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Finding the Path to Language Justice in the California Courts

By Joann H. Lee a California county courthouse

Just over 40 years have passed since the California Supreme Court issued its decision in Jara v. Municipal Court, a case that would haunt California for decades. Aurelio Fregoso Jara, a limited-English-proficient Spanish speaker, was sued for property damages. He requested the court to appoint a Spanish-speaking interpreter so that he could meaningfully participate in the proceedings. On May 2, 1978, the California Supreme Court held that courts had no statutory basis, no constitutional basis, and no inherent-powers basis to appoint an interpreter in Jara’s case. The court based its decision on Jara having been represented by counsel and having had alternatives in “contemporary urban society,” where neighbors, friends, and family members could interpret for him.

The dissent in Jara presented many cogent arguments, many presumably raised by Jara’s counsel—arguments that language-access and social-justice advocates continue to put forth today. In writing for the dissent, Justice Matthew Tobriner described the situation as limited-English-proficient individuals having to “stand by as their possessions and dignity are stripped from them by a Kafka-esque ritual deemed by the majority to constitute, nonetheless, a fair trial.” Decades later, the Brennan Center for Justice’s Laura Abel, in the seminal 2009 report, Language Access in State Courts, described a similar scenario: “Across the country, people are stuck in a Kafkaesque nightmare: they must go to court to protect their children, homes or safety, but they can neither communicate nor understand what is happening.” Justice Tobriner’s dissent referenced the many challenges faced by limited-English-proficient communities and concluded that the court’s ruling had the effect of denying Jara and others similarly situated their fundamental right to a fair and meaningful hearing.

With over 220 languages spoken and 40 percent of all households speaking a language other than English at home, nearly seven million Californians could not access the courts without significant language assistance.

Justice Tobriner also attacked the “rather cavalier assumption” that limited-English-proficient litigants could simply obtain quality language access from within the community. The Brennan Center’s report, released over 30 years after Jara, carried many of the same messages as the Jara dissent, cautioning against the extreme dangers of using informal or untrained interpreters, such as friends and family. Similar themes ran through Language Barriers to Justice in California: A Report of the California Commission on Access to Justice, released in September 2005. The groundbreaking report found that with over 220 languages spoken and 40 percent of all households speaking a language other than English at home, nearly seven million Californians could not access the courts without significant language assistance:

[The] use of unqualified persons as interpreters … may result in genuine injustice where—through no fault of the court, the litigants or the translator—critical information is distorted or not imparted at all …. Without a qualified interpreter, “the English speaking members of the court and the non-English speaking litigants or witnesses virtually do not attend the same trial.”

 Even court administrators and judges in California have stated that the practice of relying on family members or friends was a source of misunderstanding and confusion, “jeopardiz[ing] an understanding by the parties of the reasons for and terms of judicial decisions.”

Jara would plague the ability of many limited-English-proficient litigants from accessing the courts for decades. In an area as diverse as Los Angeles County, with a continually increasing immigrant population, the effects were devastating. The county has a population of over 10 million, making it larger than all but eight or nine states, with over one-third of the population being immigrants. Latinos make up 48.5 percent of the county’s population. Asian and Pacific Islanders represent 15.5 percent—the largest Asian and Pacific Islander population in the mainland United States. Almost 35 percent of those living in Los Angeles County are foreign-born, compared to 13 percent nationally. In fact, 44 percent of Latinos and 70 percent of Asians in Los Angeles County are foreign-born, and 57 percent speak a language other than English at home.

The challenges faced by limited-English-proficient individuals being “excluded from the benefits and privileges of full membership in our society,” as described in Justice Tobriner’s dissent, continue to ring true to the present day. Unsurprisingly, access to justice has proven difficult for individuals who speak a language other than English at home and have higher rates of poverty than the general population in Los Angeles County and California. In Los Angeles County, 45 percent of foreign-born female head of households with children under 18 live below the federal poverty line. Reports have found that limited English proficiency has hurt the “ability to access fundamental necessities such as employment, police protection and health care.” Contrary to the assertion of the Jara majority, “contemporary urban society” did not have the resources to bridge gaps in access to justice for limited-English-proficient individuals.

