Comments of IOLTA-Funded California Disability Advocacy Organizations

June 13,2014

Attn: Invitations to Comment
Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, CA 94102

To Whom It May Concern:

On behalf of the undersigned California-based, IOLTA-funded non-profit disability rights advocacy organizations, we appreciate the efforts that have been undertaken to craft a California Judicial Branch Technology Governance, Strategy and Funding Proposal (“Technology Governance Proposal”). We also appreciate this opportunity to offer our insights and recommendations in response to the Invitation to Comment (“Invitation”).

Our four offices are either solely or significantly devoted to advancing and protecting the civil rights of people with disabilities. All signatories have an extensive presence in California, and are nationally recognized for their decades-long experience with and expertise in both federal and California disability civil rights law analysis. Additional description of each of the signatory offices, with complete addresses, is attached as Appendix A.

We applaud the Judicial Council for recognizing the significance that current rapid technological developments have to the Judicial Branch, and the implications for access to justice for all Californians. This context was also the impetus for the Judicial Council’s prior consideration of a proposal for mandatory e-filing (Item Number W13-05). The undersigned offices participated in that earlier process via submission of a January 25, 2013, public comment letter. Because the insights memorialized in our January 2013 letter (“W13-05 letter”) are also relevant to the pending Technology Governance Proposal, we incorporate and cross-reference them here. We are resubmitting a copy of our January 2013 letter contemporaneously with these new June 2014 comments, and we request that both comments be made a part of the record for SP 14-04.

In June 2013, the Judicial Council adopted recommendations as to mandatory e-filing that recognized and addressed key concerns expressed by commenters from California legal services offices, including some identified in our W13-05 letter. In particular, we commend the Judicial Council for exempting self-represented litigants; adopting legal services community recommendations as to e-service and fee waivers; and acknowledging the critical importance of disability access.

We hope that the Judicial Council will be equally open to the insights offered by the legal services community as to the Technology Governance Proposal. We again note our agreement with points raised in SP14-04 submissions by the Legal Aid Association of California (LAAC), and other legal services commenters. We again write separately to focus on several issues of particular concern within the scope of our collective disability rights expertise.

We appreciate that the Technology Governance Proposal’s outlines of goals and plans are generally broad enough to encompass disability access requirements and issues. However, we are concerned that there is no explicit reference to disability access legal mandates or disability access specifics, beyond brief references to American Sign Language (ASL) interpreters in the limited context of Video Remote Interpreting (VRI) in the courtroom. Both the legalities and practicalities of disability access need to be consistently and thoughtfully addressed in all aspects of the final technology governance plan and its implementation. See W13-05 Letter at pp.3-4 & nn.6-9 (citing and discussing federal and California disability rights laws); and pp.14-15 (identifying specific access concerns relevant to various disabilities).

The Technology Governance Proposal appropriately references the importance of technology expertise, and the propriety of delegating various details as appropriate. This includes reliance on the Judicial Council Technology Committee (JCTC), and the proposed new Information Technology Advisory Committee (ITAC). As a side note, we endorse the proposal to re-designate the current Court Technology Advisory Committee as the new ITAC. This name chance correctly reflects the breadth of technology’s importance to the entire judicial branch — including more than just courts per se, and reflecting the integral nature of technology to communication and information exchange generally.

However, it is critically important that the Judicial Council commit to ensuring that these committees (or any other resources to which delegations are made) include high-quality, consistently available disability-specific expertise. This could be accomplished by designating specific in-house staff to be responsible for providing disability access expertise, provided such staff are given the time, training and resources needed for the job. This could also be accomplished by use of outside disability access consultants. In some instances, a combination of both may be best. Realistically, this will likely require allocating funding for disability access. But regardless of how the expertise is structured and funded, it cannot appropriately be an afterthought. It must be front-and-center, both because disability access is explicitly legally required, and because it is integral to realizing the true promise of access to justice in California in the 21^st century.

We appreciate the value of fostering innovation and experimentation, particularly given that — as the Technology Governance Proposal notes — there is an enormous diversity of circumstances and needs among different California court systems (e.g., urban v. rural, varying demographics, varying language needs, etc.). However, innovation and experimentation must not compromise fundamental disability access mandates. These fundamentals must be explicitly emphasized and understood as the starting point for any subsequent innovation and experimentation.

