Justice Dept to Michigan Supreme Court: Interpreter rule creates new problems

by Traci R. Gentilozzi
Dolan Media Newswires
DETROIT, MI -- (September 18, 2013) The U.S. Department of Justice has told the Michigan Supreme Court that MCR 1.111, the new court rule guaranteeing interpreters for limited English proficient persons, doesn’t solve the problem it sought to fix and creates new, bigger problems.
The DOJ said it has “grave concerns” that MCR 1.111 “will result in national origin discrimination,” in a letter dated Sept. 17, 2013, to Matthew Schneider, chief legal counsel at the Attorney General’s Office.
For several years, the DOJ has been investigating discrimination complaints against the Michigan state courts and the State Court Administrative Office under Title VI of the Civil Rights Act of 1964, the Omnibus Crime Control and Safe Streets Act of 1968 and regulations that implement these statutes.
“[T]he Michigan Supreme Court has acknowledged publicly that LEP individuals in the state are denied access to courts,” said the letter, signed by Acting U.S. Assistant Attorney General Jocelyn Samuels and the two U.S. Attorneys in Michigan, Barbara L. McQuade and Patrick Miles.
But in issuing Rule 1.111 “without the concurrence of DOJ,” the letter noted, “the Court has created a new barrier to meaningful access for certain court users in the form of a surcharge, akin to a tax, based on English language ability.”
According to the letter, the Justice Department’s main concerns with MCR 1.111 are:
* While an interpreter’s presence may be arranged for an LEP person, the court is not really “providing” the interpreter when it later asks for costs to be reimbursed. The department said it expects courts to provide interpreters at no cost at all.
* The rule “allows a surcharge on individuals only because they do not speak English ….” The DOJ said this is “in stark contrast to SCAO’s rules prohibiting all state courts from charging deaf or hard of hearing individuals for interpreter costs regardless of income, or from requiring them to provide their own interpreters.”
* The possibility of being ordered to reimburse interpreter fees “may encourage LEP individuals to waive their right to interpreters.”
* The SCAO is letting the trial courts develop their own plans, which will not result in uniformity.
* The rule is a step backward for criminal proceedings because interpreter costs prior to the new rule were typically not even charged to criminal defendants.
* The SCAO needs to come up with a comprehensive language access plan, train judges and court staff on language access, and translate vital court documents and information.
“[B]ecause you have been aware of your civil rights obligations as articulated by the 2002 and 2010 DOJ Guidance and through our investigation for the past two years, we are disappointed that the issuance of this Rule did not reciprocate our concerted efforts to ensure that Michigan state courts meet their longstanding civil rights obligations,” the Justice Department told the AG’s Office.
“Our investigation of the Michigan state courts continues,” the Justice officials concluded.
Marcia McBrien, Supreme Court public information officer, told Michigan Lawyers Weekly the court is “troubled” by the DOJ’s apparent misunderstanding of the rule as providing a fixed cutoff for no-cost interpreter services.  “That is simply not accurate,” she said.
According to McBrien, MCR 1.111 requires courts to make an independent, discretionary ruling before any costs are assessed. “So the 125 percent threshold is just part of the inquiry; every LEP party above that threshold also gets a court determination of whether requiring reimbursement would impede the party’s access to the courts. The 125 percent threshold in the rule is just that — a threshold and not a bright-line cut-off.”
To the suggestion that the Justice Department and the Supreme Court need to work together to modify the rule, McBrien responded: “As we implement the rule, we welcome the DOJ’s expertise in LEP matters.”