY DOUG HARLOW COMMUNITY REAL ESTATE Updated June 20 STAFF W RITER [email protected] | @Doug_Harlow | 207-612-2367 LIFESTYLE OBITUARIES INDEX INCREASE FONT SIZE JOBS http://www.centralmaine.com/2014/06/20/newport-lawyer-agrees-with-his-suspension-over-disability-concerns/ NEWS Newport lawyer agrees with his suspension over disability concerns Newport lawyer Dale Thistle that he finally reported himself to the state Board of Overseers of the Bar. That report and other complaints about his work led to Thistle’s indefinite suspension from practice by the Maine Supreme Judicial Court this month. Complaints to the bar included Thistle’s alleged mishandling of a divorce case, real estate litigation that took too long and on a couple of occasions, misspeaking to the judge in the courtroom. ADDIT IONAL IMAGES SUSPENDED: Dale Thistle explains details of the car accident he suffered in 2011 that caused him a brain injury that led to suspension to practice law. Thistle was speaking from his home in Skowhegan on Thursday. Staff photo by David Leaming OUT OF WORK: Attorney Dale Thistle speaks about being suspended to practice law because of a car accident in 2011 at his home in Skowhegan on Thursday. Staff photo by David Leaming In Ou ou you The June 6 order of suspension, based on a recommendation by the Board of Overseers, refers to Thistle, 66, of Skowhegan, as a “disabled attorney” whose injury caused him to violate the rules of professional conduct and as someone who is “a threat to clients, the public and to the administration of justice.” Thistle said he agrees with the suspension. He said persistent seizures, mini-blackouts and a lack of direction paint the real picture of what he can do and what he can no longer do following damages to the nerves in his right frontal lobe. “They are right — I did not disagree with the action of the board of overseers,” he said in an interview. “The complaints are serious and meritorious and directly stem from my brain injury. I even self-reported a misfiling in federal court. I made an error in filing a document — an error I would never have made previously. I reported on myself, in other words.” Attorney Gordon Johnson, founder of the Brain IN NEWS Injury Law Group inNEXT Sheboygan, Wis., said that Supreme while damage to the frontal lobeCourt can be cellphone decision life-changing, there can be hopewon’t — notaffect for Maine much regeneration of the broken nerves, but from a redirection of the brain’s activity. The http://www.centralmaine.com/2014/06/20/newport-lawyer-agrees-with-his-suspension-over-disability-concerns/ NEWS Newport lawyer agrees with his suspension over disability concerns In BACK TO TOP CUSTOMER SERVICE CONNECT ADVERTISE myAccount Kennebec Journal myAccount Morning Sentinel Site Feedback Contact Us Purchase a photo Kennebec Journal e-Edition Morning Sentinel e-Edition Mobile Email News Contact Ou ou you NETWORK About MaineToday Media Inc. mainetoday.com Portland Press Herald © 2014 MaineToday Media, Inc. NEXT IN NEWS Supreme Court cellphone decision won’t affect Maine much ~ Social Security Administration Retirement, Survivors and Disability Insurance Notice of Award Office of Disability and International Operations 1500 Woodlawn Drive Baltimore, Maryland 21241-0001 Date: August 23, 1993 Claim Number: 160-52-5117HA NEIL J GILLESPIE 266 7 AVE NE APT 5 ST PETERSBURG, FL 33701-2651 1•• 11 ••• 11.1 •••111••••••11 •• 1.1.11•••1.1 •••• 11.11 ••• 11•• 11 •••1 We recently told you that you met the medical requirements to receive Social Security benefits. Now we are writing to tell you that you meet the other requirements. Therefore you qualify for monthly disability benefits from Social Security beginning July 1992. However, we cannot pay you for July 1992 through July 1993. The Date You Became Disabled We found that you became disabled under our rules on January 17, 1992. This is different from the date given on the application. Also, you have to be disabled for 5 full calendar months in a row before you can be entitled to benefits. For these reasons, your first month of entitlement to benefits is July 1992. What We Will Pay And When • You will receive $1,185.00 for August 1993 around September 3, 1993. • After that you will receive $1,185.00 each month. Your Benefits We raised your monthly benefit amount beginning December 1992 because the cost of living increased. Enclosure(s): Pub 05-10072 Pub 05-10153 c See Next Page 7 . 160-52-5117HA Page 2 of 3 Other Government Payments Affect Benefits Besides the money we are sending you now, you may be due some more Social Security money for July 1992 through July 1993. We must first subtract the amount of your Supplemental Security Income payments for some or all of these months from the Social Security money you are due. When we figure the amount we have to subtract, we will send another letter to show how it was done. If you are still due some money after the subtraction, we will also send you a check. Other Social Security Benefits The benefit described in this letter is the only one you can receive from Social Security. If you think that you might qualify for another kind of Social Security benefit in the future, you will have to file another application. Do You Disagree With The Decision? If you think we are wrong, you have the right to appeal. A person who did not make the first decision will decide your case. We will correct any mistakes. We will review those parts of the decision which you believe are wrong and will look at any new facts you have. We may also review those parts which you believe are correct and may make them unfavorable or less favorable to you. • You have 60 days to ask for an appeal. • The 60 days start the day after you receive this letter. • You must have a good reason if you wait more than 60 days to ask for an appeal. Things To Remember For The Future The doctors and other trained personnel who decided that you are disabled expect your health to improve. Therefore, we will review your case in July 1994. We will send you a letter before we start the review. Based on that review, your benefits will continue if you are still disabled, but