A representative copy of the submitted letter

Jacquelyn Finney
Encinitas, CA
November 22, 2003

David Yamasaki
Assistant Executive Officer
Superior Court of San Diego County
North County Center
325 South Vista Way
Vista, CA 92083-6627

Re: Transmittal Letter/Complaint
Third Request for Transcript, (Case No. GIN024734)
Request for Disability Accommodation per Americans With Disabilities Act, Title II

Dear Mr. Yamasaki:

I am the plaintiff In Pro Per in the aforementioned case. I am totally disabled from polio. Court administration employees are required, pursuant to the Americans With Disabilities Act, Title II, California Rule of Court 989.3, California public policy and Superior Court local court rules to reasonably accommodate me and my caregiver, Robert D. Finney.

I have directed this correspondence to you in your capacity as the Assistant Executive Officer for the North County Center. I have copied William C. Vickrey, Administrative Director of the Courts, because he is responsible for monitoring the effectiveness of judicial governance, in particular the Continuing Judicial Studies Program and ADA compliance programs. His duties include detecting and abolishing systemic, embedded customs, policies and practices that violate the rights of disabled persons as well as affirmatively implementing protections for disabled persons.

According to a September 19, 2003 press release, Chief Justice Ronald M. George, made a public statement that the Judicial Council of California "…approved a set of guidelines that will help provide fair legal access to justice throughout the state… Chaired by Chief Justice George, the 27-member Council approved these principles at a public meeting to guide courts as they manage their budgets."

One of these principles instructs the courts to "…Protect resources dedicated to eliminating barriers to access for the most vulnerable (for example, …persons with disabilities…)." Presiding Judge Richard E. L. Strauss, Supervising Judge Joan P. Weber and Judge Thomas P. Nugent of the San Diego County Superior Court have violated and continue to violate this principle.

Prior Requests for Transcript

At my behest, on October 31, 2003, Dr. Finney, acting on information provided by several court employees (including Rowena Noriega, Tina Roberts and Holly Nottingham-Adams), attempted to contact Christine Ohanneson (CSR6276), Court Reporter, Department 30, to obtain a transcript of a hearing. On the instructions of a clerk who assisted him, he used the telephone provided by the Court to call Ms. Ohanneson to obtain a copy of the transcript.

She did not answer the call. Rather, her voicemail prerecorded message instructed him to provide contact information and stated she would return his message. Dr. Finney left a voicemail message, provided required information, including the case number and his telephone number, and requested a return call, which Ms. Ohanneson had promised to provide in her recorded message.

On November 3, 2003, he again telephoned her and provided a second request for transcript in that she had not responded to his October 31st request. Additionally, that same day he called her again, leaving another message, to assure she had his telephone number. As of the date of this letter, Dr. Finney has not been contacted by Ms. Ohanneson.

Third Request for Transcript

Attached is the two-page, On-Line Transcript Request Form, published by the Kern Country Superior Court, which I obtained from the internet. (Attachment No. 1) As the San Diego County Superior Court neither provides on-line request forms nor publishes any other request form that it discloses, I have adapted and completed the Kern County's "Online Transcript Request Form" to make my third request for this transcript.

Undisclosed and Inconsistent Court Information

I have completed the form by hand to emphasize some of my disability limitations (e.g., fine motor skills limitations) and the importance of court officials' implementation of ADA requirements. Disabled persons may need court personnel to accommodate them by completing forms. For example, I have witnessed disabled persons whose limitations caused them to write with their feet. I suggest that the Court avoid creating any situation that creates humiliation or discomfort for all disabled persons. It is not a burden for the court to do so.

Additionally, the Court's failure to provide prominent and easily readable information for the disabled on its home page is a barrier to access. The subtext is that the disabled are not welcome and need not apply. These omissions violate the letter and spirit of the ADA, indicating a policy and practice to intentionally violate disabled persons' right to petition the courts.

Procedural Barriers

No one, including three judges, numerous clerks, and your own Executive Assistant, informed Dr. Finney of the existence of the Court's ADA Coordinator. Dr. Finney's burdensome research discovered disturbing information, which we accept as factual unless the court provides us with verifiable, reliable documentation to the contrary.

The ADA Coordinator is not disclosed on the Court's website, although the position and employee is identified on the Court's intranet, which is not accessible to the public even through the County law library.

