Braille Monitor April-May 1985
by Marc Maurer
There are blind people who don't join the National Federation of the Blind. It isn't that they don't know about it; rather, they simply don't feel the need. They say, "I have a good job, I have my family, I have my social life. Why should I spend my evenings or my weekends going to meetings of the National Federation of the Blind? These people in the Federation always talk about discrimination, but no one has discriminated against me. They always try to dramatize the problems of the blind, but I don't have those problems. They always want to go and fight about something, but I am a peaceful person. I only want to live quietly without drawing attention to myself or causing a fuss. I only want to be left alone."
How very short-sighted this viewpoint is. How lacking in understanding. Not only is it true that discrimination practiced against one blind person is discrimination against us all, but also all of us, without exception, face the put-downs and the slights, if we will only understand them and admit it. Beyond that, discrimination knows no social barriers-no class distinctions. It happens to everyone. It is no respecter of money, or position, or intellectual training.
Let us take a case in point. A few weeks ago I received a call from a lawyer at the Human Rights Commission in New York. She asked me if the National Association of Blind Lawyers, the Lawyers Division of the National Federation of the Blind, could help the New York Human Rights Commission. The problem she had was this: A complaint had been filed with the Human Rights Commission charging a New York employer (one Norman Rudow) with sexual discrimination. The case proceeded to a hearing before an Administrative Law Judge. There was a full review, and the Administrative Law Judge made Findings of Fact and Conclusions of Law. These Findings and Conclusions said that indeed there had been discrimination, and that the employer was liable. The Human Rights Commission reviewed the recommended decision of the Administrative Law Judge, found it to be reasonable, and adopted it.
The employer appealed this finding of discrimination to the New York Courts. After a thorough review of the case, the Judge affirmed the finding of discrimination against the employer. This is a report of a routine, run-of-the-mill, Human Rights Commission case. However, the next stage of the proceedings is not at all routine. The employer (Mr. Rudow) appealed again to the New York Appellate Division, the appeals court for New York. He made the same arguments there that he had made in the lower court. However, he added one. The Administrative Law Judge, Rudow said, was blind. The case presented to the New York Human Rights Commission was one in which the credibility of witnesses must be judged. To determine credibility, whether the witness is telling the truth or not, a judge must observe the demeanor of the witness, Rudow said. Because this judge was blind, he could not observe the credibility of the witnesses. He was incapable, Rudow said, of making a reasoned decision based on the testimony of the witnesses because he was not competent to observe their demeanor, and so he could not properly tell whether they told the truth. This employer argued that any time the testimony of a witness is in question, a blind person cannot possibly be competent to judge the facts. The Administrative Law Judge at the New York Human Rights Commission (a person with education, a person with standing in his profession, a person in a position of importance) was, according to the employer, incompetent because of blindness. Discrimination comes to every one of us who is blind.
The Rudow argument seems incredible, but let Rudow (the employer) speak for himself. Here is an excerpt from the brief of this employer filed with the New York Appellate Division. I quote it at length because of the damning and disastrous consequences if its fallacious arguments should prevail. Here is what it says:
Because demeanor evidence was critical in this swearing match, it was inappropriate for a blind ALJ (administrative law judge) who could not see the witnesses to preside at the hearing as the sole trier of fact. Indeed, in light of the sexual and racial overtones of this case, the serious questions regarding the integrity and completeness of the pleadings and documentary evidence. . ., the lack of evidentiary safeguards in the administrative setting . . . , and the limited scope of judicial review of agency decisions . . . , the circumstances here are even more compelling than Lewinson or Brown (sic) for the exclusion of a blind ALJ as the sole trier of fact.
As one perceptive court has stated, "where the material requires for its solution a determination of the credibility of witnesses, due process requires a meaningful credibility evaluation by the administrative trier of fact." Addison v. Review Board of the Indiana Employment Security Division, 397 N.E. 2d 1037, 1041 (Ind. App. 1979) reh. denied, 401 N.E.2d 718. Because the blind ALJ could not observe demeanor and therefore could not meaningfully evaluate credibility, which even the HRC's (Human Rights Commission) counsel has conceded is crucial in sexual harassment cases, Petitioner-Appellant Rudow (the employer) was deprived of a fair hearing.
(Footnote) "In a case in Indiana a new trial was granted upon proof that the eyesight of one of the jurors was so defective that he was unable to distinguish the faces of the witnesses. We may expect that some day the courts will likewise hold that a judge, hearing a case without a jury, cannot give a fair trial if he is so near-sighted that he is unable to observe the expression, deportment and demeanor of the witnesses." J. Frank, Law and The Modern Mind 110 (1936). The late Judge Jerome Frank could not even conceive of getting a fair trial before a blind judge in a nonjury setting!
