Published by the California Commission on Access to Justice
For more information or for additional copies of this report, contact
The California Commission on Access to Justice
c/o The State Bar of California
Office of Legal Services, Access & Fairness Programs
www.calbar.ca.gov
Justice
Justicia
Justice
Justicia
LANGUAGE BARRIERS TO
JUSTICE IN CALIFORNIA
A REPORT OF THE CALIFORNIA COMMISSION ON ACCESS TO JUSTICE
Published by the California Commission on Access to Justice
Tony L. Richardson, Chair Toby J. Rothschild, Vice Chair
Kirkland & Ellis General Counsel
Los Angeles Legal Aid Foundation of Los Angeles
Mary C. Viviano This report is available online at:
Director, Legal Services Outreach www.calbar.ca.gov
Office of Legal Services,
Access & Fairness Programs To order copies of this report contact:
State Bar of California Chris Zupanovich, Program Coordinator
180 Howard Street Office of Legal Services, Access & Fairness Programs
San Francisco, California State Bar of California
mary.viviano@calbar.ca.gov chris.zupanovich@calbar.ca.gov
T
he California Commission on Access to Justice gratefully acknowledges Bingham McCutchen and the State Bar
of California for their support of the Commission’
s work and their assistance in the production of this report.
Language Barriers to Justice in California
A Report of the California Commission on Access to Justice
September 2005
“Lack of comprehension is perhaps the greatest single barrier to justice. A failure to
understand the system, the law or the language of legal proceedings renders justice
incompr
ehensible at best.
At worst, it can result in severe injustice.
”
Justice in the Balance 2020
I. Executive Summary page 1
II. Introduction page 5
III. The Context page 7
A. The Growing Need page 8
B. The Applicable Law page 9
n The Case Law
n The Legislative Framework
n Standards of Judicial Administration
n Title VI
C. Other States
page 15
n Policy Declarations
n Right to I
nterpr
eter in Civil Proceedings
n Interpreter Fees and Other Costs
IV.
The Problem page 17
A. The Shrinking Interpreter Pool page 19
n Interpreter Qualifications
n Decline in Qualified Interpreters
n Increasing Demand for Interpreters
n G
r
o
wing U
se of U
nqualified I
nterpreters
n The Inadequate Alternative
B. Court Efforts to Expand Interpreter Pool
page 25
C.
F
orms and Pleadings
page 27
D.
Cour
t S
taff and J
udges
page 28
i
Language Barriers to Justice in California
Table of Contents
Table of Contents (cont’d)
V. The Effect on the Courts page 31
A. Damaging the Institutional Integrity of the Court page 31
B. Threatening the Quality of Justice page 32
C. Straining Court Resources page 33
D. Compounding the Problems of a Vulnerable Population page 33
VI. Findings and Recommendations page 35
A.
Adopt a Comprehensive Language Access Policy for Courts
page 35
n Guarantee of Qualified Interpreter Services
n Court Documents
n Court Staff and Judges
B. Develop Specific Recommendations to Implement
page 36
Language Access Policy
n General Recommendations
n Recommendations Involving Administration
C. Compile Existing Data and Conduct Additional Research
page 38
D. Reevaluate System for Recruitment, Training, page 38
Compensation and Cer
tification of I
nterpr
eters
E. Evaluate Role of Lawyers and Bar Associations, Legal
page 40
Services Programs, Law Schools and Law Libraries
VII.
Conclusion page 43
Table of Appendices
Appendix 1 Details on the Legislative Framework page 45
Appendix 2 Details on Pay for Court Interpreters page 47
A
ppendix 3
Classification of I
nterpr
eters in California Cour
ts
page 49
Appendix 4 Bibliography page 51
A
ppendix 5
I
nformation on the California Commission on
page 55
A
ccess to J
ustice
ii
California Commission on Access to Justice
Appointing Entities
Governor of the State of California
California Attorney General
President Pro Tem of the Senate
Speaker of the Assembly
Judicial Council of California
California Judges Association
The State Bar of California
California Chamber of Commerce
California Council of Churches
California Labor Federation
California League of Women Voters
Consumer Attorneys of California
Council of California County Law Librarians
iii
page
iv
Geoffrey L. Robinson, Chair
Bingham McCutchen
Walnut Creek
Joseph L. Chairez, Vice Chair
Baker & Hostetler LLP
Costa Mesa
Ramon Alvarez
Alvarez Lincoln/Mercury
Riv
erside
Marcia Bell
Director
San Francisco Law Library
Stephanie L. Choy
Executive Director
Public Interest Clearinghouse
Donna Clay-Conti
Senior Attorney
Administrative Office of the Courts
San Francisco
Hon. Manuel Covarrubias
Superior Court of Ventura County
Robin Crawford
Law Office of Robin Crawford
Pacifica
Bonnie Rose Hough
Supervising Attorney
Administrative Office of the Courts
San Francisco
Hon. Kenneth M. Kawaichi, Ret.
Mediator and Arbitrator, JAMS
San Francisco
Karen Lash
Program Counsel
Equal Justice Works
Washington, D.C.
Cristina Llop
D
irector, ACCESS Center
S
uperior Court of San Francisco
Sylvia Martin-James
Retired Educator
Riverside
Angela Oh
Oh & Barrera, LLP
Los Angeles
Gary Phillips
Communications Director
Legal Aid Foundation of Los Angeles
Toby J. Rothschild
General Counsel
Legal Aid Foundation of Los Angeles
Karin Wang
Vice President of Programs
Asian Pacific American Legal Center
Los Angeles
Staff
Mary C. Viviano
Director, Legal Services Outreach
Office of Legal Services, Access & Fairness
Programs
State Bar of California
Chris Z
upano
vich
Program Coordinator, Legal Services Outreach
Office of Legal Services, Access & Fairness
P
r
ograms
State Bar of California
Melinda Myers Vaughn
Report Designer and Editor
University of Southern California
Language Access Committee of the
California Commission on Access to Justice
page
v
“Important rights to equal justice are ... infringed in any ... court
proceeding in which a language-handicapped person is unable to
participate fully and fairly. There is no place anywhere in the
American Courts for unequal treatment because of a language
handicap
.
”
— Report of the Judicial Division to the
AB
A Board of Governors in Support of
Resolution No
.
109 (August 1997)
vi
California is home to one of the most ethnically and racially diverse populations in the
world. Of the state’s 34 million people, about 26 percent (roughly 8.8 million people)
are foreign born. Californians speak more than 220 languages, and 40 percent of the
state’s population speaks a language other than English in the home.
1
This extraordinary
diversity is among the state’s greatest assets — a cross-pollination of ideas, traditions,
backgrounds and cultures that has helped make California an international leader in busi-
ness, the arts, entertainment, engineering, medicine, and a host of other fields.
The state’s diversity also poses unique challenges for the delivery of government services
— particularly for the courts. For Californians not proficient in English, the prospect of
navigating the legal system is daunting, especially for the growing number of litigants
who have no choice but to represent themselves in court and therefore cannot rely on an
attorney to ensure they understand the proceedings. Nearly seven million Californians
cannot access the courts without significant language assistance, cannot understand
pleadings, forms or other legal documents, and cannot participate meaningfully in court
proceedings without a qualified interpreter.
2
The right to have a state-funded interpreter in a criminal proceeding has long been recog-
nized by the courts; however, in most civil proceedings — even those affecting
fundamental rights — California does not r
ecogniz
e the right to an interpr
eter
,
3
and ther
e
are not adequate funds to pay for interpreters. An overwhelming number of Californians
believ
e that interpr
eters should be made available to assist non-English speakers in all
court proceedings and that interpreters should be provided free of charge to low-income
Nearly seven million
Californians cannot access
the courts without
significant language
assistance.
page
1
Language Barriers to Justice
I. Executive Summary:
Language Barriers to Justice in California
A Report of the California Commission on Access to Justice
1
U.S. Census Bureau, California Quick Facts, available at <http://quickfacts.census.gov/qfd/states/
06000.html> (
hereinafter 2000 Census)
2
Roughly 20 percent of Californians (almost seven million people) speak English less than “very well,”
which ef
fectively pr
ecludes meaningful participation in a judicial proceeding without substantial
language assistance. U.S. Census Bur
eau, American FactFinder
,
available at
<http://factfinder.census.gov/servlet/BasicFactsTable?_lang=en&_vt_ name=DEC_2000_ SF3_U_
DP2&_geo_id=04000US06> (
hereinafter 2000 Census, American Fact Finder).
3
Jara v. Municipal Court for the San Antonio Judicial District of Los Angeles, 21 Cal. 3d 181 (1978),
cert. denied, 439 U.S. 1067 (1979).
4
Judicial Council of California Advisory Committee on Racial and Ethnic Bias in the Courts, Fairness in
the California State Courts: A Survey of the Public, Attorneys and Court Personnel
(1994) at 4-79
(
hereinafter Fairness in the California Courts).
non-English speakers.
4
The California Legislature has acknowledged the need for
language services in the courts in order to provide equal access to justice for all.
5
The court system has struggled to meet that need but, for all practical purposes,
Californians continue to face a dire and unmet need for language assistance in the courts.
The unfortunate reality is that courts are caught in an impossible position. Limited
court resources, a lack of qualified interpreters, and the absence of funding for payment
of interpreters for low-income litigants make it impossible to provide interpreters for the
vast majority of civil proceedings. Court interpretation is extremely difficult and takes
a rare combination of skills, experience, and training. Anecdotal and informal survey
information indicates that courts rarely appoint interpreters in civil cases unless parties
pay for them because no funds are available to compensate the interpreter. Another
significant pr
oblem is the unavailability of court documents in other languages. Most
forms and pleadings provided by California courts, while critical to many basic court
proceedings, are provided only in English. Even where forms are available in other
languages, all documents completed and submitted in any judicial proceeding must be,
by law, in English.
6
For people with limited English proficiency, the very basic process of
filling out paperwork becomes a daunting task.
In recent years, demand for interpreter services has grown steadily while the number of
interpreters available to meet that demand has dropped by more than 35 percent.
7
Efforts to attract, train, retain and better compensate interpreters have made some
progress but have not succeeded in adequately expanding the pool of properly qualified
court interpreters.
8
As a result, the courts often must rely on untrained interpreters — in
some civil and family law cases, even family members or children — which can lead to
faulty translations and threaten the court’s ability to ensure justice.
The starkest consequence of linguistic barriers to the courts is simply that justice is
unavailable. The very people who are arguably most in need of help from the courts are
unable to obtain that pr
otection. I
n r
outine civil pr
oceedings, such as evictions, repos-
sessions, creditor/debtor cases, wage garnishments, and family law matters, they cannot
effectiv
ely defend themselv
es or assert their legal rights. And the court system itself can
The starkest consequence
of linguistic barriers to the
courts is simply that justice
is unavailable. The very
people who are arguably
most in need of help from
the courts are unable to
obtain that protection.
page
2
I. Executive Summary
5
CAL. GOV’T CODE § 68560(e) provides: “The Legislature recognizes that the number of non-English-
speaking persons in California is increasing, and recognizes the need to provide equal justice under the
law to all California citizens and residents and to provide for their special needs in their relations with
the judicial and administrative law system.
”
6
C
AL. CIV. PROC. CODE § 185 provides:
“Ever
y written proceeding in a court of justice in this state shall
be in the English language, and judicial proceedings shall be conducted, preserved, and published in no
other.
” This provision implements the California Constitution’s requirement that “All laws of the State
of Califor
nia, and all of
ficial writings, and the executive, legislative, and judicial pr
oceedings shall
be
conducted, preserved, and published in no other than the English language.
” CAL. CONST. art. IV, § 24.
7
2000 Language Need and Interpreter Use Study (Prepared by Walter R. McDonald and Associates for
the Judicial Council of California, September 29, 2000) (
hereinafter Interpreter Use Study).
8
Under California law, to be qualified to interpret in California courts an interpreter must be certified to
interpr
et in one of 13 designated languages or registered to interpret in other languages. Both require
passing a state exam and meeting specified pr
ofessional, ethical and educational r
equir
ements (see
Appendix 3).
appear unfair and unbalanced when, because of inability to comprehend the process,
defendants with limited English proficiency
9
cannot meaningfully participate in court
proceedings, and thereby lose legal rights, property, livelihood or shelter.
Recommendations
Federal and state laws provide for equal access by people of limited English proficiency to
a wide range of public and private health and social service programs and activities.
10
California statutes also mandate language assistance — including appointment of an
interpreter — in adjudicative proceedings before state agencies, boards and commis-
sions.
11
Californians overwhelmingly agree (85 percent) that the courts must ensure that
an adequate number of interpreters are available to assist non-English speakers.
12
In
keeping with these fundamental policies — supported by a majority of the population —
the following steps should be taken to ensure access to the judicial system for all
Californians:
n Adopt a comprehensive language access policy for courts. California should
explicitly recognize a right to equal access to the courts without regard to
language proficiency. This statement of policy should be accompanied by
specific plans designed to achieve the goal of guaranteeing such access, including
adequate funding to provide for qualified interpretation and translation services;
access to standard court documents (such as forms and instructions) in, at a
minimum, those languages spoken by a significant number of the population
using court services; and training and resources to assist court staff, administra-
tors and judges in identifying and addressing language issues.
n Develop specific recommendations for court officials and staff to implement
the language access policy.
The Judicial Council
13
should ensure that adequate
training packages and model protocols exist for court staff and judicial officers
to:
(i) addr
ess language access issues, including cultural sensitivity training;
(ii) prioritize the goal of full language access;
(iii) establish evaluation processes for language access measures; and
A Family’s Story: Yao wanted to
take her daughter to China to
meet her gravely ill grandmother
before she died, but could not get
her a passport because of a
misspelling on her birth
certificate. She was not able to
properly explain to court clerks
what she needed and was
referred to family law for a
custody order. After months of
delay, she learned she had not
obtained the order she needed to
get her daughter's passport. She
couldn't wait any longer and
went to see her mother without
her daughter. Her mother died
shortly thereafter without ever
meeting her granddaughter.
page
3
Language Barriers to Justice
9
For purposes of this report, the term “limited English proficiency” means the inability to adequately
understand or to communicate effectively in spoken and/or written English.
10
See, e.g., 20 USC § 1703(f) (elimination of language bar
riers in schools); 42 USC §§ 1973(f)(4), 1973
aa-1a (electoral rights); 42 USC § 2000(d) (health care and social services); Dymally-Alatorre Bilingual
Services Act, Gov’t Code §§ 7290 et seq. These and other statutes provide an unqualified right to
language assistance to those with limited English proficiency. Unfortunately, such assistance is often
not available, usually because no funding exists to provide these services.
