A recently issued Michigan court rule, dealing with interpreter costs, raises broader and troubling questions about middle income access to justice.
As reported by the Detroit Free Press, the US Attorney for Michigan points out that the rule, which requires those over 125% of the poverty line to pay for court interpreters, could pose a significant access barrier. As discussed below, the rule envisions collection of these costs only when: “An assessment of interpreter costs at the conclusion of the litigation would not unreasonably impede the person’s ability to defend or pursue the claims involved in the matter.” In the real world, this should mean that most such costs would be borne by the court. So the devil is likely to be in the details, and as so often, discretion is both the key and a major risk, which is presumably why DOJ takes the position it does.
But the broader question is this — what happens to those not eligible for public defender or other such state services because they are over the income standards, which often, have no “out” of the kind Michigan has put into place for interpreter costs.
I am coming to feel more and more that the legitimacy of the entire system, and certainly of its access components, depends on ensuring assistance with access for middle income folks. Why should middle income people support additional taxes to support legal aid if they do not benefit from it?
In the real world, I think some jurisdictions are realistic in their interpretation of eligibility rules, and others not so, resulting in inappropriate self-representation, or very heavy burdens on concerned families.
To the extent that “civil Gideon” becomes a reality, these issues will much more important, and solutions such as co-payments and sliding scales are likely to become critical to ensuring the viability of credible access for all.
The Detroit Free Press story, in part:
The state Supreme Court said Wednesday it has created the rule requiring all courts in Michigan to offer foreign-language interpreters for people involved in the court system who can’t understand English. The move comes amid an investigation by the Department of Justice started in 2011 that’s examining whether courts in Michigan are failing to provide translators.
One part of the new rule requires people who make more than 25% above the poverty level to pay for translators; that would mean a single person who makes more than $14,362 would have to pay. Such a requirement could hinder access to the court system, potentially creating “a chilling effect,” U.S. Attorney Barbara McQuade for the Eastern District of Michigan said Friday.
The courts are saying that there is some discretion in the Rule. According to Supreme Court Justice McCormack, as reported in LegalNews.com:
“The rule we announce today is a common-sense one: LEP parties to a court case or hearing will reimburse the court for interpreter services if they can afford to do so, but will receive services without cost if they cannot,” McCormack explained. “Note that reimbursement only applies to parties to a case, and not, for example, to LEP witnesses or others who require a translator to participate in court proceedings.
And courts will not require payment for interpreter services up front, but only after the conclusion of the case or proceeding. This helps guarantee that LEP parties are not discouraged from accessing the justice system. Most importantly, the rule gives trial courts the flexibility to ensure access for all LEP persons. That is our goal.”
The language of the Rule (Rule 1.111) is as follows:
(4) A person is “financially able to pay for interpretation costs” if the court determines that requiring reimbursement of interpreter costs will not pose an unreasonable burden on the person’s ability to have meaningful access to the court. For purposes of this rule, a person is financially able to pay for interpreter costs when:
(a) The person’s family or household income is greater than 125% of the federal poverty level; and
(b) An assessment of interpreter costs at the conclusion of the litigation would not unreasonably impede the person’s ability to defend or pursue the claims involved in the matter.
Here is the relevant text of the ABA Standards:
Standard 2.3
Courts should provide language access services without charge, and may assess or recoup the cost of such services only in a manner that is consistent with principles of fairness, access to justice and integrity of the judicial process, and that comports with legal requirements.
Commentary
Language access services ensure that all persons have equal access to justice and that information essential for the efficiency and integrity of legal proceedings can be understood by both English speakers and those who are LEP. Many states and courts, as well as the federal government, have endorsed these principles by passing laws and promulgating rules and guidance that expressly require the provision of language access services in both civil and criminal cases regardless of indigency.12 See Standard 1 for a full examination of these principles and relevant law and jurisprudence.
Courts should avoid placing the burden of paying for language access disproportionately on LEP individuals in a manner that discourages access to court by LEP persons or inhibits requests for language services necessary to enable LEP persons to participate fully in proceedings. The cost of language services, if imposed, should not unduly impact LEP persons. The court may assess or recoup those costs from a well- resourced party who has the ability to pay, as appropriate and where allowed by law. Whatever test the court applies to determine if costs should be assessed or recouped, it cannot have a chilling effect on the rights of the LEP person to access the court system. In all cases, the court has an institutional interest in having adequate language services to capture evidence accurately and determine cases fairly on the merits.
DOJ’s position is clear, as articulated in the August, 2010 Letter:
Charging interpreter costs to one or more parties. Many courts that ostensibly provide qualified interpreters for covered court proceedings require or authorize one or more of the persons involved in the case to be charged with the cost of the interpreter. Although the rules or practices vary, and may exempt indigent parties, their common impact is either to subject some individuals to a surcharge based upon a party’s or witness’ English language proficiency, or to discourage parties from requesting or using a competent interpreter. Title VI and its regulations prohibit practices that have the effect of charging parties, impairing their participation in proceedings, or limiting presentation of witnesses based upon national origin. As such, the DOJ Guidance makes clear that court proceedings are among the most important activities conducted by recipients of federal funds, and emphasizes the need to provide interpretation free of cost. Courts that charge interpreter costs to the parties may be arranging for an interpreter’s presence, but they are not “providing” the interpreter. 001 expects that, when meaningful access requires interpretation, courts will provide interpreters at no cost to the persons involved.
Update:
Here is the Sept 17 DOJ letter to the Michigan Courts (extract only below):
In addition, Rule 1.111 injects great uncertainty for anyone seeking court protection or other action whose income is even slightly over 125% of the poverty level. The possibility of later receiving a bill for an interpreter may encourage LEP individuals to waive their right to interpreters, affect legal options and negotiating positions, and discourage people from coming to court in the first place. Adding to that uncertainty, SCAO counsel has explained to DOJ that implementation of the Rule will be left to judicial discretion, with each court developing a different implementation plan. The likely chilling effect of this Rule is the type of result that Title VI, the Safe Streets Act, and their implementing regulations intend to prevent.
Further, SCAO counsel has explained that Rule 1.111 applies in all criminal proceedings. It appears, then, that the rule may represent a retreat rather than progress, because we understand that interpreter costs prior to the changes to Rule 1.111 generally were not charged to criminal defendants.
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