784 Judicial administration governing court interpreters for persons with limited English proficiency and for persons who are deaf; notice of proposed rules

Title 201--RULES OF JUDICIAL ADMINISTRATION

[ 201 PA. CODE CH. 30 ]

Judicial Administration Governing Court Interpreters for Persons with Limited English Proficiency and for Persons Who are Deaf; Notice of Proposed Rules

[38 Pa.B. 1924]
[Saturday, April 26, 2008]

   The Administrative Office of Pennsylvania Courts is planning to recommend that the Supreme Court of Pennsylvania adopt these proposed rules of judicial administration that provide for a court interpreter certification program and prescribe procedures for requesting and obtaining certified or otherwise qualified court interpreters.

   Specifically, the proposed rules direct and empower the Court Administrator to: establish a program for certifying court interpreters; compile a list of certified court interpreters; create guidelines for courts to use in selecting otherwise qualified interpreters when a certified court interpreter is not available; prepare a fee schedule for court interpreters; and establish standards of professional conduct and a disciplinary system for court interpreters. In addition, the proposed rules provide the procedures judges and court personnel are to use to identify the need for an interpreter and to obtain, appoint and remove a court interpreter. The proposed rules also provide: a procedure for waiver of the right to an interpreter; for telephonic interpretation under specific circumstances; and confidentiality of certain communications between the court interpreter and the person with limited English proficiency or person who is deaf. Finally, the proposed rules state how the cost of the court interpreter is to be allocated.

   The Report highlights the considerations underlying these proposed rules. I request that interested persons submit suggestions, comments, or objections concerning this proposal to the Interpreter Certification Program through

   Osvaldo Aviles
Interpreter Program Administrator
Administrative Office of Pennsylvania Courts
1515 Market Street, Suite 1414
Philadelphia, PA 19102
[e-mail]

no later than June 20, 2008.

ZYGMONT A. PINES,   
Court Administrator of Pennsylvania

Annex A

TITLE 201. RULES OF JUDICIAL ADMINISTRATION

CHAPTER 30.  UNIFORM RULES GOVERNING COURT INTERPRETERS FOR PERSONS WITH LIMITED ENGLISH PROFICIENCY AND FOR PERSONS WHO ARE DEAF

GENERAL PROVISIONS

Rule

3001.	Scope.
3002.	Definitions.
3003.	Interpreter Certification Program.
3004.	Interpreter Certification Requirements; Renewal of Certification; Waiver and Reciprocity of Examination Requirement.
3005.	Confidentiality of Communications.
3006.	Telephonic Interpretation.
3007.	Waiver of Interpreter.

PROCEDURES FOR NOTIFICATION, DETERMINATION OF NEED, PROCUREMENT AND APPOINTMENT OF INTERPRETERS

3101.	Notice of Need for Interpreter.
3102.	Determination of Need for Interpreter.
3103.	Procurement of Certified and Otherwise Qualified Interpreters.
3104.	Appointment of Interpreters.
3105.	Replacement or Removal of Interpreter.
3106.	Oath for Interpreters.
3107.	Cost of Providing Interpreters for Persons with Limited English Proficiency.
3108.	Costs of Providing Interpreters for Persons who are Deaf.

GENERAL PROVISIONS

Rule 3001.  Scope.

   These rules shall govern the appointment and use of interpreters for persons with limited English proficiency and persons who are deaf in all court proceedings within the Unified Judicial System.

Rule 3002.  Definitions.

   For purposes of these rules:

   (a)  Appellate Court Prothonotary--Means the prothonotary responsible for the appellate court in which the judicial proceeding is conducted or his or her designee.

   (b)  Certified Interpreter--Means a person who is certified in accordance with the guidelines established by the Court Administrator for the certification and appointment of interpreters.

   (c)  Court Administrator--Means the Court Administrator of Pennsylvania.

   (d)  Deaf--Means an impairment of hearing which results in the inability to hear well enough in order to process information, understand or communicate in a spoken language.

   (e)  Direct Victim--Means an individual against whom a crime has been committed or attempted and who, as a direct result of the criminal act or attempt, suffers physical or mental injury, death or the loss of earnings under this act. The term shall not include the alleged offender.

   (f)  District Court Administrator--Means the court administrator responsible for the administration of the courts of the judicial district in which the judicial proceeding is conducted or his or her designee.

   (g)  Immediate family member--Means a spouse, child, parent or an individual who stands in loco parentis to a child in a proceeding pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters).

   (h)  Interpret--Means either:

   (1)  within the context of court interpreters for persons with limited English proficiency, to convey spoken and written English into the language of the person with limited English proficiency and to convey spoken and written statements by that person into English; or

   (2)  within the context of court interpreters for persons who are deaf, to convey spoken English in a manner understood by the deaf person through, but not limited to, American Sign Language and transliteration or the use of Computer-Aided-Real-Time Captioning (CART) or similar procedure, and to convey the communications made by the deaf person into spoken English.