11
CAL. GOV’T CODE § 11435.15
12
Fairness in the California Courts at 4-79.
13
The Judicial Council is the policy-making body for the California courts.
(iv) encourage local courts to work with community-based organizations to
address language access issues.
n Reevaluate the system for training and certifying interpreters. While rigorous
standards for interpreter certification and registration are essential, and there
have been significant efforts to increase the number of qualified interpreters, the
current system is not providing adequate resources. Existing test approaches
should be analyzed to determine whether fine-tuning could further improve
them, and whether qualifications at levels below full certification can be identi-
fied for specific types of interpreting assignments. Different models of training,
possibly including the concept of interim or apprentice interpreter status, should
be ev
aluated and considered. Ongoing efforts to recruit, train and retain inter-
preters should be expanded. Adequate funding should be sought so that
compensation can be set at levels that encourage people to pursue careers in court
interpretation. The goal must be to have the highest quality of interpretation
possible in every situation.
n Evaluate the role of lawyers and bar associations, legal services programs, law
schools and law libraries.
Lawyers can and should be better prepared to assist
parties and witnesses with limited English proficiency. Legal services programs
must continue their valuable efforts to improve services to their constituents and
to train advocates and pro bono volunteers to serve communities that speak
languages other than English. Law school curricula should include information
to prepare students for situations involving parties with limited English profi-
ciency, and law libraries should work to ensure adequate access to their resources
for patrons with limited English proficiency.
n Compile existing data and conduct additional research. Far more information
is needed to accurately assess the need for language assistance in the courts.
Research should focus — with due attention to privacy issues — on quantifying
the use (attempted and actual) of the courts by people speaking languages other
than E
nglish; the rate at which non-certified or non-registered interpreters are
being used in the courts; and the extent of problems (such as defaults and delays)
caused by lack of language resources.
While this report paints, at times, a dispiriting portrait of the plight of limited-English
litigants in the court system — a situation that continues despite the efforts of many both
within and outside the court system — there is much more that can and should be done.
This report is just one step in the process of building awareness and inspiring the many
people who car
e about our state to wor
k together to protect the accessibility and integrity
of our cour
ts.
page
4
I. Executive Summary
“And justice for all” — the promise that every individual will receive equal treatment
under the law — is as central to the ideal of freedom as the right to vote.
Yet there continue to be significant barriers to equal access to justice. A large and
growing barrier is the lack of English language proficiency. The complexities of the
language and process of the law present multiple challenges for people of limited English
proficiency: they cannot comprehend the pleadings and court forms they receive; they
cannot follow the signs or directions posted at the court; they cannot communicate with
clerks or court staff; and they cannot understand or participate in court proceedings,
much less effectively present their cases.
Such language barriers are particularly acute in California, one of the nation’s most
diverse states: Approximately 26 percent of the state’s population is foreign born, and
nearly ten percent of the state’s population immigrated to California as recently as the
1990s.
14
More than 220 languages are spoken in California, and an astounding 40
percent of the state’s households speak a language other than English in the home.
15
According to the 2000 Census, nearly 20 percent of Californians speak English less than
“very well.”
16
What does this mean for the courts?
The gr
o
wing number of Californians with limited E
nglish pr
oficiency has sparked a
significant increase in the need for language assistance in the courts — a daunting chal-
lenge at a time when r
esources are shrinking. Because there is no established
constitutional right to an interpreter in a civil proceeding, and because the right to an
interpreter in most civil cases is not protected by California law, language assistance is
provided by the state in non-criminal cases only in very limited instances. Many with
limited E
nglish skills ar
e unable to pay for legal assistance and must attempt to r
epr
esent
themselves in court — a nearly impossible task for people who are unable to understand
the proceedings. While the courts have made significant efforts to assist litigants with
limited E
nglish pr
oficiency
, most crucial court forms and documents are available in
page
5
Language Barriers to Justice
14
2000 Census.
15
Id.
16
Id.
II. Introduction
More than 220 languages
are spoken in California,
and 40 percent of the
state’s households speak a
language other than
English in the home.
English only, and the number and availability of skilled interpreters has actually declined
over the past decade, despite the burgeoning need.
Court interpretation is extremely difficult and requires considerable skill, training and
experience. Development of an adequate pool of fully qualified interpreters presents a
major challenge. Inadequate assistance for litigants with limited English proficiency
affects the court’s ability to function properly, causing delays in proceedings, inappro-
priate defaults, and faulty interpretation that can ultimately subvert justice. The inability
to accommodate the language needs of litigants impairs trust and confidence in the judi-
cial system and undermines efforts to secure justice for all.
Ensuring equal access to justice for all Californians has become a statewide priority, and,
in recent years, California has taken unprecedented steps toward this vital goal. In 1996,
the California Commission on A
ccess to Justice was established to lead the access-to-
justice effort. Composed of representatives of the Governor’s office, the State Attorney
General, the California Legislature, the state judiciary, the State Bar of California, and
business, labor, and community groups, the Access Commission has launched a statewide
effort to ensure equal access to justice for all Californians.
In its 2002 report on access to justice in California — “The Path to Equal Justice” — the
Commission found that 72 percent of the legal needs of low-income families continue to
go unaddressed.
17
The report also found that people of limited English proficiency are
among those most likely to need assistance in accessing the courts and those least likely
to receive it. The language barriers, compounded by the lack of legal assistance, continue
to keep the promise of justice beyond the reach of the state’s most vulnerable populations.
To address this problem, the Commission on Access to Justice formed a standing
committee on language access issues and commissioned this report to examine the scope
and impact of language barriers in California’s justice system and offer suggestions for
ways to improve services for people with limited English proficiency. While this report
focuses primarily on what can be done to addr
ess language barriers in our courts, other
components of the justice system — including legal services programs, lawyer referral
ser
vices, law libraries, law schools, bar associations and individual lawy
ers — also need to
address language barriers if true access to justice is to be achieved. Suggestions for
addressing language barriers in these other components of the judicial system are also
being considered by the Commission, although they are not the focus of this report.
The California Commission on Access to Justice hopes this report proves to be an impor-
tant step in the state
wide effor
t to achieve access to justice for all Californians.
page
6
II. Introduction
17
The Path to Equal Justice, Califor
nia Commission on Access to Justice (2002)
As one of the nation’s most diverse states and home to the country’s largest immigrant
population, California is in a unique position to enjoy the fruits of a multiplicity of
cultures and traditions. The diversity of the state’s population has long been one of its
strongest and most enduring characteristics. In a state where more than 220 languages
are spoken, this rich mix of cultures also presents unique challenges for ensuring equal
access to state services. For people with limited English proficiency — nearly 20 percent
of the state’s population according to the 2000 Census
18
— many services are simply
inaccessible. This cannot continue to be the case with the state’s court system. The
courts hold authority over our most basic rights and privileges. Unless every Californian
can fully understand and participate in judicial proceedings affecting his or her legal
rights, our courts cannot serve their intended purpose and our democracy cannot keep
one of its most important promises.
The right to have a state-funded interpreter in a criminal proceeding has long been recog-
nized by the courts. In most civil proceedings, however — even those affecting
fundamental rights — California does not r
ecognize the right to an interpreter, and there
are not sufficient funds to pay for interpreters. An overwhelming number of Californians
believe that interpreters should be made available to assist non-English speakers in all
court proceedings and that interpreters should be provided free of charge to low-income,
non-E
nglish speakers.
19
The California Legislatur
e has ackno
wledged the need for
language services in the courts in order to provide equal access to justice for all, and the
cour
t system has struggled to meet that need; however, for all practical purposes,
Californians continue to face a dire and unmet need for language assistance in the courts.
California's first constitution,
drafted in 1849, provided
that
“All laws, decrees,
r
egulations
, and provisions
emanating from any of the
three supreme powers of
this State, which from their
natur
e require publication,
shall be published in English
and Spanish.
”
page
7
Language Barriers to Justice
III. The Context
18
2000 Census.
19
Fairness in the California Courts at 4-79.
A. The Growing Need
For many, California is emblematic of the American dream, a place of stunning natural
beauty, a seat of international commerce, a land of unparalleled opportunity. For more
than a century, the state has drawn people from all over the world who seek work, pros-
perity, and ocean breezes — and that trend is only growing. Nearly ten percent of the
state’s residents immigrated to California from other countries between 1990 and 2000.
20
As a result, California is the most populous and demographically diverse state in the
nation, a meeting place of cultures, ethnicities and ideas unlike any other in the world.
California’s current diversity is a return to its early demographic history: approximately
25 percent of the state’s population is now composed of immigrants, a level similar to that
of the late 1800s and early 1900s.
According to the 2000 Census, California has a population of approximately 34 million
people.
21
Over a quarter of Californians (roughly 8.8 million people) are foreign born;
of these, about 56 percent are from Latin America (roughly 4.9 million people) and about
33 percent are from Asia (roughly 2.9 million people).
22
Statistics show that the rate of
immigration to California from abroad is increasing, particularly among groups less likely
to speak English. The annual number of legal immigrants to California averages over
200,000 people; 1,807,953 people legally immigrated to California from other countries
between 1990 and 1998.
23
Estimates of undocumented immigrants (principally from
Latin American countries) coming to California directly or through other states are as
high as 225,000 people per year.
24
Many of these documented and undocumented
immigrants do not speak English proficiently.
Language Spoken at Home
25
Total California population five years of age and over 31,416,629 100.0%
English only 19,014,873 60.5%
Language other than English 12,401,756 39.5%
Speak English less than
“very well”
6,277,779 20.0%
Spanish 8,105,505 25.8%
Speak English less than “very well” 4,303,949 13.7%
Other Indo-European languages 1,335,332 4.3%
Speak English less than “very well” 453,589 1.4%
Asian and Pacific Island languages 2,709,179 8.6%
Speak English less than
“very well”
1,438,588
4.6%
Overall, it is clear that
California will experience
steady increases in both
the need for court
interpreting services and
the diversity of languages
in which those services are
needed.
page
8
III. The Context
20
2000 Census.
21
Id.
22
Id.
23
Judicial Council of Califor
nia Administrative Of
fice of the Cour
ts,
Report to the Legislature on the Use
of Interpreters in the California Courts
(December 2002) at 15 (hereinafter Report to the Legislature).
24
Id.
25
2000 Census, American FactFinder
, T
ables,
available at <http://factfinder
.census.gov/ser
vlet/
BasicFactsTable?_lang=en&_vt_name=DEC_ 2000_SF3_U_DP2&_geo_id=04000US06>
California’s high immigrant population means that the state is also extremely linguisti-
cally diverse. According to the 2000 Census, California is the nation’s most linguistically
diverse state, with approximately 224 distinct languages spoken.
26
Almost 40 percent of
Californians (more than 13 million people) speak a language other than English at
home.
27
This represents a four million increase since 1990.
28
While many in the state
are bi- or multi-lingual, a startling number of Californians are not proficient in English.
Roughly 20 percent of Californians (almost 7 million people) speak English less than
“very well” — the minimum realistic threshold for meaningful participation in a judicial
proceeding. More than four million California households are “linguistically isolated,”
meaning that no person in the household aged 14 or older speaks English at least “very
well.”
29
Roughly four percent of Californians (over 1.3 million people) speak no English
at all. Of those who speak no English, roughly half speak Spanish, and the remainder
speak any of more than 200 languages.
30
Millions of Californians are involved with legal proceedings every year. English profi-
ciency is a prerequisite to engagement in the legal system. Survey data suggest that most
Californians believe that people with a good understanding of English are treated better
in the courts than people who speak little or no English.
31
Without English proficiency,
the prospect of navigating through the legal system is daunting, particularly since a high
percentage of litigants represent themselves in court and therefore cannot rely on an
attorney to ensure they understand the proceedings. Almost seven million Californians
cannot gain access to the courts without significant language assistance, cannot under-
stand pleadings, forms or other legal documents, and cannot participate meaningfully in
court proceedings without a qualified interpreter.
B. The Applicable Law: The Criminal/Civil Distinction
Regarding Interpreters
Despite the overwhelming need, courtroom language services are virtually unavailable to
many Californians. While criminal defendants, witnesses, parties in small claims cases,
and parties in a narrow class of civil cases have the right to an interpreter, no such right
has been recognized for parties in most civil cases.
Almost 40 percent of
Californians (over 13 million
people) speak a non-English
language at home:
n Over 25 percent of Californians
speak Spanish at home.
n Almost nine percent of
Californians speak Asian and
Pacific Island languages at home.
n Roughly 14 percent of
Californians speak English less
than “very well” in homes where
Spanish is spoken (more than 4.6
million people).
n Roughly 4.6 percent of
Californians speak English less
than “very well” in homes where
Asian and Pacific Island
languages are spoken (more than
1.5 million people).
page
9
Language Barriers to Justice
26
2000 Census.
27
Id.
28
Report to the Legislature at 15.
29
Id.
30
2000 Census.
31
Fairness in the California Courts at 4-34.
1. The Case Law
Courts have generally held that the U.S. Constitution entitles criminal defendants with
limited English proficiency to an interpreter supplied by the court.
32
The California
Constitution explicitly provides that a “person unable to understand English who is
charged with a crime has a right to an interpreter throughout the proceedings.”
33
There is no corresponding right, however, in ordinary civil proceedings. In Jara v.
Municipal Court
,
34
the California Supreme Court held that non-English speaking indi-
gent civil litigants do not have a right to have a court interpreter appointed at public
expense. The court stated that litigants must rely on the court’s inherent authority to
appoint an interpreter and waive fees if justice so requires.
35
Although the court
acknowledged the standard set forth in
Boddie v. Connecticut
36
— that absent a “coun-
tervailing state interest of overriding significance, persons forced to settle their claims of
right and duty through the judicial process must be given a meaningful opportunity to
be heard” — it found that this standard does not provide civil litigants with a constitu-
tional right to an interpreter because “alternate sources for language assistance to
communicate with counsel and other community professionals and officials” exist.
Jara limited the potential reach of an earlier case, Gardiana v. Small Claims Court,
37
which held, in the context of a small claims proceeding, that the court has a statutory
duty to appoint an interpreter free of charge if it finds the litigant unable to speak or
understand English. According to
Jara, however, California law provides for court-
appointed interpreters in civil cases only for witnesses, not parties.
Jara also
distinguished small claims proceedings as more informal and expeditious than other court
proceedings.
Jara reasoned that because attorneys are not permitted in small claims
proceedings, non-English speaking small claims litigants are “effectively barred from
access to the small claims proceedings” without an interpreter.
