BRENNAN CENTER FOR JUSTICE Brenan Cetera tN Yk Unie Self 51 Avra ofthe Ames 2h Hoon ‘New Yr, Now Yon 10019 6662928310 Fax 2124637508, sevmbremnancrecong January 11,2011 Utah Supreme Court 450 South State Salt Lake City, UT 84114-0210 ‘Utah Judicial Council 450 South State Salt Lake City, UT 84114-0210 Re: Utah Code of Judicial Administration Rule 3-306 ‘The Brennan Center for Justice at New York University School of Law (the “Brennan Center”) submits the following comments on the amendments proposed by the Utah Supreme Court and the Utah Judicial Council to Rule 3-306 of the Utah Code of Judicial Administration, draft dated November 5, 2010 (the “Proposed Rule”), regarding the provision of court interpreters for limited English proficient (“LEP”) individuals. Introduction The Proposed Rule, which is the subject of these comments, is enormously important. Over 23 million people residing in the United States are considered to be LEP.' In Utah alone, 12.5% of the population speaks a language other than English at home.? The Proposed Rule covers communication by LEP individuals in all types of legal proceedings, including those that affect a person’s liberty, life, civil rights, and property. Failure to understand and effectively ‘communicate in these situations can have significant repercussions for LEP individuals, and also for the courts and the larger community. 1 Conference of State Court Administrators, White Paper on Court Interpretation: Fundamental to Access to Justice 4, http://cosca.nese.dni.us/ WhitePapers! Courtinterpretation-FundamentalToAccessToJustice.pdf (adopted Nov. 2007). 2 U.S. Census Bureau, State and County Quick Facts, http://quickfacts.census.gov/qfi/states/49000.htm! (data as of 2000, for individuals 5 years old and older) (last visited Jan. 6, 2010).BRENNAN CENTER FOR JUSTICE 2 ‘The Proposed Rule has many commendable aspects. We particularly applaud the move to expand to all legal proceedings the provision of interpreters for LEP individuals, Currently, interpreters are provided only in criminal and juvenile matters and a limited number of civil matters, Making interpreters available in all civil matters will enable LEP individuals to communicate effectively with the court and its staff in cases with a tremendous impact on their daily lives, such as those concerning the custody of their children, eviction from their homes, or their ability to recover wages owed to them. The Proposed Rule would also bring Utah's practices into line with those of the many other states that already provide court interpreters in all types of legal proceedings.’ Not incidentally, the Proposed Rule would also move the state towards compliance with Title VI of the Civil Rights Act, which requires courts that receive federal funds to provide court interpreters for LEP individuals in all types of court proceedings.* However, we submit these comments to suggest amendments to other sections of the Proposed Rule, namely: (@ Section (5) of the Proposed Rule should be amended to end courts’ discretion to require non-impecunious LEP individuals to pay interpreter fees and expenses. (ii) Section (4(B) should be amended to make clear that “approved” interpreters must ‘demonstrate proficiency in both English and the language they will be interpreting, and that a “registered” interpreter cannot be appointed when an “approved” interpreter is reasonably available. ‘The Brennan Center ‘The Brennan Center is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. The Brennan Center’s report, Language Access in State Courts, has received significant attention in the national media and in the state courts. Comments on Specific Sections Although the Proposed Rule is definitely a step in the right direction, the Brennan Center "urges that two sections be amended, as discussed in detail below. 