   (i)  Interpreter--Includes both a certified interpreter and an otherwise qualified interpreter for persons with limited English proficiency and the deaf.

   (j)  Judicial proceeding--Means an action, appeal or proceeding in any court of the Commonwealth of Pennsylvania and includes any proceeding conducted by a presiding judicial officer as defined by Pa.R.J.A. 3002(o).

   (k)  Limited ability to speak or understand English--Means the ability to speak exclusively or primarily a language other than English and the inability to sufficiently speak and understand English so as to fully participate and be understood in a judicial proceeding.

   (l)  Otherwise qualified interpreter--Means a person who meets the pertinent requirements of the guidelines established by the Court Administrator for qualification and appointment of interpreters.

   (m)  Person who is deaf--Means a principal party in interest or a witness who is deaf.

   (n)  Person with limited English proficiency--Means a principal party in interest or a witness who has limited ability to speak or understand English.

   (o)  Presiding judicial officer--Includes justices, judges, magisterial district judges, and appointive judicial officers such as arbitrators, masters and other like officers.

   (p)  Principal party in interest--Means a person involved in a judicial proceeding who is a named party, a defendant or direct victim in a criminal proceeding, a defendant, parent of a defendant, or direct victim in a proceeding pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters), or a plaintiff or defendant in a proceeding pursuant to 23 Pa.C.S. Ch. 61 (relating to protection from abuse).

   (q)  Roster--Means the list of certified and otherwise qualified interpreters maintained and distributed by the Court Administrator.

   (r)  Staff Interpreter--Means a certified or otherwise qualified interpreter who is an employee of the appellate court or judicial district and whose principal duty consists of providing services as an interpreter and functions related to interpreting.

   (s)  Transliteration--Means to convey spoken or written English in an English-based sign system and the process of conveying an English-based sign system in spoken or written English.

   Comment:  The definition of ''Certified Interpreter'' set forth in subsection (b) contains the requirement that the interpreter be certified by the Court Administrator. An interpreter who is certified pursuant to another jurisdiction or organization's policies is nonetheless not a certified interpreter under these rules if that individual has not been certified by the Court Administrator. Therefore, persons charged with applying these rules should take care to confirm that an interpreter who purports to be certified has in fact been certified by the Court Administrator. A ''Staff Interpreter'' pursuant to subsection (r) is a full-time employee of the appellate court or judicial district whose sole duty is to provide interpretation services. Persons employed as staff interpreters--even those employed as such on or before the date of the enactment of these rules--will be required to be certified in their language of expertise by the Court Administrator in order to attain certified status under these rules, if such certification is available.

Rule 3003.  Interpreter Certification Program.

   (a)  Interpreter program.--The Court Administrator shall establish a program for the certification, appointment and use of interpreters for persons with limited English proficiency and persons who are deaf in judicial proceedings.

   (b)  List of certified interpreters.--The Court Administrator shall compile, maintain and disseminate a current list of interpreters certified by the Court Administrator for the courts through any means deemed appropriate by the Court Administrator, including, but not limited to, a written directory which shall be maintained on file with the office of the clerk of courts in each judicial district, and through publication on the official World Wide Web site of the Administrative Office of the Pennsylvania Courts.

   (c)  Guidelines for court selection of otherwise qualified interpreters.--The Court Administrator shall provide guidelines to the courts for the selection and use of otherwise qualified interpreters in order to ensure that the highest standards of accuracy are maintained in all judicial proceedings subject to the provisions of this chapter.

   (d)  Fee schedule.--The Court Administrator shall prescribe, subject to periodic review, a schedule of reasonable fees for services rendered by certified interpreters and otherwise qualified interpreters used in judicial proceedings.

   (e)  Discipline of interpreters.--The Court Administrator shall have the authority to revoke or suspend an interpreter's certification or roster status for violations of these Rules or any conduct which calls into question the interpreter's ability to properly perform his or her duties.

   (f)  Standards of professional conduct.--

   (1)  The Court Administrator shall establish and adopt a code of ethics and professional conduct for interpreters for persons with limited English proficiency and persons who are deaf.

   (2)  The Court Administrator shall establish and administer a process to review and respond to allegations of violations of the code of ethics and professional conduct for interpreters for persons with limited English proficiency and persons who are deaf including, but not limited to, decertification and other disciplinary measures pursuant to Pa.R.J.A. 3003(e).

Rule 3004.  Interpreter Certification Requirements; Renewal of Certification; Waiver and Reciprocity of Examination Requirement.

   (a)  In order to become certified or otherwise qualified, interpreters shall meet the requirements established by the Court Administrator for the appointment and certification of interpreters.

   (b)  Renewal of roster status.--To renew their roster status, every two years all interpreters must:

   (1)  satisfy any continuing education requirements established by the Court Administrator;

   (2)  pay the renewal fee determined by the Court Administrator; and

   (3)  follow all guidelines, complete all forms and abide by reporting deadlines as established by the Court Administrator for the fulfillment of the foregoing requirements.