38
page
10
III. The Context
32
See United States v
. Carrion
, 488 F
.2d 12, 15 (1st Cir
. 1973) (
“The right to an interpr
eter r
ests most
fundamentally . . . on the notion that no defendant should face the Kafkaesque spectre of an incom-
prehensible ritual which may terminate in punishment.
”); United States ex rel. Negron v. New York,
434 F.2d 386, 389 (2nd Cir. 1970).
33
CAL. CONST. art. I, § 14 Even in criminal cases where the right to an interpreter is clear, there are
significant difficulties ensuring the availability of interpreters in the needed language in a timely
manner
.
34
Jara v. Municipal Court for the San Antonio Judicial District of Los Angeles County, 21 Cal. 3d 181
(1978),
cert. denied, 439 U.S. 1067 (1979).
35
Jara, 21 Cal. 3d at 183.
36
Boddie v. Connecticut, 401 U.S. 371, 377 (1971)
37
Gardiana v. Small Claims Court, 59 Cal. App. 3d 412 (1976)
38
Jara, 21 Cal. 3d at 185.
2. The Legislative Framework
Federal and state laws guarantee equal access by people of limited English proficiency to
a wide range of public and private health and social service programs and activities. Title
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000(d)
et seq., and its implementing regu-
lations prohibit recipients of specified federal financial assistance from engaging in
policies, practices or procedures that have the effect of excluding or limiting participation
by persons of limited English proficiency in their programs and activities.
39
These and
other federal statutes protect access by those with limited English proficiency to educa-
tion, health care, social services and voting.
40
Similar protection for access to public services in California is provided by the Dymally-
Alatorre Bilingual Services Act,
41
which contains a bold articulation of state policy in
favor of equal access:
The Legislature hereby finds and declares that the effective maintenance of a
democratic society depends on the right and ability of its citizens and resi-
dents to communicate with their government and the right and ability of the
government to communicate with them.
The Legislature further finds and declares that substantial numbers of persons
who live, work and pay taxes in this state are unable, either because they do
not speak or write English at all, or because their primary language is other
than English, effectively to communicate with their government. The
Legislature further finds and declares that state and local agency employees
frequently are unable to communicate with persons requiring their services
because of this language barrier. As a consequence, substantial numbers of
persons presently are being denied rights and benefits to which they would
otherwise be entitled.
The intention of the Legislature in enacting this chapter is to provide for
effective communication between all levels of government in this state and the
people of this state who are precluded from utilizing public services because
of language barriers.
The California Legislature has also demonstrated a clear understanding of the need to
pr
o
vide equal justice under the law to all non-English speaking persons:
The Legislatur
e r
ecogniz
es that the number of non-E
nglish speaking persons
in California is increasing, and recognizes the need to provide equal justice
under the law to all California citiz
ens and r
esidents and to provide for their
special needs in their r
elations with the judicial and administrativ
e law
system.
42
Federal and state laws
guarantee equal access by
people of limited English
proficiency to a wide range
of public and private health
and social service programs
and activities.
page
11
Language Barriers to Justice
39
As discussed later in this r
epor
t, ther
e is an open question as to whether Title VI, as interpreted by
various federal agencies, requires state courts that receive federal funding to provide equal access to
persons with limited English proficiency without additional cost.
40
See 20 USC § 1703(f) (elimination of language bar
riers in schools); 42 USC §§ 1973(f)(4), 1973 aa-1a
(electoral rights); 42 USC § 2000(d) (health care and social services).
41
CAL. GOV’T CODE §§ 7290 et seq.
42
CAL. GOV’T CODE § 68560 (e).
California statutes mandate language assistance — including appointment of an inter-
preter — in adjudicative proceedings before state agencies, boards and commissions,
including the Agricultural Labor Relations Board, the California Unemployment
Insurance Appeals Board, the Board of Prison Terms, and the Public Utilities
Commission.
43
Such assistance is required (at no charge to the parties) whenever “a
party or the party’s witness does not proficiently speak or understand English.”
44
Every
agency subject to the language assistance requirement must advise each party of the right
to an interpreter at the same time the party is advised of the hearing date.
45
The State
Personnel Board is charged with establishment of a list of certified administrative hearing
interpreters who meet specified interpreting skills and linguistic abilities.
46
When it comes to civil judicial proceedings, however, California statutes provide parties
the right to an interpr
eter only in a small subset of actions or proceedings, including those
involving small claims, domestic violence, parental rights, dissolution of marriage or legal
separations involving a protective order, and court-related medical examinations. In most
but not all of these areas, the statute provides for a waiver of the court interpreter fees
where the litigant cannot afford to pay for them.
47
Unfortunately, even for most of these
proceedings, the statutory “right” is illusory because the statute adds that compliance
with its terms is required only if adequate funds are available under the Federal Violence
Against Women Act (VAWA, P.L. 103-322) or from “sources other than the state.”
48
By contrast, California law expressly mandates appointment of an interpreter for
witnesses and the hearing impaired in all proceedings, criminal or civil. Under Evidence
Code section 752, the court must appoint an interpreter whenever “a witness is incapable
of understanding the English language or is incapable of expressing himself or herself in
the English language so as to be understood directly by counsel, court and jury ....”
Appointment of a translator is also required whenever “the written characters in a writing
offered in evidence are incapable of being deciphered or understood directly ....”
49
E
vidence Code S
ection 754 r
equir
es the appointment of a qualified interpreter in any
civil or criminal proceeding (including small claims actions and any court-ordered or
pr
o
vided mediation or arbitration) “where a party or witness is an individual who is deaf
or hearing impaired ....”
50
For these purposes, “interpreter” means an oral interpreter, a
Survey data suggest that
most Californians believe
that people with a good
understanding of English
are treated better in the
courts than people who
speak little or no English.
page
12
III. The Context
43
CAL. GOV’T CODE § 11435.15.
44
Id.
45
CAL. GOV’T CODE § 11435.60.
46
CAL. GOV’T CODE § 11435.30.
47
Statutes gover
ning these proceedings are contained in Appendix 1.
48
CAL. EVID. CODE § 755(e)
49
CAL. EVID. CODE § 753.
50
CAL. EVID. CODE § 754(b).
51
CAL. EVID. CODE § 754(d).
sign-language interpreter, or a deaf-blind interpreter, depending upon the need of the
individual involved.
51
3. Standards of Judicial Administration
The state’s Standards of Judicial Administration offer instruction to judges for deter-
mining whether an interpreter is needed.
52
Under Section 18, an interpreter is required
if, after an examination of a party or a witness, “the court concludes (1) the party cannot
understand and speak English well enough to participate fully in the proceedings and to
assist counsel, or (2) the witness cannot speak English so as to be understood directly by
counsel, court and jury.”
53
The court is directed to examine the party or witness “on the
record to determine whether an interpreter is needed if (1) a party or counsel requests
such examination or (2) it appears to the court that the person may not understand or
speak English well enough to participate fully in the proceeding.”
54
However, the standards of judicial administration do not specifically provide for payment
of interpreters or the source of such payment (except in the limited range of civil proceed-
ings for which state law makes such provisions), and there is not adequate funding to
cover the cost of such interpreters. Anecdotal evidence indicates that some judges do seek
and obtain funding for interpreters in civil cases, although there is no reliable data on the
frequency or source of such funding.
4. Title VI
No person shall “on the ground of race, color, or national origin, be excluded from partic-
ipation in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving federal financial assistance.”(Title VI of the Civil Rights Act of 1964,
42 U.S.C. 2000(d)) Title VI authorizes and directs specified federal agencies “to effec-
tuate the provisions … by issuing rules, regulations, or orders of general applicability.”
I
n
Lau v
. N
ichols
, 414 U.S. 563 (1974), the S
upr
eme Cour
t interpreted regulations prom-
ulgated by the former Department of Health, Education, and Welfare to hold that Title
VI prohibits conduct that has a disproportionate effect on persons of limited English
proficiency because such conduct constitutes national-origin discrimination.
Lau
required a San Francisco school district that had a significant number of non-English
speaking students to take reasonable steps to provide them with a meaningful opportu-
nity to participate in federally funded educational programs.
A Family’s Story: Estefani's
grandparents needed to enroll
her in school and get her health
care, but could not do so without
a court order. They went to the
courts several times but were
unable to accurately describe
their situation in English. After
many delays, including two
hearings continued for lack of an
interpreter, they learned they
were pursuing the wrong order.
Because the child's medical
condition was worsening and the
school year approaching, they
nearly gave her up to foster care.
They turned to a court self-help
center, which, with the assistance
of a volunteer interpreter, was
able to help them get the proper
order
.
page
13
Language Barriers to Justice
52
See People v
. Carreon
, 151 Cal. App. 3d 559, 569-70, n. 3 (1984). (The Judicial Council’
s
“authority
to recommend standards of judicial administration not inconsistent with statute is now granted by
article 1, section 6 of the California Constitution.
”)
53
California Standards of Judicial Administration § 18(a)(1)-(2).
54
Id.
In August 2000, pursuant to Executive Order 13166,
55
the Department of Justice (DOJ)
issued a general guidance document
56
setting forth principles for agencies to apply in
developing guidance documents for funding recipients pursuant to the Executive
Order.
57
Based on these principles, several federal agencies have established policy guide-
lines imposing responsibility on state recipients of federal funds to ensure that persons of
limited English proficiency have meaningful access to services and benefits, including
provision of language assistance at no charge.
58
It is an open question whether, as recipients of federal funding from the Department of
Health and Human Services (in areas such as collection of child support) and other
federal agencies and programs, state courts are bound by the above guidelines and must
provide equivalent access to linguistic minorities without charge.
59
The issue is of consid-
“Few liberties in America
have been more zealously
guarded than the right to
protect one’s property in a
court of law. This nation
has long realized that none
of our freedoms would be
secure if any person could
be deprived of his
possessions without an
opportunity to defend
them.
”
— Payne v. Superior Court,
17 Cal. 3d 908, 911 (1976)
page
14
III. The Context
55
Executive Order 13166: Improving Access to Services for Persons with Limited English Proficiency, 65
Fed. Reg. 50,121 (August 16, 2000).
56
Department of Justice Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of
1964
—
National Origin Discrimination Against Persons With Limited English Proficiency, 65 Fed. Reg.
50,123 (August 16, 2000).
57
On June 18, 2002, the U.S. Department of Justice published final guidance to DOJ recipients on the
requirement under Title VI of the Civil Rights Act of 1964 and the Title VI regulations, to ensure such
access. Department of Justice:
Final Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons
67 Fed. Reg. 41,455 (June 18, 2002). The guidance is also available on <http://www.usdoj.gov/crt/
cor/13166.htm> (the LEP portion of the of the Civil Rights Division’s Coordination and Review Section)
or at <http://www.usdoj.gov/crt/cor/lep/DOJFinLEPFRJun182002.htm>.
See also Assistant Attorney
General
July 8, 2002, Memorandum to Heads of Federal Agencies, General Counsels, and Civil Rights
Directors concerning Executive Order 13166
(“Improving Access to Services for Persons with Limited
English Proficiency
”) available at <http://www.usdoj.gov/crt/cor/lep/BoydJul82002.pdf>.
58
See 67 Fed. Reg. 4968 (Febr
uar
y 1, 2002)
available at <http:www
.hhs.gov/ocr/>. Depar
tment of
Labor LEP Policy Guidance, 66 Fed. Reg. 4596 (January 16, 2001)
available at
<http://www.usdoj.gov/crt/cor/lep/ dollep.htm>.
59
On December 1, 2003, a Deputy Assistant Attorney General of the Department of Justice Civil Rights
Division wrote a general letter to all state court administrators regarding obligations under Title VI and
Executive Or
der No. 13166, as r
ecipients of federal funding, to ensure meaningful access by LEP
persons to their federally assisted pr
ograms and activities. The letter stated:
“Most, if not all, state court systems receive, either directly or through individual sub-units, federal
financial assistance from the Department of Justice (DOJ) or another federal agency. As you may
know, recipients of such federal financial assistance must comply with various civil rights statutes,
including T
itle VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq., and the
Omnibus Crime Contr
ol and Safe Str
eets Act of 1968, as amended, 42 U.S.C. § 3789d(c) (the
“Crime
Contr
ol Act
”), which together pr
ohibit discrimination on the basis of race, color
, national origin, sex,
and religion in programs that receive federal financial assistance. Under Executive Order 13166,
reprinted at 65 FR 50,121 (August 16, 2000), each federal agency that extends federal financial assis-
tance is required to issue guidance clarifying the obligation of their recipients to ensure meaningful
access by LEP persons to their federally assisted pr
ograms and activities.
”
Deputy Assistant Attor
ney General
December 1, 2003, Letter to State Court Administrators Regarding
the Provision of Language Ser
vices to Persons with Limited English Proficiency
, available at
<http://www
.usdoj. gov/cr
t/cor/cour
tsletter_generic.htm>.
erable significance given the determination by DOJ and federal agencies that, in most
cases, receipt of federal funds for a particular program or activity subjects all the recip-
ient’s operations to Title VI compliance.
60
An argument also could be made that standards of judicial administration, interpreted in
light of the Dymally-Alatorre Bilingual Services Act and other state statutes, require
courts to appoint interpreters in all proceedings involving persons with limited English
proficiency.
The unfortunate reality, however, is that courts are caught in an impossible position.
Limited court resources and the lack of qualified interpreters make it functionally impos-
sible to provide interpreters in the vast majority of civil proceedings. Anecdotal evidence
and informal surveys indicate that courts rarely appoint interpreters in civil cases unless
parties pay for them. Funds are not available to compensate the interpreter for this
service, and there are no statewide guidelines for the judicial branch regarding payment
of interpreters in civil proceedings.
61
C. Other States
California is not alone in facing these challenges, although no other state faces the sheer
volume of cases in which language assistance is needed. While California has long been
a model to which other states have looked for guidance, California may look to counter-
parts around the country for models of comprehensive court interpreter statutes that
protect the rights of non-English speaking litigants in all civil as well as criminal actions.
These models include:
1. Policy Declarations
Statutes in several states have a preamble, introduction or policy declaration that clearly
articulates the law’s purpose: to protect the rights of non-English speaking litigants in all
judicial proceedings — civil and criminal. For example, Oregon declares that it is “the
Several states accord non-
English speakers a right to
an interpreter at state
expense in all civil court
proceedings.
page
15
Language Barriers to Justice
60
For example, the Health and Human Services’ Office for Civil Rights states:
“What constitutes a program or activity covered by Title VI was clarified by Congress in 1988, when
the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA pr
ovides that, in most cases,
when a r
ecipient/cover
ed entity receives federal financial assistance for a particular program or activity,
all operations of the r
ecipient/cover
ed entity ar
e cover
ed by Title VI, not just the part of the program
that uses the federal assistance. Thus, all parts of the recipient’s operations would be covered by Title
VI, even if the federal assistance is used only by one part.
