Monday, August 24, 2009

Court Interpreters II

I just received this well-stated comment from the Brennan Center. -Carl


I just came across your 8/13/09 post on CourTex, mentioning the Brennan Center's report Language Access in State Courts. That post mentions criticism of the report by Maryland's Ksenia Boitsova, but not my response to her. In case you have not seen it, here is the text of the email I sent her:

Dear Ms. Boitsova,

I appreciate your careful reading of our report, and your suggestions for improving it.

You are right to be proud of Maryland's court interpreter program, which appears to be a model program in most respects. And the work of the Consortium is certainly deserving of praise, as we noted on pages 6 and 21 of our report. The focus of our report, however, is access to court interpreters nationally, not just in Maryland or in Consortium states. We have tried to present an accurate national picture. Although you correctly note that we did not include any court administrators on our review board, that board did include Wanda Romberger at the National Center for State Courts, who coordinates the Consortium, and Isabel Framer, who at the time was the chair of the National Association of Judiciary Interpreters and Translators. In addition, we interviewed court interpreter managers in 25 states, and attempted to contact one in each of the other 10 states that we studied.

Here are some responses to the specific concerns you identify:

1) Page 19, Map 2, "Who pays for interpreters": Although Maryland does not charge litigants for the cost of interpreters prior to providing the interpreters, you note that "in rare instances, and solely at the discretion of the court, interpreter costs may be assessed to the parties as part of costs of the case." That is why we characterized Maryland's policy and practice as "Whether the government pays interpreters appointed by the court and/or whether the government charges the litigant for the cost is within the court's discretion."

Additionally, although I realize that it is not in your power to prevent the courts from assessing interpreter costs at the end of a case, I want to note that the U.S. Department of Justice is quite clear that Title VI bars courts receiving federal funding from charging litigants for interpreter costs, regardless of whether the charges are assessed before or after the interpreters are provided. Pages 16-17 of my report cite numerous DOJ documents to that effect.

2) Page 72, "Court's Discretion", Maryland: Given your statement that " in rare instances, and solely at the discretion of the court, interpreter costs may be assessed to the parties as part of costs of the case," it does not seem to me to be inaccurate to state that "the statewide Court Interpreter Program Administrator assured us that costs are assessed only in rare cases."

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
tel: (212) 998-6737
fax: (212) 995-4550

Tuesday, August 18, 2009

Elders, Courts and Guardianship

By 2030, the number of people older than 65 in the United States will exceed 71 million - double the number in 2000. This trend should be expected to affect courts in Texas, in particular probate courts, as guardianships and will proceedings should escalate accordingly.
All Ages Percent Growth 2010 through 2030: 27.8%
Child Percent Growth 2010 through 2030: 13.2%
Ages 18-24 Percent Growth 2010 through 2030: 20.7%
Ages 25-44 Percent Growth 2010 through 2030: 24.1%
Ages 45-64 Percent Growth 2010 through 2030: 23.3%
Elderly Percent Growth 2010 through 2030: 80.1%
Source: Texas State Data Center

So far that impact has not been noticeable on court statistics; OCA data indicate that over the last decade, the number of probate cases filed each year remained fairly stable at around 58,000 each year, increasing an averaged of 0.5 percent per year. (See p. 41 of the 2008 Annual Statistical Report at Interestingly, probate cases are heard in most counties by the constitutional county court, whose judge is very unlikely to be an attorney (12% or 31/254 of such judges are licensed); contested matters may be transferred to district court. In the state’s largest counties such matters are heard in statutory probate court.

A guardian is a court-appointed person or entity (such as a local or state agency) that makes decisions on behalf of an incapacitated person, as appointed by a judge under Chapter 13 of the Texas Probate Code. The Guardianship Advisory Board at the Texas Health and Human Services Commission (HHSC) was established by the 75th Legislature in 1997, and has repeatedly advocated for statewide guardianship services to address the number of incapacitated individuals without family, friends, or funds who lack access to guardianship services and less restrictive alternatives. (For example, see their 2000 report at Beginning to address that need is the Department of Aging and Disability Services Guardianship Program, which provides guardianship services, either directly or through contracts with local guardianship programs, to individuals referred to the program by either the Adult Protective Services (APS) or Child Protective Services (CPS) Divisions of the Texas Department of Family and Protective Services (DFPS).

In 2005, through S.B. 6, the Judicial Branch was brought more into this mix through the creation of the Guardianship Certification Board within OCA. Under Section 111.042 of the Texas Government Code and Rule III(a) of the Board's rules, the following individuals must be certified by the GCB in order to be appointed by a judge:
individuals, other than attorneys or corporate fiduciaries, who are private professional guardians,
individuals who provide guardianship services to wards of the Texas Department of Aging and Disability Services (DADS), and
individuals, other than volunteers, who provide guardianship services to wards of a local, county, or regional guardianship program.
Attorneys who provide guardianship services in a capacity other than a private professional guardian may need to be certified.

Hopefully rounding out this information, you may want to visit the Center for Elders and Courts, a new initiative at the National Center for State Courts.

Thursday, August 13, 2009

Court Interpreters

One of the sessions at the CCJ/COSCA conference revolved around immigration and, as part of that phenomenon, the increased demand for court interpreters to address language access in state courts. In addition to the demographic trend, three developments have spurred state court administrators to look at this compelling issue. First, COSCA issued a white paper on court interpretation* in late 2007, with the help of the Consortium for State Court Interpreter Certification** (now titled the Consortium for Language Access in the Courts). Second, the Brennan Center for Justice issued a report this year entitled Language Access in the Courts,*** which concluded that “across the nation courts are shirking their responsibilities.” That report has generated some controversy itself, for example Maryland reproached the Brennan Center for inaccuracies and stated:

The Consortium for Language Access in the Courts received little if any credit for all of its work and efforts to improve language access in state courts. As you know, it was established in 1995 as the Consortium for State Court Interpreter Certification. There are 40 States in the Consortium and not one State court interpreter program administrator was on the Committee that conducted this study. Some of the report recommendations were contrary to procedures we have adopted.

And third, we were advised that the Department of Justice has begun to ramp up its enforcement in this area, beginning in Maine and Indiana. Under DOJ regulations implementing Title VI of the Civil Rights Act of 1964, recipients of federal financial assistance have a responsibility to ensure meaningful access to their programs and activities by persons with limited English proficiency (LEP); see 28 CFR 42.104(b) (2).

Here in Texas, the Texas Civil Rights Project recently met with me as it launched a project to educate judges and county policy makers about improving interpretation services, with the goal of changing policies that limit the access of individuals with Limited English Proficiency (LEP) to state courts. TCRP advises that they have received numerous complaints about the treatment of LEP clients in Texas courts from local domestic violence (DV) organizations, as well as from their own in-house program helping immigrant victims of DV under the Violence Against Women Act. Anyone interested in learning more about the project is welcome to contact Abby Frank at TCRP, (512) 474-5073.

Ironically, my office has very little formal connection to court interpreters, because they are regulated through the Department of Licensing and Regulation,***** unlike other court actors – court reporters, guardians and process servers – where we staff the regulatory boards. Notwithstanding this structural anomaly, I do urge judges, clerks, court administrators, and court coordinators, to review the resources cited here and attend to the legitimate needs of individuals with LEP in the courts of Texas.

My apologies for these URLs, I cannot get embedded hyperlinks to work.