   (c)  Waiver and reciprocity of examination requirement.--Upon presentation of satisfactory proof to the Court Administrator, the written and oral proficiency examination requirements shall be waived for any interpreter who has successfully completed all the requirements of the Federal Court Interpreter Certification Examination (FCICE) administered by the Administrative Office of the United States Courts; an oral proficiency examination administered in accordance with the standards of the Consortium for State Court Interpreter Certification in another Consortium member state; or the National Association of Judiciary Interpreters and Translators (NAJIT) oral proficiency examination. Reciprocity for interpreters from other jurisdictions could be granted at the discretion of the Court Administrator. These interpreters must comply with all additional program requirements.

Rule 3005.  Confidentiality of Communications.

   An interpreter appointed under this chapter shall not be permitted or compelled to testify in any judicial proceeding as to any statements made by the person with limited English proficiency or person who is deaf interpreted by the interpreter when the person with limited English proficiency or person who is deaf is engaged in a confidential communication as provided by any statute or general rule, including, but not limited to:

   (a)  42 Pa.C.S. § 5916 (relating to confidential communications to attorney);

   (b)  42 Pa.C.S. § 5928 (relating to confidential communications to attorney);

   (c)  42 Pa.C.S. § 5942 (relating to confidential communications to news reporters);

   (d)  42 Pa.C.S. § 5943 (relating to confidential communications to clergymen);

   (e)  42 Pa.C.S. § 5944 (relating to confidential communications to psychiatrists or licensed psychologists);

   (f)  42 Pa.C.S. § 5945 (relating to confidential communications to school personnel);

   (g)  42 Pa.C.S. § 5945.1 (relating to confidential communications with sexual assault counselors); and

   (h)  42 Pa.C.S. § 5945.2 (relating to confidential communications to crime stopper or similar anticrime program).

Rule 3006.  Telephonic Interpretation.

   In the event that a certified or otherwise qualified interpreter for persons with limited English proficiency cannot be found to interpret in person, one may be appointed pursuant to this chapter to interpret via telephone provided that the judicial proceeding: is expected to be no more than 30 minutes in duration; is non-evidentiary; and does not involve more than one interpreter. If neither a certified nor otherwise qualified interpreter can be procured to interpret via telephone, the court may utilize a telephone interpreter provided by a commercial telephone interpreter service. Prior to utilizing a telephone interpreter provided by a commercial telephone interpreter service, however, the court must conduct a voir dire to determine his or her qualifications.

Rule 3007.  Waiver of Interpreter.

   The person with limited English proficiency or person who is deaf may waive the right to an interpreter provided the waiver is conducted in the presence of the presiding judicial officer and the person seeking to waive is represented by counsel. The presiding judicial officer shall ascertain from the person with limited English proficiency or person who is deaf whether the waiver is knowing, voluntary, and intelligent. If the judicial proceeding is conducted in a court of record, the foregoing determination shall be made on the record. The person with limited English proficiency or person who is deaf must be provided with an interpreter during the waiver process. In addition, the waiver shall be in writing: (1) signed by the person with limited English proficiency or person who is deaf, with a representation that the person was told of the right to an interpreter and that the person chose not to have an interpreter at the judicial proceeding; and (2) signed by the presiding judicial officer with a certification that the waiver was made knowingly, voluntarily, and intelligently. The written waiver shall be made a part of the record of the judicial proceeding.

   Comment:  When persons with limited English proficiency or persons who are deaf waive their right to an interpreter pursuant to Pa.R.J.A. 3007 they are divesting themselves of an important due process safeguard. For this reason, the presiding judicial officer should take great care to ensure that the person's waiver is knowing, voluntary and intelligent. When deciding whether to permit waiver the presiding judicial officer should consider not only the needs of the person with limited English proficiency or person who is deaf but also the needs of the presiding judicial officer and others involved in the proceedings to accurately understand that person. If the presiding judicial officer feels that the interpreter is necessary for the presiding judicial officer or others involved in the proceedings to accurately understand the person with limited English proficiency or person who is deaf, the waiver request should be denied.

PROCEDURES FOR NOTIFICATION, DETERMINATION OF NEED, PROCUREMENT AND APPOINTMENT OF INTERPRETERS

Rule 3101.  Notice of Need for Interpreter.

   (a)  Persons required to give notice; timing and form of notice.--

   (1)  If a principal party in interest is a person with limited English proficiency or a person who is deaf and is in need of an interpreter, either the principal party in interest or his or her attorney shall give notice of the need for an interpreter as soon as is practicable after learning of the need. The notice shall be made to the presiding judicial officer in writing, if practicable. If written notice is not practicable, oral notice is acceptable provided it conveys all of the information required in subsection (b) of this rule. If a presiding judicial officer has not yet been assigned to the matter or is otherwise not known, notice shall be made to the Appellate Court Prothonotary or District Court Administrator.