”
U.S. Department of Health and Human Services, Office for Civil Rights, Policy Guidance: Title VI
Prohibition Against National Origin Discrimination as it Affects Persons with Limited English Proficiency
,
Part C.1.
(Sept. 1, 2000).
61
A survey of legal services providers and community based organizations conducted by the Access
Commission on Access in 2003 r
evealed ver
y few instances in which courts appointed certified or
registered interpreters in cases in which such interpreters were not required by statute or proffered by
a party.
policy of this state to secure the constitutional rights and other rights of persons who are
unable to readily understand or communicate in the English language.”
62
2. Right to Interpreter in Civil Proceedings
Several statutes explicitly provide litigants with a right to a court-appointed interpreter in
all civil matters in states including Idaho, Iowa, and Minnesota, as well as Washington,
D.C.
63
Several states also require waiver of the right to an interpreter to be in writing
and approved by the court, after a full explanation of the nature and effect of the waiver
is stated on the record and after the litigant has consulted with his or her attorney. In the
State of Washington, the right to a qualified interpreter may not be waived unless a “non-
English speaking person requests a waiver” and the “appointing authority determines on
the record that the waiver has been made knowingly, voluntarily and intelligently.”
64
In
M
assachusetts, waiver of the right to an interpreter “shall be effective only when approved
by a judge after [the] non-English speaker has consulted with counsel and had explained
to him, through an interpreter, in open court by the judge the nature and effect of such
waiver.”
65
3. Interpreter Fees and Other Costs
Nearly all of the statutes that provide the right to an interpreter in civil proceedings also
provide for the interpreter’s fees and other costs to be paid by the court or another public
body. In Washington, D.C., all costs associated with providing interpreter services are
paid by the Office of Interpreter Services.
66
In Kansas, fees may be paid out of funds
appropriated for the operation of the courts and agencies, but “at no time shall such fees
be assessed against the non-English speaker.”
67
In Kentucky, appointed interpreters are
paid out of the State Treasury.
68
While these jurisdictions have far fewer litigants with limited English proficiency than we
hav
e in California, w
e can learn a significant amount about practice, pr
ocedure, and costs
from their experiences.
page
16
III. The Context
62
OR. REV. STAT. § 45.273.
63
See, e.g., MINN. ST
A
T
. §§ 546.42, 546.43
64
WASH. REV. CODE § 2.43.060
65
MASS. ANN. LA
WS ch. 221C § 3.
66
D.C. CODE ANN. § 2-1902
67
KAN. STAT. ANN. § 75-4352
68
KY. REV. STAT. ANN. §§ 30A, 410, 30A-415
Statewide court surveys indicate that more than 85 percent of Californians believe that
an adequate number of interpreters must be made available to assist non-English speakers
in all court proceedings.
69
They also reveal that “Californians overwhelmingly favor (76
percent) providing interpreters free of charge to non-English speaking people.
70
Yet, as
the previous section of this report explains, California law requires courts to provide
interpreters for parties only in criminal and a small number of civil cases. The courts do
not have the resources to meet even those needs effectively, despite the best efforts of the
Judicial Council and Administrative Office of the Courts.
71
In recent years, demand for interpreter services has grown steadily while the number of
qualified interpreters continues to shrink. Court interpretation is a difficult and
demanding occupation, requiring considerable training and skill. Complete proficiency
in both English and the foreign language is just the starting point. The interpreter must
be capable of accurately and idiomatically rendering the spoken word from one language
to the other without in any way altering the intended meaning. Variations of dialect and
jargon, nuances of meaning, cultural factors, gestur
e and body language, and the use of
specialized legal terminology in court all render the task infinitely more complex than
mere literal translation of words. The interpreter must be able to process all this almost
instantaneously to meet the demands of simultaneous interpretation.
72
Efforts to attract
and r
etain interpr
eters who hav
e these skills hav
e not succeeded in adequately expanding
the pool of properly qualified interpreters who can assist in the courts. As a result, the
cour
ts often are forced to rely on untrained interpreters — in some civil and family law
Without a qualified
interpreter,
“the English
speaking members of the
court and the non-English
speaking litigants or
witnesses virtually do not
attend the same trial.”
– William E. Hewitt,
Court Interpretation: Model
Guides for Policy and Practice in
the State Courts
73
page
17
Language Barriers to Justice
IV. The Problem
69
Fairness in the California Courts at 4-79.
70
Id. at 4-80 (figs. 4-82, 4-83), emphasis in original.
71
The Judicial Council is the policy-making body of the California courts, the nation’s largest court
system. Under the leadership of the Chief Justice, and in accordance with the California Constitution,
the Council is responsible for ensuring the consistent, independent, impartial and accessible adminis-
tration of justice. The Administrative Office of the Courts (AOC) is the staff agency of the Judicial
Council.
72
See Gonzalez, Roseann Duenas, Vasquez, Victoria, and Mikkelson, Holly, Fundamentals of Court
Interpretation
(Durham, NC: Carolina Academic Press, 1991).
73
Hewitt, William E., Court Interpretation: Model Guides for Policy and Practice in the State Courts
(W
illiamsbur
g, V
A: National Center for State Cour
ts, 1995) at 15 (
hereinafter Court Interpretation:
Model Guides
).
cases, even family members or children — which can lead to faulty translations and
threaten the court’s ability to ensure justice.
74
There are other challenges as well: most of the standard forms and documents used in
court proceedings are provided only in English. The Judicial Council’s self-help web site
is available in Spanish, as are the domestic violence forms available on the site. But most
other court forms are printed in English only, even though several such forms are manda-
tory in certain proceedings. Even where forms are available in other languages, all
documents completed and submitted in any judicial proceeding must be, by law, in
English.
75
The inability to understand or complete basic court forms compounds the
difficulty for those with limited English proficiency.
The Judicial Council has made access to the judicial system and fairness in the state courts
— including language access — one of its highest priorities.
The Council’s Access and
Fairness Advisory Committee addresses fairness issues in the courts and provides policy
direction in areas related to race, ethnicity, gender, and other issues. The committee has
issued several reports on access and fairness issues, many of which highlight the issues of
language access.
76
Likewise, the Judicial Council’s Court Interpreters Advisory Panel
provides leadership and oversight of the judiciary’s court interpreter system, including the
certification examination. The Task Force on Self-Represented Litigants considered
language barriers when it prepared a statewide action plan for pro per litigants, adopted
by the Judicial Council in March 2004.
While the issue of language barriers is gaining attention, inadequate resources for litigants
with limited English proficiency is a continuing — and growing — problem.
The courts often are forced
to rely on untrained
interpreters — in some civil
and family law cases, even
family members or children
— which can lead to faulty
translations and threaten
the court’s ability to ensure
justice.
page
18
IV. The Problem
74
Id.
75
CAL. CIV. PROC. CODE § 185 provides: “Every written proceeding in a court of justice in this state
shall be in the English language, and judicial proceedings shall be conducted, preserved, and published
in no other.
” This provision implements the California Constitution’s requirement that “All laws of the
State of California, and all official writings, and the executive, legislative, and judicial proceedings shall
be conducted, preserved, and published in no other than the English language.
” CAL. CONST. art. IV,
§ 24.
76
These include, in addition to Fairness in the California Courts:
Final Report of the California Judicial Council Advisor
y Committee on Racial and Ethnic Bias in the
Courts
(Januar
y 1997); and
Access to the California State Courts: A Survey of Court Users, Attorneys, and Court Personnel, Final
Report of the Judicial Council of California Advisory Committee on Access and Fairness in the Courts,
Access for Persons with Disabilities Subcommittee (January 1993).
A. The Shrinking Interpreter Pool
“It is a common misconception that anyone proficient in two languages can interpret. In fact,
interpreting requires a complex set of skills, all of which must be exercised simultaneously.
The interpreter must listen, understand, store words and word order, search for the right
concepts and words in the second language, reconstruct the message in the second language,
and speak and monitor his or her own output, all while listening for the next chunk of
dialogue to process.
”
77
1. Interpreter Qualifications (Spoken Languages)
Under California law, interpreters must meet rigorous standards in order to participate in
court proceedings. (For purposes of this report, only spoken languages are at issue; hence,
standards governing American Sign Language interpretation are omitted.) For some
languages, interpreters must be certified; for others they must be registered.
n A certified interpreter has passed a state certification exam testing interpreter skills
in one of 13 designated languages and meets ongoing professional and educa-
tional requirements.
78
n A registered interpreter has passed a state exam for English fluency, meets ongoing
professional and educational requirements, and may interpret in languages not
yet certified by the state.
n Provisionally qualified interpreters have met some, but not yet all, state require-
ments to be either a registered or certified interpreter.
79
Government Code section 68561 and Rule 984.2 of the California Rules of Court
require an interpreter in a judicial proceeding to be certified or registered (where such
registration or certification is available). Courts may use non-certified interpreters only
after conducting a diligent search for available certified interpreters among state and
federally certified court interpreters, administrative hearing-certified interpreters, and
interpr
eter agencies. I
f the sear
ch is unsuccessful, the trial cour
t must specifically qualify
page
19
Language Barriers to Justice
77
Improving Interpretation in W
isconsin’
s Courts
, Madison, WI: Committee to Impr
ove Interpr
eting and
T
ranslation in the W
isconsin Cour
ts, 2000. (KFW 2926 T72 C66 2000)
available at
<http://www.courts.state.wi.us/circuit/pdf/Interpreter_Report.pdf>.
78
Currently, court interpreters can be certified in 13 languages: American Sign Language, Arabic,
Armenian (Eastern), Armenian (Western), Cantonese, Japanese, Korean, Mandarin, Portuguese,
Russian, Spanish, Tagalog, and Vietnamese. Judicial Council Fact Sheet,
Court Interpreters (August
2004) at 2. The Judicial Council has designated Khmer and Punjabi to become cer
tified languages
once tests and other cer
tification r
equir
ements ar
e finalized.
79
Interpreter Use Study at 1.3.
the non-certified interpreter and find good cause on the record to use him or her.
80
To become either certified or registered spoken-language interpreters, applicants must
successfully complete an examination with an oral and written component that tests the
candidate in the following areas:
n written vocabulary, grammar, and reading comprehension in English, for non-
designated languages, and in both English and the second language for the
designated languages; and
n sight translation, simultaneous and consecutive interpreting.
I
n order to pass the test, candidates must have mastery of both languages at the level of
an educated native speaker, have the ability to interpret in simultaneous, consecutive and
sight-translation modes, and be able to convey communications accurately, completely
and promptly.
81
Fewer than 15 percent (and, in past years, as few as 3.9 percent) of all
court interpreter candidates in California pass the certification exams.
82
These statistics
are comparable to those of other states (such as New Jersey and Washington), as well as
the federal system, in which passage rates vary from 3.6 to 12.5 percent.
83
The statistics
are similar regardless of the specific language involved. These data, together with analysis
of the individuals who have performed satisfactorily on the tests, suggest that the problem
is not with the tests themselves but rather with the inherent difficulty of performing the
page
20
IV. The Problem
80
The Judicial Council has responsibility for certifying and registering court interpreters. (Senate Bill
1304; Stats. 1992, ch. 770.) Senate Bill 1304 requires the Council to:
n Designate the languages for which certification programs will be established;
n Appr
ove one or mor
e entities to certify interpreters of as many languages as the Council desig-
nates;
n Adopt and publish guidelines, standards, and procedures to determine which certification entities
will be approved;
n Adopt standar
ds and r
equirements for interpreter proficiency, continuing education, certification
renewal, discipline, and professional conduct;
n Adopt programs for recruitment, training, continuing education, and evaluation to ensure that
adequate numbers of interpr
eters ar
e available and that they interpr
et competently; and
n Set fees or establish fee guidelines for applications to take the interpreter examination, for certifica-
tion or renewal of certification, and for certain other functions.
81
Briefing Summar
y
, State Court Interpreter Certification Consortium
(Revised – Januar
y 20, 1977)
State
Court Journal
, Vol. 20, No. 1 (1996).
82
See Lesley Duncan, Court Interpreting: Development Of A Pilot Project In California, Institute For Court
Management, Court Executive Development Program, AOC (May 2001) at 25; Hewitt, William E. and
Lee, Robert Joe,
Behind the Language Barrier, or ‘You Say You Were Eating an Orange?’ 20 State
Cour
t Journal 23, 28 (1996) (Figures for California from January 1991 to April 1993)
available at
http://www
.ncsonline.or
g/wc/publications [
hereinafter, Hewitt, Behind the Language Barrier].
83
Hewitt, Behind the Language Barrier at 28.
tasks the tests measure. Simply put, few people have the combination of skills, training
and experience to meet the unique demands of effective court interpreting.
84
2. Decline in Qualified Interpreters
The availability of qualified interpreters has declined precipitously in the past several
years. In 1995, 1,675 interpreters were certified in California (at the time, interpreters
could not yet be registered for an undesignated language). In 2000, 1,108 people were
certified interpreters, and about 260 people were registered interpreters.
85
As of
December 2002, there were 1,060 certified court interpreters and 400 registered inter-
preters in California.
86
In addition, the number of certified interpreters in key languages
is dropping. In 1995, 1,536 interpreters were certified in Spanish. Five years later, the
number dropped to 988 — a 36 percent decline.
87
Interpreters certified in Cantonese
numbered 31 in 1995; in 2000, the number dropped to 22. The number of interpreters
certified in Vietnamese dropped from 47 to 36 during the same time frame. The trend is
mirrored in other languages (see chart below).
88
Although the initial number of certified
interpreters may have been inflated (by inclusion of some who no longer actively worked
as court interpreters) the decrease in numbers of certified interpreters is still an alarming
trend.