We recognize that reliance on technology can improve efficiency and access of various kinds in many circumstances — it can be a good thing. See also W13-05 Letter at pp.2-3 (disability-specific discussion of technology advantages). We also recognize that the migration to technology is inevitable, given both the benefits that it brings, and budget limitations that have forced the courts to reduce personnel and otherwise contain costs. However, technology shifts that are being driven primarily or significantly by budgetary concerns must be especially closely scrutinized. The judicial branch has a legal obligation to ensure that expediency is not driving a migration to inaccessible technology.

We appreciate the Judicial Council’s desire to respond to a broader public increasingly sophisticated in the daily use of technology, as well as the desire to ensure greater compatibility with dominant information technology systems currently in use or developing in the broader society. However, there are disability access deficits in many currently available or developing technologies. Some available technologies and patterns of use have not been thoughtfully designed in consideration of disability access concerns. Some may violate disability rights law mandates applicable to the private sector, other public sectors, or both. Regardless, they have not been vetted for compliance with judicial branch disability access mandates and practicalities. The Judicial Council cannot simply reactively adopt and endorse widely available technologies and user practices. It must make an affirmative, independent, thoughtful analysis of disability requirements and concerns, consistent with its own legal obligations and practical needs.

We appreciate the acknowledgement that the JCTC exists within the Judicial Council’s broader structure, and that the JCTC must gain important input and perspectives from other committees. In particular, the Technology Governance Proposal specifically and appropriately identifies the importance of input from (a) Business and technology advisors, (b) Funding advisors, and (c) Leadership advisors. However, the absence of explicit reference to Access & Fairness advisors is striking. Access & Fairness input should also be specifically referenced and contemplated.

Again, we commend the Judicial Council for recognizing the critical importance of a thoughtful approach to judicial branch technology governance, strategy and funding issues. As with ongoing e-filing and e-service developments, we would be happy to serve as a further resource to the Judicial Council as to the recommendations memorialized in this comment, and in our prior W13-05 letter.

Respectfully submitted,

DRC by Catherine J. Blakemore, catherine.blakemore@disabilityrightsca.org
DREDF by Linda D. Kilb, lkilb@dredf.org
DRLC by Paula D. Pearlman, paula.pearlman@lls.edu
LAS-ELC by Jinny Kim, jkim@las-elc.org

Disability Rights California (DRC) (formerly Protection & Advocacy)
is a private non-profit agency established under federal law to advance the rights of Californians with disabilities. DRC receives California IOLTA funding as a qualified legal services project. Contact via Catherine J. Blakemore, Esq., Executive Director, Disability Rights California, 1831 K Street, Sacramento, CA 95811, catherine.blakemore@disabilityrightsca.org

Disability Rights Education & Defense Fund (DREDF) is a national nonprofit law and policy center founded in 1979 by adults with disabilities and parents of children with disabilities, dedicated to advancing and protecting the civil rights of people with disabilities. DREDF receives California IOLTA funding as the support center offering disability rights expertise to the California legal services system. Contact via Linda D. Kilb, Esq., Director, DREDF IOLTA Support Center Program, Disability Rights Education & Defense Fund, 3075 Adeline Street, Suite 210, Berkeley, CA 94703, lkilb@dredf.org

Disability Rights Legal Center (DRLC) has worked to implement the civil rights of people with disabilities for over 35 years. DRLC is the oldest cross-disability legal advocacy organization in the country, championing the rights of people with disabilities through education, advocacy and litigation. DRLC provides assistance through its four programs: Civil Rights Litigation Project, Cancer Legal Resource Center,
Education Advocacy Project, and Community Advocacy Program, and receives California IOLTA funding as a qualified legal services project. Contact via Paula D. Pearlman, Esq, Executive Director, Disability Rights Legal Center, 800 South Figueroa Street, Suite 1120, Los Angeles, CA 90017, paula.pearlman@lls.edu

Legal Aid Society–Employment Law Center (LAS-ELC) is a nonprofit, legal services organization that has been assisting California’s low-income working families for more than 90 years. LAS-ELC has a Disability Rights Program specifically dedicated to disability rights law issues. LAS-ELC receives California IOLTA funding as a qualified legal services project. Contact via Jinny Kim, Esq., Director, Disability Rights Program, Legal Aid Society-Employment Law Center 180 Montgomery Street, Suite 600, San Francisco, CA 94104, jkim@las-elc.org