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Court denies funding for interpreter.

Byline: Barbara L. Jones

A ruling last week denying funding for interpreter services to the public defender's office caught the lawyers around the state by surprise.

Never before have the defenders been denied funding for interpreters under Minn. Stat. sec. 611.21, which allows a judge to authorize spending for investigative, expert, or other services, said Minnesota State Public Defender William Ward. Defenders can't afford to pay for interpreter out of the funds allocated to the offices by the Legislature, he said. "An agency that has been underfunded since its inception now has to come up with more money," Ward said.

The state will seek Supreme Court review, said Catherine Middlebrook, Chief Appellate Defender. She said she hopes for some direction from the Supreme Court on what to do next. "Our clients have a constitutional right to effective representation," she said.

Out-of-court consultations

Attorneys for Luis Damian Cruz Montanez, who is charged with second-degree intentional murder and who does not speak English, filed an ex parte application under section 611.21 requesting interpreter services to facilitate communication outside of court. The attorneys explained that the Ninth District Public Defender's budget no longer has funds to provide interpreter services.

Chief Judge Paul Benshoof denied the request although he found that the Ninth District Public Defender budget for expert services is completely depleted for the remainder of FY 2019. Benshoof said that section 611.21 is to be used for services other than the services of a qualified interpreter, and that Minn. Stat. 611.33, subd. 3 (2018), requires the state Board of Public Defense to pay for interpreter services for client consultations outside of court.

An expedited appeal followed.

No 'safety valve'

"No one disputes that interpreter services are necessary to assist a criminal defendant who does not speak English during legal proceedings," wrote Court of Appeals Chief Judge Edward Cleary for the unanimous panel that also included Judge Jill Halbrooks and Judge John Rodenberg.

But Benshoof determined that section 611.21 did not apply because the Legislature expressly imposed the burden of paying for interpreter services for client communications outside of court on the public defender. The Court of Appeals agreed based on another part of the statute, Minn. Stat. 611.33, subd. 3. Enacted in 1999, it states that payment for any activities requiring interpreter services on behalf of the Board of Public Defense other than court appearances is the responsibility of the agency that requested the services.

But Montanez's defender argued that section 611.33 does not preclude an application under section 611.21 as a "safety valve" to obtain funding for interpreter services when the district public defender and Board of Public Defense have exhausted available funds to pay for these services.

Montanez relied on the 1993 Court of Appeals opinion In re Application of Wilson where the court said that regardless of other parts of the statute, section 611.21 still provided a way for the states to fund necessary services. That includes interpreters, he argued, but the Court of Appeals disagreed.

Cleary noted that Wilson was decided six years before the legislature added the relevant language expressly imposing the burden of paying for out-of-court interpreters on the agency making the request. "[] Wilson provides no support for appellant's contention that section 611.21 provides a 'safety valve' for interpreter services when the public defender has depleted its budget," Cleary wrote.

The Court of Appeals also said that section 611.21 is titled "services other than counsel" and the title was present when the bill was enacted. By its language the statute concerns services that counsel would not ordinarily provide. "But consulting and communicating with clients is at the heart of the attorney-client relationship; therefore, it is the responsibility of the public defender to pay for interpreter services integral to client communication," Cleary wrote. The court also rejected the argument that judges in other districts have granted similar requests.

But the judges may have granted similar requests because it is typical for the defenders office to run out of funds as early as October of their July 1 to June 30 fiscal year, Ward said. The process of getting funding under section 611.21 requires a motion and affidavit from the chief public defender to request an order from the chief judge, which is in itself cumbersome in a system that is funded for only 68 percent of the attorneys that it should have under American Bar Association guidelines, he said.

"It's a crisis," Ward said.

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Publication:Minnesota Lawyer
Date:Apr 12, 2019
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