Tomiyo Stoner’s Closing Statement in Martinez v. County of Alameda

On April 1, 2024, Attorney Tomiyo Stoner delivered her closing statement to the jury in Martinez v. County of Alameda, 3:20-cv-06570 (N.D. Cal.) (filed Sep. 18, 2019). What follows is an accessible reproduction from the trial transcript. You can request an official version by following the instructions.

Closing Argument

MS. STONER: Good morning for the last time. Thank you so much for your attention during this trial.

I asked you some questions in the beginning, and now I have another question to ask you. When you receive a package in the mail with a big box, a lot of parts, maybe a bike or a piece of furniture, something like that, are you the kind of person that likes to look at the pieces first; or do you like to pull out the instructions and see what they say first?

If you’re the type of person that likes to pull out the instructions first, this trial might have been a little bit of whiplash for you. But today in this closing argument, I’m going to go through, and I’m going to show you exactly what it is that Ms. Martinez has proven and exactly how she’s done so with the evidence you’ve seen.

So as you can see, this is an extensive timeline and we’ve got a lot to go through, but I think by the end you’ll be very satisfied that Ms. Martinez has met every element of her case.

Our story starts in 1991 way back when George H.W. Bush, the first Bush, was president. The first time the County received notice of its obligations under the ADA, it was not from Ms. Martinez. (Indicating.) The knocking on the door was from the federal government laying out very clear standards for what it is that a County must do in order to comply with the Americans with Disabilities Act.

An ADA violation has three elements. The first element is that Ms. Martinez must prove she’s a qualified individual with a disability, and the parties have agreed that she meets that requirement. So the first element is already satisfied.

The second element is that she was either excluded from participation in or denied the benefits of the CRO’s services, programs, or activities, or was otherwise discriminated against.

We’ll talk about that second element now. There are essentially two ways to satisfy the second element. One is by showing a specific violation or benefit that she lost, which I think we’ve done here. We’ve shown that she’s been denied the benefit of same-day filing, and that she was denied being served at the office like everyone else in that regard, and also that she was denied the benefit of credit card payment. She would have had to pay by mail by check. That’s a benefit.

You don’t need to go down the path of understanding a specific violation if you feel she was otherwise discriminated against. So, for example, if you feel like when she was treated with disrespect and asked multiple times if she was the business owner while others may not have been asked that way, if you feel that’s discrimination, you can stop there. But I think we have a more specific case I’d like to break down for you.

On your 11th jury instruction, you’ll see this.

The County’s required to do certain things to make sure communication is smooth for people with disabilities. They must make sure that it’s as effective as communication with others, and it is the County’s obligation, an affirmative obligation, to provide auxiliary aids and services wherever necessary to afford an equal opportunity to participate in and enjoy the benefits of the service, program, or activity.

This is specifically defined as including the acquisition or modification of equipment and devices, as well as providing a number of auxiliary aids and services, including a transcriber.

The County — the County has not disagreed with the fact that it has an obligation, an affirmative obligation, to supply the auxiliary aids and services needed for effective communication.

When we get to the second element, you heard some testimony I want to clear up. The law is plain. Reading devices in — the law is plain that communication by forms is a form of communication. Just as someone needs to use an interpreter to facilitate time verbal communication, where the communication occurs by form, the County is obligated to provide appropriate auxiliary aids and services.

And you’ll see in your instructions it specifically states that filling out voter registration forms or forms needed to receive public benefits are indeed communications that must be equally effective under the ADA.

The last part of the second element test will require you to decide which auxiliary aids were appropriate and necessary. In doing so, a public entity is required to, it is the standard of care that they give primary consideration to the request of individuals with disabilities.

It is also essential that any auxiliary aids they provide have to be in an accessible format, in a timely manner, and they must protect the privacy and independence of the individual with a disability.

So in very practical terms, what does this mean? Transcribers are a type of auxiliary aid and service, they’re timely, they’re accessible, and the County had an obligation to provide effective communication access through an appropriate auxiliary aid.

When we show that Ms. Martinez wasn’t able to file the same day, she wasn’t able to modify her forms like everyone else, she requested transcriber service but was denied, and then was given only inaccessible options that did not work for her, we have proven the second element.