will end if no longer disabled. For you to be considered disabled under our rules, your health problems must keep you from doing not only your usual work, but also any other kind of substantial gainful work. Also, you must meet this requirement at the same time when you have earned enough credits for work under Social Security. The last date when you will have earned enough credits is December 1994. Please read the enclosed pamphlet, "How You Earn Social Security Credits," which explains how the credits are earned and how many a person needs to receive benefits. Page 3 of 3 • 160-52-5117HA Your Responsibilities The decisions we made on your claim are based on information you gave us. If this information changes, it could affect your benefits. For this reason, it is important that you report changes to us right away. We have enclosed a pamphlet, "When You Get Social Security Disability Benefits...What You Need To Know." It will tell you what must be reported and how to report. Please be sure to read the parts of the pamphlet which explain what to do if you go to work or if your health improves. If You Want Help With Your Appeal You can have a friend, lawyer or someone else help you. There are groups that can help you find a lawyer or give you free legal services if you qualify. There are also lawyers who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal. If you get someone to help you, you should let us know. If you hire someone, we must approve the fee before he or she can collect it. And if you hire a lawyer, we will withhold up to 25 percent of any past due benefits to pay toward the fee. If You Have Any Questions If you have any questions, call us toll free at 1-800-772-1213. We can answer most questions over the phone. You can also write or visit any Social Security office. The office that serves your area is located at: DISTRICT OFFICE 898 30TH AVE NORTH ST PETERSBURG, FL 33704 If you do call or visit an office, please have this letter with you. It will help us answer your questions. v Cl . ~ ~ //~~q Louis D. Enoff Acting Commissioner of Social Security Case: 12-11213 Date Filed: (1 of 43) 08/09/2012 Page: 1 of 42 8 Case: 12-11213 Date Filed: (19 of08/09/2012 43) Page: 19 of 42 Case: 12-11213 Date Filed: (20 of08/09/2012 43) Page: 20 of 42 Case: 12-11213 Date Filed: (21 of08/09/2012 43) Page: 21 of 42 ~ .~ ,.' EMERGENCY _.• DEPARTMENT' , RECORD HAHNEMANN -, HOSPITAL Philadelph;a Pa.,19102 , UNIVERSITY PATIENT STATED COMPLAINT ~-UJ-8~ -, , PTT p.: 1.- •.,.J . - ..... :' , ,.' >~~, ,,~.;._- . -;.' ~y, ," , ~'~--;:' ~ -'. c..e--.., "'::: InIM 1 Q Na, I K I <:0;"-' ~. 4: CL ; ~. III ! BLOOD GASES - CONSULTANT REO, T;me' AM • 'Called PM CONSULTING W-SlGNATURE SERVICE TIME SEEN AM PH PM SIGNATURE-House Staff MD, FINAL IMPRESSION Hea. URINE to- ~~~~£L~llL.::~L::~-ALj±=-_~~----!!~~~~e~~~=----~~~~~~:---1 Z ~ ~J..j;~~~~~~----l~'-/C:::::"'-_+-~4-r:::;::--~~=>f~=r;:.~:.r::::z2~~~-----I S!--!-=~~~~~---U0!....-----+":"~1---- -L o Betadine o Scrubs 0 Crutches 0 Cane CONDITION ON DISCHARGE \ _. -, o Same,'. .. RBClhpf WII.Cl"Pt' _ _~~~Q!:..I~~~~~~~~~-=_ _-1---+=a.et;;:;;ert. -iL_EMJ-==-_ _~~~~~~_ _--r-_..}--r=::..:=.::...:.:..::.:r...:...:.~, o SpIinlIColiar o ,Monitor o Ace Applied D. Dressing , OSlin -. ~Change (Explain): o KneeIIl1lTlOb;-T . (....: I'tECORD ROOM C Drug Screen _.~- :. ..". EKG 11 /A ".::;; . ::' .. , ., ~"" "'~"r~":'\:' ~ vL~! .. . o .J # EMERGENCY ROOM .,.6RSES RECORD Zt' ~ II PSr~ :ATID '. Hahnemann Medical College and Hospital DATE: I" TEMP TIME P R '71 Ir .... PATIENT NUM.". . ~ROGRESS NOTES BP , \ - (2o/~ t4u!,:- 5"",- fJ(5'1t..LA ~T'--, ~---- '--­ ~. i. "'ORM 171107 (ft.V 1 - III A WHITE: Record Room • CANARY: R.f.".. • PINK: E......-.cy Room .. 0­ GrL~B(Jre N~rl, DIAGNOSTIC REQUEST AND REPORT ~ DEPARTMENT OF DIAGNOSTIC RADIOLOGY HISTORY NO. .. Hahnemann University Hospital AGE LMP ·~D.O.B. . ., ; .. :. ... Rt. Lt: ___ .r.. . ';.~·::::t ':_ X-RAYED HERE BEFORE? o o o o o o / / NO ... 0 YES, DATE: CT Brain Scan DO Femur o WALK DO Knee OWHEEL CHAI.R o CARRIER DO Tibia-Fibula 0 0 ~I~':~~ ~~e c o 0 Thoracic Spine o o o0 oo ONode/~= Lumbosac. Spine CT Body Scan UltrMound o G.I. Bifat. o o o 0 ---;:;:-;::;-f-------+-------+-------t---------f----------4 0 !0 o o o o 0 0 o o o 0 I tj o0 o o 0 O o ~Facial o 0 o I 0 ~Mandible o0 o 0 O o o0 i 0 o o o o o 0 o LaVSoft o o o o o 0 o o o o D Chest PA + Lat. w/Air Contrast Chest AP or PA Rt. Lt. Chest Dccub. Barium Esoph/Swallow DO Clavicle DO Foot Small Bowel DO Shoulder DO Heel Toe DO Humerus !DOElbow Gallbladder Pelvis DO Forearm Skeletal Survey (CA) Skull Pulmon. Anario. Orbits Renal DO Wrist Myelogram DO Hand Sialogram Transhepatic Cholangiogram Abdomen-KUB T·Tube Cholangiogram Abdomen·Erect-Supine I.V.P. w/Tomograms Obstruction Series Drip I.V.P. w/Tomograms DO Hip Fistulogram Cystogram Anhrogra!'1 Uro/Strep Infu. Shuntogram Bone Age Serial Film Oint. Bil. Slent Artario. Venogram Celiac or Mesentenc Femoral Anerio. (run off) Bones Chest romo. I rK Cerebral Artario. Paranasal Sinus DO Ribs Multiple Unil. D O Coccyx I Barium Enema w/Flat Plate Cardiac Series Both DO Ankle Rt. Lt. Air Contrast Enema O w/Flat Plate Pon. Chest o Chest Fluoro o o o o o 0 Both t8Ccervical Spine ., 1----------4~;:--,__:_:,....,._--__+=------~ DR. Venogram Vascular Gruntz,g OT.M.Joint Therapeutic Intervention Nasal Bones Finger ODSA Tissue Neck DO PERTINENT HISTORY ~t .~ / PR?VISIONAL DIAGNOSIS _ -~ ~ENDING [10LA~b~ ~~. --- 1 RES,:)ENT OR INTERN DATE EXAM DESIRED i , , MD. I RADIOLOGIS7'S REPORT I / J DATE~D~/,... ;(/Jc7V/ ~ ­ GILLESPIE~ NEIL 825117 MULTIPLE STUDIES: CERVICAL SPINE: e\/.1.0enCE·: :.- .1. '../ ~~.:., , .•; I ·~·he d:i. =; 1 DCa 'lion :····:?;?\/E?·::\ 1. c:erV1C21 or nCJ spir)e r··eveal no abnormal prevertebral bony i.!npi~gment l~pon th2 neural foramina. FACIAL BONES: Five views of the facial bones reveal no evide~ce of fracture or ~islocation. No alr fluid levels are seen w1thln the sinuses or air in the orbits. t1ANDIBLE: which reveal TRANS: BY:rb FORM 333008 IRev 7/861 th,'·:~ n~ EVldence of fracture. rnandible v'Jere Bria~ cbtainf~,j t-l.D. Patricia Laffey, M.D. 8/22/88 PATIENTS CHART V o ~( Q PATIENT NUMBER EMERGENCY ROOM NURSES RECORD Hahnemann Medical College and Hospital JATE TIME TEMP P R ~ROGRESS NOTES \J BP , , - 19~ I/!Jfm b(~ 'Z5UO 11' - -- Ir (2£:,!