Moreover, because of the arbitrary exclusion of significant demeanor evidence, the HRC's decision and findings with regard to credibility could not be based on substantial evidence.
The HRC's claims that demeanor was considered by the ALJ when it knew that this was a physical impossibility constituted a reprehensible distortion of the truth which resulted in a fraud on the public and on the lower court. As the court of appeals declared in People v. Savvides, 1 N.Y. 554,154 N.Y.S. 2d 885, 887 (1956): "A lie is a lie, no matter what its subject . . . ." The HRC knew long before the hearing that this was a case in which "there is a clear credibility issue as to the actual nature of the incidents involved." The conscious decision to have a blind ALJ preside in such a case, the failure of the ALJ to recuse himself, and the later claims that demeanor was considered prove that the HRC never intended to give Petitioner-Appellant Rudow a fair hearing.
B. Because of the Exclusion of Demeanor Evidence, the Hearing Was Illegal and the HRC's Decision Is Not Based "Upon All the Evidence at the Hearing" as Required by Statute.
The statute under which the hearing was conducted requires the HRC to reach a determination based "upon all the evidence at the hearing." New York City Administrative Code, sec. B1-8.0(2)(c) (emphasis added). The law is settled that "demeanor evidence" is a "species of real evidence." Black's Law Dictionary (5th Ed. 1979) In Dyer v. MacDougall, supra, Judge Hand wrote: "It is true that the carriage, behavior, bearing, manner and appearance of a witness - in short, his 'demeanor' - is a part of the evidence." Broadcast Music v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2nd Cir. 1949). "'Demeanor, whether that of a witness while testifying or of a person who is not giving testimony, is ... a kind of event . . . which always occurs in presence of a jury and is sensibly apparent to it. Consequently, such an event need not be offered and cannot be excluded'." United States v. Schipani, 293 F. Supp. 156, 163 (E.D.N.Y. 1968), aff'd, 414 F.2d 1262 (2d. Cir. 1969), cert. denied 397 U.S. 922, 90 S.Ct. 902 (1970). See also, Michael & Adler, "Real Proof," 5 Vand. L. Rev. 344, 365 (1952).
The clear intent of the legislature in including the word "all" was to ensure litigants of consideration of the broadest possible spectrum of relevant evidence at the hearing. This intent is underscored by the fact that the phrase "upon all the evidence" appears twice in the short statutory section. To interpret "all" as meaning anything less than "the whole" would render the statutory language meaningless and would defeat the clear intent of the legislature. "When the language of a statute is unambiguous, and its meaning evident, it must be held to mean what it plainly expresses." Johnson v Southern Pacific Co., 117 F. 462, 465 (8th Cir. 1902), rev'd on other grounds, 196 U.S. 1, 25 S.Ct. 158 (1904). Indeed, in the recent case Burlington Industries, Inc. v. New York City Human Rights Commission, 82 A.D.2d 415,417, 441 N.Y.S.2d 821 (1st Dept. 1981), aff'd, 58 N.Y2d 983, 460 N.Y.S.2d 920, 447 N.E.2d 1281 (1983), this court affirmed that this statutory language means that "the Commission was required to reach a determination based upon all the evidence at the hearing (Adm. Code sec. Bl-8.0( 2) (c))." (emphasis added)
Because the ALJ was blind and could not observe admittedly material demeanor evidence, the hearing was illegal, and the HRC's decision could not possibly have been based on "all the evidence" at the hearing as required by statute. We therefore respectfully urge this court to reverse and vacate the orders below.
C. The Credibility Findings of the HRC Are Not Entitled to the Usual Deference Because the ALJ Could Not Observe Demeanor.
Appellate Courts are reluctant to substitute their judgment for the trier of facts (sic) on factual issues such as credibility because the trier of facts had the opportunity to observe the witnesses.
(Footnote) A less deferential standard of review is appropriate when an appellate court reviews purely legal questions. Groper v Tall, 717 F.2d 1415, 1418 n.4 (D.C. Cir. 1983).
In In re Derrick C, 52 A.D.2d 52 2, 523, 381 N.Y.S.2d 837 (1st Dept. 1976), for example, this court stated: "There is no reason for this Court to disturb the findings of the trier of the facts, since only he had the opportunity to observe the demeanor of the witnesses and assess their credibility." See also, S. Buchsbaum & Co. v. Federal Trade Commission, 153 F.2d 85, 88 (7th Cir. 1946), cert, granted 66 S.Ct 1016 (1946).