Strategizing to Dismantle Jara’s Legacy

At the Legal Aid Foundation of Los Angeles (LAFLA), we observed growing numbers of vulnerable clients struggling to access the courts, especially in the past decade. At times the court would supply interpreters in civil proceedings, but we often had to provide our own. Although the former Evidence Code Section 755, which became effective in 1996, provided for interpreters in certain domestic-violence proceedings, coverage was inconsistent and limited. With the budget cuts that began hitting our court system in 2008, the courts tightened their coffers and virtually stopped providing interpreters for languages other than Spanish in matters not mandated under Evidence Code Section 755. Some Spanish-speaking litigants were required to pay for their interpreters before proceeding with their hearings or trials. Although we could advocate for the clients we were representing and eventually have LAFLA pay for interpreters if the courts refused, those who were on their own, without representation, were most at risk. We saw numerous litigants unable to have their day in court. An unrepresented Thai-speaking sexual-assault survivor seeking a civil harassment restraining order had her hearing dismissed for failure to bring her own interpreter and was ordered to pay for the opposing party’s attorney fees. An unrepresented Mandarin-speaking survivor of domestic violence was forced to make an agreement in the hallway outside her hearing because she could not express herself inside the courtroom. Desperate to see her children, she agreed to monitored visitation even though there was no legal basis to require such restrictive orders. On the basis of requirements under federal mandates and obligations, we began making more focused and specific requests to the courts for interpreters. Although we believed the federal and state mandates required that courts supply free interpreters to all litigants in all proceedings, our initial strategy was to request court-appointed interpreters through the fee-waiver process.

We saw numerous litigants unable to have their day in court.

Title VI of the Civil Rights Act of 1964 built the framework for requiring language access in federally assisted programs. The landmark statute prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal funding. The 1974 U.S. Supreme Court case Lau v. Nichols found that the failure of a federally funded entity to provide meaningful language access to limited-English-proficient individuals constituted national-origin discrimination in violation of Title VI. This framework was further expounded in 2000, when Pres. Bill Clinton signed Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” It required federal agencies to develop and implement systems, including written guidance, to provide meaningful language access in federally conducted and federally assisted activities. The U.S. Department of Justice Federal Coordination and Compliance Section would be responsible for governmentwide coordination to implement Executive Order 13166. Around 2009 the then-new administration’s Federal Coordination and Compliance Section began to prioritize the issue of language access in state courts. Equipped with new state-court guidance, which clearly delineated the language-access requirements under Title VI, we decided to pursue these arguments more strongly with our local courts.

California has an antidiscrimination statute similar to Title VI at Government Code 11135, through which we could argue that the courts, which received state financial assistance, had a duty to provide free language services. Unlike Title VI, Government Code 11135 specifically articulates a private right of action to enforce the statute, even based on disparate impact discrimination. The state statute includes a broader protected class—ethnic group identification—which is defined in regulations as including linguistic characteristics. Although we raised these issues in meetings and in writing, the response was largely the same. The courts would love to supply interpreters for everyone, but the budget limited their ability, and ultimately they simply were not legally required to do so for civil cases. We needed to document and memorialize our efforts with some actual cases.

Unlike Title VI, Government Code 11135 specifically articulates a private right of action to enforce the statute, even based on disparate impact discrimination.

Ms. Cho (pseudonym) was a client whom we had been assisting for years. We had settled her dissolution case years ago, but she required a modification of custody and child support orders from her ex-husband. She was a limited-English-proficient Korean speaker and had been raising her 7-year-old son alone since his birth. No other process was in place for her to enforce her fundamental rights to raise and provide for her child. In 2009 we helped her file court paperwork and formally requested an interpreter for her from our local courts through the fee-waiver process. Her request was denied, and on the order the court made a handwritten note (with a line through the word “free”): “Free Korean interpreters are not provided for this type of hearing.” Due to the critical nature of the proceedings, LAFLA paid for a court-certified interpreter, and we successfully represented Cho in obtaining the orders she requested.