~ ~T' -- ou:'.::::n~ht ~:~.J24 ~. ': ..-. po';." • Yw•• 2. Apply ice ~gs to areas of swelling of the scalp for 15 minut.. ~very4 to ,6 hours ,dUring the first 24.tt()urs after injury. ~.t" " ',: , ,.3. Li9!lt diet for 24 hours after injury. ' f .gt~.,~t.-':iA' PINSTR\l.cil6@~~: •. ~."!t=t"':"5~'.~~ e. --.:,:: " ~ -P~.' 1332;·').. .0 ch;nq th. d;~~=::c:: :::;~tj;~~~;;d:"V ccompanylng paUT. For vomiting. stop all foods anclliquids for several hours. Later•. try sipping clear liquids each hour. After f2110urs without vomiti~g try a b.la.nd d.iet. For diar.rhea. drink plenty of etu,'liQuids. Eat ' . no SOh~ f~OdS, IMlally;:When dla~rhea decreas~s, uy-~~~~.~~~r. "', Blear Liquids:' Jello. fr.llit IUI.ces (apple. cranberry, ~r.pe);:'broth/soda. (seven-up. glnger-aleh Don t remain on a clear liquid dietfotmorethan 72 hours. Call your doctor if diarrhea persists more thtin:72hours. 4. Avoid strenuous physical exereisefor at least 24 hours after the injury. Return to the Emergency Room immediately if: Blend Diet~eggs. meat. fish. poultry. potato. rice. , 1. The patient becomes confused. vomits. is unsteady or clumsy p:You are unable to awaken the patient. ~ DATE say'4fJfllft • n~i;S:·~~;;81:;toast.· .. ---.:'¥" • ~:~ ~. ~ . • NOTE: AVOIO-milk and other dairy products. raw fi'uiIa end~. nuts. chocolate, and fatty or fried foods until you a,. better;. ,~'" ' . ~">-""'i'w ... ;.-\';.,~ o JOINT SPRAINS. SEVERE BRUISES:"- • :.~,;:r;.;:~:::, ' '3. The patient has a'seizure or convulsion ~rse~~'~~~r f~ 4., Headache gets worse., Pain is usually mild when the injury occurs. but a hours. Swelling also comes on gradually. " ,", "o~',-;~·;~; . " : - \ ' ; 5. The patient complains of double or blurred vision. , : ... ;;" I .';. -~. ",' 1. Rest is the most important treatment. o.ur 2. Keep injured arm or leg eleval8d higher than Y, 'heart level to ' prevent swelling and reduce soreneb.,. : .. "': ,~~-' . o WOUND CARE 3. Coid packsshouhl be applied·for the first 24-48 1. Keep the wound and bandage dry and clean, hour~. Use ato~el between the ice bag and the skin to avoid frostbite. 2. Even with every precaution. any wound can become infected. 4. Warm packs or soaks may be used after 48 hours, , ' 3. Return to the Emergency Room at any time if: 6. po not stand on an injured foot or leg until you can do so~ithout pain; then gradually return to normal activity. , a. wound becomes red. swollen or hot b. wound breaks open. drains or has bad odor c. sore glands or red streaks develop d. pain worsens e dressing becomes blood soaked • o NECK & BACK STRAIN . 1. .Rest the injured area. avoiding any·painful m­II: c( Z c(-- -- ....- ........ ~~= ~~ L "'::!"C~.,~ \~ ~.....,~ "~ _==~"":";=;:"':"_,,,..S~.·~':;·;;;:'''''''':::,:....:.,'~-,''="""::::.1+.'2"-( \..~'~ . :-SC"'''-'7 CD 0:: (J ~ month and again in 6 months to complete ybur immunization. _ o Soak in warm water every gla"'s of fluid a day until - 0 Make an appointment with a physician for~. tetanus toxoid booeter in 1 _ 0:: W ~ o Drink o Cold packs for first 24-48 hours. Use a towel between the ice bag and ~,<..,-.:-.:".,,- ~ ~~'-'-'- ~~"""''''~. . . . .__.. . _ -..-....__.. . . . __=_~~~~~ ___=~"=~~~~~~""!!!!""!!~- IFYOU HAVE ANY FURTHER PROBLEMS CALL YOUR DOCTOR OR CALL THE EMERGENCYROOM. o Industrial Compensetion Clinic (Enter thru Bobst Entrance) FOLLOW-UP CARE o City Compensation Clinic 216 N. Broad St.• 6th Fir. (; day) o Oral Surgery Clinic 326 N. 16th St. o Your appointment is on at _ o William Penn Bldg. 246 N. Broad St. ,0 Call for an appointment to be seen in days. o Feinstein Bldg. 216 N. Broad St. o Clinic 448_ o Your own doctor - - - - - - - - - - - - - - - - - ­ • Interpretation of X-rays and tests is preliminary only. o Other .You will be contacted if there is any further abnormality that needs medical attention. ­ • I understand that I have had emergency treatment only and that I must arrange for follow-up care as indicated above. • I understand the instructions above. 01t..llt;:~ ~i ,--rvE' , __ _ _ ..,. __" _ . _ .__ .. ._"."_ d1_.:;;,l __ ...";:;.;;",,,,,;~ _ --'--(§) ,----. ()D,'2f) p.m. _:_.,,_+: is being discharged against the .advi~ of the. attending .. physic:ian and. the ' .J - ' - - - .- _ hospiUl administrator; -.­ ---.-­ ¥ ; - .- • • • _ _ ,9 .-----------------+-­ I have" !leen inflStmed of -all risks involved ailcF;'~fe~se: itiif:hospital. 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ACClDENl DA1A 11MEI **....*••** WORK RELinED I N Ii***** MlSC£LLANEOUS OA1A DIS1RICl CODE I ••••••• t •••••••••• , ..11.1.£5...._, N£l1. -+­ _._........... -­ *****.*** " •••••••••• D1261M~ ~. ••••••••••• ........... ., . ·iR REtIlJtJ) ) __ __ __ _ _ . n f\" I Page 1 of 3 Neil Gillespie From: To: Cc: Sent: Attach: Subject: "Neil Gillespie" "Fagan, Grace" ; "Tameka Gordon, ADA Coordinator" ; "John Anthony Tomasino" ; "Silvester Dawson" ; "McCalla Raymer E-service" ; "Patricia Ann Toro Savitz" ; "Barry Rodney Davidson" ; "Jon Marshall Oden" ; "Frank Harlan Killgore Jr." ; "Robert J. Stovash" "Hon. Don F Briggs" ; "Hon. Hale R Stancil" ; "Neil Gillespie" Wednesday, December 10, 2014 11:37 AM Model Accommodation Request Form June 2010-Live-MARION-PDF.pdf Re: Public records; request for ADA/disability Accommodation Thank you. I already submitted my ADA request on the attached form I just found from last year. Neil J. Gillespie. ----- Original Message ----From: Fagan, Grace To: Neil Gillespie ; Gordon, Tameka Cc: Greg Harrell (GHarrell@marioncountyclerk.org) Sent: Wednesday, December 10, 2014 10:59 AM Subject: RE: Public records; request for ADA/disability Accommodation Mr. Gillespie, A response from or on behalf of Chief Judge Briggs will be forthcoming.  Judge Stancil may not have a page dedicated to his office practices. It is an optional feature that is available for use by each individual Judge within their sole discretion. The link to the ADA request form has been repaired. Thank you for bringing the problem to the Court’s attention. The remainder of this email does not appear to request judicial branch records and therefore requires no further response on my part or on behalf of the Court.   