The lower court erroneously stated that the standard for judicial review of the HRC's findings "is a deferential one" because the ALJ "had an opportunity to evaluate the demeanor of the witnesses." Since the ALJ was blind and could not observe the demeanor of the witnesses, as claimed, the usual reason for according deference to his credibility findings is missing. As one court has succinctly put it: "Although this court generally gives great deference to the credibility resolutions of the finder of fact (citation omitted) when the theory of credibility is faulty, then the credibility resolution itself must fall." Custom Recovery, Div. of Keystone Resources, Inc. v. NLRB, 597 F.2d 1041, 1045 (5th Cir. 1979). The extraordinary circumstances of this case warrant a departure from the traditionally narrow scope of appellate review.
I have, as I have already said, quoted at such length from the employer's brief because of its far-reaching implications. As will be readily observed, it is one of the most concentrated and spurious attacks upon the civil rights and general claim of normality and competence of blind people I have ever seen. If the Rudow argument is accepted as true, it would mean that blind persons in decision-making capacities throughout our society would be challenged. It would mean that in all of the jobs which sighted people perform with their eyes, the alternative techniques used by blind people would be under serious attack as ineffective substitutes. It would mean that one more precedent was on the books saying that sight is the preeminent characteristic on which humanity must rely and that information gathered in any other way is insufficient or subject to doubt. It would mean that the competence of blind persons to deal with virtually every situation could be called into question. Blind mothers could not observe their children, and so, could not provide them with proper care. Blind psychologists could not observe the demeanor of their patients and could not reach the proper diagnosis. Blind salesmen could not observe the characteristics of their customers and take appropriate steps to insure that they got a sale. Blind teachers could not observe their students and, therefore, could not insure that the proper education was given. The list is endless.
Could this really happen? Is there any danger that a single decision will help to erode all the gains we have made? Is there any possibility that in this day and age any court could find that sight is necessary before an Administrative Law Judge in an ordinary case can reach a valid decision?
Only one year ago, in a case which did not come to the attention of the National Federation of the Blind until after the decision was made, the highest court in New York found that a blind person serving as a trial court judge in New York City could not reasonably take a case in which that judge was required to make a finding based upon information in a photograph. This decision, People v. Brown, reported at 62 N.Y.2d 743 (1984) reversed a criminal conviction because the judge was blind. Thus, the current thinking of the law in New York is that there is some question about the competence of a blind person to serve as a judge at least in those cases in which there are photographs. How long a step is it from disqualifying a blind judge because photographic evidence is introduced to disqualifying a judge because he supposedly cannot observe the demeanor of a witness?
Of course, we could not let the Rudow argument go unchallenged. The lives and careers of too many blind people hang in the balance. The National Federation of the Blind, through its lawyers division, the National Association of Blind Lawyers, intervened. An Amicus Curiae brief was filed. This is, in part, what we said to the New York Appellate Division. Again (because of the importance of the issue) I quote at some length:
The Petitioner-Appellant in this case, Norman Rudow (the employer), has attacked the competency of a blind person to act as a judicial finder of fact, in this case as an administrative law judge. The collective experience of blind judges and jurors in this country completely dispels any suggestion of incompetency. Numerous jurisdictions have quite properly entrusted the blind with the duties of judicial fact finder, both on the bench and in the jury box. The confidence which society has shown in blind judges and jurors is demonstrated by the growing number of such appointments and by the many laws which guarantee the participation of the blind in society.
It is the public policy throughout the United States that the handicapped be permitted to exercise all of the rights of citizenship without regard to any handicapping condition. In 1966, Professor Jacobus tenBroek reviewed the development of the legal rights of the disabled, stretching back to 1918, and concluded:
"From the foregoing, it is abundantly clear that integration of the disabled is the policy of the nation. This policy has been expressed by Congress and by the state legislatures, not once, but many times, and not merely with respect to a single narrow area of human endeavor, but with respect to the whole broad range of social, economic, and educational activity backed up with numerous specially created agencies and instrumentalities of government, with affirmative and negative prohibitions, and with vast expenditures of money amounting to hundreds of millions of dollars each year." tenBroek, "The Right To Live In The World: The Disabled In The Law Of Torts', 54 CAL. L. REV. 841, 847, (1966).
