Unfunded Mandate

Over the past decade I’ve heard the term “unfunded mandate” used all too often to describe the Department of Justice and the Ohio Supreme Court’s stance on providing interpreters and language access in the courts.  This phrase is used because the government requires the use of interpreters but, it does not provide additional funding for their use.

No matter the intent, when the phrase “unfunded mandate” is used, it sounds as if the courts are inconvenienced by having to provide equal access to justice for limited English proficient (LEP) individuals.  Moreover, the phrase reminds me of something a southern plantation owner may have said upon learning that Abraham Lincoln abolished slavery.

Due process and equal access aside, Title VI of the Civil Rights Act of 1964, the Court Interpreters Act of 1978, the Americans with Disabilities Act of 1990 and Executive Order 13166 (signed by William J. Clinton on August 11th 2000) have outlined standards for the use of interpreters and language access.

In the area of language access and interpreter services, Ohio has come a long way over the past decade.  The Supreme Court of Ohio developed and adopted Rules 80-88 of the Rules of Superintendence for the Courts of Ohio.  The Court has actively set certification standards, developed a roster of certified interpreters, provided training to the interpreters and the courts, made certified interpreters readily available, in addition to developing a complaint resolution process, among other measures. (For more information on the Supreme Court of Ohio’s Language Access Program visit http://www.supremecourt.ohio.gov/JCS/interpreterSvcs/default.asp)

In most cases, courts are not faced with having to spend additional funds on certified interpreters; they are able to use the same funds already being spent on non-certified or unqualified individuals.  Using certified interpreters can enable the courts to meet the minimum requirement for equal access.

To some courts in Ohio, the burden of providing interpreters and equal access to justice is just too great.  Earlier this year, when a colleague mentioned that Ohio was considering a bill charging non-indigent defendants for the use of interpreters, I thought for sure it would not go through.  After all, the Department of Justice has successfully convinced quite a number of states that this practice is unconstitutional, and that it is in the best interests of the courts not to charge defendants for equal access to justice.  Faced with the loss of federal funding states seem to respond well.

Surely Ohio had learned from the corrective actions taken against others?  It appears not.  On September 17th, 2014 ORC233.09 was updated as HB309 was signed into law. (http://www.legislature.state.oh.us/bills.cfm?ID=130_HB_309)

2335.09 Interpreter.

Whenever, in any criminal proceeding or prosecution for the violation of an ordinance, or in a hearing before a coroner, an interpreter is necessary, the judge, magistrate, or coroner may appoint interpreters, who shall receive fees as witnesses in the case or proceeding. Such fees shall be taxed and paid as provided by sections 2335.05 to 2335.08 of the Revised Code for other witness fees. If the party taxed with costs is indigent, interpreter’s fees shall not be taxed as costs, and the county or, if the court is a municipal court that is not a county-operated municipal court, the municipal corporation in which the court is located shall pay the interpreter’s fees. This section shall not apply if, by law, an interpreter is otherwise provided.

Amended by 130th General Assembly File No. TBD, HB 309, §1, eff. 9/17/2014.

Effective Date: 10-01-1953  (http://codes.ohio.gov/orc/2335.09)

This is a simple issue of equal access to justice, or in this case: equal access unless you don’t speak English because then you have to pay for an interpreter.  It appears the Department of Justice is going to have to get involved in Ohio’s affairs as well.

I truly hope this issue is resolved before anyone is denied equal access, and that this hiccup doesn’t set back the state and all the progress it’s made.

7 thoughts on “Unfunded Mandate”

  1. Athena Matilsky says:

    Thanks for this insightful and well-written post. Our world revolves around money, funding and lack thereof, and I hope that your eloquent pleas reach the ears of those who can make a difference.

    1. Kevin Mercado says:

      Thanks Athena. I like to consider it more of an observation; if the DOJ has reacted as such in the past, then they are likely to do so in this instance.

      I think there are 2 prevailing schools of thought regarding passing on the cost of the spoken language interpreter. There is the school which treats it as discrimination on the basis of national origin, and there is the school which looks at it like the right to an attorney. With the later, you have the right, and “if you can not afford one, one will be provided free of charge.”

      Guess well have to wait and see how it plays out.

  2. S. R. Loos says:

    I believe that the lack of definition of the qualifications of the interpreter is always thematic in these issues. The usage of the word interpreter without any specification as to the credentials required to do the job always signals “easier to find” and “cheaper to hire” We have all seen the misunderstanding that “bilingual=interpreter” rule in this sort of practical application of rule or statute. The other aspect is the potential scarcity of the qualified interpreter; it is always an issue that if the requirements for the interpreter are more demanding, there will be fewer of them and then logically they will be more expensive.

    1. Kevin Mercado says:

      Valid points, and without a centralized court system or central scheduling solution, it is difficult if not impossible for the few certified interpreters to cover the many cases. Oftentimes, scheduling interpreters is an afterthought, and this doesn’t help the situation.

      Interestingly enough, the cost of the certified interpreters isn’t necessarily more than that of the non-certified or agencies. Obviously this varies by region.

  3. Greg says:

    This is very informative and well written! Maybe it’ll go all the way up to SCOTUS or the OH Supreme Court.

    1. Kevin Mercado says:

      Thanks Greg. To my knowledge, this very issue with other states hasn’t made it past the DOJ’s letter of intent to withhold federal funds.

  4. Gio Lester says:

    What I fail to understand is that the Courts do charge court fees and interpreting service could and should be included as part of the court’s operating costs. Then we would have no more “unfunded mandates” problem.

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