Hearing must be scheduled to assess interpreter needs before trials, hearings involving deaf people

From the Wisconsin Law Journal:

A hearing to determine whether a deaf person needs an interpreter must be scheduled before the hearing for which the interpreter is requested.

Writing for the Wisconsin Court of Appeals on Feb. 18, Judge Richard Brown wrote, “Courts are public entities that must be accessible to all. We must assure that, if a person is disabled and needs an accommodation to have access to the courts, then that disabled person should not have to worry about access issues when preparing for the substantive hearing. To do otherwise is no way to conduct judicial business (emphasis in original).”

Wisconsin law has long required interpreters in criminal cases, when needed, but this is the first case to address the issue in a civil case.

Jeremy R. Vanderloop, of the Madden Law Firm in Mayville, represented the deaf litigant, Dean Kedinger, on appeal.

Vanderloop said that, when researching the case, he found no cases involving the proper procedure in civil cases for litigants who are hard of hearing.

Noting that current statutes, amended since the hearing in this case, require interpreters even in civil cases, Vanderloop said, “I think the court ordered publication of this opinion to clarify the procedure circuit courts should follow.”

Kedinger and Terry K. Strook are neighbors who had a property dispute.

Strook sued Kedinger for trespassing, and Kedinger filed an answer, cross-claims and counterclaims, as well as a motion to dismiss. Later, he filed a request for an interpreter, including a doctor’s letter in support.

Fond du Lac County Circuit Court Judge Richard J. Nuss scheduled a motion hearing, but a court staffer informed Kedinger, who called the court via TYY, that no interpreter would be provided. Kedinger replied that, as a result, he would not attend the hearing, and indeed, he did not appear at the scheduled time.

Judge Nuss held the hearing, striking Kedinger’s counterclaims and cross-claims, dismissed his motion to dismiss, and held that the court would not provide an interpreter for court hearings.

After trial, Kedinger appealed, and the Court of Appeals reversed, concluding that the circuit court’s procedures ran afoul of Wisconsin law, the Americans with Disabilities Act (ADA), and the Due Process Clause.

At the time of the motion hearing, sec. 885.38 only required an interpreter for criminal, juvenile, and mental health cases. However, circuit courts had authority to authorize court interpreters in other cases.

In addition, the ADA requires court interpreters when necessary for all court hearings. Thus, the court concluded that sec. 885.38, as it existed at the time of the hearing, violated the ADA.

“It is axiomatic that all litigants be able to understand the proceedings,” Brown wrote. “If a person is unable to hear and understand, that person is unable to participate, and if unable to participate, it is a denial of due process under the Fifth and Fourteenth Amendments.”

Looking at the record, the court found nothing to indicate that the circuit court ever intended to hold a hearing to determine the need for an interpreter, or that Kedinger was told the request for one would even be considered.

The court thus concluded, “Once Kedinger properly notified the court that he needed an interpreter, ... the ADA required the court to act on that request — either by obtaining an interpreter or setting a hearing date so that the need for an interpreter could be determined.

Since there is no record showing that a hearing to determine the need for an interpreter was on the docket, we must reverse on that ground alone.”

The court added that it would be an erroneous exercise of discretion to hold the hearing on the need for an interpreter, and the substantive hearing, on the same day, for two reasons.

First, the court found it would be inefficient to have the hearings the same day, because the substantive hearing would have to be adjourned if an interpreter were necessary.

Second, the court found it would be unfair to the disabled person to not know beforehand whether he would have an interpreter for the substantive hearing.

Before concluding, the court noted that, from the circuit court’s comments, it seemed a foregone conclusion that it would deny the request for an interpreter, even if Kedinger appeared at the hearing.

The court also discussed the difficulties that deaf persons have communicating in courts, and recommended a law review article for guidance on accommodating deaf persons in court.