The third element asks us to examine whether the denial of benefits was by reason of her disability, and this is the graphic that I want you to take a look at.

So as you can see here, and you may recall the story, there was a man who was at the CRO the same time as Ms. Martinez, and he had a form with a similar error to hers, an occurrence that happens every day. And when he was there, he was able to modify his form and move on with his day. Ms. Martinez was not.

What was the difference between Ms. Martinez and that man? Only one difference. Visibility. And, therefore, we have proven that this discrimination occurred because of disability.

So we’ve met each of the three elements of an ADA violation. We have shown that Ms. Martinez is qualified, we have shown that she was excluded, and we have shown that this exclusion occurred only because of her disability.

This is critical because you may hear from the County some things that are not in play. First of all, a transcriber is not an undue burden. That has not been claimed in this case. Second, transcribers can be reasonable auxiliary aids and services.

Ms. Martinez has shown at trial that she had a simple problem with a simple solution, and what the County has shown you are excuses, excuses for why it wasn’t prepared and excuses for why it denied her.

I want to be perfectly clear with you. Nothing Ms. Martinez wanted required the County to violate the law. They had many options to provide her effective, same-day service just like everyone else without touching or even coming close to or even potentially being accused of violating a law. They just had not prepared and they did not have a good reason for the denial, and I will show you today why they’re excuses.

First, we show that transcribers are provided in a variety of contexts. We’ve shown different agencies that provide them. We’ve shown that she’s received them in different places. And really it doesn’t seem that there’s any reason that between 1991 and the time that Ms. Martinez visited the CRO they couldn’t have figured out a solution that worked, just like all these other agencies did.

And Ms. Martinez testified that she has had important, even sensitive paperwork on behalf of government entities, healthcare providers, and more, where transcriber service was provided. And what’s very interesting is that you don’t hear from the County in any of their evidence that any other agencies had the policy of denying transcribers the way they do. We did not hear that other CRO entities don’t provide it; and, in fact, we heard evidence to the contrary. The Union City CRO provided the similar service.

So basically what we have is transcribers provided multiple times in multiple agencies, but not to Ms. Martinez at the Alameda County CRO.

With that background, we come to the events of March 29th, 2019. We all know by now that Ms. Martinez was refused assistance. We also know it was a daily occurrence that business owners went to the CRO, had their forms rejected, stepped to the side, corrected them, filed them the same day sometimes undergoing the process even more than one time.

But not so for Ms. Martinez. Unlike sighted business owners who are able to modify their forms, pay by credit card, and leave with a receipt, Ms. Martinez was not told — was told she could not be assisted. And why? Because of the County’s policy, because of its choices.

Ms. Martinez gave the County three opportunities. First, she started, she told Ms. Moran, “I need some assistance.” She didn’t say “I need you to modify my form. I need you to sign for me. I need you to change a document that’s been deposited.” She said, “I need some assistance.” And with that, she knocked on the door of the County and told them her needs.

Then she tells Ms. Briones. This time having done a little research and being more specific in her request thinking that: Surely when I tell them exactly what my request is about, they’ll understand. I’m not just someone who doesn’t want to modify my forms. I’m someone who can’t.

Title II of the Americans with Disabilities Act says that government entities need to assist people. That’s what she told them. She said, “This is specifically the statute that you are violating. This is specifically the law that you’re about to break.”

And she said they need to assist people. She didn’t say they need to modify forms. She said they need to provide auxiliary services, and she said that includes sighted assistance.

As we’ve heard, sighted assistance can take many forms. Of course, we’ve heard a lot about transcribers, and that’s the auxiliary aid she requested that day, but we’ve heard about other options too.

And at the end, she says “All I need is for you, or anybody, to help me fill out this form correctly.” The County has tried to paint her request as unreasonable. The County has tried to paint her as recalcitrant, but nothing in these quotes shows that she was unwilling to accept assistance of a different kind.

Ms. Martinez then tried to escalate her request once more to Ms. He, but the door was shut in her face and Ms. He refused to even talk with her.

I want you to see that there were four failures on that day by the County. First, they didn’t have written policies in place that would give their employees clear direction on what they’re supposed to do in the event an ADA request is made. It’s clear from the testimony that some of these employees did not understand the difference between the policy of the CRO, which is obviously not law, and state law and federal law above that.