Number of Certified Court Interpreters by Language, 1995, 2000
89
and 2005
90
Designated Language 1995 2000 2005
Spanish 1,526 988 1,088
Korean 32 36 55
Vietnamese 47 36 38
Cantonese 31 22 23
Arabic 10 9 12
Japanese 10 8 12
Tagalog 7 5 3
Portuguese 2 4 7
Total 1,665 1,108 1,238
91
Demand for interpreters is
diverse. For nine courts in a
sample analysis conducted in
2001, per diem interpreters were
used for over 64 languages
(Albanian to Zapoteco). Although
the greatest demand in all courts
is for Spanish interpreters, no two
courts in this sample had the
same language as their second-
or third-highest interpreter use
expenditure. Below are the
languages with the second and
third highest usage, by county:
Los Angeles
Korean and Armenian
San Diego
Laotian and Cambodian
Sacr
amento
Russian and Hmong
Mer
ced
Hmong and
T
hai
Yolo
Russian and Punjabi
Several of these languages are
not designated languages for
certified interpreters
.
page
21
Language Barriers to Justice
84
Id.
85
Interpreter Use Study at 1.3. This figure represents some overlap: a few interpreters are certified to
interpret a designated language and also registered to interpret one or more undesignated languages.
86
Judicial Council Fact Sheet — Court Interpreters (August 2004) at 1.
87
Id.
88
Id.
89
Id., T
able 3.6.
90
Master List of Certified Court Interpreters, available at <www.courtinfo.ca.gov/courtinterpreters/
ctintdb.cfm>.
91
Four new languages have been designated since 2000 and new interpr
eters have been cer
tified in
these languages: Armenian (Eastern), 3 interpreters; Armenian (Western), 1; Mandarin, 12; Russian,
10. These additional 26 certified interpreters bring the total for all designated languages for 2005 to
1,264.
In addition, the availability of certified and registered interpreters varies widely across the
state. During the 2000-01 fiscal year, 97 percent of interpreter services in the Los Angeles
County Superior Court were provided by certified interpreters. The figure in Merced
County Superior Court was 37 percent.
93
3. Increasing Demand for Interpreters
While the availability of qualified interpreter services has fallen, the need for such serv-
ices continues to rise dramatically. A study published in 2000 by the Judicial Council
revealed that “interpreter day usage” — a calculation of the number of days interpreters
of each language were used in courts (chiefly in criminal cases) in a particular area — rose
sharply for many languages between the 1994-95 fiscal year and the 1998-99 fiscal year.
94
Statewide, day usage of several “designated” languages rose significantly. Usage of Spanish
interpr
eters, by far the most commonly used in California courts, increased 19 percent.
Vietnamese interpreter usage rose 41 percent, Korean usage increased 36 percent, and
Cantonese usage jumped 57 percent.
95
The increased day usage for some undesignated
languages was even more dramatic. Mandarin interpreter usage went up 91 percent; use
of Punjabi interpreters skyrocketed by more than 137 percent. Use of South Asian and
Southeast Asian languages has increased significantly in several counties as well.
96
These
numbers do not include the vast majority of civil cases, in which no right to an interpreter
exists. While no firm data exist regarding trends in such cases, it is fair to assume similar
increases in demand given the demographic trends described above.
4. Growing use of Unqualified Interpreters
As a result of an increased need for interpreter services, courts often must use uncertified
or unregistered interpreters — even in regions with large populations of people who speak
those languages:
n I
n fiscal y
ear 1998-99, for instance, B
ay Area counties provided certified Arabic
interpreters in fewer than one-third of cases in which the service was needed.
“To ensure equal justice in
California courts for this
growing demographic
group, we need to recruit
thousands of
interpreters.”
92
page
22
IV. The Problem
92
Justice Eileen C. Moore, Chair of the Judicial Council Advisory Committee on Court Interpreters,
quoted in McCarthy, E. and Blane, Collen, Interpreters Wanted
—
Courts Reach Out to Ethnic
Communities
, Judicial Council Cour
t News (July-Aug. 2002).
93
Id. at 3.1-3.5.
94
Id.
95
Id.
96
In Merced County, Hmong, Laotian, Mien, Thai, and Punjabi interpreters comprised more than 34
percent of total expenditures for contract per-diem interpreting in fiscal year 2000-01. In Fresno
County
, services provided in Hmong and Laotian alone represented more than 9 percent of total
expenditur
es for contract per
-diem interpr
eters. In San Diego County
, the second- and third-highest
expenditur
es wer
e for Laotian and Cambodian interpr
eters, r
espectively
.
Id.
n Those same counties provided certified Cantonese interpreters in an average of
just 38 percent of cases in which they were used — even though a very high
percentage of California’s Cantonese speakers live in the Bay Area.
n Some areas have trouble providing properly qualified Spanish interpreters. On
average, Northern California counties used certified Spanish interpreters in just
60 percent of cases in which they were needed; Central California counties used
them in 61 percent of cases.
n The majority of all Tagalog service days occurred in Southern California, but
counties in that area provided certified interpreters only 28 percent of the time.
97
n In Southern California, counties provided registered interpreters of Mandarin in
just 15 percent of cases.
98
California Court Interpreter Service Days for Designated Languages
99
Language FY 1994-95 FY 1998-99 % Change
Spanish 122,484 145,661 18.9%
Vietnamese 6,528 9,197 40.9%
Korean 2,943 3,716 26.3%
Cantonese 2,066 3,252 57.4%
Tagalog 1,495 1,986 32.8%
Arabic 851 1,365 60.3%
Japanese 623 1,080 73.3%
Portuguese 306 311 1.6%
Total 137,295 166,567 21.3%
The lack of available qualified interpreters often causes substantial delay and disruption
in court proceedings, which adds to the expense and burden of litigation. The manager
of interpreter services for the Superior Court of Los Angeles County estimated that more
than 40 proceedings are continued every day in that county because a certified or regis-
tered interpreter is not available, resulting in some 10,000 delayed proceedings per
year.
100
In many instances, in civil and family law matters, the court must settle for using a rela-
tive or friend of the party with limited English proficiency if a certified or registered
interpreter cannot be found. In an informal survey of legal service providers, several
page
23
Language Barriers to Justice
97
Id.
98
Id.
99
Id., Table 3.1. This table predates the designation of Armenian, Russian and Mandarin as certified
languages.
100
Report to the Legislature at 13.
reported use of children for interpretation.
101
Others reported problems with untrained
interpreters adding their own ideas or insights to what is said by the court or the parties
involved, or prompting parties to say something that the interpreter thinks the court
wants to hear.
102
5. The Inadequate Alternative
Courtroom interpreting poses unique challenges and requires specialized skills and
training. The interpreter must simultaneously listen to and convey what the speaker is
saying in another language, often including complex procedural or legal terms or
concepts that may have no counterpart in the language or culture of the non-English
speaker. The interpreter must be able to convey the precise text of the message — with
no additions, deletions or paraphrasing — while also conveying the tone and style of the
speech.
It is important to remember that from the beginnings of judicial proceedings
triers of fact (the judge or jury) have to determine the veracity of a witness’
message on the basis of an impression conveyed through the speaker’s
demeanor. The true message is often in how something is said rather than
what is said; therefore, the style of a message is as important as its content.
The interpreter is required to render in a verbatim manner the form and
content of the linguistic and paralinguistic elements of a discourse, including
all of the pauses, hedges, self-corrections, hesitations, and emotion as they are
conveyed through tone of voice, word choice, and intonation . . . .
103
Well-meaning family members, friends, or bystanders simply cannot fulfill the role of a
qualified interpreter in any but the most basic proceedings. Critical judicial concepts
(“judgment,” “custody,” etc.) cannot be adequately communicated under such circum-
stances. With an unqualified interpreter involved,
it is more likely than not that significant portions of [the] testimony will be
distorted by the interpreter omitting information present in the original testi-
mony
, adding information not pr
esent, or b
y stylistically altering the tone and
intent of the speaker. Judges and juries are not given the opportunity to
"hear" the testimony as it was originally spoken, and defendants and witnesses
page
24
IV. The Problem
101
A 2003 bill that died in committee (AB 292) would have prohibited any state or local governmental
agency
, or a public or private agency, organization, entity, or program that received state funding,
fr
om using any child under 15, or per
mitting any such child to be used, as an interpr
eter
, as defined,
in any matter involving the business or function of that agency, organization, entity, or program,
except as specified. The bill would also have required each agency, organization, entity, or program
that received state funding to have in place, and available for inspection, an established procedure for
providing competent interpreting services that did not involve the use of children.
102
Interpr
eters in court proceedings are required by law to render an accurate interpretation of court
pr
oceedings,
“without embellishing, omitting, or editing” what is stated or written. CAL. R. CT
. 984.4.
103
Gonzalez, Vasquez, and Mikkelson, Fundamentals of Court Interpretation. (Carolina Academic Press,
Durham, NC: 1991) at 16.
cannot fully comprehend the questions asked of them. This linguistic distor-
tion compromises the fact-finding process . . . .
104
Use of unqualified persons as interpreters not only masks the problem but also may result
in genuine injustice where — through no fault of the court, the litigants or the translator
— critical information is distorted or not imparted at all.
105
Fraud is also a very real
possibility. Unless a judge happens to be fluent in the non-English language, he or she
has no real way of knowing whether the proceedings are being accurately and compre-
hensively interpreted. Without a qualified interpreter, “the English speaking members of
the court and the non-English speaking litigants or witnesses virtually do not attend the
same trial.”
106
Untrained interpreters are manifestly not an adequate substitute for trained professionals.
B. Court Efforts to Expand Interpreter Pool
The courts have made significant efforts to attract and retain qualified interpreters, but
have been hampered by lack of adequate funding. In an effort to address the chronic
shortage of qualified interpreters, the Administrative Office of the Courts (AOC) has
focused on outreach, recruitment, training, and retention. These efforts have included
the following actions:
n A pilot program using the services of certified and registered interpreters via
specialized telephone equipment;
n Workshops to prepare Spanish and Korean applicants for the oral certification
exam;
n Active recruitment of individuals fluent in the languages most commonly
spoken, through public service announcements and job fairs at high schools and
universities;
n Collaboration with the University of California at Berkeley to develop a training
program for Spanish interpreters and with UCLA to develop a program to train
interpreters to pass the oral portion of the certification exams;
n Redesign of the court interpreter program web site to include a distinct section
on ho
w to become a cour
t interpreter;
"Asking a child to translate
information about medical
or legal problems can
hurt the parent-child
relationship, traumatize
the child, and result in
inaccuracies.
"
– Assemblyman Leland Yee
(D-San Francisco)
107
page
25
Language Barriers to Justice
104
Id. at 5.
105
Studies and media reports have documented the gross misinterpretation and resulting miscarriages of
justice that can occur when courts use improperly trained or otherwise unqualified interpreters.
Court
Interpretation: Model Guides
, at 15. Hewitt, Behind the Language Barrier.
106
Court Interpretation: Model Guides at 16.
107
Comments made in support of AB 292 (2003), which would have banned the use of children as inter-
preters except in emergency situations. The bill died in committee. (Reported by Jeniffer Coleman,
Associated Pr
ess, April 2, 2003.)
n Coordination of statewide and regional meetings where interpreter coordinators
can share information and resolve common issues;
n Preparation and assessment workshops to help interpreters pass the state certified
interpreter exam; and
n Collaborative efforts with local trial courts to ensure that courts explore all avail-
able means to secure certified interpreters, providing lists of certified and
registered interpreters available throughout California, providing other assistance
to courts in locating certified and registered interpreters, and ensuring that
funding allocated for certified interpreters is used only for that purpose.
As the entity responsible for administering statewide standards for interpreter certifica-
tion, professional development and recruitment, the Judicial Council also has taken steps
to impr
ove interpreter compensation in an attempt to attract more people to the field.
108
Since January 1999, the Judicial Council has raised pay rates for certified contract inter-
preters three times.
109
The current rate schedule compensates certified and registered
independent-contractor court interpreters at $265 per day and $147 per half day.
110
Nevertheless, certified interpreters in the federal system earn up to $329 per day, albeit
without benefits, and interpreters working in the private sector earn two or three times
the maximum compensation for state certified interpreters. As a result, the courts
In 1997, the American Bar
Association adopted a
resolution recommending
that
“all courts be provided
with qualified language
interpreters in order that
parties and witnesses …
may fully and fairly
participate in court
proceedings.
”
— ABA Resolution, Rep. No. 109
(adopted August 1997)
page
26
IV. The Problem
108
Legislation effective on January 1, 1998, made the Judicial Council responsible for setting uniform pay
rates for interpreter services (a function previously delegated to trial courts, which had resulted in rates
ranging from $114 to $210 for a full day). The Council set the daily compensation for certified and
registered independent-contractor court interpreters at $265 per day statewide, effective July 1, 2000
(the thir
d incr
ease since Januar
y 1999). Judicial Council Fact Sheet — Court Interpreters (August
2004) at 2.
109
Much of the important work to this end is being carried out by the Court Interpreters Advisory Panel
(CIAP). The CIAP is an advisory committee of the Judicial Council created to (1) improve the quality of
interpreter services provided to courts, (2) increase the number of available, qualified court inter-
preters, and (3) provide non-English-speaking persons with increased access to the court system. The
CIAP makes recommendations to the Judicial Council on interpreter recruiting, training, testing, certifi-
cation, and continuing education and evaluation (see CAL. GOV’T CODE § 68560). The panel
includes trial cour
t judicial of
ficers, judicial administrators, and cour
t interpr
eters.
110
The Judicial Council also has worked with the state legislature to transition court interpreters from
independent-contractor status to employee status with benefits. In 2002, the Gover
nor signed Senate
Bill 371, which pr
ovided a platfor
m for the transition and awar
ded collective bar
gaining rights to the
interpreters. Although the legislation was passed, the Governor and Legislature appropriated no
funds to cover the costs implied by the legislation. Given the budget crisis, the recognized employee
or
ganization r
epr
esenting the court interpreter employees agreed to refrain from bargaining for bene-
fits until 2005.
In anticipation of bar
gaining, the Judicial Council sought funding and was able to secur
e $15 million
thr
ough the budget allocation pr
ocess to fund benefit costs for the cour
t intepr
eter employees begin
-
ning in FY 2005-06. The $15 million represents an increase of more than 22 percent to the Council’s
interpreter budget for 2005-06, bringing the total interpreter budget for the year to $87 million.
continue to struggle to attract properly qualified interpreters.
111
The courts should not
be forced to tackle these problems alone.
C. Forms and Pleadings
Providing adequate interpreting resources in court proceedings is a major challenge facing
the state court system. But there are other ways in which language barriers prevent people
with limited English proficiency from fully accessing the court system. Another signifi-
cant problem is the unavailability of court documents in other languages. Forms and
pleadings provided by California courts, while critical to many basic court proceedings,
continue to be provided only in English. For people with limited English proficiency, the
very basic process of filling out paperwork becomes a daunting task.