After the hearing, we decided to file a writ with the court of appeals to direct the Los Angeles Superior Court to grant the request for a fee waiver, assign a court-appointed Korean-language interpreter for future hearings, and refund the fees paid by LAFLA for the interpreter. We knew that Jara would be our biggest challenge, but we made arguments based on Title VI and its recent guidance, California Government Code Section 11135, due process, and the court’s inherent powers. The Los Angeles Superior Court responded to our writ by citing Jara and indicated that the notion that Title VI and Government Code 11135 would require free interpreters in the courts was “absurd.” Their response claimed:

Moreover, adopting Mother's argument under section 11135 and Title VI would lead to an absurd result: by following the clear command of the Supreme Court in Jara, and by declining to appoint an interpreter “at public expense,” 21 Cal. 3d at 183, the Superior Court would be violating federal and state statutes under pain of extraordinary writs. Thankfully, no such predicament exists. Neither section 11135 nor Title VI provides a clear right, or a mandatory duty, to provide a free interpreter; the Jara ruling confirms that there is no such right; and the writ must therefore be denied. Jara, 21 Cal. 3d at 183–86.

Over 30 years after Jara, the California courts still vigorously defended the Jara decision, claiming the courts had absolutely no duty to provide language service to limited-English-proficient litigants. The superior court even went so far as to question whether our client was limited-English-proficient at all because she had submitted prior documents in English and had never requested an interpreter. This ignored that we had assisted Cho through a stipulated judgment, and she never had the need to appear in court until this point. We filed a reply to the court’s response, but the court of appeals denied the writ, 2 to 1, without holding a hearing or issuing a written opinion. For a number of reasons, we decided not to appeal the decision and resolved either to find a case with a more extensive record to challenge Jara or to try a different approach.

Administrative Advocacy and Working with the Courts

Jara proved to be a difficult roadblock, and, without legislation or an official change in court policy, securing language access for our clients was an uphill battle. Numerous legislative efforts had failed, with some passing through the California legislature but being vetoed by then Gov. Arnold Schwarzenegger mostly due to fiscal concerns. With the momentum from the Justice Department’s focus on Title VI and language access in the courts, we decided to file an administrative complaint with the Justice Department’s Federal Coordination and Compliance Section.

Along with Cho, we added another complainant, a Korean-speaking elderly grandmother, who sought a restraining order against her apartment maintenance worker. The maintenance worker had sexually attacked and harassed her. He groped her, exposed his genitals, repeatedly pounded on her door, and entered unannounced on multiple occasions. She tried to report the incident to the police, but little action was taken for lack of evidence. She had no other process to enforce her fundamental right to be free from violence and harassment. After filing for a restraining order, we again requested an interpreter from the courts, but her request was denied, and she was told to bring someone herself. Armed with Jara’s ruling, the court handwrote on the order: “There is no right to an interpreter provided at public expense in a civil case.” Again, due to the critical nature of the proceedings, LAFLA paid for a court-certified interpreter, and we successfully represented our client in obtaining the orders she requested.

After filing for a restraining order, we again requested an interpreter from the courts, but her request was denied, and she was told to bring someone herself.

We filed the administrative complaint with the Justice Department in December 2010 against the Superior Court of California for its failure to meet the standards of Title VI of the federal Civil Rights Act of 1964. The Justice Department opened an official case in 2011, initiating parallel investigations against the Los Angeles Superior Court and the Judicial Council of California. LAFLA met and coordinated regularly with the Justice Department on the complaint and reported ongoing issues. LAFLA also coordinated several in-person meetings in Los Angeles, as well as statewide conference calls, with the Justice Department and other legal aid providers to discuss language barriers to accessing the courts and to gather specific examples. The Justice Department welcomed information regarding language barriers from advocates across the state and was extremely accessible and approachable throughout the course of the investigation.

In 2013 the Justice Department issued a letter with observations that the policies of the Los Angeles Superior Court and Judicial Council of California appeared to be inconsistent with Title VI. The letter offered recommendations for the courts to enter into voluntary compliance efforts, which they agreed to do. The Los Angeles Superior Court and Judicial Council had already been communicating and meeting with the Justice Department regularly as part of the investigation and continued to do so as part of their efforts to resolve the complaint. The California Supreme Court had welcomed a new chief justice, Tani Cantil Sakauye, in 2011 and in 2013 announced a new commitment to three-dimensional access or “Access 3D.” This concept and commitment embraced issues around access to justice, which Chief Justice Sakauye specifically articulated as including language access. Access 3D greatly enhanced efforts to increase focus on court accessibility and move toward voluntary compliance.

