Municipal courts: real courts with real consequences, but real interpreters not required

Entry to the Wisconsin Supreme Court on Dec. 17, 2024. Photograph by Alexandria Staubach.

By Alexandria Staubach and Margo Kirchner
 
The Wisconsin Supreme Court on Tuesday voted to deny a rule change petition brought by Wisconsin Justice Initiative that sought to require municipal court judges to use professional interpreters in all municipal court proceedings.
 
Although all justices said they believed the issue raised by WJI was important and one said she did not want to “kick the can down the road,” the court voted to refer the issue to the Wisconsin Judicial Council for its consideration, while acknowledging that the Judicial Council presently has no funding or staff.
 
WJI’s proposed rule change would have eliminated the practice of municipal courts using a defendant's family member or friend, a police officer, Google Translate, or even other defendants present in the courtroom to interpret court proceedings for individuals who do not speak or understand English.
 
A survey WJI conducted in August 2023 and presented to the justices during briefing showed that at initial appearances, a whopping 49% of municipal court judges who responded to the survey have defendants bring a friend or family member or use Google Translate to interpret courtroom proceedings. Even at evidentiary hearings and trials, which include testimony, 21% of municipal judges responding to the survey said they use a defendant’s friend or family member or Google Translate.
 
Professional interpreters are currently required in municipal courts only for juveniles who meet poverty requirements.
 
During argument on the petition Tuesday, the justices made much of the unknown scope of the problem, unknown costs associated with such a rule change, and competition with circuit courts for interpreters.
 
While interpreters are already scarce in Wisconsin, WJI’s proposed rule mandated using such scarce resources in only very limited circumstances. WJI’s proposed rule change would have required “qualified interpreters,” meaning interpreters trained for court proceedings and who meet circuit court standards, only for evidentiary hearings and trials. Those occur in just a small percentage of the 400,000 to 450,000 municipal court cases per year—and under state statutes those qualified interpreters could appear by video or telephone.
 
WJI attorney Parker White calculated on the fly during oral argument that such qualified interpreters would likely be needed in “less than 300 cases a year, spread over 219 courts throughout Wisconsin.”
 
That means in less than 0.1% of municipal court cases.
 
White and Evan Bondoc, both of the Foley & Lardner law firm, represented WJI in written briefs on the petition and oral arguments before the court.
 
For the bulk of municipal court proceedings, municipal judges would have been allowed to use an audio or audio/visual service such as LanguageLine or Swits for interpreter services. “The vast majority would be satisfied by LanguageLine,” White told the court.
 
According to several municipal judges, LanguageLine is simple and easy to use. WJI’s attorneys argued that it is also low cost, and the cost would be appropriate for the benefits gained by limited-English proficiency (LEP) defendants understanding their court proceedings.
 
“Why don’t they just do that?” asked Chief Justice Annette Ziegler at the hearing. “Because it’s not required,” she then said, answering her own question.
 
Seven organizations filed written comments supporting the petition. Five of them also appeared in person to argue their support: the ACLU of Wisconsin Foundation, Legal Action of Wisconsin, Judicare Legal Aid, the Wisconsin Hispanic Lawyers Association, and the Wisconsin Muslim Civic Alliance. Even the two organizations and one individual opposing the petition acknowledged the importance of the issue.
 
“All parties agree that LEP individuals have a right to meaningfully participate in the proceedings brough against them,” said Bondoc during oral argument.
 
Tim Muth, senior staff attorney for the ACLU of Wisconsin Foundation, argued that the issue raised by WJI is “a question of fundamental fairness and due process.”
 
Susan Lund of Legal Action Wisconsin stated that “in an era of mass incarceration, . . . if we cannot meet basic fairness standards, perhaps we are not utilizing the court system appropriately.”

Megan Lee of Judicare, Nancy Cruz of the Wisconsin Hispanic Lawyers Association, and Fauzia Qureshi of the Wisconsin Muslim Civic Alliance spoke in favor of the petition, highlighting the need for proper interpreter services in municipal courts.
 
During oral arguments, Justice Ann Walsh Bradley expressed great concern for the western part of the state, noting that in some towns 50% of schoolchildren come from homes where English is not the primary language. She also highlighted large populations of individuals who do not speak English, work in agriculture, and commonly find themselves before municipal courts for operating without a license.
 
But the court failed to find its way around the unknown costs and lack of precise data on the scope of the interpreter problem WJI presented. Justice Jill Karofsky asked repeatedly for “hard numbers,” which, because record keeping of the number of friends or family members used as interpreters is not required in municipal courts, were virtually impossible for WJI to cite. She asked Muth how to weigh the petition against the court system’s already strained interpreter resources.
 
“There could be unintended consequences,” said Ziegler during the oral argument.
 