   (2)  If the person with limited English proficiency or person who is deaf is a witness, notice of the need for an interpreter shall be given by the party that intends to call the person as a witness as soon as is practicable after learning of the need. The notice shall be made to the presiding judicial officer in writing, if practicable. If written notice is not practicable, oral notice is acceptable provided it conveys all of the information required in subsection (b) of this rule. If a presiding judicial officer has not yet been assigned to the matter or is otherwise not known, notice shall be made to the Appellate Court Prothonotary or District Court Administrator.

   (3)  If the person with limited English proficiency or person who is deaf is a direct victim, the notice of the need for an interpreter shall be given by the Commonwealth as soon as is practicable after learning of the need. The notice shall be made in writing to the presiding judicial officer, if practicable. If written notice is not practicable, oral notice is acceptable provided it conveys all of the information required in subsection (b) of this rule. If a presiding judicial officer has not yet been assigned to the matter or is otherwise not known, notice shall be made to the Appellate Court Prothonotary or District Court Administrator.

   (b)  Content of Notice.--The notice required under this rule shall set forth the:

   (1)  caption of the judicial proceeding;

   (2)  name of the person filing the notice;

   (3)  name of the person with limited English proficiency or deaf person for whom the interpreter is sought;

   (4)  in the case of persons with limited English proficiency:

   (i)  the language spoken by the person with limited English proficiency for whom the interpreter is sought, specifying any particular dialect or regional version of said language; and

   (ii)  the country of origin of the person with limited English proficiency for whom the interpreter is sought;

   (5)  in the case of persons who are deaf:

   (i)  the type of sign language or method of communication used by the deaf person to communicate;

   (ii)  the country of origin of the deaf person for whom an interpreter is sought when said person uses a foreign sign language to communicate; and

   (iii)  a description of any educational, physical, mental or other particular condition which may limit the deaf person's ability to communicate;

   (6)  relationship of the person with limited English proficiency or deaf person to the proceedings (i.e. party, witness, victim, etc.); and

   (7)  date, time and location of the judicial proceeding(s) for which the interpreter is needed, if known.

   Comment:  Subsection (a) requires that notice be given as soon as practicable after learning of the need. The fact that no specific time limit is given is in recognition of the fact that situations may arise in which significant advance notice is not feasible. Nevertheless, the party responsible for giving notice under these rules must notify the presiding judicial officer as soon as the need for an interpreter is known so as to avoid unnecessary delay. The party responsible for giving notice should take the initiative in giving notice of the need for an interpreter. The notice shall be made to the presiding judicial officer in writing, if practicable. There may, however, be situations where written notice is not practicable due to time constraints, in these situations oral notice is acceptable provided it conveys all of the information required in subsection (b) of this rule. The party responsible for giving notice is encouraged to use the notice form prepared by the Court Administrator so as to ensure that all information required by subsection (b) is provided.

   In the case of a deaf juror, the District Court Administrator should follow the judicial district's existing policies pursuant to the American's with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., to ensure proper accommodation of a deaf juror. Juror summonses and/or questionnaires should advise prospective jurors to give notice of need for an accommodation prior to the date they report for jury duty.

Rule 3102.  Determination of Need for Interpreter.

   (a)  Once the presiding judicial officer receives notice of the need for an interpreter pursuant to Pa.R.J.A. 3101, he or she must determine whether the person for whom the interpreter is sought is a person with limited English proficiency or deaf person. In making this determination, the presiding judicial officer shall follow the policy guidelines established by the Court Administrator for determination of need for interpreters for persons with limited English proficiency or the deaf. If, after considering the notice of need, the presiding judicial officer requires additional information in order to make the determination, he or she may request any additional filings from the parties or conduct any proceedings he or she deems necessary including, but not limited to, conducting the voir dire for determination of need for an interpreter for persons with limited English proficiency established by the Court Administrator.

   (b)  If the presiding judicial officer determines that the person for whom the interpreter is sought is a person with limited English proficiency or deaf person, he or she shall forward a copy of the notice of need for an interpreter and his or her determination of need to the Appellate Court Prothonotary or District Court Administrator as soon as is practicable.

   (c)  If, during the course of the judicial proceedings, and without regard to whether notice of need for an interpreter was given, the presiding judicial officer determines that a principal party in interest, witness, or direct victim is a person with limited English proficiency or that a principal party in interest, witness, direct victim or juror is deaf and is in need of an interpreter, he or she shall give notice to the Appellate Court Prothonotary or District Court Administrator as provided in subsection (b) of this rule.

   (d)  If the appellate court or judicial district employs staff interpreters and one certified or otherwise qualified in the applicable language is readily available, the presiding judicial officer may appoint that staff interpreter to the new judicial proceeding pursuant to Pa.R.J.A. 3104. In this situation, the presiding judicial officer need not give the notice required under subsection (b) of this rule.

   Comment:  Subsection (a) requires that the presiding judicial officer make the determination of need for an interpreter. Subsection (a) further requires that the presiding judicial officer follow the guidelines established by the Court Administrator for determining whether the person for whom the interpreter is sought is a person with limited English proficiency or person who is deaf. Subsection (a) also allows the presiding judicial officer to acquire additional information in order to make the determination of need by way of supplemental filings, hearings, and any other means typically within the presiding judicial officer's power in handling the particular judicial proceeding and, in the case of persons with limited English proficiency, suggests using the voir dire established by the Court Administrator for assessing the level of English proficiency of the individual in question.

