It has been my experiencce that judges are far more anxious about the risk of adverse action from a judicial conduct than of an appellate reversal, no matter how harshly worded.
So it may be particularly significant that the New York Commission on Judicial Conduct has just publicly admonished Niagara Falls City Judge Robert Merino for failing to appoint an interpreter when requested.
After the tenants requested an interpreter, the Judge appeared to agree, but then continued to ask some basic questions. When the tenant said that he did not understand, the judge asked where he was born, and the tenant replied Puerto Rico, the Judge commented:
Okay. Go ahead, Mr. Koryl. I think he understands English.
The last time I heard, I think Puerto Rico was bilingual.
The Judge then proceeded, ultimately entering judgement against the tenant. It is clear from later comments on the record that the tenant did not even understand that the case was over, and anticipated returning for participation of an interpreter. As the Admonishment explained:
As the proceeding continued, respondent, who never made clear that the case would not be adjourned, continued to ignore red flags indicating Mr. Santana’s litnited proficiency in English. The litigant responded to some questions in Spanish, or told his wife to respond, or did not respond at all as his wife answered for him. While his wife attempted to present defenses for non-paymnent of rent, Mr. Santana barely participated in the proceeding. In this context, when respondent asked Mr. Santana several times if he understood what was said, his halting affirmative responses hardly seem convincing. Even after respondent announced that the warrant of eviction was granted, Mr. Santana asked if an interpreter was coming and if they had to return to court, suggesting he did not realize he had just been evicted. Despite Mr. Santana’s evident confusion about what had transpired, respondent simply told him to “talk to the clerk downstairs” who would “explain what happens next.”
It is perhaps most significant from the Admonishment that the Judicial Conduct Commission took into account the asymmetry of representation status. The tenant had no counsel, the landlord had counsel:
Mr. Santana was in an especially vulnerable position since he was unrepresented by counsel and was facing an adversary with an attorney. With no lawyer to protect his rights, the fact that he could barely communicate in English compounded his vulnerability and left him virtually defenseless.
Aside from putting judges on clear notice of their obligation in such circumstances to provide an interpreter, the decision may also highlight the extreme frequency of the overlap between self-representation and language access issues. This is a lesson that advocates must internalize. I remain unable to understand the focus by language access advocates on interpreters (important though that is) while placing less attention on the grossly exacerbating implications on the lack of counsel, and need for court procedures to compensate.