Grace   From: Neil Gillespie [mailto:neilgillespie@mfi.net] Sent: Tuesday, December 09, 2014 12:25 PM To: Fagan, Grace; Gordon, Tameka Cc: Neil Gillespie Subject: Public records; request for ADA/disability Accommodation Grace A. Fagan, Esq., General Counsel Office of the General Counsel Fifth Judicial Circuit, Florida E-mail: gfagan@circuit5.org Tameka Gordon, ADA Coordinator Email: tgordon@circuit5.org Dear Ms. Fagan, Thank you for the records provided. Will you be responding on behalf of Chief Judge Briggs? See attached my letter December 1, 2014. The following is outstanding: 1. Information about obtaining a court reporter make a verbatim record and transcript of any hearings in this case. 2. forms to file in forma pauperis pursuant to, 57.082 Determination of civil indigent status 57.081 Costs; right to proceed where prepayment of costs and payment of filing fees waived I have not been able to locate a preference page for Judge Stancil, or any other Marion County of Fifth Circuit Judge. Typically courts have a preference page for each judge showing motion practice, policy on telephonic hearings, scheduling hearings, etc. Does this court/circuit have a preference page for each judge? If not, where is this information found? Circuit wide administrative Order A2010-12-A shows you are the ADA Coordinator and Responsible Person designated to receive ADA complaints and grievances. There are a number of problems with various ADA administrative orders that do not conform to current law. It appears Marion County’s ADA administrative orders only mention the Americans with Disabilities Act of 1990 (ADA) Public Law 101-336. Tellingly the ADA Amendments Act of 2008, Public Law 110-325, is completely missing. http://en.wikipedia.org/wiki/ADA_Amendments_Act_of_2008 Disability accommodation also includes the Rehabilitation Act of 1973, and Ratified Treaties of the United States, which are the supreme law of the land under Article VI, Section 2. Also Florida Chapter 825 as it related to disabled adults. The link is broken to the Fifth Circuit’s online ADA Accommodation Request Form http://www.circuit5.org/c5/adarequest/ I plan to file a complaint and/or grievance for these and other issues. I will use the Florida Supreme Court ADA Accommodation Request Form in lieu of the Fifth Circuit ADA Form. Counsel appoint under the ADA is legitimate, contrary to information on the Fifth Circuit ADA website. See, The ADA: One Avenue to Appointed Counsel Before a Full Civil Gideon, law review, http://digitalcommons.law.seattleu.edu/sjsj/vol2/iss2/30/ 2/9/2015 9 Page 2 of 3 The American Bar Association (ABA) recently added a "Civil Right to Counsel" page, "Law Governing Appointment of Counsel in State Civil Proceedings", http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/civil_right_to_counsel.html with 50 research reports, one for each state (link to Florida) http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manual_fl.authcheckdam.pdf detailing existing authority for appointment of counsel in various types of civil proceedings, such as, Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court…." 42 U.S.C. § 3613 (a)(1)(A). Further, "[u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may-- (1) appoint an attorney for such person…." 42 U.S.C. § 3613(b). Also see page 16, Fla. Stat. § 29.007 (2011) ("Court-appointed counsel"). This section applies in any situation in which the court appoints counsel to protect a litigant’s due process rights. There is an Appendix: International Law Relating to Appointment of Counsel in Civil Proceedings. http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manual_appendix.authcheckdam.pdf Sandy D’Alemberte wrote in Tributaries of Justice: The Search For Full Access, 25 Fla. St. U. L. Rev 631, Section V. Tributary Four, "Some court opinions hint that access to legal representation in civil cases might be a constitutional entitlement. footnote 58, See In re Amendments to Rules Regulating The Florida Bar—1-3.1(a) and Rules of Judicial Administration—2.065 (Legal Aid), 598 So. 2d 41, 43 (Fla. 1992) (noting that "the right to counsel is no longer limited to criminal cases")" http://www.law.fsu.edu/journals/lawreview/downloads/253/dalember.pdf The U.S. Eleventh Circuit has a duty and authority to make a Non-Criminal Justice Act Counsel Appointment. The U.S. Eleventh Circuit adopted provisions for furnishing representation for persons financially unable to obtain adequate representation in cases and situations which do not fall within the scope of 18 U.S.C. § 3006A, as amended -- but in which the court believes that the interests of justice will be served by the presence of counsel. See Addendum Five, U.S. Eleventh Circuit, Rev.: 8/07, found online, http://www.ca11.uscourts.gov/attorney-info/criminal-justice-act http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/RulesAddendum05AUG07.pdf ADDENDUM FIVE NON-CRIMINAL JUSTICE ACT COUNSEL APPOINTMENTS The court adopts these provisions for furnishing representation for persons financially unable to obtain adequate representation in cases and situations which do not fall within the scope of 18 U.S.C. § 3006A, as amended – but in which the court believes that the interests of justice will be served by the presence of counsel. 10A Fla. Jur 2d Constitutional Law § 480. The guaranty of due process of law extends to every type of legal proceeding. Pelle v. Diners Club, 287 So. 2d 737 (Fla. Dist. Ct. App. 3d Dist. 1974); Tomayko v. Thomas, 143 So. 2d 227 (Fla. Dist. Ct. App. 3d Dist. 1962). Whenever life, liberty, or property rights are involved in any official action, the organic requirements of due process of law must be afforded, whether such action is the exercise of the powers of government by governmental departments, State ex rel. Barancik v. Gates, 134 So. 2d 497 (Fla. 1961); Williams v. Kelly, 133 Fla. 244, 182 So. 881 (1938) or a duly authorized administrative or ministerial function or duty. State ex rel. Barancik v. Gates. The constitutional guaranty of due process of law applies not only to court and administrative procedures, but also to legislative acts. Williams v. U.S., 179 F.2d 644 (5th Cir. 1950), cert. granted, 340 U.S. 849, 71 S. Ct. 77, 95 L. Ed. 622 (1950) and judgment aff'd, 341 U.S. 70, 71 S. Ct. 581, 95 L. Ed. 758 (1951) (implied overruling on other grounds recognized by, U.S. v. McDermott, 918 F.2d 319 (2d Cir. 1990)) and (overruling on other grounds recognized by, Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820, 136 Ed. Law Rep. 15 (4th Cir. 1999)). 