Thomas threatens lawsuit against Spanish-language courts
The Arizona Republic
Jan. 5, 2006

Michael Kiefer

Stop Spanish-language DUI court or I'll sue.

That's the message that Maricopa County Attorney Andrew Thomas sent Wednesday to Judge Barbara Rodriguez Mundell, who presides over not only the award-winning Spanish DUI court but also all of Maricopa County Superior Court.

Thomas also insisted that a special DUI court for Native Americans be discontinued as well.

It's a violation of the 14th Amendment of the U.S. Constitution, which deals with equal treatment under the law, Thomas said.

The amendment was intended to keep people from being treated as second-class citizens; the special DUI courts may in fact give preferential treatment to Spanish speakers and Native Americans.

"That underscores the whole problem with segregating on the basis of race," Thomas said. "You're bound to negatively affect one race or the other, because you can't guarantee that everything will be equal."

"The bottom line is that the government cannot create separate institutions based on race," he said. "This is not a close call. It's black-letter constitutional law."

Although Thomas used the word "race" as a synonym for "ethnicity," in fact, Spanish speakers can be of any nationality, race, or a combination of races.

Mundell refused to grant interviews about Thomas' mandate. But in the past she was quoted in The Republic as saying, "This is not a race issue. It's a public safety issue.... We're trying to show them how serious it is to drink and drive."

DUI courts, which are also conducted in English, are intended to guide people convicted of felony DUIs through probation and treatment. Mundell has said that mainstream DUI court did not work for Hispanic and Native Americans because of linguistic and cultural differences. And so the alternative courts were started in 2002; the Spanish-speakers court has even demonstrated a higher success rate than the English-language court.

Thomas only recently became aware of the courts, partly because of the difficulty of staffing them with prosecutors, and he fired his first salvo against them in a press conference last month.

On Wednesday, Thomas had a letter hand-delivered to Mundell demanding that she decide to disband the courts by Jan. 11 or he was going to "commence litigation to end these unconstitutional courts." Thomas did not say whether he would sue in state or federal courts.

The letter was accompanied by a legal analysis written by Washington-D.C.-based attorney Michael Carvin, who served as a deputy assistant attorney general during the Ronald Reagan administration and represented George Bush before the Florida Supreme Court during the battle over ballots in the 2000 presidential election.

Based on numerous court decisions, Carvin noted, the Spanish language can stand as a marker of ethnicity.

"Thus the distinction used to segregate participants in the Spanish-only court amounts to unconstitutional discrimination based on race or ethnicity," he wrote.

Spanish speakers, he wrote, are "forced to engage in cultural activities chosen by the court."

Furthermore, Carvin claimed that the Spanish-language court violated the First Amendment, which deals with free speech and freedom of the press, because the public and the press cannot readily understand the proceedings and the communication in Spanish between judge and defendants.

And "Native Americans with alcohol problems are assigned to that court, without regard to English proficiency, simply because they are part of a class of people termed 'Native Americans' who allegedly face special cultural difficulties regarding DUI," he wrote.

No cost is yet available for the 31-page document because Carvin has not yet billed for his work, but he and his associates bill between $340 and $440 per hour.

Late Wednesday, Mundell responded to Thomas in a letter noting his "serious allegations against two of the Court's highly effective problem-solving courts," but saying that Jan. 11 was not enough time to prepare a legal response.

Paul Bender, a Constitution expert and law professor at Arizona State University said that the separation in itself does not violate the equal protection clause because no one is being treated as a second-class citizen or being made to feel inferior.

"It's being done, in the case of the Spanish-language people, to facilitate communication," he said. "And also it's administratively easier to have all the people who are going to speak Spanish in one place."

Stephen Montoya, a Phoenix attorney specializing in civil rights, agrees.

"These do not violate the equal protection clause," he said. "In fact, to not have these courts would violate the equal protection clause."