3 See Laura Abel, Language Access in State Courts 11-12 (2009), http://brennan 3cdn.net/684e3edana2bfe8ebe_6pmbiywsd pdf. 4 42 USC. § 20004; 67 Fed, Reg. 4155, 41471 (June 18, 2002); Letter from Thomas E. Perez, Assistant Attomey General, Department of Justice, to Chief Justices and state court administrators (Aug. 16, 2010), httpyAvww.lep.gov/final_courts_Itr_081610.pdf.BRENNAN CENTER FOR JUSTICE 3 J. The Proposed Rule Should Be Revised to Remove the Imposition of Interpreter. Costs on LEP Individuals, Section (5) of the Proposed Rule gives Utah courts discretion to require LEP individuals to pay interpreter fees and expenses, unless those individuals are found to be impecunious. As wwe explain below, imposing court interpreter costs on LEP individuals violates Title VI of the Civil Rights Act and should not be allowed, A) The Department of Justice Has Determined that Imposing Interpreter Costs on LEP Individuals Is Impermissible ‘The Department of Justice (“DOJ”) has taken the view that failing to provide language assistance has significant discriminatory effects and places the treatment of LEP individuals “comfortably within the ambit of Title VI and agencies’ implementing regulations." DOJ has further determined that LEP individuals must have access to competent, free interpreters in all court proceedings and important court-related activities.® DOJ’s position was clearly stated in a recent letter from Assistant Attorney General Thomas E. Perez to the Chief Justices and state court administrators of each state: Title VI and its regulations prohibit practices that have the effect of charging parties {for interpreters’ costs], 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. DOJ expects that, when meaningful access requires interpretation, courts will provide interpreters at no cost to the persons involved.” 5 DOJ Policy Guidance Regarding Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons with Limited English Proficiency, 65 Fed. Reg. 50123, 50124 (Aug. 16, 2000). § DOJ, Coordination & Review Section, Commonly Asked Questions About Executive Order 13166, http://www justice.gov/ert/cor/Pubs/lepga.php (“The agency or recipient should meet its obligations under EO 13166 or Title VI by supplying competent language services free of cost”) See also DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455, 41463, 41465 (June 18, 2002). Letter from Thomas E. Perez, Assistant Attomey General, Department of Justice, to Chief Justices and state court administrators, supra, p. 2 (citing DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National OriginBRENNAN CENTER FOR JUSTICE 4 DOS's interpretation of Title VI as barring the imposition of interpretation costs on LEP individuals regardless of financial status is proper. It is consistent with the Civil Rights Act, which prevents recipients of federal funding from discriminating against LEP individuals “even though no purposeful design is present.”* Requiring an LEP individual to pay more for court access than a non-LEP individual would have to pay is precisely the sort of discrimination prohibited by Title VI. Support for DOJ’s interpretation of Title VI comes from the fact that Section 504 of the Rehabilitation Act (“Section 504”) — which was modeled on Title VI’ ~ is widely seen as barring federal funding recipients from charging people with disabilities for the accommodations necessary to allow them to access services. Indeed, Section 504 is routinely interpreted as requiring courts and other recipients of federal funds to pay for sign language interpreters for deaf and hearing-impaired individuals. For instance, the Department of Justice rule implementing Section 504 states: Court systems receiving Federal financial assistance shall provide for the availability of qualified interpreters for civil and criminal court proceedings involving persons with hearing or speaking impairments. (Where a recipient has an obligation to provide qualified interpreters under this subpart the recipient has the corresponding responsibility to pay for the services of the interpreter). Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455 (June 18, 2002). 5 Lau y. Nichols, 414 U.S. 563, 568-69 (1974). ° See Cmty. Television of Southern Cal. v. Gottfried, 459 U.S. 498, 509 (1983); N.M. Ass'n ‘for Retarded Citizens v. the State of New Mexico, 678 F.2d 847, 853 (10th Cir. 1982) (holding that Title VI cases were “properly analogous” to the Section 504 case at issue because, inter alia, “Section 504 is pattemed after, and is almost identical to, the antidiscrimination language of .. . the Civil Rights Act of 1964”); David. H. v. Spring Branch Indep. Sch. Dist., 569 F. Supp. 1324, 1334 (S.D. Tex. 1983) (“Section 504 closely tracks Title VI. The statutory language in both is virtually identical, and the legislative history indicates that Section 504 was expressly modeled after Title VI and Title IX of the Civil Rights Act”). 