10A Fla. Jur 2d Constitutional Law § 483. Due process encompasses both substantive and procedural due process. McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994); M.W. v. Davis, 756 So. 2d 90, 25 Fla. L. Weekly S334 (Fla. 2000); State v. O.C., 748 So. 2d 945, 24 Fla. L. Weekly S425 (Fla. 1999). Thank you in advance for the courtesy of a reply. Neil J. Gillespie 8092 SW 115th Loop Ocala, Florida 34481 Email: neilgillespie@mfi.net Telephone: 352-854-7807 ----- Original Message ----From: Fagan, Grace To: neilgillespie@mfi.net Sent: Wednesday, December 03, 2014 2:24 PM Subject: FW: Public records request to Grace Fagan, General Counsel Fifth Judicial Circuit; and by US mail to Lake County Judicial Center, PO Box 7800, Tavares, FL 32778-7800 Mr. Gillespie Please see the attached response to your public records request. A hard copy will follow via US Mail. 2/9/2015 Page 3 of 3   Grace A. Fagan Grace A. Fagan, Esquire General Counsel for the Fifth Judicial Circuit Lake County Courthouse (352) 253-1615 Hernando County Courthouse (352) 754-4860 gfagan@circuit5.org NOTICE OF CONFIDENTIALITY This E-mail message and its attachments (if any) are intended solely for the use of the addressee hereof. In addition, this message and the attachments (if any) may contain information that is confidential, privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error, please promptly notify the sender by reply E-mail and immediately delete this message from your system.       From: Grace Fagan [mailto:gracefagan@yahoo.com] Sent: Tuesday, December 02, 2014 12:25 PM To: Fagan, Grace Subject: Fwd: Public records request to Grace Fagan, General Counsel Fifth Judicial Circuit; and by US mail to Lake County Judicial Center, PO Box 7800, Tavares, FL 32778-7800 Sent from my iPhone Begin forwarded message: From: "Neil Gillespie" Date: November 26, 2014 at 6:05:27 PM EST To: "Grace Ann Fagan" Cc: "Hon. Hale Ralph Stancil" , "Robyn Katz" , "McCalla Raymer E-service" , "Jane Bond" , "Delilah Lugo" , "Curtis Wilson" , "Tameka Gordon, ADA Coordinator" , , "Patricia Ann Toro Savitz" , "Jon Marshall Oden" , "Barry Rodney Davidson" , "Frank Harlan Killgore Jr." , "Neil Gillespie" Subject: Public records request to Grace Fagan, General Counsel Fifth Judicial Circuit; and by US mail to Lake County Judicial Center, PO Box 7800, Tavares, FL 32778-7800 2/9/2015 FLORIDA STATE COURTS SYSTEM ADA TITLE II ACCOMMODATION REQUEST FORM 1 June 28, 2010 RIGHT TO AN ACCOMMODATION If you are an individual with a disability who needs an accommodation in order to participate in a court proceeding or other court service, program, or activity, you are entitled, at no cost to you, to the provision of certain assistance. Requests for accommodations may be presented on this form, in another written format, or orally. Please complete the attached form and return it to the following: Citrus County – John Sullivan, Citrus County Courthouse, 110 N. Apopka Ave, Inverness, Fl, 34450, phone 352-341-6700, fax 352-341-7008, jsullivan@circuit5.org Hernando County-Peggy Welch, Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601, phone 352-754-4402, fax 352-754-4035, pwelch@circuit5.org Lake County-Nicole Berg, Lake County Judicial Center, PO Box 7800, Tavares, FL 32778, phone 352-253-1604, fax 352-253-1630, nberg@circuit5.org Marion County-Tameka Gordon, Marion County Judicial Center, 110 NW 1st Ave, Ocala, FL 34475, phone 352-401-3710, fax 352-401-7883, tgordon@circuit5.org Sumter County-Lorna Barker, Sumter County Judicial Complex, 225 E. McCollum Ave, Bushnell, FL 33513, phone 352-569-6012, fax 352-569-6098, lbarker@circuit5.org This should be done as far in advance as possible, but preferably at least seven (7) days before your scheduled court appearance or other court activity. Upon request by a qualified individual with a disability, this document will be made available in an alternate format. If you need assistance in completing this form due to your disability, or to request this document in an alternate format, please contact Citrus County – John Sullivan, Citrus County Courthouse, 110 N. Apopka Ave, Inverness, Fl, 34450, phone 352-341-6700, fax 352-341-7008, jsullivan@circuit5.org 1 This form was developed for use by individuals with disabilities who may require a modification in a policy, provision of an auxiliary aid or service, or assignment to an accessible location in order to participate in a court proceeding or other court service, program, or activity that is covered by Title II of the Americans with Disabilities Act. Court employees with disabilities who need a reasonable accommodation to be able to perform the essential functions of their jobs should contact their immediate supervisor, the ADA coordinator for their court, the OSCA Office of Personnel Services, or the State Courts ADA Coordinator. 