Monday, February 15, 2016


Service of Process Upon Limited English Proficient (LEP) Persons


Fundamental Fairness, Due Process of Law, Equal Access to Justice



by John Perez, Esquire

Introduction
The current political rhetoric about ethnic groups, immigrants, illegal aliens, building border walls, and expelling millions of people from our country, is swirling in the news and social media. It has gotten a lot of hype and reaction, some positive, some not so. The bluster will continue for some time.

One of the tenants of American society is that people, regardless who they are, or where they are from, should be treated fairly. This is critically important, especially within our judicial system, where “fundamental fairness” and “due process of law” is, or should be, afforded at all, including persons of Limited English Proficiency (LEP). [1]

Process Server’s Role
Hopefully, at some point in the future, the issues noted in this Introduction will be intelligently and practically discussed, and resolved. In the interim, process servers are a unique group of professionals who currently interact within communities where persons of limited English speaking capabilities reside and work. The profession needs to step back and assess how this interaction is taking place, and whether people, including those of limited English proficiency, are, in effect, being treated fairly, receiving and comprehending the notices inherent in the concept of due process of law.


Purpose of this Article
The Fifth and Fourteenth Amendments to the United States Constitution [2], provide that no person shall be deprived of life, liberty or property without due process of law. This applies to criminal and civil matters. In the latter, one of the key elements of due process of law is providing proper notice to a party in a civil action.

The service of process statutes and rules of the federal and state courts are intended to provide requisite notice to persons who may have their property rights affected. This article addresses situations where persons of limited English proficiency are served with notices in civil actions that may adversely affect their constitutional property rights, and a recommendation as to alternative language provisions in the form of Summons served by private process servers.

New Jersey Courts-Equal Access to Justice
The New Jersey Supreme Court has recognized that persons of limited English proficiency should be provided Equal Access to Justice [3] within our court system. To that end, the Court has implemented several initiatives, at first by establishing a court interpreting program whereby LEP are provided with professional interpreting assistance in various judicial scenarios. Now, the Court seems to be expanding this concept to the subject of the written notices served upon people of limited English proficiency, either as parties, or witnesses, to a civil action. See above reference.

New Jersey Service of Process Rules
The rules pertaining to service of process in New Jersey are generally set forth in R. 4:4-3 (a) through (h), and other rules. Unlike Florida statutes [4], none of the New Jersey rules require that the process server advise a defendant, or recipient of legal process, of the nature or content of the pleadings being served. However, in the spirit of policies adopted by the New Jersey Supreme Court concerning equal access to the courts for linguistic minorities, and under practical circumstances, a brief summary of the nature or content of the legal pleadings being served should be communicated by the process server to the recipient in a manner that would not be construed as rendering legal advice to that person.

Court Approved Alternative Language Forms
The New Jersey Supreme Court, through the Administrative Office of the Courts,has published a variety of court related forms to assist LEP attain equal access to justice.[5] Among these forms, are Summons utilized in the tenancy, small claims and district court actions filed in the Special Civil Part of the Superior Court of New Jersey. Although these forms are an example of the recognition that critical legal pleadings should be served containing alternative language provisions, and a step in the right direction, there is no court approved form of Summons [6] used in the other divisions of the New Jersey Courts, i.e, the Law, Chancery, and General Equity divisions.

Need for Additional Alternative Language Form of Summons
From the perspective of the private process server profession, who interact with LEP on a daily basis, serving initial process issued out of the Law, Chancery, and General Equity divisions of the New Jersey Superior Court, with an alternative language form of Summons, is critical. These professionals do not serve initial process from the Special Civil Part that already contain this language. That is done by Special Civil Part Court Officers, or the Court via regular and certified mail, pursuant to R 6:2-3.

Private process servers, however, do serve civil process in upper court actions pursuant to R. 4:4-3. They do so, principally, by personal service. In so doing, they interact with the defendants, some of whom are LEP. Often, they encounter situations where there is language deficiency, and an apparent lack of understanding of the nature and importance of the pleadings being served. Below are some answers to a recent survey conducted by the New Jersey Professional Process Servers Association (NJPPSA) of private process servers within our state on this issue.

Survey
What if initial process does not contain alternative language provisions? What should a process server do? Answers.

  • Nothing, serve the papers, and let the attorneys worry about it.
  • Do not serve the papers, and advise the attorney.
  • If capable of speaking the alternative language, communicate to the recipient the general nature of the papers being served.
  • If not capable of speaking the alternative language papers, but the papers contain alternative language provisions, point them out to the recipient at time of service.
  • If papers do not contain alternative language provisions, and server does not speak the language, ask for someone in household who does. Communicate to that person the general nature of papers being served. However, use caution when serving legal pleadings of a personal or confidential nature that must be communicated only to a party.
  • Document the experience.

Recommendation to AOC
The Administrative Office of the Courts (AOC) drafts and implements alternative language court documents. A recommendation has been submitted to the AOC, and the Minority Concerns Committee, that the form of Summons used in Law, Chancery and General Equity divisions of the Superior Court be modified to include alternative language provisions, as has already been done in the Special Civil Part. This would enhance the opportunity for all litigants, including those of limited English proficiency, for equal access to justice within our court system

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Comments are invited. The reader may do so via email to info@njppsa.org and jperez@njlegalprocess.com.
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