10 DOJ Nondiscrimination Based on Handicap in Federally Assisted Programs— Implementation of Section 504 of the Rehabilitation Act of 1973 and Executive Order 11914, 28 CFR. pt. 42, subpt. G, App. B. (June 3, 1980). See also 28 CER. pt. 35, ‘App. A (tating that DOJ has “already recognized that imposition of the cost of ices is impermissible under section 504”).BRENNAN CENTER FOR JUSTICE 5 The Utah courts abide by this rule when they refrain from charging deaf and hearing-impaired people for the sign language interpreters that the courts provide.” The U.S. Court of Appeals for the Second and Seventh Circuits are among the courts that have upheld federal agencies’ interpretations of Section 504 as barring federal funding recipients from charging for sign language interpreters.' Several of the cases have upheld the specific, requirement that couris pay for sign language interpreters used in court proceedings. For instance, Avraham v. Zaffarano was brought by Robert Avraham, a hearing-impaired individual whose request for a free sign language interpreter in a state court contract proceeding was denied by a state court judge. Mr. Avraham then sued in federal court arguing, infer alia, that the state court’s failure to provide an interpreter violated Section 504.'° The federal district court dismissed the state judges’ motion to dismiss, holding that Mr. Avraham had sufficiently alleged that the state statute (Which gave discretion to the court on the disposition of interpreters’ costs) and the courts’ policy of refusing payment of interpreters’ costs discriminated against plaintiff in ion of Section 504." 1 UraH Cope ANN. § 78B-1-202(1), (2). 12 See Rothschild v. Grottenthaler, 907 F.2d 286, 293 (2d Cir. 1990) (holding that deaf parents were entitled to sign language interpretation services at the school district’ expense in connection with activities directly involving their children’s academic or disciplinary progress); Jones v. Ill. Dep’t of Rehab, Servs., 689 F.2d 724, 729-30 (7th Cir. 1982) (affirming district court’s decision imposing on the Illinois Department of Rehabilitation Services the obligation to pay for the cost of providing sign language interpreter services to a deaf college student); accord. Bailey v. Minn. Dep't of Corrections, No. C6-03-6996, 2005 WL 901835, at *10, *12 (Minn. Dist. Ct. Feb. 18, 2005) (holding that the Department of Corrections violated Section 504 when it failed to provide a sign language interpreter for a deaf inmate during a sex offender treatment program), See also US v. Bd. of Tr. for the Univ. of Ala., 908 F.2d 740 (11th Cir. 1990) (holding that that the bar on charging for accommodations is a permissible construction of Section 504), 3 Civ, A. No. 90-4759, 1991 WL 147541, at *1 (E.D. Pa. July 25, 1991). Id. at *7. See also Baker v. State of Louisiana, Civ. A No. 91-1874, 1992 WL 510773, at *3 (W.D. La, Sept. 8, 1992) (stating that the rules issued by the Department of Justice ‘would be substantial authority to support the conclusion that a court system which receives federal financial assistance violates section 504 of the Rehabilitation Act by recouping the costs of a court-appointed, qualified interpreter by assessing them to a party as court costs”) (internal citations omitted), aff'd on other grounds, No. 92-5010, 1993 WL 481586 (Sth Cir. Nov. 3, 1993); Marc Chamatz & Antoinette McRae, Access fo the Courts: A Blueprint for Successful Litigation Under the Americans with Disabilities ‘Act and the Rehabilitation Act, 3 Margins: Md. LJ. Race, Religion, Gender & Class 333 (2003) (noting that the Maryland state courts changed their policy to stop charging for sign language interpreters because of Section 504).BRENNAN CENTER FOR JUSTICE 6 B) —_Burdening LEP Individuals with Interpreter Costs Is Bad Policy. Imposing interpreter fees and expenses on LEP individuals is not only a violation of Title Vitis also bad policy. The imposition of interpreter costs may discourage LEP individuals from bringing actions that they may have a legitimate interest in bringing. Altematively, LEP individuals who are faced with the burden of paying for interpreter services may decide to forego the use of an interpreter. The lack of communication between the LEP individuals and the court may lead to erroneous or unfair decisions. Or the LEP individuals may decide to bring a friend or family member as interpreter. But the friend or relative, who likely has no training in interpretation, may be unable