The Judicial Council publishes over 600 forms for use in California courts. Many of
these forms are required for a variety of proceedings. Since 2002, the number of forms
available in other languages has increased significantly. The Judicial Council’s self-help
web site is now available in Spanish, including all of the domestic violence forms avail-
able through the web site.
112
However, fewer than 10 percent of the forms are published
in languages other than English or Spanish, and only a tiny fraction are published in
Chinese, Korean and Vietnamese. These forms relate to issues ranging from child
Many forms and pleadings
provided by California
courts, while critical to
many basic court
proceedings, continue to be
provided only in English.
page
27
Language Barriers to Justice
111
To address the chronic shortage of qualified interpreters, the Judicial Council and the AOC have
explored alternative methods for delivering interpreter services at the trial court, including developing
a state-funded telephonic interpreting program. In 2000, the AOC implemented a pilot telephone
interpreting program designed to:
1) reduce the number of proceedings delayed or continued due to the unavailability of a qualified
interpreter;
2) decr
ease the use of unqualified interpr
eters;
3) use the time of interpr
eters mor
e ef
ficiently; and
4) reduce the costs associated with the use of interpreters in courts without ready in-person
interpr
eter access.
The pilot pr
ogram is also intended to pr
ovide cour
ts with access to qualified interpreters in rarely
spoken languages, overcome geographic challenges within a jurisdiction, and implement better control
over the quality of interpreter services. The experience of court interpreter program coordinators from
other jurisdictions, evaluations of other telephonic court interpreter projects, and the resources avail-
able from experts in the field informed and structured the development of California’s pilot project.
See Lesley Duncan, Court Interpreting: Development Of A Pilot Project In California (Institute For Cour
t
Management, Cour
t Executive Development Pr
ogram, AOC, May 2001) (
hereinafter Duncan, Court
Interpreting
).
112
The California Courts’ web site (<http://www.courtinfo.ca.gov/>) includes multiple resources for users,
including online forms, calendars, opinions, orders, rules, links to superior courts, links to e-filing loca-
tions and a self-help tool in English and Spanish. In 2003, the California Courts launched the Centro
de A
yuda de las Cor
tes de Califor
nia, the Spanish-language edition of the California Courts Online
Self-Help Center
. Some web pages with domestic violence for
ms and instr
uctions also wer
e translated
into Chinese, Korean, Vietnamese, and Spanish.
Judicial Council of California 2004 Annual Report at
11,
available at <http://www.courtinfo.ca.gov/reference/documents/AR_2004.pdf>.
custody matters, restraining or protective orders, proof of service and responsive declara-
tions to court orders.
Despite all the recent progress, many vital forms are published only in English, including
subpoenas, applications for waiver of court fees, unlawful detainer forms, petition for
probate, and many others. The cost of translating these forms is significant and adequate
funds are not available for this purpose.
Furthermore, use of many of the Judicial Council’s forms is mandatory in certain legal
proceedings, yet often neither the forms nor informational handouts are available in
languages other than English. Among these required forms: the Civil Case Cover Sheet
(Form 982.2(b)(1)); several forms used in small claims courts; forms related to traffic
infractions; forms dealing with transitional housing infractions; and a variety of forms
used in pr
obate matters.
D. Court Staff and Judges
“The administration of court interpreting services has become a challenge for court adminis-
trators and judges alike, especially given the skill needed to accurately interpret court
proceedings, the myriad of languages for which interpreters are needed, and the logistical
difficulties of providing interpreting services to trial courts in both urban and rural areas of
each state.
”
113
In its comprehensive study of problems in court interpretation, the National Center for
State Courts found that “for most courts the problems related to interpreter services are
bey
ond affor
dable solution at the individual trial cour
t lev
el due to inadequate expertise
and financial capacity.”
114
This remains the case in California. As the data described
abo
v
e indicate, the state faces a severe scarcity of qualified court interpreters, even if
adequate funding were available to provide qualified interpreters in all instances. The
problem is compounded by lack of training of judges and court staff and the absence of
alternative resources.
A large majority of Californians believe that judges and court personnel need to be
trained to understand the special needs of linguistic minorities.
115
California needs a
comprehensive system of training for judges and court staff to enable them to determine
what level of language assistance is needed or to deal with situations where no certified
interpreter is available. Judges and court staff lack not only the skills necessary to deter-
mine what language assistance is needed, but also the criteria for determining whether a
non-certified or non-registered interpreter is capable of providing adequate service under
page
28
IV. The Problem
113
Duncan, Court Interpreting, at 19.
114
Court Interpretation: Model Guides at 3.
115
Fairness in the California Courts at 4-76.
“Even before an individual
reaches the courtroom, a
myriad of forms and
instructional manuals
offered only in English may
intimidate non-English
speakers seeking relief in
the courts.
”
Final Report of the
California Judicial Council
Advisory Committee on Racial
and Ethnic Bias in the Courts,
Judicial Council of California,
Advisory Committee on
Racial and Ethnic Bias
in the Courts (1997)
the circumstances. Even where a judge or court administrator is able to determine that a
litigant needs significant language assistance and that the proffered interpreter is not suffi-
ciently qualified, there is no back-up system of resources available to meet the need.
As a result, in civil and family law proceedings in California courts, friends, relatives,
bystanders or even children are all too often called upon to assist litigants with language
needs. The inadequacy of the resulting service can undermine the quality of the outcome
in such a proceeding. Additionally, because no other resources are generally available to
address language issues, there is little incentive to attempt to determine a litigant’s
language needs since, as a practical matter, they cannot be accommodated anyway.
Cultural differences compound the problem of inadequate training. Litigants from other
countries often bring to the court entirely different political and cultural norms and
perceptions that significantly affect communication. Words or phrases may take on
entirely different meanings as a result of such cultural differences, and an interpreter
fluent in the language may nonetheless be incapable of adequately expressing concepts
because of cultural differences. For example, many cultures have no concepts equivalent
to a jury or to a deposition. Many judges and court administrators are unaware of the
full extent of the potential problems posed by cultural differences and hence are likely (by
action or inaction) to make decisions prejudicial to the interest of the litigant.
page
29
Language Barriers to Justice
page
30
The ultimate consequence of linguistic barriers to the courts is that justice is unavailable.
The very people who are arguably most in need of the protection of the courts cannot
obtain that protection. In eviction proceedings, repossessions, creditor/debtor cases,
wage garnishments, family law matters, and other routine civil judicial proceedings, they
are unable to present their cases effectively or protect their legal rights. The court system
itself potentially becomes a one-sided instrument when, because of inability to compre-
hend the process, limited-English proficient litigants simply default, and thereby lose
legal rights, property, livelihood or shelter.
Affirmative legal rights — constitutional, statutory, contractual, common law — also go
unenforced when language barriers exist. The difficulties and complexities involved in
affirmatively asserting claims and rights are magnified exponentially for those not profi-
cient in English. Many will simply forego their rights rather than attempt to overcome
this hurdle. The results: discrimination and violations of law in areas such as housing,
employment and working conditions, education and consumer and lending practices go
unr
edressed.
A. Damaging the Institutional Integrity of the Court
The moral and normative authority of the courts depends on public perceptions of fair-
ness and accessibility. Any significant erosion of public trust and confidence in the
fairness of judicial outcomes thr
eatens the futur
e legitimacy of the legal system. B
y
excluding a large segment of the population from participation in an institution that
shapes and r
eflects our values, we threaten the integrity of the judicial process. In the eyes
of linguistically isolated groups, courts become a one-sided institution — available to
legitimize and enforce the taking of their property, eviction from their homes, and
garnishment of their wages, but unavailable for redress of their own legal claims.
116
The
r
esentment foster
ed b
y the inability to access the benefits of the cour
t system can ulti
-
mately impair enforcement of judicial decrees and attenuate the rule of law.
"To a minority for whom
English is not the primary
language, language barriers
only heighten the
desperation that justice is
simply beyond r
each,
no
matter what the truth or
consequences
.
”
— Florida Supreme Court
T
ask
F
orce on Racial and Ethnic Bias
page
31
Language Barriers to Justice
V. The Effect on the Courts
116
Survey data indicate that a large majority of California’s Asian (76%) and Hispanic (74%) populations
believe that English speakers ar
e tr
eated better by the cour
ts than people who speak little or no
English.
Fairness in the California State Courts at 4-35.
B. Threatening the Quality of Justice
Our judicial system relies on the adversarial process in which neutral arbiters decide
disputes based upon competing presentations of facts and law.
117
The system is founded
on the notion that “truth is best discovered by powerful statements on both sides of the
question.”
118
However, “our adversary system presupposes [that] accurate and just results
are most likely to be obtained through the equal contest of opposed interests ....”
119
This
goal is unachievable if one party lacks the ability to understand or communicate at any
stage of the proceedings. Allowing proceedings to continue when one party is incapable
of participating fully significantly impairs the quality of the process and its results.
Consider how the integrity of the judicial process is compromised when:
n Defaults result from a party’s inability to understand a judicial summons, to
translate forms or pleadings, or to communicate with judicial staff.
n The lack of interpreters available for a court proceeding results in significant
delays in the resolution of cases.
n Untrained and inexperienced interpreters provide faulty interpretation and
misinformation to the court and litigants.
n Litigants are unable to communicate with or understand the court, witnesses
or adverse parties or counsel. Proceedings are effectively a “babble of voices”
to them.
Judges recognize and acknowledge these problems. A recent report to the California
Legislature regarding a pilot program to provide interpreters in certain family law
proceedings found consensus among judges that interpreting of family and domestic
violence proceedings was a “fundamental factor contributing to the quality of justice in
their courts.” As one judge put it, “[h]aving interpreters equates to having a bailiff or a
record of the proceedings, it is just that basic. The service needs to be provided.”
120
Civil cases often inv
olv
e fundamental rights and inter
ests such as emplo
yment, shelter
,
family issues, housing or health code enforcement, freedom from abuse, and eligibility for
unemployment, health and welfare benefits. Damages, repossession or foreclosure claims
can inv
olv
e assets accumulated over years or lifetimes. Particularly in cases in which
significant rights are at stake, elementary notions of fairness dictate that both sides
should, at a minimum, be able to understand and participate in the proceedings without
regard to English proficiency.
People with limited English
proficiency are often also
members of groups whose
cultural traits or economic
circumstances make them
more likely to be subjected
to discrimination in
employment, housing,
lending practices and other
areas.
page
32
V. The Effect on the Courts
117
See Fuller
, L.,
The Forms And Limits of Adjudication, 92 Har
v
. L. Rev. 353 (1978).
118
Lord Eldon, quoted in Jones v National Coal Board [1957] 2 QB 55, 63.
119
Lassiter v. Dept. of Social Services, 452 U.S. 18, 29 (1981).
120
Judicial Council of California, Administrative Office of the Courts, A Report to the California Legislature
—
Family Law Information Center: An Evaluation of Three Pilot Programs (March 2003) at 2.
C. Straining Court Resources
The growing needs of persons of limited English proficiency (many of whom are self-
represented), the increasing use of untrained interpreters, and the shortage of trained
interpreters have all placed severe burdens on a court system that is already strapped for
resources. Judicial proceedings conducted without qualified interpreters are slow and
inefficient. Judges and court personnel must struggle to understand what litigants are
trying to communicate and are inevitably impaired in their ability to perform basic func-
tions. Forced continuances and/or special settings needed as a result of the scarcity of
interpreters delay adjudication both for litigants with limited English proficiency and
others.
D. Compounding the Problems of a Vulnerable Population
People with limited English proficiency are often also members of groups whose cultural
traits or economic circumstances make them more likely to be subjected to discrimina-
tion in employment, housing, lending practices and other areas. Persons with limited
English proficiency are often employed in entry-level, temporary, seasonal and low-wage
jobs (particularly agriculture), where they are more likely to be denied minimum wages,
workers’ compensation, family leave, overtime pay and other employment benefits guar-
anteed by law. They also are more likely to encounter hazardous and illegal working
conditions, including excessive hours, exposure to dangerous chemicals and pesticides
and unsafe equipment. Workers who complain about safety violations or other condi-
tions of employment are more likely to be terminated.
Although very specific laws exist for protection against such abuses (such as the Migrant
and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §1801,
et seq.), they are of
little value to people who cannot access the courts to enforce them. Language barriers
also may undermine the intent of state and federal laws guaranteeing access to health care,
fair housing, fair labor standar
ds, v
oting rights, consumer pr
otection, and public educa
-
tion for people with limited English proficiency.
Communities with a high proportion of families with limited English proficiency also are
often targets of v
arious forms of consumer fraud, often perpetrated thr
ough telemar-
keting schemes, and are frequent victims of unlawful lending, credit schemes and unfair
and illegal debt collection practices. Immigrant populations are often preyed upon
specifically because perpetrators recognize their victims’ limited ability to access judicial
protection. The numerous federal and state legal protections against discrimination in
housing, education, employment, and lending are of little benefit if victims lack mean-
ing
ful access to the cour
ts to enfor
ce them.
page
33
Language Barriers to Justice
A Family’s Story: Maria's
bilingual husband was physically
and verbally abusive, locked her
in the house, and prohibited her
from working or using the phone.
In court, she was not assertive
enough to let people know she
didn't understand what was
being said. Her husband
dominated the proceedings and
pretended to get her agreement
on matters without explaining
them to her. Finally, a court self-
help center attorney took her
aside and got the real story and
helped obtain pro bono represen-
tation for her.
page
34
A. Adopt a Comprehensive Language Access Policy for Courts
Federal and state laws guarantee equal access by people of limited English proficiency to
a wide range of public and private health and social service programs and activities.
Eighty-five percent of Californians agree that the courts must ensure that an adequate
number of interpreters are available to assist non-English speakers.
121
In keeping with
these fundamental policies, California should explicitly recognize a right to equal access
to the courts without regard to language proficiency. Such a statement of a policy goal
should be accompanied by specific steps designed to secure adequate funding and achieve
the goal of guaranteeing such access, including the following:
Guarantee of Qualified Interpreter Services
A party involved in a civil proceeding who is unable because of language proficiency to
fully understand and participate in the proceedings should be guaranteed the right to a
qualified interpreter at all stages of the proceedings without regard to financial ability.
122
The Judicial Council should expand its efforts to provide guidance to judges and other
personnel as to how to proceed if a qualified interpreter is not available for a particular
proceeding.
Court Documents
All significant Judicial Council forms — including summonses, pleadings, and notices,
as well as informational material — should be made available in languages other than
E
nglish including, at a minimum, the languages spoken b
y a significant number or
percentage of the population using the court’s services. Additionally, any summons or
other notice of commencement of legal pr
oceedings should be accompanied b
y a form
“Equality before the law in
a true democracy is a
matter of right. It cannot
be a matter of charity or of
favor or of grace or of
discretion.