The CRO employees were not trained to offer a blank form or other alternatives. There are a number of ways that you’ll hear about in the later part of the presentation for how she could have been accommodated if the CRO had been prepared.

They had screen — they had no screen reader technologies that would allow her to fill out the form independently. Don’t be confused. On March 29th, 2019, the County had kiosks in place but not for blind users. Nothing that she could use. Nothing that she could be assisted with. They had not prepared to make that service available to her.

And, finally, even though the CRO as an agency has its very own ADA coordinator, nobody contacted her that day. Nobody asked her, “Hey, there’s a lady here and she’s saying the ADA requires us to do something. What do you think? What are we required to do?” That could have been a very simple solution, and we see no evidence from the County that that very important resource was ever accessed.

Adding insult to injury, before she leaves she’s handed a print Go Back Letter. She’s testified to you she can’t read print. This format is not accessible.

And beyond that, the County refuses to take responsibility for its actions and now says that this Go Back Letter is an auxiliary aid even though the definition of “auxiliary aid” that I just showed you indicates that an auxiliary aid must be accessible. She couldn’t access print.

If they had talked to their coordinator that day, I believe their ADA coordinator, who you didn’t get to hear from, and I don’t think that’s an accident, would have said the same thing that Ms. Hill did. It was Ms. Hill’s opinion the County did not provide effective communication because she was denied same-day service, denied payment by credit card, given an inaccessible Go Back Letter.

So when you’re asked the question did the CRO meet the communications needs of blind people under the law, the answer is clearly no.

The result is, as of course we know, Ms. Martinez left with her FBNS form rejected. She was very upset that day. We’ll talk about that later. She went home, and what did she do? She completed a brand-new FBNS form refuting the County’s allegations she would have refused to — and if you think about it, it just doesn’t make sense. If you’re willing to wait around in an office standing by a planter all by yourself for an hour, maybe even two, why wouldn’t you just let someone start a blank form for you? There’s no reason. It makes no sense, and it’s what she did anyway. When she went home, she started from scratch as well.

All this happened because of two very small mistakes. There was a very simple solution on that day. Even starting the form from scratch, there’s no dispute it could have been done in less than 15 minutes. Everyone could have moved on with their day and no one would have needed to be here if the County had taken the time to proactively train its employees on its obligations.

So finally having corrected the form, we arrive at May 31st, 2019. And this is an important date. Did she get her form filed? Yes, she did, but her experience that day is so meaningful. She walked into the CRO that day worried about what would happen as you would be too, and her worst fears were met. The clerk recognized her, turned around the monitor to the computer, and said, “Read this.”

And she said, “Oh, I’m blind.”

And at that point, the clerk said, “I know.” The clerk knew that she was blind and asked her to read the printed form. Nothing had changed between March 29th and May 31st. The County hadn’t done anything to acknowledge its responsibilities.

And that brings us to the concept of deliberate indifference. You’ll find this in Jury Instruction Number 14. Deliberate indifference means that the defendant had knowledge that a harm to a federally protected right was substantially likely and the defendant failed to act upon that likelihood.

How have we proven deliberate indifference? Through two elements. The first element is whether Ms. Martinez alerted the County of her need. And the Court has instructed you to find she satisfied the first element, which we sometimes shorten to just notice. The County was on notice because she told them three times of her specific need. Actually, more than three. At least three times.

The second element, which we’ll examine now, is whether the failure to act was a result of conduct that’s more than negligent, more than careless, and that involves an element of deliberateness. And this is where the County may have created some confusion. I mean, obviously if I’m a clerk, I don’t want to break a law and I don’t want to get fired from my job. You wouldn’t either.

But what we see and what we’re examining today is not about whether Ms. Briones or Ms. Moran or even Mr. Yankee is personally responsible. What we’re asking about is the County’s motivations. Nothing you decide today will leave Ms. Moran or Ms. Briones or Mr. Yankee having to write a check or having to change policies. This is about the County’s responsibility, and I want to be really clear about how the County needs you to show them they have to be accountable because otherwise they will continue to ignore the rights of those with disabilities and offer excuses.