to accurately convey the information, or may have an interest in the action and therefore subvert the LEP individual's words. In addition, if the interpreter is the LEP individual's child, the LEP individual may omit important information (e.g. in a domestic violence case) to avoid exposing the child to traumatizing details. Courts also suffer when free interpreter services are not available to LEP individuals. Judges cannot administer justice when they do not understand what a party or witness has to say, cor when the party or witness does not understand what is happening in the courtroom. Judges cannot get LEP individuals to comply with court orders and timetables either, because the individuals they are addressed to simply do not understand them. Furthermore, the public image of the courts suffers if courts do not provide LEP individuals with a necessary tool to allow them to have meaningful access to the justice system. Finally, imposing interpreter costs on LEP individuals harms the larger community. As discussed, those costs may lead LEP individuals to refrain from enforcing their rights. Some of the under-enforced laws, including for instance those that govern working conditions and civil rights, are at the core of the American value system. When those laws are under-enforced, the whole society suffers. If an LEP individual is discouraged from bringing an action to enforce a law that protects him or her against unfair working conditions, then working conditions will deteriorate not just for that LEP individual, but for everyone. In conclusion, demanding that LEP individuals pay for court interpreters violates Title VI and is bad policy. Therefore, the Brennan Center strongly recommends amending Section (5) of the Proposed Rule to provide for free interpreter services to all LEP individuals, and not only to those found by the court to be impecunious. 2. The Proposed Rule Should Be Revised to Ensure Interpreter Proficiency ‘We support the proposal to amend the rule to require interpreters to demonstrate spoken language proficiency in order to be deemed “approved interpreters.” Proposed Rule § (1)(B) (requiring a rating of “superior” in the Oral Proficiency Interview conducted by Language Testing International). However, we suggest two related changes. First, we suggest that the rule ‘be amended to make clear in which languages the interpreters must demonstrate proficiency,BRENNAN CENTER FOR JUSTICE namely both English and the language in which the interpreter will be working. This would bring the Proposed Rule into line with the practice in Tennessee and other states.'* Second, we suggest that the rule be amended to permit the appointment of a “registered” interpreter only when no “approved” interpreter is reasonably available. The Proposed Rule recognizes four categories of interpreters. In order from most highly qualified to least qualified they are: “certified,” “approved,” “registered,” and “conditionally approved.” The Proposed Rule requires the appointment of a “certified” interpreter unless none is “reasonably available,” in which case the court can appoint either an “approved” interpreter (i.e. one wo has demonstrated oral proficiency) or a “registered” interpreter (i.e. one who has not demonstrated oral proficiency). Proposed Rule § (4)(B).’® This appears to permit the court to appoint a “registered” interpreter even if an “approved” interpreter is available for that language, even though only the latter has demonstrated oral proficiency. Therefore, the Brennan Center suggests changing Section (4)(B) of the Proposed Rule to read as follows: An approved interpreter may be appointed if no certified interpreter is reasonably available. A registered interpreter may be appointed if no certified or approved interpreter is reasonably available. ‘Thank you for your consideration of our comments. Sincerely, Laure K. Aeck Laura K. Abel “ Deputy Director, Justice Program Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Floor ‘New York, NY 10013 (646) 292-8320 Jauraabel@nyuedu 8 ‘Tennessee Court Interpreter Credentialing Program, Interpreter Manual 4 (Jan. 2009) (“Each candidate must take the OPI in English as well as their target language.”). Additionally, a court can appoint a “conditionally-approved” interpreter in lieu of a “certified” interpreter if the court finds that several specific criteria have been satisfied. Proposed Rule § (4)(C).