   Subsection (b) states that once the presiding judicial officer determines that an interpreter is needed he or she must give notice to the Appellate Court Prothonotary or District Court Administrator by forwarding copies of the notice of need and determination of need as soon as is practicable so that a certified interpreter, if available, can be procured expeditiously pursuant to Pa.R.J.A. 3103. The original notice of need and determination of need should be made part of the record of the proceeding. If the notice of need was oral, the presiding judicial officer should forward a written statement or order containing the information required in Pa.R.J.A. 3101(b) to the Appellate Court Prothonotary or District Court Administrator, which should subsequently be made part of the record of the proceeding. If an interpreter must be procured quickly the presiding judicial officer may supply the notice required in subsection (b) in oral form; however, the notice of need and determination of need still must be made part of the record of the proceeding.

   Subsection (c) is intended to clarify that even if notice of the need for an interpreter is not given by one of the individuals required to give notice under Pa.R.J.A. 3101(a), the presiding judicial officer may sua sponte determine the need for an interpreter and thereby start the appointment process in motion if he or she deems it appropriate to do so under these rules.

   Subsection (d) recognizes that some appellate courts or judicial districts may employ staff interpreters for the appropriate language who may be readily available and thus requiring the notice set forth in Pa.R.J.A. 3102(b) and the actions set forth in Pa.R.J.A. 3103 would be unnecessary and time consuming. In this case, the presiding judicial officer shall be guided by the procedures established within the particular judicial district for obtaining the services of a staff interpreter.

Rule 3103.  Procurement of Certified and Otherwise Qualified Interpreters.

   (a)  Once the Appellate Court Prothonotary or District Court Administrator receives both the notice and determination of need for an interpreter from the presiding judicial officer, the Appellate Court Prothonotary or District Court Administrator shall procure a certified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of certified interpreters.

   (b)  If the Appellate Court Prothonotary or District Court Administrator cannot procure a certified interpreter in the manner set forth in subsection (a) above, he or she shall procure an otherwise qualified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters. Once an otherwise qualified interpreter is identified and arrangements are made to procure his or her services for the judicial proceeding, the Appellate Court Prothonotary or District Court Administrator shall notify the presiding judicial officer in writing. The notice shall also contain a statement by the Appellate Court Prothonotary or District Court Administrator that he or she procured the otherwise qualified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters as well as a brief statement of the efforts made to procure a certified interpreter.

   (c)  If the Appellate Court Prothonotary or District Court Administrator cannot procure either a certified interpreter or an otherwise qualified interpreter in the manner set forth in subsections (a) and (b) above, he or she shall notify the presiding judicial officer in writing of the steps taken to procure a certified and otherwise qualified interpreter and the reasons why none could be obtained.

   Comment:  Subsection (a) requires the Appellate Court Prothonotary or District Court Administrator to follow the Court Administrator's guidelines for appointing a certified interpreter and to make the necessary arrangements to secure the interpreter's services for the judicial proceeding if one is found. If a certified interpreter cannot be found subsection (b) requires the Appellate Court Prothonotary or District Court Administrator to obtain an otherwise qualified interpreter in the manner provided in the Court Administrator's guidelines. The notice under subsection (b) must contain sufficient information so as to allow the presiding judicial officer to make the determinations required under Pa.R.J.A. 3104(b). In procuring either a certified or otherwise qualified interpreter, and when the person requiring the interpreter is a person with limited English proficiency, the Appellate Court Prothonotary or District Court Administrator may obtain the services of an interpreter to translate via telephone subject to the limitations of Pa.R.J.A. 3006. Pursuant to subsection (c), if the Appellate Court Prothonotary or District Court Administrator cannot procure a certified or otherwise qualified interpreter he or she shall promptly notify the presiding judicial officer of the efforts undertaken to procure such interpreters and the reasons why they could not be obtained. In the event that neither a certified nor an otherwise qualified interpreter can be procured, the Appellate Court Prothonotary or District Court Administrator shall contact the Court Administrator's office for guidance. A copy of the notices required under subsections (a), (b), or (c) should be made part of the record of the proceedings.

Rule 3104.  Appointment of Interpreters.

   (a)  Appointment of a certified interpreter.--The presiding judicial officer shall appoint the certified interpreter procured pursuant to Pa.R.J.A. 3103(a), or the staff interpreter obtained pursuant to Pa.R.J.A. 3102(d), unless a certified interpreter is unavailable.

   (b)  Appointment of an otherwise qualified interpreter.--

   (1)  An otherwise qualified interpreter shall be appointed by the presiding judicial officer if the presiding judicial officer determines that the Appellate Court Prothonotary or District Court Administrator made a good faith effort to procure a certified interpreter and a certified interpreter was not available and also that the Appellate Court Prothonotary or District Court Administrator properly procured an otherwise qualified interpreter pursuant to Pa.R.J.A. 3103(b). In making the foregoing determinations the presiding judicial officer shall consider the efforts made by the Appellate or District Court Administrator and whether these efforts complied with the requirements of Pa.R.J.A. 3103.