10 Hernando County-Peggy Welch, Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601, phone 352-754-4402, fax 352-754-4035, pwelch@circuit5.org Lake County-Nicole Berg, Lake County Judicial Center, PO Box 7800, Tavares, FL 32778, phone 352-253-1604, fax 352-253-1630, nberg@circuit5.org Marion County-Tameka Gordon, Marion County Judicial Center, 110 NW 1st Ave, Ocala, FL 34475, phone 352-401-3710, fax 352-401-7883, tgordon@circuit5.org Sumter County-Lorna Barker, Sumter County Judicial Complex, 225 E. McCollum Ave, Bushnell, FL 33513, phone 352-569-6012, fax 352-569-6098, lbarker@circuit5.org ADA ACCOMMODATIONS PROVIDED BY FLORIDA COURTS Pursuant to Title II of the Americans with Disabilities Act the Florida State Courts System will make reasonable modifications in policies, practices, and procedures; furnish auxiliary aids and services; and afford program accessibility through the provision of accessible facilities, the relocation of services or programs, or the provision of services at alternative sites, as appropriate and necessary. Examples of auxiliary aids or services that the State Courts System may provide for qualified individuals with disabilities include: ƒ ƒ ƒ ƒ ƒ Assistive listening devices Qualified ASL or other types of interpreters for persons with hearing loss Communication access real-time translation / Real-time transcription services Accessible formats such as large print, Braille, electronic document, or audio tapes Qualified readers Accommodations that are granted by the state courts are made at no cost to qualified individuals with disabilities. 2 2 Please note that providing accommodations for some individuals with disabilities who appear in the courtroom as part of their employment duties or professional practice is a responsibility that appropriately may be shared by the individual’s employer and the courts. Title I of the Americans with Disabilities Act requires employers of 15 or more employees and Title II of the Americans with Disabilities Act requires all state and local government employers to provide reasonable accommodations to qualified employees with disabilities. In addition, Section 504 of the Rehabilitation Act of 1973, as amended, covers recipients of federal funding, and requires all covered organizations to provide accommodations for their employees. These responsibilities are concomitant with the courts’ responsibility under Title II of the ADA. It is to everyone’s benefit when employers and the court system work together to ensure that reasonable accommodations for individuals with disabilities are provided in the most efficient and cost effective manner. Florida State Courts System Page 2 ADA Accommodation Request Form AIDS/SERVICES COURTS CANNOT ADMINISTRATIVELY GRANT AS ADA ACCOMMODATIONS Examples of aids or services the Florida State Courts System cannot provide as an accommodation under Title II of the Americans with Disabilities Act include: ƒ ƒ ƒ ƒ ƒ ƒ Transportation to and from the courthouse Legal counsel or advice An official transcript of a court proceeding Personal devices such as wheelchairs, hearing aids, or prescription eyeglasses Personal services such as medical or attendant care Readers for personal use or study Additionally, the courts cannot administratively grant, as an ADA accommodation, requests that impact court procedures within a specific case. Requests for an extension of time, a change of venue, or participation in court proceedings by telephone or videoconferencing must be submitted by written motion to the presiding judge as part of the case. The judge may consider an individual’s disability, along with other relevant factors, in granting or denying the motion. Furthermore, the court cannot exceed the law in granting a request for an accommodation. For example, the court cannot extend the statute of limitations for filing an action because someone claims that he or she could not make it to the court on time due to a disability, nor can the court modify the terms of agreements among parties as an ADA accommodation. Finally, the Americans with Disabilities Act (ADA) does not require the court system to take any action that would fundamentally alter the nature of court programs, services, or activities, or that would impose an undue financial or administrative burden on the courts. DOCUMENTATION OF THE NEED FOR AUXILIARY AIDS AND SERVICES If an individual has a disability that is not obvious, or when it is not readily apparent how a requested accommodation relates to an individual’s impairment, it may be necessary for the court to require the individual to provide documentation from a qualified health care provider in order for the court to fully and fairly evaluate the accommodation request. These information requests will be limited to documentation that (a) establishes the existence of a disability; (b) identifies the individual’s functional limitations; and (c) describes how the requested accommodation addresses those limitations. Any cost to obtain such documentation is the obligation of the person requesting the accommodation. Florida State Courts System Page 3 ADA Accommodation Request Form FLORIDA STATE COURTS SYSTEM TITLE II ADA ACCOMMODATION REQUEST FORM Please return this completed form to: Citrus County – John Sullivan, Citrus County Courthouse, 110 N. Apopka Ave, Inverness, Fl, 34450, phone 352-341-6700, fax 352-341-7008, jsullivan@circuit5.org Hernando County-Peggy Welch, Hernando County Courthouse, 20 N. Main Street, Brooksville, FL 34601, phone 352-754-4402, fax 352-754-4035, pwelch@circuit5.org Lake County-Nicole Berg, Lake County Judicial Center, PO Box 7800, Tavares, FL 32778, phone 352-253-1604, fax 352-253-1630, nberg@circuit5.org Marion County-Tameka Gordon, Marion County Judicial Center, 110 NW 1st Ave, Ocala, FL 34475, phone 352-401-3710, fax 352-401-7883, tgordon@circuit5.org Sumter County-Lorna Barker, Sumter County Judicial Complex, 225 E. McCollum Ave, Bushnell, FL 33513, phone 352-569-6012, fax 352-569-6098, lbarker@circuit5.org This should be done as far in advance as possible, but preferably at least seven (7) days before your scheduled court appearance or other court activity. 