Misuse of Funds

The ADA Coordinator also prepares grant applications. As a former federal contracts officer, I uncovered numerous instances of fraud on the part of agencies receiving government funds. These agencies accepted federal funds to establish positions (or add functions) that would indicate they were implementing government mandates in good faith. Rather than use the funds to satisfy their contractual obligations, these agencies defrauded the government by assigning unrelated duties to the position or implementing the mandated function in name only.

Whether or not the Superior Court receives money to fund the ADA Coordinator position, the information would be expected to be reflected in proactive employees taking the initiative to help disabled persons and their caregivers. The ADA Coordinator would be prominently disclosed with ease of contact to implement the law with full transparency, including ADA related information which would be prominently displayed on the Court's website homepage in addition to providing ease of navigation and user-friendly tools such as forms that could be completed on-line and submitted from the site, itself.

Based on our experience and research, the San Diego Superior Court does none of these things.

Additionally, to test the truth of the efficacy of Presiding Judge Richard E.L. Strauss' recommendation to use a "public law library" as a primary remedy (Attachment No. 4), Dr. Finney contacted the San Diego County Public Law Library. He requested a librarian's assistance to double check his own research regarding the Court's website for references to disability, ADA law, ADA Coordinator, and the process to obtain a transcript. Dr. Finney's investigation proved to be valid. The librarian was not able to identify the references and in fact complained about how poorly designed and user unfriendly the website is.

Additionally, Judge Strauss' statement that "each law school in town has a law library" was of no use in that these libraries function to meet the needs of law students enrolled in their respective programs.

Transcript Request Procedure Violation

Attached is my Notice to the Court of Intent to file a Petition for Writ of Mandate. The Notice states that "Enclosed is a check in the amount of $50.00 to be applied to the costs to produce the requested record.". (Attachment No. 2, p. 2, lines 6-7) As none of the Court employees would accept the check due to purported custom and practice, this statement is inaccurate.

However, the San Diego Superior Court's own website states in "Appeals, FAQs" as follows:

"Fees for reporter's transcripts may be deposited with the appeals clerk or directly with the court reporter."

The plain meaning of this statement advises citizens that the clerk should have accepted the deposit payment that was attached to the Notice.

Additionally, after Dr. Finney obtained the name of Ms. Ohanneson (Attachment No. 3), called her and reached her recorded message, he returned to the records section and asked the clerk if he could simply take the check to Ms. Ohanneson for efficiency and security purposes. The clerk informed him that court reporters are unavailable for these contacts. To implement the Court's own policy, the clerk should have directed Dr. Finney to Ms. Ohanneson office location, as is the practice and custom of delivering documents to a judge's clerk and as Dr. Finney has done, himself, in the past. The clerk could have also accepted the check and provided it to Ms. Ohanneson, herself, per the above citation. Dr. Finney's experience contradicts both of the Court's website express directions regarding payment of fees, i.e., deposited with the clerk or with the court reporter.

Delay

On October 31, 2003, I served the Court with my Notice of Intent to file my Petition. The Court's failure to prominently and clearly disclose its procedures, practices and customs, in addition to Ms. Ohanneson's failure to respond to Dr. Finney's messages, will have delayed this filing of my Petition with the Court of Appeals for over a month.

Violations of ADA, Title II

I am a former federal investigator, whose duties included monitoring contract compliance with federal anti-discrimination and equal opportunity laws. I suggest that you adopt Kern County Court's on-line transcript request form and prominently post the name(s) and contact information for ADA Coordinator assistance on the Court's home page to reasonably accommodate disabled litigants and attorneys. In addition, full disclosure of all court services and programs should be displayed with suggested accommodations. The ADA prohibits secret criteria and other barriers that restrict access to reasonable accommodations by disabled persons.

On September 12, 2003 while seated in the Court's Business Office row of chairs along the wall at the entrance of the room, I witnessed a man with crutches and a leg cast standing in a line for approximately 10 minutes until he was summoned to the counter by a clerk. No signage whatsoever was posted to proactively inform him and all disabled persons of their rights to reasonable accommodations under ADA, Title II. He stood at the counter attempting to balance himself, while interacting with the clerk to conduct business for an additional 11 minutes. The clerk did not offer him any accommodation.