   (i)  Persons with limited English proficiency.--Prior to the appointment of the otherwise qualified interpreter for a person with limited English proficiency, the presiding judicial officer shall state on the record that:

   (A)  a certified interpreter was not available;

   (B)  the Appellate Court Prothonotary or District Court Administrator properly procured the otherwise qualified interpreter pursuant to Pa.R.J.A. 3103(b);

   (C)  the presiding judicial officer conducted the voir dire for qualifying interpreters for persons with limited English proficiency; and

   (D)  the otherwise qualified interpreter has read, understands and agrees to abide by the policies and regulations governing the certification and appointment of interpreters and the code of ethics and professional conduct for court interpreters for persons with limited English proficiency, as established by the Court Administrator.

   (ii)  Persons who are deaf.--

   Prior to the appointment of the otherwise qualified interpreter for a person who is deaf, the presiding judicial officer shall state on the record that:

   (A)  a certified interpreter was not available;

   (B)  the Appellate Court Prothonotary or District Court Administrator properly procured the otherwise qualified interpreter pursuant to Pa.R.J.A. 3103(b);

   (C)  the otherwise qualified interpreter is certified by the National Association of the Deaf (NAD), the Registry of Interpreters for the Deaf (RAD) or similar registry to the best of the knowledge of the presiding judicial officer;

   (D)  the otherwise qualified interpreter has read, understands and agrees to abide by the policies governing certification and appointment of interpreters for the deaf, the code of ethics for court interpreters for persons who are deaf, and the code of ethics and professional conduct for court interpreters as established by the Court Administrator; and

   (E)  the otherwise qualified interpreter has complied with the requirements of the Sign Language Interpreter and Transliterator State Registration Act, 63 P. S. § 1725.1 et seq., and is registered with the Office for the Deaf and Hard of Hearing (ODHH) within the Department of Labor and Industry of the Commonwealth.

   (2)  In ascertaining whether an individual is able to interpret and should be appointed as an otherwise qualified interpreter, the presiding judicial officer shall follow the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters for persons with limited English proficiency or for persons who are deaf.

   (c)  Additional interpreter(s).--After consideration of the length of the judicial proceeding and the number of persons requiring interpreters involved, the presiding judicial officer may appoint, as provided for in subsections (a) and (b), an additional interpreter or provide for additional interpretation in a manner deemed appropriate by the presiding judicial officer. In making this determination, the presiding judicial officer shall follow the guidelines established by the Court Administrator for the appointment of additional interpreters for persons with limited English proficiency or for persons who are deaf.

   (d)  Immediate family.--The presiding judicial officer may appoint, as provided in subsections (a) and (b), an interpreter or provide for additional interpretation, as provided in subsection (c), for an immediate family member of a principal party in interest.

   Comment:  The appointment process outlined in this subchapter is comprised of four main steps: (1) notice of need for an interpreter (Pa.R.J.A. 3101); (2) determination of need for an interpreter (Pa.R.J.A. 3102); (3) procurement of an certified or otherwise qualified interpreter (Pa.R.J.A. 3103); and (4) formal appointment of the interpreter (Pa.R.J.A. 3104). If a certified or otherwise qualified staff interpreter for the language is readily available, however, the presiding judicial officer may dispense with the third step. See Pa.R.J.A. 3102(d).

   Subsection (a) of Pa.R.J.A. 3104 authorizes the presiding judicial officer to appoint a certified interpreter after the steps outlined in Pa.R.J.A. 3101, 3102, and 3103 have been taken. In addition, subsection (a) permits the presiding judicial officer to appoint a certified interpreter sua sponte if it is appropriate. If the presiding judicial officer determines sua sponte that an interpreter is needed, he or she must notify the Appellate Court Prothonotary or District Court Administrator of the need for a certified interpreter pursuant to Pa.R.J.A. 3102(b). If the judicial proceeding is conducted in a court of record, the formal appointment of either a certified interpreter or an otherwise qualified interpreter should always be done on the record at the first appearance of the interpreter at the proceeding. Subsection (c) allows for the appointment of a team of interpreters if the judicial proceeding is a jury trial, is likely to be more than two hours in duration, or, in the case of a deaf person, whenever the limitations and particularities of the deaf person's form of communication (such as when the deaf person is a foreign national who does not communicate in any of the forms of sign language spoken in this country) requires it.

Rule 3105.  Replacement or Removal of Interpreter.

