2002 Grand Rapids Cochlear Implant Case

Final Press Release (Summary of Events)

Due to a team effort by attorneys, members of the Deaf Community and the general disability community, Judge Kathleen Feeney of the Family Division of the 17th Circuit Court of Kent County, in Grand Rapids, Michigan, found that the Court did not have jurisdiction to order cochlear implants for two Deaf children whose Deaf parents opposed the surgical procedure. Judge Feeney found that cochlear implants are elective surgery, and that the children's hearing loss and current level of development does not constitute a medical emergency, contrary to the claims of Kent County assistant prosecutor Kevin Bramble, and the children's attorney-guardian ad litem, Joseph Tevlin. The parental rights issue in this case, as deliniated under Michigan law, proved to the the controlling factor in Judge Feeney's decision.

At the outset of the final hearing session of October 4, 2002, Judge Feeney stated that the large number of people in the audience was unexpected, and resulted in the need to set up an overflow room with a live video feed. The Court had not arranged for interpreters for the deaf to provide reasonable accommodation for the many deaf and hard of hearing persons in the audience, or for those in the overflow room. Interpreters had been arranged by the Court, only for the deaf parents, although those interpreters were able to be seen by most of the courtroom audience most of the time.

Celeste Johnson, Barbara Hinson, Jeff Oliaz, and Lois VanBroekhoven (interpreter coordinator with DEAF Etc.), who are qualified, professional interpreters, were in the courtroom audience, and stepped in to interpret for the deaf audience members in the overflow room.

The Michigan Deaf Association collected donations from across the nation to pay the expenses necessary to bring to Grand Rapids Dr. Robert Hoffmeister of Boston University, chief witness for the defense, so that he could testify in person.

Initially offended, once interpreters from the audience took the initiative to make the testimony accessible to them, many Deaf persons found it to be an advantage to be in the overflow room, where they were not subject to the rules of courtroom decorum. Unfettered, they waved and cheered when Dr. Hoffmeister's testimony struck a chord with them, and expressed their feelings when Mr. Bramble or Mr. Tevlin made statements they found offensive.

Public awareness of this case appeared to have had an impact on the Court's decision. Jeannette Johnson, a Deaf student at the Rochester (New York) Institute of Technology, led a movement within the Deaf Community to organize a rally to demonstrate the depth of the Deaf Community's and the Disability Community's concerns about this case. More than 200 people were undeterred by the rain, and attended the rally and at least some of the hearing proceedings. Ms. Johnson also established an email list on the internet, that proved to be central to the organization and dissemination of information about the case and the rally.
(http://groups.yahoo.com/group/grdeaf_protest)

Information about this case was also disseminated via other listserves, including USA-L News (http://groups.yahoo.com/group/USA-L_News), owned by Phil Moos, providing information to the Deaf Community and parents' rights supporters around the world.

Ralliers extended thanks to the executive director, Marcy Colton, and board members of Deaf Community Advocacy Network, DEAF C.A.N.!, whose staff was able to assist in the dissemination of information about the case to concerned organizations and individuals, and who also alerted the media of developments as they occurred. National and local media covered the courtoom proceedings. The local media also did interviews with persons interested in and involved in the case.

Hundreds of e-mails and letters had been sent to Judge Feeney from Deaf, hard of hearing, and hearing individuals from around the world, notably from the US, Canada, UK, New Zealand, Germany, and Austria, urging her to consider carefully the parental rights issue which was pivotal in this case. Most letters emphasized the mother's right to make the decision for her children to have or not to have cochlear implant surgeries for her children. The Deaf Community was not divided on the issue of cochlear implants in this case. Both those who have chosen cochlear implants for themselves or their children, and those who not, wrote letters to the Judge expressing their opinion that the decision whether or not to implant the children is not for the court to decide, and urging her to allow the parents to decide.

Those who wrote letters and sent e-mails to Judge Feeney received responses from her staff stating that she could not read them due to the ex-parte nature of such communication. Many of those who sent such emails and letters, and who attended the rally and court session expressed a belief that their messages did have an impact on the outcome of the case. Many also felt that the obvious presence and mind-set of the Deaf Community, evident in the letters, the courtroom and overflow room attendence, and the rally, were things the Court could not ignore.

When delivering her decision, Judge Feeney mentioned that she had noted the efforts of the Deaf Community and their supporters. From the 10th floor of the Courthouse, where Judge Feeney's courtroom and chambers are, there is a clear view of Calder Plaza, where the rally occurred. Many opined that the rally, carrying on in the driving rain, had an unmistakable impact, particularly the speeches and swelled crowd during the lunch recess.