”
— U.S. Supreme Court Justice
Wiley Rutledge
page
35
Language Barriers to Justice
VI. Recommendations
121
Fairness in the California State Courts at 4-79.
122
A “qualified interpreter” for this purpose would be (1) an interpreter who is certified or registered to
pr
ovide interpr
eter services in the party’s language; or (2) if the court finds that no certified or regis-
tered interpreter is reasonably available, an interpreter who is determined by the court to be capable
of interpreting effectively, accurately, and impartially. Effective and accurate interpretation would
mean the ability to translate, without omissions or additions, in a manner that conserves the meaning,
tone, and style of the original statement, including dialect, slang, and specialized vocabular
y. All inter-
pr
eters would be r
equir
ed to meet prevailing ethical standards in order to be qualified.
that alerts recipients, in each of the languages spoken by a significant number or
percentage of the local population, that it is an official court document and that they may
lose property or other valuable rights if they fail to file a timely response. Systems should
also be developed to help litigants complete court forms in English, for formal filing with
the court. This may include modification or expansion of existing web sites, such as
www.lawhelpcalifornia.org and the Judicial Council’s web site, www.courtinfo.ca.gov.
Consideration should be given to establishing a central multi-lingual informational
source, such as an 800 number, for litigants to use for information and referral.
Court Staff and Judges
Court staff, administrators and judges should work with the Administrative Office of the
Courts to continue to develop training and resources that allow them to identify and
addr
ess language issues when they arise. Clear protocols should be developed and dissem-
inated, and court staff should be trained to recognize situations in which a litigant does
not have sufficient language proficiency to understand forms, pleadings, notices or other
communications involved in the judicial process. Judges should have the training needed
to determine whether a person is sufficiently proficient in English to be able to fully
understand and participate in court proceedings without the aid of an interpreter. They
should also receive the training needed to determine whether a non-certified or non-regis-
tered interpreter is qualified to provide interpreter services. Finally, court staff and judges
need to be cognizant that fundamental concepts of our judicial system are foreign to
many litigants, and that cultural issues exacerbate existing language barriers.
B. Develop Specific Recommendations to Implement
Language Access Policy
The following recommendations include a range of issues the Judicial Council should
consider as par
t of its ongoing effor
t to achiev
e full language access. The Judicial Council
should determine how best to delegate development of proposed policies and materials so
as to achiev
e the following recommended goals:
General Recommendations
1. Standards and Protocols. Develop clear standards and protocols for court staff
and judicial officers in the handling of requests, screening, documenting,
handling waivers, and providing services to litigants and other court users with
language needs;
2.
Prioritization. Prioritize areas to move toward the goal of full language access,
assuming that the many challenges and the lack of r
esour
ces will make this a
multi-year process;
A Family’s Story: An 18-month
old child was brought to an
emergency room with a skull
fracture; his parents spoke only
Quiche, a native language of
Central and South America. The
parents were unable to explain
how the child suffered the injury.
A juvenile dependency action was
filed. After a lengthy trial, it was
determined that the boy had
probably lost his balance and
fallen onto the metal foot pedal
of an antique sewing machine,
because he was just learning to
walk. The court found that the
injury was accidental and
returned the child to the parents'
custody. Unfortunately, the entire
process took more than two
months
,
during which time the
infant w
as separated from his
parents and placed in a home in
which no one spok
e his native
language
.
Both the child and the
parents were severely
traumatized by the experience
.
page
36
VI. Recommendations
3. Evaluation. Evaluate language access policies statewide — including getting
suggestions from staff and collecting complaints/issues from court users — and
revise statewide policies and procedures based upon such evaluation;
4.
Community Involvement. Request that local courts work with community-based
organizations as part of community-focused court planning to address local
language access issues and needs.
Recommendations Involving Administration
1. Develop checklists for court staff, including information on language appro-
priate resources, options for addressing those with limited English proficiency,
and steps to be followed to ensure access for litigants with limited English profi-
ciency;
2. Develop greater uniformity in translated terms, particularly common legal terms
(“defendant,” “restraining order”) and names of proceedings (“small claims”) to
enable courts in different counties to share resource material and avoid confusion
resulting from different translations of the same term;
3. Develop systems to encourage interpreter volunteers in self-help centers and in
court clerks’ offices to help prepare them for the certification examination;
4. Consider developing standards or protocols, and disseminate best practices, for
use of interpreters outside the courtroom setting, such as clerks’ offices and self-
help centers;
5. Develop commonly asked questions of clerks in different languages that could be
posted on the statewide court web site. (For example, explanation of continu-
ance and that the matter is being continued while the court is trying to find an
interpreter);
6.
Consider expansion of pilot self-help S
panish and multi-lingual centers, based on
recommendations from the Report to the Legislature
123
on these pilot programs;
7. Continue to translate information on self-help web site into other languages and
ensure that there is meaningful translation by including descriptive materials to
supplement the forms;
8. Consider a multi-lingual referral phone line;
9.
E
xpand existing w
eb site and links to language assistance pr
ograms;
10.P
r
o
vide cultural competency training.
page
37
Language Barriers to Justice
123
Judicial Council of California, Administrative Office of the Courts: Equal Access Fund – A Report to the
Legislature
(March 2005), available at http://www.courtinfo.ca.gov/courtadmin/jc/documents/
r
epor
ts/0205item8.pdf
C. Compile Existing Data and Conduct Additional Research
While census data, interpreter use statistics, and anecdotal information indicate the scope
of the language access problem, and additional research is in progress or is planned, far
more information is needed to accurately assess the extent of the unmet need and develop
appropriate solutions.
124
Although data collection is expensive, research goals should be
made a priority. Research is needed to identify key points of contact with the court
system at which limited-English proficient persons are in greatest need of assistance. In
order to prioritize funding and potential solutions, areas in which unmet needs are most
critical — whether in particular subject areas (e.g., family law) or particular language
populations — should be identified.
1. Census data should be supplemented with additional survey data showing actual
use or attempted use of the courts by persons within language subgroups. A
comprehensive survey of court personnel — including judges, clerks and admin-
istrative staff — should be conducted to identify such matters as the numbers of
civil litigants needing language assistance with court procedures, forms, dead-
lines, directions and other matters.
2. Data is needed on the percentage of cases in which non-certified and non-regis-
tered interpreters are used in civil proceedings.
3. Further surveys of legal service agencies and community-based organizations
should be conducted to supplement the data regarding the extent of demand, the
distribution among language subgroups, the incidents of defaults resulting from
language issues, and other barriers encountered by persons of limited-English
proficiency in gaining access to the court system.
4. Data to be compiled as a part of implementation of the Trial Court Interpreter
and Labor Relations Act, SB371, should be analyzed in such a way as to help
clarify wher
e ther
e is most need for additional languages and additional cer
tified
or registered interpreters. Now that many interpreters are court employees, is
this increasing (or otherwise affecting) availability of interpreters in civil proceed-
ings?
D. Reevaluate System for Recruitment, Training,
Compensation and Certification of Court Interpreters
The existing system of recruitment, training, and certification of court interpreters should
be r
eexamined.
While the rigor
ous standar
ds for cer
tification ar
e essential, statistics indi
-
page
38
VI. Recommendations
124
Attempts in the past to collect this data have foundered for lack of funding.
cate that the current system is coming nowhere close to providing sufficient qualified
interpreters in civil and family law proceedings.
125
There are too few interpreters with
the unique skills and motivation necessary to become certified. Those who do are likely
to be in highest demand in the private sector, where compensation is much higher.
Additionally, the federal court system is a more attractive alternative for such interpreters
given the higher rates available. While no one wants to establish a system that sanctions
low-quality interpretation, it is worth exploring whether sufficient training and practical
experience might result in an increased passage rate on the certification exam. It may also
be that the compensation structure and the demands of the job are such that otherwise
qualified candidates are simply not attracted to court interpreting as a profession.
1. Formal professional training and mentoring of test-takers is critical to improving
passage rates on the tests, and current training and mentoring projects should be
expanded to meet the need.
126
Experience indicates that low passage rates on
certification exams are explained by the intrinsic difficulty of the work and lack
of essential training rather than by deficiencies in the test. However, existing test
approaches should be analyzed to determine whether fine-tuning could further
improve them, and whether qualifications at levels less than full certification can
be identified for specific types of interpreting assignments. The goal would be
to confirm that the tests measure, as accurately as possible, the skills needed to
provide effective interpretation in a variety of contexts. Training programs set up
through community colleges, non-profits and other entities should be encour-
aged and funded, as should test preparation programs (such as those used to
prepare for the Bar or medical boards).
2. Different models of training and qualifying interpreters should continue to be
examined for the ways in which they strike a balance between the desire to obtain
the best interpreters and the need to have sufficient qualified interpreters for a
page
39
Language Barriers to Justice
125
The enactment of the Trial Court Interpreter Employment and Labor Relations Act in 2002 (SB 371)
may improve the situation but it remains too early to tell. One of the statute’s stated goals is to
enhance access to justice for those who depend on interpreter services. It creates a pool of eligible
legally certified and registered interpreter employees (who previously worked for the courts as inde-
pendent contractors) and includes provisions governing the terms of employment and compensation
of interpreters. As trial court employees, interpreters receive worker’s compensation insurance,
disability insurance, Medicar
e, and other benefits not available to independent contractors (
see Appendix 2).
126
One very promising model is the Spanish Self-Help Model Program: Centro de Recursos Legales and
Interpreter Development in Fresno, which was a recipient of the 2004 Ralph N. Kleps Award for
Improvement in Administration of the Courts, an annual award recognizing innovation in the state’s
courts. Under this program, volunteer interpreters are recruited from court interpreter schools and
asked to commit to a minimum of four hours per week of volunteer interpr
eting ser
vices. Most of the
volunteers ar
e working to become cer
tified cour
t interpr
eters and their ability to assist as volunteers
enables them to strengthen their skills in preparation for the state certification exam. The Center
provides extensive training, covering ethics, security, terminology, logistics, and other subjects. The
training includes an assessment of the individual’
s Spanish-language skills followed by additional
instruction and mentoring by a fully qualified interpreter (including observing in court and viewing
family court orientation and mediation sessions). This gives the volunteers exposure to the real world
of court interpreting and has been extremely effective: six of the nine participants in the courts’ first
Interpr
eter Mentor Program passed the written State Certification Examination for Court Interpreters.
variety of interpreting contexts. Consideration should be given to establishing
an apprentice status for candidates for “certified interpreter” or “registered inter-
preter” who have not yet passed both the written and oral exams but have
attained a specific level of experience and achieved a designated level of profi-
ciency and training. Such a system could involve some form of “registered
apprentice” designation and enable a qualified recipient to provide interpretation
in certain limited circumstances, such as in non-court settings or in a limited
range of non-criminal proceedings. Such a system, in addition to providing
badly needed interpreters in particular proceedings, would provide valuable
hands-on training to apprentice interpreters.
California’s circumstances and extensive experience with language interpretation
distinguishes it substantially fr
om most other states. Moreover, because of its
lengthy history and variety of experience, California has long been a leader to
which state courts nationwide have looked for experience and innovation.
Nevertheless, it is worth seeking information about developments in other states,
including data already compiled by the National Center for State Courts, to
determine whether innovative practices in place or emerging in other states could
be incorporated among California’s best practices.
3. Existing efforts to attract and retain interpreters should be increased significantly.
4. A central repository should be widely publicized as being responsible for dissem-
inating best practices with regard to training and mentoring interpreters, and
should coordinate with legal services programs and other community-based
organizations who either have resources to share or could take advantage of
existing resources.
5. Additional funding should be sought so that compensation can be set at levels
that encourage people to pursue careers as court interpreters.
127
E. Evaluate Role of Lawyers and Bar Associations, Legal
Services Programs, Law Schools, and Law Libraries
1. The State Bar should work closely with the Judicial Council to address language
barriers and implement the solutions recommended in this paper. The State Bar
also should consider ways it could help train lawyers to function in situations
involving parties or witnesses with limited English proficiency, including devel-
oping and encouraging MCLE offerings.
2.
Legal ser
vices programs should continue their efforts to improve services to their
constituents, since they pr
ovide services to the communities most challenged by
a lack of English language proficiency. This includes training their advocates
and pro bono volunteers how to serve a client community with limited English
pr
oficiency; sharing best practices for meeting the challenge; sharing r
esour
ces
page
40
VI. Recommendations
127
Ongoing implementation of SB 371 — discussed above — should help in this regard.
with court self-help centers; and encouraging outreach to law schools to recruit
bilingual students and students of color and to educate and mentor them
regarding language access issues.
3. Law school curricula should be examined to determine how best to prepare law
students to function in situations involving parties or witnesses with limited
English proficiency.
4. Law libraries are key players and should continue to be included in the effort to
ensure adequate access to their valuable resources for those with limited English
proficiency. Additional legal resource and self-help guides, and court, inter-
preter and legal service provider informational handouts need to be developed in
multiple languages for patrons. Publishers should be encouraged to develop or
translate manuals and self-help texts into multiple languages. Law library staff
— often the first point of contact for litigants — need training in the best tech-
niques for assisting limited-English proficiency patrons. Service providers, pro
bono attorneys, legal services and other organizations that serve persons with
limited-English proficiency should collaborate with law librarians to develop in-
library programs, presentations and counsel. A clearinghouse web site of
non-English resources and links could be established and made available in
multiple languages. Translation of in-house library guides should be shared.
page
41
Language Barriers to Justice
page
42
Overcoming language barriers in the judicial system presents an immense challenge.
Though laws and public policies regarding language access exist, the state has not thus far
followed a clear path toward implementing those measures. And the funding required to
adequately address the need for language assistance in the courts is sorely lacking.
Fortunately, many stakeholders are aware of the need for language resources in the courts,
and those dedicated people are determined to address the issues and solve the problem.
This report is one step toward building awareness, creating a dialogue, and inspiring the
many people who care about our state to work together to protect the integrity of our
courts. California’s diversity is a treasure, an asset, a trait that defines and distinguishes
this great state. It is time that we honor that diversity and all those who contribute to
this state’s success by ensuring that we live up to the promise of equal access to justice for
all.
page
43
Language Barriers to Justice
VII. Conclusion
page
44
Proceedings Involving Small Claims
128
:
If the court determines that a small claims litigant
does not speak or understand English sufficiently to comprehend the proceedings or give
testimony, and needs assistance doing so, the court may permit another individual (other
than an attorney) to assist that party. If a competent interpreter is not available at the
first hearing of the case, the small claims court shall postpone the hearing one time only
to allow the party the opportunity to obtain another individual to assist that party. Any
additional continuances shall be at the court’s discretion.
