Apr 242010

Last Friday, we argued important motions in our Washington movie-captioning case in Seattle Superior Court. Judge Regina Cahan listened attentively, indicated that she knew how important this case is, and indicated that she would need to consider the matter further rather than issue an immediate ruling.

Wash-CAP filed a motion for partial summary judgment. We are asking the judge to rule that the defendant movie theaters — five corporations that operate multi-screen theaters in King County — must take all reasonably possible steps to make captioned movies available.

Washington state law requires public accommodations like movie theaters to offer “reasonable accommodations” when treating disabled patrons just like everyone else would not yield full enjoyment of the businesses’ goods and services. We asserted — and the judge seemed to agree — that those of us whose hearing loss is such that we can’t follow a movie dialogue even with the volume-boosting assistive-listening devices that theaters don’t fully enjoy the movie, meaning the theaters must provide “reasonable accommodations.”

“Reasonable accommodations” are defined in Washington law as those steps “reasonably possible in the circumstances” to make a business’ services “accessible.” “Services” are defined broadly as “everything” the business offers, which we contend includes the movie soundtrack, and “accessible” is defined in state law as “usable or understandable.” Since captions make movies understandable, we argued that under Washington law, the theaters are required to display captioned movies to the extent it is “reasonably possible in the circumstances” for them to do so.

In opposing our motion and asking that the case be thrown out entirely, the attorneys for the theaters offered a broad array of arguments. First, they argued that our state disability law does not regulate the content of goods or services that a business offers, and claimed that their “goods and services” are non-captioned movies. While we can never be certain — a federal court in Arizona essentially bought that argument — we don’t think it will go far here. We pointed out that captions are prepared in advance for most — not all, but most — of the first-run movies that these defendants show, and that those captions are made available on CD-ROM discs furnished to the theaters at no charge. So we argued that in fact the theaters actually have captioned movies, but just refuse to install the equipment necessary to display the captions.

Second — and this is the argument they really pushed — the theaters argued that any requirement to undertake captioning should be made by the state Human Rights Commission through a process called agency rulemaking. Because of the emphasis the theaters placed on that argument, we filed a supplemental brief on Tuesday. The judge has accepted our brief, and given the theaters until Wednesday, April 28, to respond.

We expect the judge to issue her ruling shortly after she receives the theater response to our supplemental brief — possibly the first week in May.

Unless the judge throws the case out, we expect the theaters to begin meaningful settlement negotiations with us. Because what is “reasonably possible in the circumstances” has an economic component to it, we won’t really know what each of the defendants can reasonably do until we start looking at some of their economic data. But our objective is to develop a firm and binding commitment and specific schedule for making all of the defendants’ theaters accessible to people with hearing loss.

Meanwhile in San Francisco, efforts to resolve the captioning case against the Harkins theater chain were unsuccessful, meaning that the Ninth Circuit Court of Appeals will likely go ahead and issue a ruling. That is the case in which the federal trial judge accepted the argument that the theaters’ “product” is non-captioned movies. That decision was appealed to the Ninth Circuit.

As reported in prior posts, the appeals court judges ridiculed that argument, although they did not issue a decision. The attorneys for Harkins then asked the court to put a 30-day hold on its deliberations while the parties went to mediation. Fortunately, the mediation was unsuccessful.

The reason that failure of the mediation is fortunate is that if a case settles during the appeal process, the decision of the trial court stays on the books. Our impression from the oral arguments is that the chances of a favorable decision from the Ninth Circuit are high, and we would like to see that process go forward.

While our case in Washington was brought under state law and the Arizona case was decided according to the Americans with Disabilities Act, there may be considerable practical overlap. If theaters across the country are required under ADA to show some captioned movies, their obligation would cease at the point that doing so becomes an “undue burden,” which is essentially the flip side of Washington’s “reasonably possible in the circumstances.” So what we are able to negotiate in Washington State may have some impact on future implementation of an ADA captioning requirement.

And even though our state law is separate and free-standing, a national decision would be of significant practical benefit to us in Washington, because if theaters across the country need to beef up their captioned offerings, there will be far greater demand for the necessary equipment. That could both increase the availability of the equipment and lower the price.

We’ve got our fingers crossed.

– Thanks to NVRC and John Waldo, 4/23/10, http://www.hearinglosslaw.com/2010/04/articles/washcap-1/public-facilities/movie-case-update-were-waiting/index.html.