The years since 1966 have brought with them further legislative developments of this policy. The United States Congress has enacted Title 5 of the Rehabilitation Act of 1973, 29 U.S.C. Sections 791 et seq., guaranteeing the civil rights of the handicapped, and the Voting Rights Act Amendments of 1982, 42 U.S.C. Section 1973aa, insuring the right of all blind persons to vote. Numerous states have enacted or strengthened White Cane Laws and civil rights laws for the handicapped. All of these laws and the judicial decisions interpreting them, have recognized and guaranteed the civil rights of the blind.
The attack leveled at the administrative law judge in this case is an attack on the policy of integrating the blind into society. It is this policy which led to the appointment of blind judges throughout the country. It is this policy which led to the amendment of jury selection laws to permit the handicapped, including the blind, to serve. (See, e.g. 1983 N.Y. Laws, c. 474, Section 1, N.Y. Judiciary Law Section 510). To decide now that a blind person is not capable of judging the facts would run contrary to this well reasoned and longstanding policy. It would be a rejection of the fact that the blind are as capable of making soundly based decisions as the sighted.
The Appellant seeks to convince this Court that, while the blind may be able to function as judges in some cases, this case is different because it turns on the crediblity of the witnesses. This case is clearly not unique. Administrative law judges, who sit without a jury, make findings of fact each day based on conflicting testimony. A finding that this administrative law judge could not sit in this case would be a finding that blind judges are incompetent to sit in any case in which oral testimony is taken. Such a conclusion is disproven every day by blind judges throughout the country.
Recently, Judge Dana Wakefield, a blind trial judge in Colorado, was presented with a case involving a video taped confession. The defense suggested that the case was not a proper one for a blind judge to hear. Judge Wakefield disagreed. He reasoned that a video tape could be evaluated by him in the same manner as the live testimony he was presented with each day. On May 14, 1984, the Colorado Supreme Court refused to hear the defendant's attempt to remove his case from Judge Wakefield's docket. (Denver Post, March 15, 1984; Rocky Mountain News, March 29, 1984)
Other blind judges have similarly expressed the view that sight is not necessary to determine a witness's credibility. Judge Nicholas Pomaro of the Cook County, Illinois Circuit Court states that "since you can't see facial expressions, you also learn to listen to voices." 69 American Bar Association Journal 1021 (August, 1983). Judge Pomaro has served for seven years. Judge Chris Cole is a blind judge who has spent twelve years on the Texas bench. He, too, does not find sight to be a legitimate job qualification, having found alternate techniques to perform those tasks which he would otherwise do with sight. Id. at 1021-22.
There are many other examples of successful blind jurists. Lewis Corbin presides in Florida's Fourth Judicial District, (BRAILLE MONITOR, January 1979, page 10) ; Judge Gilbert Ramirez is on the Supreme Court of New York in New York City (BRAILLE MONITOR, October 1977, page 323); Judge Courtland Perry sits in the Seventh District Court in the State of Maine (BRAILLE MONITOR, February 1977, page 67); Judge Donald H. Wilkinson served 30 years on the Superior Court of the State of California (BRAILLE MONITOR, March); Judge Charles R. Simpson was appointed to the United States Tax Court in 1965 (BRAILLE MONITOR, September 1965, page 31, and October 1965, page 5); Judge August Jankowski has sat as an elected city court judge in Dunkirk, New York (BRAILLE MONITOR, July 1972, page 339); and Milton Holmes served for eleven years as a judge of the municipal court in Rock River, Ohio (BRAILLE MONITOR, January 1972, page 56). The tenure of each of these judges demonstrates that sight is not a legitimate qualification for a judge. Blind judges sitting, as they often must, as finders of fact, are capable of judging the credibility of the witnesses before them.
Judge Gilbert Ramirez of the New York State Supreme Court addressed this point in a speech presented at the thirty- seventh annual Convention of the National Federation of the Blind. (This speech, entitled "The Blind Can Judge Facts," was reprinted in the BRAILLE MONITOR, October 1977, page 323.) Judge Ramirez addressed the resistance he met when being considered for a family court judgeship in 1968, soon after the Court of Appeals affirmed Lewinson v. Crews, 282 N.Y.S.2d 83 (2d Dept. 1967), which excluded blind persons from New York State juries. Judge Ramirez's experience as a successful lawyer and a legislator was at first discounted.
