Ed Whelan has this must read story about more radical bumbling over at the DOJ. Last week it was a federal judge in New Orleans spanking the Civil Rights Division. This week it is a Michigan Supreme Court Justice spanking the Civil Rights Division.
The issue is whether Michigan courts must provide foreign language interpreters and to what extent. The other issue is what does the law say about the matter. On the latter question, Michigan Supreme Court Justice Stephan Markham says not very much. Whelan tees it up:
Under the rules that have existed in Michigan, for example, interpreters have been provided for all criminal defendants who need them, and courts in civil matters have had discretion to appoint interpreters. . . . Nevertheless, on August 16, 2010, Thomas E. Perez, the Assistant Attorney General for the U.S. Department of Justice’s Civil Rights Division, sent a form letter (“Dear Chief Justice/State Court Administrator”) to Michigan’s chief justice in which he purported to “provide greater clarity regarding the requirement that courts receiving federal financial assistance provide meaningful access for LEP individuals.” Perez’s letter includes among matters “of particular concern” limits on the types of proceedings for which interpreters are guaranteed; failing to “provide language assistance to non-party LEP individuals whose presence or participation is necessary or appropriate”; charging interpreter costs to non-indigent parties; and failing to provide language services for court-managed operations outside the courtroom.
Who needs laws when you work at Eric Holder’s civil rights division?
Section 5 of the Voting Rights Act doesn’t say a thing about the federal government approving all state procedures for translating ballots. No matter, they say it does, and no state or locality ever fought back.
The Americans with Disabilities Act doesn’t say a thing about a federal mandate to force apartments to accept “emotional assistance” ferrets and hamsters to help the “emotional well being” of tenants. Who cares what the law says when you are the Justice Department. Sue them anyhow.
Michigan Supreme Court Justice Markham deserves a free copy of Injustice. He opines:
The breadth of the Department’s demands, and the intransigence of its position, are all the more remarkable in light of the flimsiness of the legal support for its view that Michigan and other states would be in violation of the laws of the United States by failing to adopt in toto its LEP rules.… [T]he Department relies upon a letter signed by the Assistant Attorney General purporting to interpret his own “policy guidance” purporting to be grounded in a regulation of the Department purporting to construe an actual statute, which statute in relevant part closely implicates the Fourteenth Amendment to the Constitution. Not exactly, I would submit, what the Framers had in mind when they described the “legislative power” of the United States in Article I, § 1 of the Constitution….
Not surprisingly, the Department fails to provide any specific details or documentary, non-anecdotal evidence of instances in which discriminatory practices within the Michigan court system have actually prevented any individual from “meaningfully participating” in the judicial process because of race, color, or national origin. But, of course, as the Department views things, “discrimination” does not simply mean “discrimination,” as traditionally understood i.e., distinguishing or differentiating between persons “because of,” “due to,” “on account of,” “on the basis of,” or “on the grounds of” race, color, or national origin, but encompasses also the theory of “disparate impact or results,” or statistical “discrimination.” …
In numerous cases, … the U.S. Supreme Court has held that Title VI prohibits only intentional discrimination and that “[i]t is clear now that the disparate-impact regulations do not simply apply [Title VI]– since they indeed forbid conduct that [Title VI] permits.” Indeed, the Civil Rights Division’s own recent conduct demonstrates that it is well aware of the shaky foundations of its “disparate impact” theory. As the media has widely reported, Assistant Attorney General Perez, apparently apprehensive that the U.S. Supreme Court might directly repudiate the “disparate impact” theory, engaged in a quid pro quo in February with the city of St. Paul, Minnesota, whereby the Department agreed not to intervene in two civil rights cases against the city in exchange for the city’s agreement to withdraw its appeal in Magner v Gallagher, a case calling the “disparate impact” theory into question and scheduled to be heard by the U.S. Supreme Court.… However, not only has the Department failed to present any evidence of any intentional discrimination by Michigan based “on the ground of race, color, or national origin,” but it has failed even to present evidence of “disparate impact discrimination,” much less connect a state’s LEP policies with Title VI discriminations.…
But it gets worse, for DOJ, as Ed Whelan notes in Part 2:
I do wonder whether DOJ itself will soon seek support as an LEP (“limited English proficient”) entity. Note, for example, this sentence:
In an August 2010 Civil Rights Division Guidance Letter, DOJ again explained that “access to all court proceedings [are] critical.”
It’s DOJ that has put the word “are” in brackets (substituting for “as” in the original source). The three signatories to the letter—the acting Assistant Attorney General and two United States Attorneys—either haven’t read their bullying letter with care or don’t know elementary English grammar well enough to recognize that the singular noun “access” is the subject of the clause (and thus calls for the verb “is”).
Here’s another gem: “we are disappointed that the issuance of this Rule did not reciprocate our concerted efforts to ensure that Michigan state courts meet their longstanding civil rights obligations.” (Emphasis added.)
Ouch, and ouch.
Here’s the silver lining. Judges like Kurt Englehardt and Justice Markham show that the bench is beginning to understand this peculiar breed of lawlessness which has characterized the Civil Rights Division over the last 5 years. Their small experiences are part of a wider pattern of power being exercised in ways neither Congress nor the Founders ever intended. The DOJ is exercising power in ways hostile to the rule of law.
State officials are also learning.
I had the humbling experience to learn that one state Attorney General not only reads my book Injustice but passes it around to as many others to read as possible. Whether you are a state official, a judge or a mayor, the behavior of the Justice Department Civil Rights Division is unlike anything courts or elected officials have ever experienced. It is a real life example of government beyond the boundaries.