12 10 2014 1. Date request submitted: ______/______/______ 2. Person needing accommodation Neil J. Gillespie Name: _________________________________________________________________ Are you (please check one of the following seven options): [ ] Defendant [✔] Litigant/Party [ ] Witness [ ] Juror [ ] Victim [ ] Attorney [ ] Other (please specify): __________________________________________________ 3. Contact information for person needing accommodation 8092 SW 115th Loop Street or P.O. Box: ________________________________________________________ Ocala City: ___________________________________________________________________ Florida 34481 State: ___________________________________ Zip Code: _____________________ 352-854-7807 Telephone Number (include area code): ______________________________________ neilgillespie@mfi.net Email Address: ___________________________________________________________ 4. Person making request (if other than the person needing the accommodation) n/a Name: _________________________________________________________________ n/a Telephone Number (include area code): ______________________________________ n/a Email Address: __________________________________________________________ n/a Relationship to person needing an accommodation: ____________________________ Florida State Courts System Page 4 ADA Accommodation Request Form 5. Case information (if applicable) Reverse Mortgage Solutions Inc v Neil J Gillespie et al Style of case (case title), if known: __________________________________________ 2013-CA-000115 or 42-2013-CA-000115-AXXX-XX Case number, if known: __________________________________________________ Hon. Hale Stancil Judge, if known: ________________________________________________________ Hearing Dec-18-2014 and duration of this case Date accommodation needed: ______________________________________________ The hearing is 10:00 AM Time accommodation needed: ______________________________________________ County Judicial Location (courthouse/courtroom) accommodation needed: Marion _______________________ duration of this case. Duration for which the accommodation is requested: ____________________________ Type of case, if known (please check one of the following ten options): [ ] appeal [ ] circuit criminal [ ] circuit civil [ ] probate, guardianship, or mental health [ ] traffic court [ ] small claim [ ] family court [ ] county criminal [ ] county civil home foreclosure [✔] other (please specify) HECM ____________________ Type of proceeding, if known (please check one of the following six options): [ ] arraignment [ ] bond hearing [ ] hearing [ ] trial [ ] appellate oral argument Case management conference [✔] other (please specify) __________________________________________________ 6. Accommodations requested TBI traumatic brain injury, see Nature of disability that necessitates accommodation: ___________________________ Amended Disability Motion, US 11th Circuit, 12-11213-C, Neil J Gillespie copy available ________________________________________________________________________ Accommodation requested (please check one of the following six options): [ ] Assistive listening device (Assistive listening systems work by increasing the loudness of sounds, minimizing background noise, reducing the effect of distance, and overriding poor acoustics. The listener uses a receiver with headphones or a neckloop to hear the speaker.) [ ] Communication access real-time translation/real-time transcription services (CART is a word-for-word speech-to-text interpreting service for people who need communication access. A rendering of everything said in the courtroom will appear on a computer screen. CART is not an official transcript of a court proceeding.) [ ] Sign Language Interpreter (Please specify American Sign Language, oral interpreter, signed English, or other type of signing system used by persons with hearing loss.):_______________________________________________________ ___________________________________________________________________ [ ] Assignment to a courtroom that is accessible to a person using a mobility device (Please specify wheelchair, scooter, walker, or other mobility device that is used.):_ ___________________________________________________________________ [ ] Provision of court documents in an alternative format (Please specify Braille, large print, accessible electronic document, or other accessible format used by persons who are blind or have low vision.): _________________________________ Florida State Courts System Page 5 ADA Accommodation Request Form Counsel Appointment w/o conflict, see [✔ ] Other accommodation (please specify): _____________________________________ "The ADA: One Avenue to Appointed Counsel Before a Full Civil Gideon," ________________________________________________________________________ Seattle Journal for Social Justice: Vol. 2: Iss. 2, Article 30, copy on request. ________________________________________________________________________ The ADA Amendments Act of 2008 (Public Law 110-325, ADAAA), also see ________________________________________________________________________ Amended Disability Motion, US 11th Circuit, 12-11213-C, Neil J Gillespie copy available ________________________________________________________________________ 7. Use the Submit Button (immediately following) to send us your request: Submit THE FOLLOWING SECTION IS TO BE COMPLETED BY COURT PERSONNEL ONLY 8. Date request was received: ______/______/______ 9. Additional oral or written information requested? [ ] Yes [ ] No If so, describe information: ____________________________________________________ ___________________________________________________________________________ 10. Describe the accommodation(s) granted by the court: ______________________________ __________________________________________________________________________ 11. Indicate the duration the accommodation will be provided: __________________________ ___________________________________________________________________________ 12. If an accommodation is denied, indicate reason(s) for denial:3 [ ] Based on the information provided, it appears the person does not have a disability as defined by the ADA [ ] Requested accommodation does not directly correlate to functional limitations [ ] Request relates to a service, program, or activity outside the court system (transportation, legal representation, mental health counseling, parenting course, etc.) 3 If the request is denied, granted only in part, or if an alternative accommodation is granted, Rule of Judicial Administration 2.540 requires the court to respond in writing to the individual with a disability. Transmittal of a copy of this section of the accommodation request form by email or by U.S. Mail delivery is one means of providing the written response required by rule 2.540. If an accommodation is denied