At an open conference following the arguments, Justice Brian Hagedorn moved quickly to deny WJI’s petition. Justice Rebecca Grassl Bradley seconded the motion. She argued that the matter should be left for the Legislature to address.

Ziegler said "there's nothing wrong with having interpreters in municipal court. Probably is a good thing." But she questioned whether it was feasible and said it was a matter for the Legislature. She later indicated her position that the petition should be denied outright. "I would do nothing further," Ziegler said. 

The court’s remaining justices, referred to as “the four” at one point by Grassl Bradley, wrestled with options other than denying the petition completely. Justice Janet Protasiewicz recognized that "there's an obvious need, and you look at people coming from all corners of the community to speak in favor of this." Nevertheless, she had concerns about unanswered questions and was "not in support of this today." She suggested sending the issue to a committee to review. Justice Rebecca Dallet said she did not want to deny the petition without referring the matter somewhere for additional review.

Dallet recognized the importance of the problem raised by WJI and the desire for the court to do something about it. She suggested a rule recommending that municipal judges whenever possible use a professional interpreter service such as LanguageLine. "What can we do to maybe not solve the whole problem, but what can this court do? . . . Something lesser, that's still important, she said."

Walsh Bradley discussed the history of the Judicial Council, its work regarding municipal courts in prior years, and its ability to recommend changes to both the Supreme Court and Legislature. Walsh Bradley said that if the court would not refer the matter to the Judicial Council she might vote to grant the petition.
 
Karofsky said she did not like the feeling of “kicking this can down the road,” but she did not see granting or modifying WJI's proposed rule at this time. She at first hesitated sending the issue to the Judicial Council because it was unstaffed, the problem is complex, and the solution is unclear. In agreeing to a court referral she emphasized that she did not want to require the Judicial Council to take up the question but rather, as set forth in the council’s enabling statute, leave it to the council’s discretion.
 
Hagedorn said that he wanted WJI, whose attorneys and representatives remained in the courtroom during the open conference, to know that the court indeed considers the issue of municipal court interpreters to be an important one. "I hope the petitioners understand . . . (that) we don’t think this is the right solution, but we appreciate that you raised the problem, and maybe we should see if there are other solutions to the problem," he said
 
Following the court’s vote to deny the petition with a referral to the Judicial Council, White told WJI that he nevertheless was encouraged “to see all members of the Court recognize and grapple with the serious problems LEP individuals face in Wisconsin municipal courts today, even if we were disappointed with the Court's apparent disposition on the petition itself. Even the parties who spoke to oppose us uniformly acknowledged the need for some sort of action comparable to what we proposed. I'm hopeful our petition, and any forthcoming related work by the Judicial Council, will help close the gaps of due process and access to justice that hundreds of thousands of Wisconsinites face today."
 
Any action by the Judicial Council could take substantial time, as it has lacked staff since 2017, when it was defunded by the Supreme Court and Legislature. Legislation will take significant effort and substantial time as well.
 
Nevertheless, WJI intends to continue pursuing the matter, whether with the Judicial Council, the Wisconsin Legislature, or the Supreme Court in a future revised petition.
 
“We think everyone in municipal courts, not just indigent juveniles, deserves to understand the proceedings,” said WJI's Kirchner. “Access to justice requires at its heart that the person charged with a violation accurately communicate with the judge and at the very least understand the court proceedings,” she said.
 
“We don’t have that with friends or family members—sometimes children—or even strangers in the courtroom interpreting,” Kirchner said. In municipal courts, where almost all defendants represent themselves, “add a language barrier and you have a double disadvantage,” she said.
 
WJI Board Member Jim Gramling, a retired Milwaukee Municipal Court judge who was involved in WJI’s prosecution of the rule petition, stated that “if you accept, as you must, that municipal courts are a component of the state court system, you wouldn’t hesitate to require interpreters.”
 
“Providing the means for basic understanding of legal proceedings is a requirement of having a court,” he said.
 
A written order regarding the denial of the petition and referral is expected at some point in the future.

The Judicial Council was created by statute in 1951 to study the rules of court practice and procedure and recommend changes to the Supreme Court and Legislature. Its 21 members come from all three branches of government, the state's two law schools, and the State Bar of Wisconsin. (Note: WJI Executive Director Margo Kirchner is a Judicial Council member representing the State Bar.)
 
WJI extends many thanks to White and Bondoc and the Foley & Lardner law firm for their excellent pro bono representation of WJI in this matter.

WJI's Margo Kirchner and Jim Gramling walk into the State Capitol on Dec. 17, 2024. Photograph by Alexandria Staubach.

Members of WJI's team before oral arguments started on Dec. 17, 2024. L to R: Evan Bondoc, Parker White, Margo Kirchner, and Jim Gramling. Photograph by Alexandria Staubach.