The first excuse we hear is penalty of perjury. I think we’ve shown that that doesn’t really make any sense. Ms. Martinez is the only one who’s filing the FBNS form — or signing the FBNS form and perjury only applies to the signer.

And Ms. Martinez — this is a really interesting point. On May 31st, 2019, when Ms. Martinez filed the FBNS finally, what was she asked to do? Verify information that had been typed in.

So this penalty-of-perjury argument really doesn’t hold up because the verification element requires — that — it applies regardless of whether the form is something that is filled out on that day or something that’s filed. There’s always going to be a verification element. And so this perjury argument does not hold up because perjury only applies to the signer, and perjury always — like, there’s always a risk because there’s always verification needs regardless of the filing.

You’ve heard a lot about how the CRO couldn’t possibly modify a deposited FBNS form. Well, we’ve talked a little bit about deposited, maybe had a little fun with the term undeposited, wonder what it means.

Deposited documents have a number assigned, payment’s been made, and a rejected form is not deposited. We’ve established that. For that reason I don’t think it’s reasonable to call the March 29th form deposited. There’s no number. You can look at it. It’s an exhibit. There’s no number. She didn’t pay any money that day. The Go Back Letter indicates that.

So I think this is just an excuse; but even if it weren’t, she was never offered the options that the CRO knew were permitted by law. The CRO knew that a blank form could be filled out by a transcriber. They knew it wasn’t illegal.

They also provide interpreters for others. So if you speak a foreign language or sign language, they’ll bring in a third party to assist you to facilitate that communication, but no one offered to bring in a third party for Ms. Martinez.

So they knew full well that there was a way that they could comply with Government Code 27203 without putting any of their clerks at risk, without modifying forms, without violating a law. They knew they had options, but they weren’t prepared to offer them simply because of a policy, not because of a law.

They’ve also tried to paint it as if Ms. Martinez demanded specific modification of her FBNS, and she testified she would be more than willing to dictate the answers on a new form. She had no way of knowing blank forms were available. Matt Yankee testified they were behind the desk, and no one offered it to her. How would she have known that they keep those forms? And even if they had them, they weren’t available in an accessible format anyway.

The CRO admits that she was never offered the option. They put it on her. Even though they knew that she didn’t know that they had it, they put it on her to ask. And if she had been asked, she would have accepted a blank form further showing that this is just an excuse.

And then next we hear that the FBNS isn’t communication at all; that somehow, unlike other forms, voter registration and an application for other benefits, that the CRO for some reason is just acting like a bulletin board. They’re just taking whatever they receive and they’re posting it. But does that really make sense in light of the rejection letter?

Clerks routinely review and point out necessary substantive corrections. The Go Back Letter shows specifically the substantive changes to the form that the County required, and Ms. Martinez tried to communicate those changes back and she couldn’t.

So to say that somehow this isn’t communication, that really doesn’t hold water. It doesn’t make sense. Think about it with logic and common sense and ask: If they’re just like a bulletin board, why are they rejecting things for small substantive changes?

Finally, the CRO’s own inquiry confirms the element of deliberateness. They chose not to contact the ADA coordinator. And, in fact, you don’t even hear the ADA coordinator was contacted during the inquiry. They chose not to review the DOJ guidance. They chose not to train clerks or supervisors about auxiliary aids and services. And it seems like even after the inquiry they must not have done more training if Ms. Martinez was treated the way she was.

They chose not to assess their unwritten policy. And unfathomably they chose not to consider the written elements of this case. They talked about how verbal communication was clear. Well, we know verbal communication was clear because blindness doesn’t affect your ability to speak or hear, obviously. But they ignored the written portion, which is plainly — it should be clear as day to all of you here, that accessing written documents is what’s difficult for people who are blind, not communicating verbally.

And on top of that, they conducted this entire inquiry without knowing the legal definition of primary consideration, which is one of the most important elements in assessing whether there’s been a violation of the law.

But you heard the testimony that that wasn’t a term that they could define. Despite having had all the opportunity to speak with the ADA coordinator, assess guidance that had been published, look at the law, they didn’t. and that is deliberateness. Therefore, we satisfied both elements of the deliberate indifference test.

We’ve shown the first element as instructed; and the second element, the failure to act, was a choice. It involved deliberateness because they refused to take accountability for their actions and they refused to make a good faith inquiry.

