After seven years of active advocacy by the Philadelphia Bar Association and others to open the courthouse doors to limited English proficient (LEP) individuals, the Administrative Office of Pennsylvania Courts (AOPC) has published rules implementing Act 172 of 2006, the “Pennsylvania Interpreter Certification Law.” See, 40 Pa. Bulletin 1997 (April 17, 2010) publication of rules “Court Interpreters for Persons with Limited English Proficiency and for Persons Who Are Deaf or Hard of Hearing” codified at 204 PA Code Chapter 221. The new rules, which were adopted with the active support of the Philadelphia and Pennsylvania Bar Associations, became effective May 1, 2010.

The Pennsylvania Bar Institute will present a 1.5 hour CLE webinar at noon on June 10 “PA Courthouse Doors Have Been Opened Wider To Limited English Proficient (LEP) Individuals” to provide detailed information about the impact of these rules and practice in representing LEP litigants. See PBI Product 6546T: www.legalspan.com/pbi/catalog.asp

When the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System held public hearings beginning in 1999 on a broad range of issues relating to racial and gender bias in the Pennsylvania state judicial system, it quickly became apparent to members of the committee that the barriers which limited English proficient (LEP) litigants faced in obtaining justice in the Pennsylvania judicial system were real and substantial. The final committee report issued in March 2003 featured the need to address the issues faced by such litigants in chapter one of the fourteen chapter report issued by the committee. The final report noted in its introduction:

"The basic fairness of the Pennsylvania court system is jeopardized if litigants with limited English proficiency (LEP) are unable to have access to competent interpreters and other language assistance."

See committee report on LEP litigants at: friendsfw.org/LEP/LEP_PA.htm

In September 2003 the Philadelphia Bar Association Board of Governors adopted a resolution “Concerning Equal Access to Courts and Administrative Agencies by Limited English Proficient Persons and Persons with Disabilities.” See: www.philadelphiabar.org/page/BoardResolution1026371022003That resolution summarized the critical recommendations of the Race and Gender Bias Final Report as recommending that the Pennsylvania Supreme Court should:

1. Establish for all courts of the Commonwealth of Pennsylvania a policy that all persons, including parties to judicial proceedings, witnesses appearing therein, victims in criminal proceedings, and members of the public seeking information from offices of the courts, have the right to equal access to justice in the judicial system of Pennsylvania without regard to their English language proficiency.

2. Require that all courts provide qualified interpreters to litigants at no charge, in order that LEP parties and witnesses may fully and fairly participate in court proceedings and obtain reasonable access to the court system.

3. Require that the courts translate forms and other documents to the extent necessary to provide access to the court system to those unable to read English.

4. Require that all court interpreters obtain certification pursuant to a recognized statewide certification program, maintain their proficiency through continuing education, and adhere to standards of professional conduct.

5. Require the adoption of a code of professional responsibility for judicial interpreters together with mechanisms to assure that all interpreters are familiar with the code and are subject to discipline for any violation.

6. Establish within the Administrative Office of the Pennsylvania Courts (AOPC) a Language Services Office, similar to those established by other states, staffed by professional administrative personnel experienced with issues related to court interpretation and translation, and funded sufficiently to carry out its mission.

The September 2003 Philadelphia Bar Association Board of Governors resolution committed the Philadelphia Bar Association to adoption of these goals by the Commonwealth and resulted in the creation of a Bar Association Language Access Task Force which has worked actively since then, in conjunction with the First Judicial District, to make these recommendations a practical reality.

In November 2006 S.B. 669 was adopted as Act 172 of 2006, effective January 2007, after three years of active advocacy by the Philadelphia Bar Association and others. This legislation set Pennsylvania courts and administrative agencies on a path to implementation of the recommendations of the March 2003 report of the Race and Gender Bias Committee.

In March 2008 the Pennsylvania Supreme Court circulated for public comment proposed Rules of Judicial Administration to implement that act. In July 2008 the Language Access Task Force of the Philadelphia Bar Association submitted extensive comments on the proposed rules.

The new AOPC rules effective this month reflect significant changes to the 2008 rules as initially proposed and many of these changes are responsive to issues raised by the Philadelphia Bar Association Language Access Task Force.

Amongst the most significant aspect of the new rules is that the rules clarify for the first time that no LEP party can be required to pay the cost for appointment of a court interpreter for their own testimony regardless of whether or not they have been determined to be entitled to proceed in forma pauperis. See 204 Pa Code Ch. 221, §108. This provision is responsive to comments by the Philadelphia Bar Association Language Access Task Force which pointed out that the Justice Department has issued interpretative guidance under the Title VI of the Civil Rights Act of 1964 that requiring an LEP party to pay for the costs of an interpreter would constitute national origin discrimination under Title VI. See, 67 Fed. Reg. 41,455 at 41,462 (June 12, 2002). See also, Letter from Department of Justice, Coordination and Review Section Chief Merrily Friedlander to Indiana Courts, February 4, 2009, available at:www.lep.gov/whats_new/IndianaCourtsLetterfromMAF2009.pdf.

The new rules reflect a strong preference for in person, or if necessary video conference remote interpretation, rather than telephone interpretation. See, §104.

Although the new AOPC rules permit an LEP party to waive an interpreter (which the Bar Language Access Committee comments had opposed), the rules require: (1) a party seeking to waive an interpreter must be represented by counsel; (2) the LEP party must be provided with an interpreter during the hearing before the court in which the LEP party waives the interpreter; and (3) in deciding whether to grant such a waiver the presiding judicial officer must consider the need of the court and other parties for an interpreter to be present for their benefit. See §105.

Commentary to the new AOPC rules clarifies that “anyone aware of the need” for an interpreter must notify the judicial officer or court administrator of the need for an interpreter as soon as the need is known so as to avoid unnecessary delay. See §201. Thus, not only an LEP party (who may not be aware of the procedures to obtain a court interpreter), but also court personnel and other parties aware of the need share the responsibility to promptly provide notice of the need for an interpreter.

AOPC’s regulations clarify that even where a judicial officer cannot appoint a “certified” interpreter, because such a certified interpreter is not available, only “otherwise qualified” interpreters listed on rosters maintained by AOPC may be appointed. See, §203. Importantly, the AOPC rules explicitly provide that “Under no circumstances should the presiding judicial officer appoint a family member of the person with limited English proficiency or person who is deaf or hard of hearing, a witness, party, or other persons who may have an interest in the outcome of a judicial proceeding or those who may be perceived to have an interest in the outcome (i.e., police officers, sheriff's deputies, constables, etc.) to act as an interpreter for that person.” See, §203(e).

AOPC during the past three years has initiated the process of certification of interpreters and establishment of ethics rules for interpreters. The AOPC rules formalize these requirements in subchapter 3 of the rules. The May 2010 rules add Disciplinary Procedures for complaints against interpreters.

As anticipated, one of the most difficult aspects of the transition to a system for certified court interpreters is the shortage of sufficient skilled certified interpreters. This shortage creates serious practical problems for statewide implementation of the new rules. However, the combination of Act 172 of 2006, the AOPC rules and the Department of Justice guidelines under Title VI of the Civil Rights Act of 1964 makes the March 2003 recommendations of the Race and Gender Bias report a foreseeable reality for limited English proficient litigants in Pennsylvania.