A Denver attorney who specializes in disability discrimination litigation, has found himself in the shoes of the very people he represents.
Spencer Kontnik is suing the Denver County Court for excluding him from jury service because he is deaf.
The lawsuit, filed Friday in Denver District Court, alleges discrimination against a qualified juror with a disability and claims the court violated the Colorado Anti-Discrimination Act, which states people with disabilities must not be excluded from participating in services, programs or activities provided by a public entity or state agency. A court is a public entity.
Kontnik and the Colorado Cross-Disability Coalition, a nonprofit advocating for disability rights statewide, are asking the Denver County Court to stop violating the law and ensure prospective jurors with disabilities do not experience discrimination by implementing new policies.
“Individuals with disabilities should be valued and under Colorado law, frankly, do have the right to be treated the same as others,” Kontnik said by phone Monday afternoon.
Kontnik, an attorney who specializes in representing people who are deaf and hard of hearing in disability civil rights cases, received a summons to appear for jury duty at the Lindsey-Flanigan Courthouse for a case in Denver County Court on July 15, 2021.
Kontnik — who uses a cochlear implant, hearing aids and other courtroom accommodations for his hearing impairment — made arrangements with the Denver Office of Sign Language Services to have a translation interpreter provide real-time captioning services during jury selection.
When he arrived for jury selection, Kontnik was eager to learn about the court process from the other side. He’s been a lawyer for years and has practiced in front of juries, but has never served as a juror.
But before Kontnik entered the courtroom, the translation interpreter met him in a hallway and explained that the judge had already excluded him from jury service, in the upcoming criminal trial. Judge Judith A. Smith said in court records that attorneys had reached an agreement to exclude Kontnik from serving as a juror because it “might be tough for him,” and the judge agreed with the decision. A defense attorney also allegedly said they believed Kontnik’s participation with translation services would “slow down” the one-day trial that officials were trying to finish as quickly as possible, according to a copy of the lawsuit.
The judge also claimed an alternate juror would be required in case there were issues with interpretation or with Kontnik’s ability to serve. Kontnik’s attorneys say there was no need for an alternate juror, and no reason why Kontnik’s jury service would have been “tough for him.”
Kontnik uses real-time interpreters in the courtroom regularly, without any delays, the lawsuit states.
Denver County Court rules require a judge to interview potential jurors before evaluating their qualification to serve. However, Judge Smith did not communicate with Kontnik before he was dismissed, the lawsuit says.
“Although I am a confident individual, it was very embarrassing to be singled out based on my disability in front of 20-30 other potential jurors,” Kontnik said in a letter he recently wrote to city leaders. “I would have understood if I were stricken from a jury because I am an attorney, or because one of the parties perceived bias, but it was disturbing to be stricken because of my disability.”
The Colorado Municipal Court Rules of Procedure, which a court must follow when selecting a jury, specifies that no juror is permitted to be challenged or excused, unless the court determines the juror is unqualified to serve for reasons specified under law, such as if the juror knows the defendant or if the juror is in a dispute with the defendant.
“There was nothing about Mr. Kontnik’s disability or the use of (an) interpreter that would have disqualified him from the jury selection process,” the lawsuit states.
Kontnik said some may view jury duty as a burden, but he and others who showed up that day to serve in July, had felt it was a privilege.
“I took time out of my day to make sure that I was there and prepared to do my civic duty to be a jury member,” he said. “And I think the courts and the city should make sure that if individuals with disabilities are going to have to take time out of their day to attend jury service, just like everyone else, they should have an equal opportunity to sit on a jury and fulfill their civic duty.”
The Denver County Court did not respond to two requests for comment on Monday.
When a potential juror is dismissed, the court isn’t required to specify why, and so it becomes “almost impossible” to know if they were excluded because of their disability, said Kevin Williams, Kontnik’s attorney and civil rights legal program director for Colorado Cross-Disability Coalition.
“It is absolutely unbelievable and astounding that 32 years after the passage of the Americans with Disabilities Act that a court … and attorneys said, this person, whom they’ve never met, just because of his disability can’t serve on a jury,” Williams said.
The Americans with Disabilities Act also prohibits courts from excluding any person with a disability from participation in jury service simply because of their disability status.
After the incident, Kontnik said he reached out to the national Deaf and Hard of Hearing Bar Association to ask if others had experienced a similar incident. About half a dozen people responded, at least one from Colorado, and said they have experienced something similar.
Kontnik also wrote a letter to city leaders and explained that losing all of his hearing at age 6 was traumatic. While growing up, he was excluded from many activities that he had previously enjoyed by teachers, coaches and other children, he said in the letter.
“Luckily for me, I had the support of my family,” Kontnik wrote. “My family did not place limitations on me, and I learned from a young age how to stand up for myself. Nevertheless, my hearing has always been a sensitive issue.”
Kontnik wrote letters asking attorneys to change their conduct toward other potential jurors with disabilities, before filing the lawsuit. Soon after, he filed charges of discrimination against the district attorney’s office, the public defender’s office, and the Denver County Court alleging discrimination.
During the Colorado Civil Rights Division proceedings, Kontnik was able to negotiate settlement agreements with the Denver District Attorney’s Office and the Colorado Office of the State Public Defender, requiring that they train their staff and change their policies to comply with the Americans with Disabilities Act and Colorado law when seeking to excuse potential jurors with disabilities.
But the Denver County Court refused to reach a similar agreement.
Denver County Court’s then-presiding Judge Teresa Spahn submitted a response to Kontnik’s complaint against the court. She incorrectly stated, “There is no case law in Colorado addressing whether striking a person from a jury due to a disability violates the Colorado Anti-Discrimination Act,” according to the lawsuit.
“Because Denver County Court refused to resolve the case or recognize its duty to allow qualified jurors like Mr. Kontnik to proceed through the jury process, Mr. Kontnik and CCDC filed this lawsuit,” according to a news release.
Williams, who said the coalition has brought hundreds of cases on behalf of people with disabilities during his tenure, said in an interview that he was particularly saddened by this one.
“Spencer Kontnik is one of a handful of attorneys with disabilities who shares in the lived experience of having a disability and has done so much good for others who are similarly situated,” he said. “It is time to put an end to this shameful unfounded belief system about the abilities of those of us who have disabilities especially by our own colleagues and judges before whom we practice.”