So having looked at this, we’ve shown a violation of the ADA and we’ve shown that it occurred with deliberate indifference. This is where you’ll be asked about some state law claims that have some slight differences.

You’ll be asked about state funding for the purpose of 11135. That will be in Question Number 5. And that asks if the County and the CRO received any financial assistance from the State. I urge you to look at Instruction Number 10, which stipulates the County received funding or financial assistance from the State for the relevant time period.

And I also urge you to think critically about Matt Yankee’s argument that somehow even though the CRO is receiving funds, they’re giving them back somehow excuses them from compliance with the statute. They don’t offer any legal justification for that. Look at the way it is in the instruction and it will be clear.

The next question you’ll be asked is about a finding of damages. This case, as you can see from all the people who are seated here today in the gallery, from the testimony that Ms. Martinez gave, this case is about far more than the small inconvenience out-of-pocket expense that Ms. Martinez incurred. It’s about the rights of this community, and that’s why finding damages is appropriate.

We heard about how Ms. Martinez paid Ms. Grim. We heard about how she wasted her time, and her time had a monetary value. But we’re not asking for an examination of that. We’re just asking for the minimum statutory damages. This is a minimum amount to assess under the CDPA of $1,000. That’s a statutory option.

And then we go to emotional and mental harm. When you consider this element, yes, Ms. Martinez is a very resilient person. She’s been through a lot in her life and she’s overcome a lot, and she’s here today with a great attitude. And having had a lot of — having had a lot of experience with advocacy, we’re not asking to find that she’s — we’re not asking to find that this is a, you know, life-altering event for her, but we are asking you to recognize that she had two bad choices. One was to advocate for change and the other is to let it happen to someone else.

And for five long years this has been making her tired. She has been going through this again and again at her deposition, as things come up in the case, and again at this trial.

Therefore, we urge you to also find some compensation that recognizes her emotional and mental harm. You can choose an amount of $5,000 just recognizing the five years, $10,000, $50,000. The amount is up to you, but the important part is that she receive recognition for the harm that this caused to her dignity, that we take the moment that she was crying on the BART and other people had to assist her to sit down, and we take the injury that is to your pride and we take the injury that it is to your pride when someone knows you have a disability and knowingly asks you to read.

We ask you to go forward with logic, reason, and law and put a logical number on it that sends a message to the County about their accountability for what happened to Ms. Martinez because Ms. Martinez’s emotions are important.

The next question you’ll be asked is whether the CRO has solved the problem. Have we proven by a preponderance of the evidence that the CRO will likely in the future violate its legal obligations with respect to individuals with disability of blindness or visual impairment in the same type of way that you found?

In assessing this option, you heard a lot about computer kiosk and FBNS Wizards. All these things come after the fact. They’re not relevant as to the damages on the 29th, and they’re not relevant to whether there was a violation on the 29th or the 31st. They are relevant to what’s going to happen moving forward and whether or not the County will make a change.

So we heard that on December 22nd — or sorry — on December 2022, the CRO installed a new computer system with JAWS. Sounds great; right? Now you can use a screen reader and get all your work done; right? Well, not exactly.

We heard from Karen McCall about the issues that there are with the PDF. We heard again and again the screen reader said “Check box not checked.” We heard that PDFs continue to be untagged or inconsistently tagged rendering them basically useless for screen reader users, and we heard that was true in every version of the PDF, including the one up to the time of trial.

So Ms. McCall has answered for you the question of whether the PDFs are usable with “no.” The PDFs are not usable in their current form, in their previous form; and unless the County receives contrary instruction from this Court, we have no reason to believe that it will make those PDFs accessible.

But what about the FBNS Wizard or the software suite? They started working on this back in 2018. They’ve had so much time to make it work. They’ve had so many options to add on additional services for ease of use for everyone, but what we’ve shown through expert testimony is that they have not.

And I want to back up first. Ms. Martinez is a very skilled screen reader user. You heard from her about how she went to Berkeley, how she has a lot of experience, how she’s educated a lot of other blind people. Her experience is not necessarily typical. She’s had a lot of advantages having been in a community that supported her, having been blind from a younger age where it’s easier to learn.