Key goals of the strategic plan were to have interpreters in all court proceedings by 2017 and language accessibility in all points of contact throughout the courts by 2020.

That same year the California Judicial Council created a joint working group to draft a strategic plan for language access in the California courts. The working group held a number of meetings and requested public comments through public hearings and written comments. With continuing guidance from our clients’ experiences, LAFLA, along with over 40 legal aid and community-based organizations, supplied various comments, testimonies, letters, proposed language, and other feedback on the process and the strategic plan. The Judicial Council approved the Strategic Plan for Language Access in the California Courts in January 2015 and incorporated many of the public comments. Key goals of the strategic plan were to have interpreters in all court proceedings by 2017 and language accessibility in all points of contact throughout the courts by 2020. As this was developing, the Judicial Council worked with the state legislature to make necessary changes to ensure that the new plan was consistent with statutory provisions governing interpreters and language services. In addition to more funding allocated specifically for civil expansion, key new laws included Evidence Code Section 756 and Government Code Section 68092.1, with former Evidence Code Section 755 being repealed.

After the strategic plan was adopted in January 2015, LAFLA was appointed to be part of the Judicial Council’s Language Access Plan Implementation Task Force. We attended meetings, gave input on implementation, presented at community meetings, and worked with advocates statewide to gather information to improve language-access expansion efforts. Throughout this process, the Los Angeles Superior Court slowly began expanding its interpreter coverage, initially to fee-waiver litigants in certain types of civil cases. This first expansion started in May 2014, and in January 2015 the Los Angeles Superior Court announced a significant policy change, offering interpreters in expanded civil proceedings for all litigants—regardless of fee waivers—in family law, civil harassment, unlawful detainer, conservatorship, and guardianship cases. This was broadened to include small claims cases in June 2015 and has since expanded to all civil cases. In September 2016 the Justice Department and the Los Angeles Superior Court signed an agreement to resolve the complaint, but monitoring and some key implementation efforts continue. There has been no similar agreement in the broader Judicial Council investigation, which continues and remains active.

The Los Angeles Superior Court slowly began expanding its interpreter coverage, initially to fee-waiver litigants in certain types of civil cases.

Today we have more communication and dialogue with our local courts; we have a complaint process and a language-access representative whom we can contact as issues arise. Language services continue to improve, although the process has had the expected growing pains and occasional bumps in the road. Overall we are quite proud that the Los Angeles Superior Court, which serves the largest and most diverse of California’s 58 counties, is now viewed as a statewide and national leader in language access in the courts. Other counties are still on the road to full implementation, with some counties continuing to have instructions on their websites for litigants to bring their own interpreters. Much work remains to be done.

Our advocacy was deliberate but dictated by our clients’ needs in a way that we could make systemic change. Voluntary compliance through the administrative complaint process was definitely a long road, but no one can deny that much progress has been made. We cannot know if the changes would have been as comprehensive had we continued to litigate the issues. The political landscape and climate have greatly changed since we started our advocacy, and different barriers to justice have emerged, with many immigrant communities hesitant and fearful to access the court and court-related services for other reasons. Immigration arrests rose 38 percent in the first three months of 2017 as compared to the same period in 2016. The average daily number of individuals in U.S. Immigration and Customs Enforcement detention is nearly 39,000, the highest number since 2001, when the government began recording this number. The U.S. Department of Homeland Security sought to increase this number to over 50,000 in fiscal year 2018. Locally the Los Angeles Police Department announced in 2017 that reports of sexual assault and domestic violence had plummeted in the city’s Latino population and had decreased in other communities. Now, more than ever, we need to make sure that meaningful language services are available to make clear that access to justice is still an option. As a legal aid community, we must continually seek to understand and take on the complexities of the language and cultural barriers our clients face to ensure justice for all communities.

Joann H. Lee

Joann H. Lee
Special Counsel
Legal Aid Foundation of Los Angeles
Ron Olson Justice Center
1550 W. 8th St.
Los Angeles, CA 90017
323.801.7976
jlee@lafla.org

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