One challenge all states face is providing LEP persons with meaningful access to their courts. Under prior Michigan rules, interpreters have been provided for all criminal defendants who need them and in the courts for civil matters based upon the Judge’s discretion. However, in an attempt to embrace the goal of providing meaningful access to all courts in the State of Michigan, the Michigan Supreme Court adopted Rule 1.111 and Rule 8.127 on September 11, 2013. Under Rule 1.111(B)(1), “ a court is required to provide an interpreter for a party or witness if the court determines one is needed for either party or the witness to meaningfully participate.” LEP services are “provided to all who have a need for them,” and under the rule, only parties who are able to pay for them are subject to the reimbursement.
ABILITY TO PAY
In order to strike a balance between ensuring meaningful access while not imposing undue burdens on Michigan’s local courts, the rule dictates that the Court can impose costs only if the party has the ability to reimburse for interpreter services. While the court rule has some flexibility on the issue of who must pay for the interpreter, the rule allows the trial judge to make a fact-based, individualized determination whether assessments of costs would limit an LEP person’s access to the Court. The rule states that the court will impose costs only if the party has income above 125% of the federal poverty level (i.e. more than $14,362.50 for an individual or $29,437.50 for a family of four) and the court finds assessment of the interpreter costs “would not unreasonably impede the person’s ability to pursue or defend a claim.”
Michigan Court Rules 1.111 (A)(4) and (B)(1) aim to protect the LEP person’s opportunity to pursue or defend a legal action. Some argue that this criteria is no different than the assessment a court makes when an individual needs a court-appointed attorney. However, others argue that the uncertainty of whether the LEP person will be billed or not can affect their legal options and negotiations. Crucially, the rule may discourage them from exercising their legal rights.
POSSIBLE TITLE VI PROBLEMS WITH THE RULES
Although the Michigan Supreme Court has worked cooperatively with the US Department of Justice (DOJ) since 2011 to improve the ability of LEP persons to access Michigan’s Courts, there has been a past history of DOJ investigating complaints of national origin discrimination by Michigan State Courts including SCAO under Title VI. Title VI and its regulations prohibit practices that have the effect of charging parties, impairing the participation in proceedings or limiting presentation of witnesses based upon national origin. Some argue that in issuing MCR 1.111 without concurrence of the DOJ, the Michigan court created a new barrier to meaningful access for certain court users in the form of a tax or surcharge based on English language ability. The DOJ’s position that MCR 1.111 did not meet the civil rights obligations articulated in both the 2002 and 2010 DOJ Guidance. It is the DOJ’s position that it expects that when meaningful access requires interpretation, court will provide interpreters at no cost to the person involved. If a State fails to comply, its federal funding assistance could be placed in jeopardy.
THE LANGUAGE ACCESS CERTIFICATION PROGRAM
The reality is that throughout the State of Michigan, there are not enough certified interpreters. “Certified through the Language Access Program” means that the individual has complied with the court rule and passed two tests demonstrating their abilities to interpret. For instance, for the entire state of Michigan there are only 47 Spanish, 10 Arabic, 1 Japanese, 3 Mandarin, 2 Polish, 3 Russian, 6 Chaldean, 2 Albanian, 1 Aramaic, 2 Assyrian, 1 German, 1 Chinese, 1 Bengali, 1 Hebrew, 2 Hindi, 3 Italian, 1 Punjabi, 2 Romanian, 1 Thai, and 2 Urdu certified interpreters. On the qualified level, (i.e. the person has only passed the written portion but not yet demonstrated proficiency at interpreting from one language to another) there are significantly more. If no interpreter is available, MCR 1.111(A)(7) requires the court to conduct voir dire to determine that the individual is competent to provide interpretation services for the proceeding in which the interpreter is providing services.
FOREIGN LANGUAGE BOARD OF REVIEW
Michigan Court Rule 8.127 establishes a mechanism to ensure that incompetent interpreters or those who commit misconduct are investigated accordingly. Attorneys and trial judges who become aware of such incompetency or misconduct are expected to report the incident to the State Court Administrative Office (SCAO). Subsequently, the SCAO will report the complaint to the Foreign Language Board of Review (FLBoR). After review of the complaint and a meeting of the Board with witnesses and the interpreter, the Board will decide on an appropriate response.
Mary Rubio, Wayne County Assistant Prosecutor and FLBoR Member, believes “the fact that a court rule now exists requiring a Board to oversee its implementation is a positive step in the right direction to ensure that non-English speaking people who appear before the courts have their rights preserved.” Susan Reed, an LEP Advocate and also a FLBoR member, shared that she is “very impressed with the level of commitment that Justice McCormack and the SCAO staff have shown ensuring that the rule is as effective as possible increasing access and fairness for people with Limited English Proficiency.” Candace Crowley, Director of External Development of the State Bar of Michigan summarized the sentiment around the rule well, when she said
the new court rules introduced last fall promise to facilitate justice for a group of people whose access in the past has been pretty limited. The implementation process to make the rules work requires a lot of thought and careful input – and a shift in expectations by the public and the advocates – but those who are working on this are confident that the experience of those with limited English proficiency who use Michigan courts will be much improved. It might take some time, but we’ll get there.