We heard from Steve Clark that not everyone who’s blind can use screen reader software. It’s a learning process. He teaches people and it takes time; and the older you are when you lose your vision, the harder it is for you. So not everyone is able to use a screen reader like she is. It’s a learning process.

And not every screen reader user is used to using this one specific program called JAWS. There’s a variety of other options, and every JAWS user can set up their keyboard a little bit differently or set up their system a little bit differently. So going from one JAWS system to another is not necessarily easy.

He concluded that even putting aside all those factors, even setting aside the person might not know how to use JAWS, might not have an awareness, even someone who is a good user of JAWS, an average user of JAWS, cannot use the kiosk independently. And they’ve been working on this since 2018. If you don’t ask the Court to order them to change, I don’t see any reason that they will.

The County also argues that it has people to help, but you heard about how difficult it is to run a tandem session where one user is using JAWS and another user is a sighted helper. You heard about how the cursor is in different places, so you can’t necessarily see the JAWS cursor on the screen easily, and trying to work together can create a lot of confusion.

You also heard how even though the County has people to help, Ms. Briones testified she would still hesitate to write on a form.

And you heard Matt Yankee testifying transcribing is something they could potentially offer, but it still violates the CRO policy.

And then we see that when Ms. Greco is accommodated with a transcriber service, there’s an e-mail sent around to remind the clerks not to do it.

So just how helpful do you think the clerks will be not having any clear direction that they’re allowed to transcribe? How helpful were they to Ms. Martinez when they turned the screen to her and asked her to read even though they knew she was blind? How helpful were they when they refused to offer her a blank form to fill out? They never told her she could start with a blank form. How helpful were they in 2019 when they had a kiosk but they never directed her to the option of reading and allowing her to type?

For that reason we see that Ms. Martinez has proposed a simple solution. Transcribers are reliable, they’re fast. She’s used them in many other government offices without an issue, and we’ve heard that other blind users have used them without any problems.

But we’ve also heard from the County that they have this complicated system that theoretically could work if you’re a good JAWS user, if you know how to work with a screen reader. If someone — if you run into difficulty, maybe someone will help you. Maybe they won’t. If you get there on the right day and Matt Yankee’s there, maybe he’ll help you out, but he won’t commit to it now.

The County doesn’t present any evidence that this system they have in place now has ever worked for even one blind user. In fact, when Ms. Greco went, the clerks may have known it doesn’t work because they never offered it to her.

So we have a complicated system that relies on luck, is inconsistent, may not work for everyone versus a simple solution. And if the County isn’t asked to do otherwise, they’ll continue to refuse transcribers, at least not — at least not allowing it on a consistent basis. So that’s why it’s very important when you get to Question Number 6, you realize you, as the jury, are empowered to solve the problem.

If you tell the Court that you do not believe the CRO has fixed the problems Ms. Martinez encountered, you will be able to make a difference.

I want to go back and review one more time at a bigger level this entire — this entire case, which has been a lot of years of a lot of people’s lives.

Can you go back one? Thanks.

So what we show here is we show here that four times the County was placed on very clear notice of its obligations. In 1991 the federal government tells them “You have to comply.” And, yet, before Ms. Martinez goes to the CRO, she hits a brick wall of an inaccessible PDF.

She goes to the CRO. She asks at first for help. Denied. She asks again for help from a supervisor this time. Denied. She asks to escalate the problem. Again, denied. She’s unable to file her form that day. So she hits another brick wall.

She goes home and again inaccessible PDF form. Makes these two small changes. Requires her to go to the office yet again, which no sighted person has to do unless they’re in a fundamentally different situation from her; and, boom, she’s told to read on the screen even though they know she can’t.

We have no reason to believe that the County would do anything different today. And while it’s nice to think they may be helpful for some people sometimes and while it’s nice to think that there might be clerks who have her best interest at heart, the reality is hoping is not compliance with the law.

The County has had all the opportunity to comply, all the opportunity to understand, all the opportunity to step away from excuses and make a difference, and they haven’t. And that shows that not only is the County in violation of the ADA, but they’re deliberately indifferent.

Thank you so much for your time and thank you for considering the evidence that has shown that the County violated the ADA and will continue to do so unless we take a stand here today.

Thank you.

THE COURT: Thank you, Counsel.