"And then came the inevitable question: How could I, blind as I am, determine the credibility of a witness if I could not visually observe the manner and demeanor of the witness on the stand? I explained as diffidently as I knew how that I would apply the same test that I used in my everyday affairs to determine the reliability or unreliability of statements made to me by others. The fact that for years I had dealt successfully with judges, prosecutors, lawyers, plaintiffs, defendants, and clients and witnesses should have been indicative of something. And the fact that I have recruited dozens of political workers and turned them into a winning political organization which produced four electoral victories for me without a single defeat should have been proof enough that I was a reasonably good judge of character and sincerity in others. And in the dog-eat-dog world of politics, where no mercy at all is shown to losers, I certainly had been more successful than most in telling the good guys from the bad guys and in separating fact from fiction. . . . Judges of fact are all too often carried away by their belief that seeing is believing. Tears are often more an expression of joy or anger than sorrow; and a nervous witness sometimes does tell the truth, while cool, well-composed witnesses have been known to tell a fib or two." Id. at 324.
Judge Ramirez makes telling points. One is that an attack on the ability of a blind judge to determine the credibility of a witness is, in reality, an attack on the ability of a blind person to exercise good judgment. The achievements of thousands of blind people demonstrate every day that the blind are capable of managing their own lives as are the sighted. The civil rights guaranteed to blind people by our society, the right to vote, rights of equal access, and the policy of integration discussed by Professor tenBroek, proclaim the confidence which our society places in the blind. This confidence is well-founded, as illustrated by the successful judicial career of Judge Gilbert Ramirez and many others. But Judge Ramirez's story serves as a reminder that the exercise of this policy may be hindered by uninformed concerns.
The Appellants in this case argue that a determination of witness credibility rests on the demeanor of the witness, which in turn rests almost exclusively on visual observation. Yet, demeanor need not be determined with sight. Halting testimony, changes in volume and tone of voice, and "pregnant" pauses, none of which survives transcription, are all part of the demeanor observed by the trial judge which is justifiably given great deference by reviewing bodies. Moreover, the Appellant has overstated the importance of visual contact with the witness. Sighted judges are not required to look at witnesses while they testify, and the Appellant can cite no case of a judgment's having been overturned for a judge's failure to do so. In fact, such grounds would be considered trivial. The appellate court should find that a diligent trial judge had acted within his sound discretion by directing his attention, though not his eyes, to the witness.
Blind Persons Have Been Judicially Determined To Be Competent To Judge Facts
In the United States Federal District Court for the District of Idaho, it was the practice of the court clerk to exclude all blind persons from service on juries. This matter was brought to the attention of Federal Court Judge Cal- lister by a blind professor at Boise State University. After considering the matter fully, Judge Callister directed the clerk to permit blind persons to serve on juries with no restriction except those applicable to all other persons. (This letter was reprinted in full in an article entitled "Blind Jurors Vs. The Federal Court System," by Norman Gardner, BRAILLE MONITOR, January 1984, page 14.)
Indeed, the legislatures of several states have declared that the blind may not be prohibited from serving on juries because of blindness. (Note: Blind persons have served on juries both within states which prohibit discrimination in this citizen service by statute and within states where no such statute was adopted. It is reported that blind people have served on juries in at least the following states: California (BRAILLE MONITOR, January 1975, p. 54, and January 1981, p. 81), Delaware (BRAILLE MONITOR, April 1980), District of Columbia (BRAILLE MONITOR, January 1975, p. 39), Idaho (BRAILLE MONITOR, January 1984, p. 14), Illinois (BRAILLE MONITOR, December 1979, p. 346), Iowa (BRAILLE MONITOR, April 1978, p. 107), Virginia (BRAILLE MONITOR, January 1978, p. 19), and Washington (BRAILLE MONITOR, October 1975, p. 501, and December 1975, p. 610).)
The Appellant's attack on the administrative law judge, based solely on the judge's blindness, must be rejected soundly. It must be rejected because of the public policy favoring integration of the blind into society, because blindness has nothing to do with judgmental competency, because the collective experience of the judiciary with blind judges and jurors demands it, and because common sense dictates it.
Maurer Law Firm, P.A.
Court Square Building
200 East Lexington Street
Baltimore, Maryland 21202
Telephone 301 539-2411
Marc Maurer, Esquire
Steven Keller, Esquire
So we argued in the brief submitted by the Federation. The decision in this case has not yet been made. Whether it will be positive or negative is yet to be known. But one thing is clear. The Rudow argument cannot be permitted to stand. The organized blind movement (the blind of America gathered together to protect our own freedom and gain independence) will not allow it. We will fight this argument and those like it until we have established the right of blind people to serve in every capacity for which we are qualified. The blind will not permit discrimination against a blind teacher, a blind mother, a blind student, or a blind judge. The blind must stand together, for the decision which discriminates against one of us discriminates against us all.