Speakers at the rally included Nancy Bloch, executive director of the National Association of the Deaf, Rich Harkleroad, president of the Michigan Deaf Association; Ron Swartz, chairman of the board of Deaf C.A.N!, and others. Jeannette Johnson, prime organizer of the rally, could not attend; but following credits to her from Nancy Bloch and Rich Harkleroad, her mother, Celeste Johnson, delivered her speech to the crowd, that responded to it with cheers and ovations. Those on the upper floors of the Court House could not fail to miss the awesome spectable, even if they couldn't hear it.

The Deaf Community also extended their thanks also to the interpreters who volunteered their services at the rally, including Barbara Hinson, Paul Fugate, Claudia Lee (Advocate with DEAF C.A.N.!), and those who accompanied the students from Northview Public Schools. They also acknowledged the efforts of Claudia Koslosky, mother of a Deaf son, who had arranged to borrow the portable stage from Northview Public Schools, the school district that houses the local Total Communication Program for Deaf and Hard of Hearing Students. Despite the rain, Ms. Koslosky, with Bruce Partridge, a long-time ally of the Deaf Community, set up the stage and took it down at the end of the day, making it possible for the speakers to be seen by the crowd.

A critical factor in the decision, about which most were unaware, was the amicus brief filed by Attorney Calvin Luker of Oakland County, MI, and Amy Maes, of Michigan Protection and Advocacy Services. Initially, Attorney Luker's wife and assistant, Tricia, worked tirelessly to collect and sythesize information from families of persons with disabilities, to provide Michigan
Protection and Advocacy Services [MPAS] the impetus to fund and support an amicus brief in this matter. Attorney Luker wrote a compelling amicus brief. Judge Feeney had originally indicated to him that he could submit the brief later this month. While he and his wife were in Washington, D.C., Judge Feeney contacted him to inform him that she had changed her mind, and he would have to have the brief submitted by October 4, 2002, the final day of the trial, allowing only 24 hours to produce the brief. The Lukers flew home to eastern Michigan, and working with Attorney Maes through the night, the amicus brief was submitted to Judge Feeney before the deadline expired. Supporters believe the brief had an unmistakable impact on the outcome of the case. That brief is posted on the Deafbase News website, http://deafbase.net/users/GR/FINALVER.doc.

The amicus brief is public record, and may be freely re-distributed. Those concerned about this case have expressed their thanks to Calvin Luker for writing the amicus brief, and to Michigan Protection and Advocacy's executive director, Elmer Cerano (ecerano@mpas.org) and to Amy Maes, Director of Advocacy Services (amaes@mpas.org) for recognizing this case as one with systemic effects for all persons with disabilities in Michigan, and for supporting the brief.

Press Release Correction

Hi from Calvin,

A quick correction ... I spoke w/Judge Feeney on Monday, September 30th about MPAS filing an amicus brief. Our written motion had requested until October 14th to file the brief itself. Judge Feeney stated she hoped to rule from the bench at the Friday hearing and wanted to reread MPAS' motion before deciding whether to let MPAS appear on the 4th to formally request permission to file the brief. She said she would get back to MPAS or me with an answer. She made no promises, and from my standpoint the question
remained when, if at all, she was going to let us -- MPAS or me -- come to court to "argue" our motion requesting permission to file the brief. The question is one of pure judicial discretion, and she did not have to hear, let alone decide, our motion given the tight time constraints and the fact that there already had been several days of hearings. On Wednesday either Judge Feeney herself or a member of her staff called Amy Maes, the MPAS Director of Advocacy Services who is listed as co-counsel with me on the
motion, and told her that Judge Feeney would accept an amicus brief from MPAS, effectively granting our motion to file one without requiring us to show up and argue it. But Amy was told that MPAS had to file its amicus brief by Friday noon, so Judge Feeney could review it before making her decision on the case in the afternoon. I understand where some confusion might have entered in to the description of events, as MPAS only filed its motion for permission to file an amicus brief on September 27th, and we did ask to be given until October 14th if the Court gave us permission to file one. Everything happened quite quickly
this past week, including the need for Amy and me, with Tricia's help and the help of the MPAS support staff, to write and submit the brief within roughly 48 hours after learning our request to file it had been granted.

Tricia and I did return early from our Washington DC trip so that we could finish the job Amy started.

I just wanted to be sure I corrected this fact. Judge Feeney could have told us "No." Instead she gave us permission, and we were able to perform within the limited time we had. Mark Twain once said "if I'da had longer, I coulda made it shorter." Time did that for us, and in the end it probably was better that we had to cut to the chase without all of the supporting information we were in the process of gathering. The results speak positively for the efforts.

Calvin Luke