Domestic Violence, Parental Rights, Dissolution of Marriage or Legal Separation Involving a
Protective Order
129
:
In proceedings involving these issues, a party who does not profi-
ciently speak or understand English “shall” have a certified interpreter present to assist
communication between the party and his or her attorney. The interpreter’s fees shall be
paid by the litigants “in such proportions as the court may direct,” except that the fees
shall be waived for a party who appears in forma pauperis. However, the statute provides
that compliance with its requirements is mandatory only if funds are available pursuant
to the Federal Violence Against Women Act (P.L. 103-322) or from sources “other than
the state . . . .”
Medical Examinations
130
:
During “any medical examination, requested by an insurer or by
the defendant, of a person who is a par
ty to a civil action and who does not pr
oficiently
speak or understand the English language, conducted for the purpose of determining
damages,” a cer
tified interpr
eter “shall be present” to interpret the examination in a
language the person understands. The interpreter’s fees shall be paid by the insurer or
defendant requesting the examination.
page
45
Language Barriers to Justice
Appendix 1.
Details on the Legislative Framework
128
CAL. CIV. PROC. CODE § 116.550 and CAL. R. CT 985
129
CAL. EVID. CODE § 755, CAL. GOV’T CODE § 68092(b).
130
CAL. EVID. CODE § 755.5.
page
46
Non-certified and non-registered independent-contractor interpreters are compensated at
not more than $175 per day or $92 per half day, as determined by the local court.
Pursuant to the Judicial Council payment policies for contract court interpreters, certi-
fied and registered independent-contractor interpreters are currently paid $265 per day
or $147 per half day, except where trial courts pay premiums to contractors under
unusual circumstances. Despite some previous rate increases, compensation for inter-
preters in the state courts still lags behind that for federally certified interpreters who are
paid $329 for a full day.
Under Senate Bill 371, court interpreter employees represented by a recognized employee
organization bargain over terms and conditions of employment, including wages and
benefits (vacation, sick leave, retirement, health insurance, etc.). The Judicial Council
budgeted $15 million to fund benefit costs for FY 2005-06.
131
page
47
Language Barriers to Justice
Appendix 2.
Details on Pay for Court Interpreters
131
See footnotes 108 thr
ough 110, supra, p. 26.
page
48
Interpreters used in the California court system can be divided into five groups — certi-
fied, registered, non-certified, non-registered and provisionally qualified. These
categories correspond to the languages that interpreters speak and the levels of testing
they have successfully completed. Definitions of the categories follow:
132
Certified interpreter:
An interpreter who has passed the certification exam in one of 13
designated languages, has attended the Judicial Council Code of Ethics workshop, and
meets biannual continuing education and professional requirements.
Registered interpreter:
An interpreter who has passed an English fluency exam, has
attended the Judicial Council Code of Ethics workshop and the orientation workshop,
and meets biannual continuing education and professional requirements. A registered
interpreter may interpret in any of the nondesignated languages, as well as in any of the
recently designated languages for which certification exams have not yet been developed.
Non-certified interpreter:
An interpreter who interprets in the courts in one of the desig-
nated languages but has not successfully met certification requirements.
Non-r
egister
ed interpreter:
An interpr
eter who interpr
ets in the courts in one of the
nondesignated or newly designated languages but has not successfully met registration
r
equir
ements.
Provisionally qualified interpreter:
An interpreter who interprets in the courts, in any
language, who has passed the written exam and taken the Judicial Council Code of Ethics
wor
kshop
.
133
page
49
Language Barriers to Justice
Appendix 3.
Classification of Interpreters in California
Courts
132
Judicial Council of California, Administrative Office of the Courts, Report to the Legislature on the Use
of Interpreters in the California Courts
(December 2002) at 5-6.
133
Any non-certified or non-registered interpreter interpreting on the record in a criminal or juvenile
proceeding must be provisionally qualified under California Rule of Court, Rule 984.2.
page
50
2000 Language Need and Interpreter Use Study (Prepared by Walter R. McDonald and
Associates for the Judicial Council of California, September 29, 2000).
Administrative Office of the Courts.
Court Interpreter Services in the California Trial
Courts: A Report to the Governor and the Legislature
(1995).
Alternman, Herbert S., et al, Equal Access to the Courts for Linguistic Minorities; Final
Report of the New Jersey Supreme Court Task Force on Interpreter and Translation Services
(Paterson: 1985).
And Justice for All: Fulfilling the Promise of Equal Access to Justice in California, California
Commission on Access to Justice (1996).
Astiz, Carkis,
Language Barriers in the Criminal Justice System, (Washington, DC: U.S.
Department of Justice, National Institute of Justice, 1993).
Berk-Seligson, Susan,
The Bilingual Courtroom: Court Interpreters in the Judicial Process,
(Chicago: University of Chicago Press, 1990).
Colin, J
oan and M
orris, Ruth,
I
nterpr
eters and the Legal Process
(
W
inchester: Waterside
Press, 1996).
Commission on the Future of the California Courts.
Justice in the Balance – 2020.
(1993).
Davis, Hon. Lynn W. and Hewitt, William E.,
Lessons in Administering Justice: What
J
udges N
eed to Kno
w A
bout the Requirements, Role, and Professional Responsibilities of the
Court Interpreter
(Harvard Latino Law Review, Vol. 1, Fall 1994).
E
qual Justice, Unequal Access: Immigrants and America’s Legal System: Recommendations for
Action and Collaboration
, produced by Asian Pacific American Legal Center of Southern
California, Asian Law Caucus, and National Asian Pacific American Legal Consortium
(2005).
F
eder
al Cour
t I
nterpr
eters M
anual: P
olicy and Procedures
(A
dministrativ
e O
ffice of the
United States Courts, Washington, D.C., 1990).
page
51
Language Barriers to Justice
Appendix 4.
Bibliography
Flaherty, Kristina Horton, Dearth of Qualified Interpreters Raises the Courtroom Language
Barrier
(California Bar Journal, April 2002).
Gonzalez, Roseann Duenas, Vasquez, Victoria, and Mikkelson, Holly, Fundamentals of
Court Interpretation
(Durham, NC: Carolina Academic Press, 1991).
Grabau, Hon. Charles and Llewellyn, Joseph G., Protecting the Rights of Linguistic
Minorities: Challenges to Court Interpretation
(New England Law Review, Vol. 30, No. 2,
Winter 1996).
Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic
Bias in the Courts
, Judicial Council of California, Advisory Committee on Racial and
Ethnic Bias in the Courts (California 1997).
Hewitt, William E.,
Managing Language Problems: A Court Interpreting Education
Program for Judges, Lawyers, and Court Managers
(Williamsburg, VA: National Center for
State Courts, 1997).
Hewitt, William E.,
Court Interpretation: Model Guides for Policy and Practice in the State
Courts
(Williamsburg, VA: National Center for State Courts, 1995).
Hewitt, William E., Court Interpreting Services in State and Federal Courts: Reasons and
Options for Inter-Court Coordination
(Williamsburg, VA: National Center for State
Courts, 1998).
Hewitt, William E.,
A Court Interpreting Proficiency Test at a Glance: What It Looks Like
and How It Is Developed
, State Court Journal, Vol. 20, No. 1 (1996).
Judicial Council of California Advisory Committee on Racial and Ethnic Bias in the
Courts and CommSciences.
Fairness in the California State Courts: A Survey of the Public,
Attorneys and Court Personnel
(1994).
Judges, Attorneys, Case Management and Court Interpreting (The Court Management &
A
dministration R
epor
t, Vol. 10, No. 10, October 1999).
Moore, Joanne I., ed.
Immigrants in Court: Culture Counts (Seattle, WA: University of
Washington Press, 1999).
New Jersey Supreme Court Task Force on Interpreter and Translation Services,
Equal
Access to the Courts for Linguistic Minorities
(Final Report. New Jersey, 1985).
O’Barr, William M., Linguistic Evidence: Language, Power, and Strategy in the Courtroom
(New York: Academic Press, 1982).
P
alma, J.,
H
andbook for the Legal P
r
ofession:
W
orking with Interpreters
(N
e
w
Y
or
k:
National Association of Judiciary Interpreters and Translators, 1989).
Ov
er
coming the Language Barrier: Achieving Professionalism in Court Interpreting, (
S
tate
page
52
Appendix 4. Bibliography
Court Journal — Special Issue,Williamsburg, VA: National Center for State Courts, Vol.
20, No. 1, 1996).
Skove, Anne and Herman, Madelynn,
State Court Rules for Language Interpreters
(Information Service Memorandum No. IS99.1242, National Center for State Courts,
Sept. 8, 1999).
The Diverse Face of Asians and Pacific Islanders in California: Asian and Pacific Islander
Demographic Profile
, produced by Asian Pacific American Legal Center of Southern
California, Asian Law Caucus, and National Asian Pacific American Legal Consortium
(2005).
The Path to Equal Justice, California Commission on Access to Justice (2002).
Weissman, Deborah M.,
Between Principles and Practice: The Need for Certified Court
Interpreters in North Carolina
, 73 North Carolina Law Review 1899-1964 (No. 6 )
(September 2000).
Westerman, William,
Cultural Barriers to Justice in Greater Philadelphia: Background, Bias,
and the Law
(Philadelphia Folklore Project, Pennsylvania, 1994).
page
53
Language Barriers to Justice
page
54
page
55
Language Barriers to Justice
Appendix 5. About the California
Commission on Access to Justice
The broad-based California Commission on Access to Justice is dedicated to finding
long-term solutions to the chronic lack of legal representation available for poor and
moderate-income Californians.
Key Priorities and Projects
n Resources/Pro Bono: Increasing resources for legal services programs, including
supporting the Equal Access Fund, the state appropriation to the Judicial Council
for legal services to the poor, and working with all sectors of the community to
expand pro bono and increase support for legal services to the poor.
n Language Barriers: Working to eliminate language barriers facing low-income
Californians in the legal and judicial system.
n Self-Help Resources: Expanding the availability of self-help resources for self-
represented litigants.
n Court System Improvements: Working collaboratively with the state and federal
court systems to share best practices and establish procedures to improve access for
those of limited means.
n Benjamin Aranda Award: Working with the State Bar, Judicial Council and
California J
udges Association to r
ecogniz
e judges for outstanding dedication to
increasing access to the legal system.
n Communication: I
ncreasing public awareness of the valuable work of legal services
programs throughout the state.
n State Planning: Coordinating with other partners in the state justice community
to oversee statewide planning so as to avoid gaps in the state’s delivery system,
par
ticularly r
ural ar
eas, and to ensur
e accountability of the legal ser
vices planning
process.
n Unbundling: Expanding the availability of limited scope legal assistance, also
kno
wn as “
unbundling.”
n Technology: Leveraging resources through developing and coordinating innovative
uses for technology in the legal services setting.
page
56
Appendix 5. Access Commission
Governor, State of California
Robert L. Lieff
Lieff, Cabraser, Heimann & Bernstein
Julie Paik, Deputy Director
Child Support Services Department
County of Los Angeles
President Pro Tem of the Senate
Rozenia Cummings
SBC Communications
San Ramon
Speaker of the Assembly
Vacant
California Attorney General
Ramon Alvarez, President/CEO
Alvarez Lincoln/Mercury/Jaguar
Riverside
Judicial Council of California
Honorable Steven K. Austin
Superior Court of Contra Costa County
M
ar
tinez
Honorable Ronald Robie
Third Appellate District
Sacramento
California Judges Association
Honorable James Mize
S
uperior Cour
t of S
acramento County
(Effective Sept. 2005)
State Bar of California
Anthony P. Capozzi
Law O
ffices of Anthony P. Capozzi
F
r
esno
Joseph L. Chairez
B
aker & H
ostetler LLP
Costa Mesa
Kathryn Eppright
Andre Morris & Buttery
San Luis Obispo
Steven M. Gevercer
Deputy Attorney General/Legislative Advocate
Department of Justice
Sacramento
Honorable Martin J. Jenkins
U.S. D
istrict Court – Northern District
S
an Francisco
Robert A. Long
Latham & Watkins LLP
Los Angeles
Douglas W. Otto
Law Offices of Douglas W. Otto
Long Beach
Tony L. Richardson – 2005 Chair
Kirkland & Ellis
Los Angeles
Toby Rothschild – 2005 Vice Chair
General Counsel
Legal Aid Foundation of Los Angeles
Long Beach
Council of California County Law
Librarians
Marcia Bell, Director
San Francisco Law Library
California Council of Churches
Robin Clinton Crawford
Law Office of Robin Crawford
Pacifica, CA
League of Women Voters of California
Sylvia Martin-James, Retired Educator
Riverside
Appointing Entities and Members, 2005
California Commission on Access to Justice
page
57
Language Barriers to Justice
California Chamber of Commerce
Fred L. Main
Vice President and General Counsel
California Chamber of Commerce
Sacramento
California Labor Federation
Marshall Walker, III
Former President, Local 790 SEIU
Oakland
Consumer Attorneys of California
David A. Rosen
Rose Klein & Marias
Los Angeles
Ex Officio Members
Kenneth Babcock
Public Law Center
Santa Ana
Honorable Terry J. Hatter, Jr.
Chief Judge Emeritus
United States District Court
Los Angeles
Honorable Earl Johnson, Jr.
Associate Justice, Court of Appeal
S
econd A
ppellate D
istrict
Los Angeles
H
onorable J
ames R. Lambden
Associate Justice, Court of Appeal
F
irst Appellate District, San Francisco
Karen Lash
V
ice President for Programs
E
qual J
ustice
W
or
ks
H
onorable Jan Greenberg Levine
Los Angeles County S
uperior Cour
t
Monterey Park
Jack W. Londen
Morrison & Foerster
San Francisco
Professor James Meeker
School of Social Ecology
University of California, Irvine
James Preis
Mental Health Advocacy Service
Los Angeles
Geoffrey L. Robinson
Bingham McCutchen
Walnut Creek
Harvey I. Saferstein
Mintz, Levin, Cohn, Ferris, Glovsky Popeo
Santa Monica
Honorable Ronald L. Taylor, Ret.
Superior Court of Riverside County
Riverside
Honorable Laurie D. Zelon
Associate Justice, Court of Appeal
Second Appellate District
Los Angeles
page
58