He was constantly shifting to balance himself, to take notes and to show the clerk his papers. From personal experience, such situations extremely distress and humiliate disabled persons who are stigmatized and marginalized. Disabled persons are put at risk of further injury, when entities and their agents ignore ADA and other laws. The Court's indifference, lack of initiative and failure to be proactive and sensitive in implementing ADA and other requirements, adversely affect disabled citizens' ability to exercise their rights, in my case to petition the court to enforce my Constitutional rights.

Finding of Futility

Despite:

  • Judicial Council proclamations, procedures, committees and
    subcommittees,

  • a decade of sententious studies and reports regarding access and
    fairness in the courts, and

  • Presiding Judge Strauss' membership on the Judicial Council, this Court has created an intentionally hostile environment for disabled litigants and attorneys in violation of their rights under the ADA, Cal. Rule of Court 989.3, California public policy, and San Diego County local court rules.

The ADA prohibits coercion and retaliation by the Court against litigants who attempt to exercise their rights under the Act. However, concerted coercion and retaliation, that would chill the exercise of rights by persons of ordinary firmness, have been personally directed toward me by three judges and Ms. Ohanneson.

Especially disconcerting is the Presiding Judge's refusal and express denial of his legal duty to accept and investigate or to cause appropriate authorities to
investigate complaints of bias and prejudice submitted to him by disabled persons, regarding judges' misconduct. His violation of local court rules, California Rule of Court 989.3, California public policy and federal law supports a finding of futility, regarding access to this Court's services by disabled persons.

A California Appeals Court has defined the circumstances under which any citizen's access to a government agency's services may be determined to be futile. (Economic Empowerment Foundation v. Quackenbush (1997)57 Cal.App.4th 677, 67 Cal.Rptr.2d 323)

Judge Hanlon cited "…cases falling within the futility exception… as where the agency:"

"…has no procedure for dealing with the claim…"
"declined to take jurisdiction over the claim…"
"already rejected the claim…"
"announced its position on the claim…"
"issued rulings which would preclude the claim's allowance…"
"refused to accept the claim for filing…"
"or indicated that it would not consider the claimant's evidence…"[57 Cal.App.4th 692]

Administrative Malfeasance

Judge Strauss' actions are inconsistent with Judicial Council policies on access and fairness. For example, the identity of the Court's ADA Coordinator and her duties are not disclosed to the public on the internet, but are disclosed to Court personnel through its "intranet," which the public, as a whole, and the disabled, as an important segment of that whole, cannot access.

In January, 1997, the Judicial Council's subcommittee on Access for Persons with Disabilities conducted a survey of Court Users, Attorneys and Court personnel. The Survey's Qualitative Interview with a member of the San Diego Superior Court's Committee for Persons with Disabilities in San Diego County elicited a troubling conclusion:

"Unfortunately the old way of doing things continues. No deep thinking/attention has been done beyond the superficial physical access issue. Locally, the court administration hasn't given such matters deep thought."

Evidently, the present San Diego Superior Court's "deep thought" resulted in abolishing this Committee. I have been unable to find any published reference to its existence (present or past), and Judge Strauss did not inform me of its existence or its recommendations in his correspondence dated September 18, 2003.

In 2002, The California Commission on Judicial Performance published 17 private discipline advisory letter summaries. The commission explained that "An advisory letter is useful when there is an appearance of impropriety." One disciplinary category was identified as "Administrative Malfeasance" wherein "judges are required to diligently discharge their administrative responsibilities. One advisory letter summary stated:

"A judge failed to take any action when information revealing potential serious wrongdoing by a judicial colleague was before the judge."

Immediate Remedy

Considering these extraordinary circumstances, I request an immediate remedy to obtain a copy of the aforementioned transcript that I intend to use in filing my Petition. Please contact Dr. Finney no later than COB December 3, 2003 to advise him of the status of this request, including a solution to obtain a copy of the transcript.

Thank you for your prompt attention.



Jacquelyn Finney, Plaintiff
Case No. GIN024734

Attachments:
(1) Request for Transcript (Kern County Superior Court Form
(2) Notice of Intent to File Petition for Writ of Mandate
(3) Court Record SUPCT CIV-40(New 12-95) identifying C. Ohanneson as the court reporter 8/19/2003 at 10:40am hearing. Includes records' clerk's handwritten note identifying Christine Ohanneson with her telephone number.
(4) September 18, 2003, Richard E.L. Strauss correspondence to Jacquelyn Finney.

Cc: William C. Vickrey, Administrative Director of the Courts