due to a finding of undue burden or fundamental alteration, the Americans with Disabilities Act requires that such determination be made in writing by the chief judge or chief judge’s designee. Florida State Courts System Page 6 ADA Accommodation Request Form [ ] Request is for an aid/service the courts cannot administratively grant as an accommodation pursuant to Title II of the ADA (official transcript, extension of time, etc.) [ ] Requested accommodation would result in an undue burden [ ] Requested accommodation would result in a fundamental alteration [ ] Other (please specify): _____________________________________________________ 13. Remarks: __________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 14. Court staff responding to request: ______________________________________________ 15. Date person notified of determination: ______/______/______ Florida State Courts System Page 7 ADA Accommodation Request Form DIRECTORY FLORIDA COURT ADA COORDINATORS Revised: February 7, 2012 SUPREME COURT 4th DISTRICT COURT OF APPEAL Mr. Silvester Dawson Marshal 500 S. Duval Street Tallahassee, FL 32399-1900 Phone: 850-488-8845 Fax: 850-921-2775 Mr. Glen G. Rubin Marshal 1525 Palm Beach Lakes Boulevard West Palm Beach, FL 33401 Phone: 561-242-2111 Fax: 561-242-2016 1st DISTRICT COURT OF APPEAL 5th DISTRICT COURT OF APPEAL Mr. Stephen Nevels Marshal 2000 Drayton Drive Tallahassee, FL 32399-0950 Phone: 850-488-8136 Fax: 850-488-7989 Mr. Ty Berdeaux Marshal 300 South Beach Street Daytona Beach, FL 32114 Phone: 386-947-1544 FAX: 386-947-1565 2nd DISTRICT COURT OF APPEAL 1st CIRCUIT Ms. Jo Haynes Suhr Marshal P. O. Box 327 Lakeland, FL 33802 Phone: 863-499-2290 Fax: 863-413-2649 Ms. Shelia A. Sims Senior Deputy Court Administrator 190 Governmental Center, 5th Floor Pensacola, FL 32502-4400 Phone: 850-595-4400 Fax: 850-595-0360 2nd CIRCUIT 3rd DISTRICT COURT OF APPEAL Ms. Susan Wilson Office of Court Administration Leon County Courthouse 301 South Monroe Street Tallahassee, FL 32301 Phone: 850-577-4430 Fax: 850-487-7947 Mr. Alan Sadowski Marshal 2001 S.W. 117 Avenue Miami, FL 33175-1716 Phone: 305-229-3200, ext. 3237 Fax: 305-229-3206 Page 1 11 Ms. Nicole Berg P. O. Box 7800 Tavares, FL 32778 Phone: 352-253-1604 Fax: 352-742-4370 ADA Duties: Lake County 3rd CIRCUIT Ms. Carrina Cooper Court Operations Consultant 173 N.E. Hernando St., Room 408 Lake City, FL 32056-1569 Phone: 386-758-2163 Fax: 386-758-2162 Ms. Lorna Barker 225 E. McCollum Avenue, Room 209 Bushnell, FL 33513 Phone: 352-569-6088 Fax: 352-569-6098 4th CIRCUIT Mr. James W. Ivey Court Facilities Manager Fourth Judicial Circuit 330 E. Bay Street, Suite 507-C Jacksonville, FL 32202 Phone: 904-630-1897 Fax: 904-357-5930 6th CIRCUIT 5th CIRCUIT 7th CIRCUIT Mr. John D. Sullivan 110 N. Apopka Street Inverness, FL 34450-4231 Phone: 352-341-6700 Fax: 352-341-7008 ADA Duties: Citrus County Ms. Anne Landolfa 125 E. Orange Avenue, Suite 300 Daytona Beach, FL 32114 Phone: 386-248-8105 Fax: 386-257-6069 Ms. Peggy Welch 20 N. Main Street, Room 350 Brooksville, FL 34601 Phone: 352-754-4402 Fax: 352-754-4267 ADA Duties: Hernando County 8th CIRCUIT Ms. Karen Weitzel 14250 49th Street North Clearwater, FL 33762 Phone: 727-453-7163 Fax: 727-453-7166 Ms. Vanessa Sagar Human Resources Manager Office of the Court Administrator 201 E. University Avenue Gainesville, Florida 32601 Phone: 352-337-6237 Fax: 352-384-3018 Ms. Tameka Gordon 110 N.W. 1st Avenue Ocala, FL 34475 Phone: 352-401-6710 (ADA line) Fax: 352-401-7883 ADA Duties: Marion County Page 2 9th CIRCUIT 12th CIRCUIT Ms. MaryBeth D’Auria Human Resources Manager Orange County Courthouse 425 N. Orange Avenue, Suite 510 Orlando, FL 32810 Phone: 407-742-2418 Fax: 407-835-5079 ADA Duties: Orange County Mr. William P. Price Human Resources Manager 2002 Ringling Blvd - 8th Floor Sarasota, FL 34237 Phone: 941-861-7811 Fax: 941-861-7904 Ms. Kelly Gallman Court Operations Manager Osceola County Courthouse Two Courthouse Square, Suite 6300 Kissimmee, FL 34741 Phone: 407-343-2418 Fax: 407-343-2401 ADA Duties: Osceola County 13th CIRCUIT 10th CIRCUIT 14th CIRCUIT Mr. Nick Sudzina Trial Court Administrator P. O. Box 9000 Bartow, FL 33831 Phone: 863-534-4686 Fax: 863-534-4699 Ms. Robyn Gable Court Operations Consultant P. O. Box 1089, 301 McKenzie Panama City, FL 32402 Phone: 850-747-5338 Fax: 850-747-5717 ADA Duties: Bay County Ms. Nancy Yanez Chief Deputy Court Administrator 800 E. Twiggs Street, Room 604 Tampa, FL 33602-3549 Phone: 813-272-6457 Fax: 813-301-3800 Ms. Amber Baggett Senior Court Program Specialist P. O. Box 826 Marianna, FL 32447-0826 Phone: 850-482-9844 Fax: 850-482-9123 ADA Duties: Calhoun, Gulf, Holmes, Jackson, and Washington Counties 11th CIRCUIT Ms. Maria E. Mihaic Human Resources Division Lawson E. Thomas Courthouse Center 175 N.W. 1st Avenue, Suite 2702 Miami, FL 33128 Phone: 305-349-7354 Fax: 305-349-7355 Page 3 Ms. Kelly Burnett Criminal Justice Center 101 Bush Boulevard Sanford, FL 32773 Phone: 407-665-4945 Fax: 407-665-4932 ADA Duties: Seminole County 15th CIRCUIT Ms. Dominique T. March Chief of Personnel Services 205 North Dixie Highway West Palm Beach, FL 33401 Phone: 561-355-2154 Fax: 561-355-6711 19th CIRCUIT Ms. Corrie Johnson 250 NW Country Club Drive, Suite 217 Port Saint Lucie, FL 34986 Phone: 772-807-4383 Fax: 772-807-4377 16th CIRCUIT Ms. Cheryl Alfonso Court Operations Manager 502 Whitehead Street Key West, FL 33040 Phone: 305-295-3652 Fax: 305-292-3435 20th CIRCUIT Mr. Jim Sullivan Operations Division Director Administrative Office of the Courts 1700 Monroe Street, Suite 1213 Ft. Myers, FL 33901 Phone: 239-533-1521 Fax: 239-533-1757 17th CIRCUIT Ms. Cheryl Anderson 201 S.E. 6th Street, Room 1000 Ft. Lauderdale, FL 33301 Phone: 954-831-7743 Fax: 954-831-5572 OFFICE OF THE STATE COURTS ADMINISTRATOR 18th CIRCUIT Ms. Debbie Howells Statewide Court ADA Coordinator Office of the State Courts Administrator 500 S. Duval Street Tallahassee, FL 32399-1900 Phone: 850-922-4370 Fax: 850-488-0156 Ms. Susan Phillips Moore Justice Center 2825 Judge Fran Jamieson Way Viera, FL 32940 Phone: 321-637-5673 Fax: 321-633-2172 ADA Duties: Brevard County Page 4