   (a)  The presiding judicial officer shall dismiss an interpreter and obtain the services of another interpreter in accordance with this subchapter if the interpreter:

   (1)  Fails to follow the standards prescribed by law or by the code of ethics and professional conduct for court interpreters for persons with limited English proficiency or for persons who are deaf (whichever is applicable) established by the Court Administrator by engaging in conduct such as, but not limited to:

   (i)  knowingly and willfully making false, misleading, or incomplete interpretation while serving in an official capacity;

   (ii)  knowingly and willfully disclosing confidential or privileged information obtained while serving in an official capacity;

   (iii)  failing to reveal potential conflicts of interest;

   (iv)  misrepresenting his or her credentials; or

   (v)  failing to appear as scheduled without good cause.

   (2)  Is unable to effectively communicate with the presiding judicial officer or the person with limited English proficiency or the person who is deaf, including where the interpreter self-reports such inability.

   (b)  In the event a presiding judicial officer removes an interpreter for the grounds specified in subsection (a)(1) he or she shall notify the Court Administrator.

   Comment:  Subsection (b) requires that a presiding judicial officer inform the Court Administrator whenever an interpreter has to be removed for failing to follow standards prescribed by law or the code of ethics and professional conduct for judiciary interpreters established by the Court Administrator, the code of ethics of the Registry of Interpreters for the Deaf (RID), the National Association for the Deaf (NAD) or any other professional organization regulating the interpreter. This mandatory reporting requirement allows the Court Administrator to enforce the applicable standards and code of ethics and professional conduct governing court interpreters. In addition to reporting violations resulting in removal of a court interpreter, the presiding judicial officer is encouraged to report any other suspected violations of legal standards, the code of ethics and professional conduct, failure to follow Interpreter Certification Program guidelines, the Sign Language Interpreter and Transliterator State Registration Act, 63 P. S. § 1725.1 et seq., and the standards of the Department of Labor and Industry's Office of the Deaf and Hard of Hearing (ODHH), even if the suspected violations are not sufficient to cause the presiding judicial officer to remove the interpreter.

Rule 3106.  Oath for Interpreters.

   Before commencement of interpreter duties, an interpreter shall take the following oath:

Do you solemnly swear or affirm that you will make an accurate, complete and impartial interpretation from the English language into the (target language), and vice-versa, of any communication put through you using your best skill, judgment and ability and that you will abide by the Code of Ethics and Professional Responsibility for judiciary interpreters, and so you do swear or affirm?

   Once the oath is administered, the interpreter becomes an officer of the court for the duration of his or her appointment.

Rule 3107.  Cost of Providing Interpreters for Persons with Limited English Proficiency.

   (a)  General rule.--An interpreter appointed pursuant to Rule 3104 is entitled to a reasonable fee for interpreter services and shall be reimbursed for actual and reasonable expenses in accordance with the compensation schedule approved by the Court Administrator.

   (b)  Principal party in interest.--If the person with limited English proficiency is a defendant, party or a direct victim in a judicial proceeding for a criminal matter or juvenile proceeding pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters), or a plaintiff or defendant in a protection from abuse proceeding pursuant to 23 Pa.C.S. Ch. 61 (relating to protection from abuse), the payment of the cost of providing the interpreter shall be the responsibility of the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed.

   (c)  Witness.--If the person with limited English proficiency is compelled to appear as a witness in a judicial proceeding for a criminal matter or juvenile proceeding pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters), the payment of the cost of providing the interpreter shall be the responsibility of the county of the court that has jurisdiction over the judicial proceeding for which the interpreter was appointed.

   (d)  Payment determination.--Except as provided in subsections (b) and (c), disposition of all or part of the cost of providing interpreter services shall be in the discretion of the presiding judicial officer and in accordance with the compensation schedule established by the Court Administrator, unless the principal party in interest is indigent. If the principal party in interest is indigent, the cost of providing interpreter services shall be the responsibility of the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed. The presiding judicial officer may order reimbursement to the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed for its responsibilities under this subchapter. In determining the amount of actual and reasonable expenses to be paid to the interpreter, the presiding judicial officer shall follow the fee schedule for interpreters established by the Court Administrator.

   Comment:  The compensation schedule referred to in subsection (a) will be published in the Pennsylvania Bulletin and the official web site of the Administrative Office of the Pennsylvania Courts and will be subject to periodic review. In a judicial district comprised of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.

Rule 3108.  Costs of Providing Interpreters for Persons who are Deaf.

   (a)  General rule.--Except as provided in subsection (b), an interpreter appointed in accordance with Rule 3104 is entitled to a reasonable fee for the services of the interpreter and shall be reimbursed for actual and reasonable expenses by the county of the court that has jurisdiction over the judicial proceeding in accordance with the compensation schedule approved by the Court Administrator. Except as provided in subsection (b), expenses related to interpreters appointed for appellate judicial proceedings shall be the responsibility of the appellate court.

   (b)  Payment determination of certain costs. Disposition of all or part of the cost of providing an interpreter appointed in accordance with Rule 3104(d) shall be in the discretion of the court that has jurisdiction over the judicial proceeding and in accordance with the compensation schedule approved by the Court Administrator. In no event shall the cost of providing interpreter services be the responsibility of the person who is deaf. If the principal party in interest is indigent, the cost of providing interpreter services shall be the responsibility of the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed. The presiding judicial officer may order reimbursement to the county or the appellate court for its responsibilities under this chapter.

