[blindlaw] FW: [DRBA] New decision and article about the use of Braille in court filings

[Scott C. LaBarre]

Most interesting case.

 

From: Disability Rights Bar Association [mailto:DRBA at LISTSERV.SYR.EDU] On
Behalf Of Matthew Dietz
Sent: Tuesday, September 11, 2012 8:25 AM
To: DRBA at LISTSERV.SYR.EDU
Subject: [DRBA] New decision and article about the use of Braille in court
filings

 

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa9006
24829/92821ca5dbf78f1b85257a750046daf0!OpenDocument

 

Court orders DCA to accept prisoner's Braille filing

By Jan Pudlow

Senior Editor

 

It doesn't matter if he's a blind guy locked in prison for life with a
penchant for papering the court with pro

se filings.

He still has the right to equal access to the courts, like anyone else.

In this case, that means the clerk of the Fourth District Court of Appeal
should have accepted his letter in

Braille, rather than simply writing on a form: "We are unable to accept your
Braille correspondence."

That's what a unanimous Florida Supreme Court said in a recent decision in
Demetrio R. Gabriele v. State of

Florida (Case No.: SC09-993) when it held Gabriele was entitled to mandamus
relief.

The quietly released unpublished opinion, ending more than three years of
litigation, was discovered by

Miami disability rights attorney Matthew Dietz while doing research on cases
under Florida Rule of Judicial

Administration 2.540.

"This was so brand new. I thought, 'Oh, my God! This is great how the court
gave it a huge boost by saying

this is not only the rule, but also essential to due process. It's something
that we should be proud of. All of

the [participating] justices put their names on this decision, which gave it
more of a directive that the court

was not going to tolerate the denial of due process," Dietz said.

At the National Federation of the Blind in Baltimore, Director of Public
Relations Christopher Danielsen, said,

"I would say it's very unusual for a court to do this, and not something we
would demand as a blanket rule."

But with a pro se litigant stuck in prison, Danielsen said, "His reading and
writing medium is Braille, and he

doesn't have a way to get his pleadings to court in print, then it is a
pretty important accommodation."

Gabriele's case was handled pro bono by Stephen Senn and Timothy Kiley of
Peterson & Myers in Lakeland.

"Access to the courts is what it's all about," said Senn, a member of The
Florida Bar's Appellate Practice

Section. "The Florida Supreme Court did what the Fourth DCA should have:
They found somebody who could

translate the Braille and interpreted it as a writ of mandamus to require
the DCA to accept his Braille filings."

At first, the pro bono appellate lawyers met with resistance from the
Attorney General's Office, who called

their client a pesky liar who should be disciplined in prison.

"Gabriele has misrepresented his need for accommodations to this court.
Gabriele's own hand-written filings

have been accepted by the Fourth District Court of Appeal for over 25 years.
The Fourth District

appropriately rejected Gabriele's attempt to amuse himself and inconvenience
the court through the use of

Braille filings," Special Counsel Lisa Raleigh wrote in the Attorney
General's response.

 

"Gabriele requires no accommodation to access the courts, and even if he
did, the law does not require the

exact accommodation requested by Gabriele. It is sufficient that the courts
accept his hand-written

pleadings."

Raleigh argued "the most appropriate remedy is to both request discipline by
the Department of Corrections

and to bar further unrepresented litigation."

But, as Senn and Kiley were able to show through DOC records, Gabriele's
eyesight had worsened over time

to the point he was deemed "legally blind" in 2007 and prescription glasses
provide no help. His most

effective way to communicate is by using a Braille typewriter, they said.

"Simply because Mr. Gabriele can, with difficulty and using large-lined
paper, scrawl out a letter, he is not

thereby barred from protection of the ADA," Senn and Kiley wrote in court
documents.

The AG's office eventually stipulated that Gabriele is indeed blind.

"Because he is incarcerated in state prison, Mr. Gabriele cannot seek other
forms of accommodation, such

as voice-recognition computer software or other technological accessories,"
Senn and Kiley wrote in their

amended petition for writ of mandamus.

"His ability to be heard rests substantially upon the Fourth DCA's
acceptance without prejudice of his Braille

documents."

The Florida Supreme Court agreed.

"The substantive merit or lack of merit in the petitioner's underlying claim
does not determine the ADA

[Americans with Disabilities Act] analysis," the justices said. "The Fourth
District has refused to provide the

petitioner with an accommodation as mandated by the ADA and the Florida
Rules of Judicial Administration..

. . [T]he petitioner has no remedy available other than to petition this
court for relief."

Because the Supreme Court had accepted jurisdiction, it exercised its
discretion to also address the

substantive merits of Gabriele's post-conviction claims, and denied relief.

"Therefore, we withhold issuance of the writ because we have resolved this
case on the merits and trust

the Fourth District Court of Appeal will fully comply with the dictates of
this order when presented with

similar situations in the future," wrote Chief Justice Ricky Polston, with
Justices Barbara Pariente, Fred

Lewis, Jorge Labarga, and James E.C. Perry concurring.

Kiley, a member of the Bar's Young Lawyers Division, called the ruling fair,
but not surprising.

"I don't think it came as a tremendous surprise, given the court's focus on
accommodation issues lately.

Justice Lewis spent a lot of time talking about this issue. And Florida's
courts have shown an interest that

persons with disabilities have access, particularly since the move to
electronic filing," Kiley said.

"I think the Supreme Court sent a little bit of a message to the courts in
Florida - really, any court in

Florida - to take these things seriously."

REMINDER: The DRBA listserv is intended to facilitate open discussion and
sharing of ideas. Members need to feel confident that their discussions will
not be distributed beyond the group unnecessarily. PLEASE CONSULT WITH THE
SENDER(S) BEFORE FORWARDING ANY LISTSERV DISCUSSIONS BEYOND THE DRBA GROUP.