   Comment:  The compensation schedule referred to in subsection (a) will be published in the Pennsylvania Bulletin and the official web site of the Administrative Office of the Pennsylvania Courts and will be subject to periodic review. In a judicial district composed of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.

REPORT

Proposed Uniform Rules Governing Court Interpreters For Persons With Limited English Proficiency And For Persons Who Are Deaf.

I.  Background

   In March of 2003 the Supreme Court's Committee on Racial and Gender Bias in the Justice System recommended to the Supreme Court the implementation of an Interpreter Certification Program in order to establish the qualifications of persons providing interpreting services to the Courts, provide improved access to court services and guarantee due process for persons with limited English proficiency and persons who are deaf. As a result of this recommendation, the Supreme Court asked the Administrative Office of Pennsylvania Courts to consider the possibility of establishing such a program. In September 2004 the Administrative Office of Pennsylvania Courts joined the Consortium for State Court Interpreter Certification at the National Center for State Courts. Following the Consortium's model and guidance, the Court Administrator started the process of creating an interpreter certification program. In November 2006, the General Assembly passed and the Governor signed Act 172 of 2006. Act 172, which went into effect on January 29, 2007, amends Title 42 (Judiciary and Judicial Procedure) and Title 2 (Administrative Law and Procedure) and mandates the use of certified or otherwise qualified interpreters in the courts of Pennsylvania and authorizes the creation of an Interpreter Certification Program under the auspices of the Court Administrator of Pennsylvania.

   The Supreme Court recognized that uniform standards were needed to: (1) ensure a statewide pool of available interpreters possessing the basic qualifications necessary to perform competent court interpretation, as often judges were unable to identify or locate properly trained and qualified court interpreters in a timely manner; (2) educate judges and court personnel on the proper means of identifying the need for an interpreter and for securing a properly qualified court interpreter so they can determine when an interpreter is required and how to quickly obtain one; (3) establish guidelines for compensation of court interpreters as well as a means to allocate the cost in a manner that is most equitable under the circumstances; and (4) establish ethical guidance to ensure that interpreters clearly understand their role in the judicial system so that they may faithfully serve without overstepping their role.

   Therefore, in order to foster uniform standards, the Court Administrator is recommending the adoption of new rules for: implementing an interpreter certification program; establishing qualification and certification requirements for court interpreters; establishing procedures for determining the need for court interpreters and for their procurement and appointment; establishing a fee schedule and criteria for allocating the cost of the court interpreter; and establishing a code of ethics and disciplinary procedure for court interpreters.

II.  Discussion

   Pennsylvania is one of the most linguistically diversified states in the nation. According to the 2000 Census, Pennsylvania ranks sixth among the states with 135 different languages spoken within its territory. In February 2005, a survey of the sixty judicial districts conducted by the Administrative Office of the Pennsylvania Courts revealed that there where fifty-seven (57) languages in use throughout the state court system. The United States is rapidly becoming the most linguistically diverse country in the world. As a result, the need for the use of qualified interpreters in the courts is growing.

   Even before the passage of Act 172, the Supreme Court recognized the need to ensure the competence of court interpreters and joined the National Center for State Courts Consortium for State Court Interpreter Certification. This membership provides access to testing instruments, and the opportunity to build on the experience of other member states in certifying court interpreters. The information learned through the Consortium enabled the Interpreter Certification Program to prepare for the testing and certification that would be mandated by the then-pending legislation that ultimately became Act 172.

   The following rules provide the structure for an interpreter certification program that will result in the creation of a statewide roster of qualified and certified interpreters and also prescribe procedures for requesting and procuring interpreters for court cases. The program will certify both foreign language interpreters and interpreters for the deaf. To become certified, court interpreters will be required to pass a series of examinations that assess the interpreter's knowledge of English and the target language, interpreting skills, and knowledge of words and phrases particular to the judicial process. Successful interpreters will be placed on the roster of interpreters certified to work in the courts of Pennsylvania, a roster from which court interpreters must be selected by judicial districts, absent exigent circumstances.

   The rules also prescribe the method by which interpreters are requested and selected. While recognizing that each judicial district deals with administrative issues such as the hiring of interpreters in different ways, it was nonetheless decided that a uniform approach to requesting interpreters was advisable to ensure that judges, attorneys and court administrators throughout the state understand their role and obligations. Such an understanding should result in fewer cases being delayed due to the need to procure an interpreter. A standard procedure should also help ensure that only certified or otherwise qualified interpreters are hired.

III.  Proposed Rules

   To address the issues discussed above, the Court Administrator proposes the adoption of the following rules of judicial administration: Uniform Rules Governing Court Interpreters for Persons with Limited English Proficiency and Persons Who are Deaf. Upon adoption of these rules the following previous rule must be rescinded: Pa. R.J.A. 1903.

[Pa.B. Doc. No. 08-784. Filed for public inspection April 25, 2008, 9:00 a.m.]