March to the Beat of the CLAC Drummer: How Lack of Uniformity of CLAC Member State Reciprocity Requirements May Deny LEP Persons Meaningful Access to the Courts

By Chris Kunej

Introduction

Ms. Lidija Tocilj, a Croatian astrologist/journalist, was probably not referring to interpreting when she said, “All perfection is foreign to life.” 1 Nonetheless, interpreters and translators must strive for near perfection in whatever field they practice. The importance of accurate interpreting goes without saying. There are numerous examples of the results of interpreter and translator error, ranging from a 71-million dollar verdict in a medical interpreting error case,2 through misinterpreted phrases in diplomatic and military situations and documents, directions for product use, business correspondence, and the like. There are numerous internet “translation mistake” websites, and various articles have published mistranslation “gems”.

Perhaps it is difficult to establish standards and criteria for the interpreting profession, because it is one in which the service seems to be intangible, unlike a painting whose quality we can subjectively assess or a vehicle repair job that either makes the car run or does not. It may be for this very reason that interpreting appears to be a skill that many bilingual people believe they are capable of doing well; but for this same reason, both the interpreting and translation professions need to be well regulated.

One of the best things that ever happened to the interpreting profession was the founding of the National Center for State Courts Consortium for the State Court Interpreter Certification program in 1995, or the more recently evolved Council of Language Access Coordinators (in further text CLAC). Most, if not all, US member states of the NCSC have by now joined CLAC. For the Spanish language—which is by far the most needed and most interpreted language in our nation—it should be said that the system functions quite well, apart from possibly some over-saturation of certified interpreters and the ensuing scheduling difficulties for particular court coordinators. It is for all other languages, mostly those of lesser diffusion, that there are issues of uniformity among the various approaches of the CLAC member states, their definitions of “reciprocity”, and their efforts to provide the best-qualified interpreter for LEP persons in order to comply with the with the “equal access to justice” guidelines established by the US Dept. of Justice and with long-standing civil rights requirements.

Although the established system has functioned reasonably well, both CLAC and particular member state courts can and should strive to improve their application of the “equal access to justice” premise. A significant section of the already famous correspondence by Asst. Attorney General Thomas E. Perez in 2010 includes the following: “DOJ acknowledges that it takes time to create systems that ensure competent interpretation in all court proceedings and to build a qualified interpreter corps. Yet nearly a decade has passed since the issuance of Executive Order 13166…Reasonable efforts by now should have resulted in significant and continuing improvements for all recipients.” 3  This correspondence was issued 5 years ago.

Experience of a  Certified Interpreter of a Language of Lesser Diffusion Seeking Reciprocity

The most valuable contribution of this paper is probably the data from a long period of correspondence between an inquiring interpreter seeking reciprocity and particular state court interpreter coordinators. The data obtained is unfiltered, because general inquiries yielded exact information on current practices.

Not long after the author of this article was certified as a court interpreter by CLAC for a lesser-spoken language, he was advised to reach out to other state courts in order to offer himself as a resource because there are not many certified court interpreters for his languages nation-wide. Because of his willingness to serve in courts throughout the US, and also to gain professional exposure, he did reach out to almost every state court over a period between December 2013 and October 2014. The bases of his experience were telephone conversations, email and post mail correspondence with particular state court interpreter coordinators or other staff such as attorneys, administrators, administrative assistants, court clerks, etc. Contact information was provided by CLAC on the “Language Access Programs by State” section of their website.4 No states or persons will be individually named in this article, because its goal is not to single out any state or person for potential non-compliance with “equal access to justice” guidelines. The motivation behind this paper is to point out inconsistent reciprocity requirements that potentially harm LEP persons. Addressing this situation, hopefully, will set in motion adjustments that will remedy the inconsistencies. It must be said that the overwhelming majority of court interpreter program coordinators who were contacted were competent, professional, kind individuals who were a pleasure to converse with.

The Meaning of Reciprocity

There appears to be a general difference in understanding of the notion “reciprocity” itself. There are those CLAC member states that feel reciprocity only exists if a particular certified interpreter relocates from one state to another; since they are already certified, there is no need to go through the process again. On the other hand, there are those states that feel reciprocity exists to help them with resources if they encounter a need for a language for which they have no adequate interpreters. The responses to inquiries regarding reciprocity requirements varied greatly and are categorized below.

A. Probably the most concerning—yet understandable—were a handful of states that still had no program in place. It is concerning because over a decade has passed since the publication of initial general guidance clarifying language access requirements for recipients of Federal aid, yet understandable because, for most part, these are states that either do not have great diversity within their population (hence no real pressing constant need for court interpreters), are geographically isolated/rural or have a low population density. Surprisingly, there are a few very “cosmopolitan” states that fit into this category. Their responses were varied: “we contact the local university when there is a need,” “we have not had to establish a program,” we are in the process of establishing a program,” “we will place you in the office resource folder,” “we are in the early stages of establishing a program,” “we contract through a private vendor,” “we have some ‘tested people’,” and “when we have a need we contact CLAC.”

The last reason above should be separately addressed. CLAC does provide a functioning network among member state coordinators, and when there is a need for a certified interpreter whose services are not available in a particular state, its coordinator simply sends a request via this forum-like network. Coordinators from other states then proceed to suggest a certified interpreter from their state. Although CLAC meant well in providing this resource, it is unreliable because particular state coordinators may or may not respond to a particular request; it is subjective because of questionable criteria as to which interpreters are suggested and/or selected; and finally, it is non-transparent. Uniform reciprocity requirements would resolve this issue.

B. There were states that were very welcoming; they simply required the certification from the state where the interpreter is certified and a resume. It is easy enough to verify certification through CLAC. Upon receipt, the responding state coordinator would proceed to add the requesting interpreter to the official online state interpreter roster or an internal list, if no online directory existed.

C. There were states that were also very welcoming but required a little more in order to place a reciprocity-seeking interpreter on the official roster: some kind of a state-specific application, certification, NCSC scores, resume and documentation showing that court orientation and training was done.

D. There were states that were very welcoming on the surface, but required substantial, extensive and almost draconian requirements in order to be on their official roster. This often included certification, all NCSC scores, letter of good standing from the state where interpreter is certified, proof of court observation, orientation and training, fingerprints, police background checks, applications and extensive paperwork, application fees ranging from $15 to $100, oaths, or any combination of all listed. In some cases, even if the interpreter satisfied all requirements he was still denied placement on the official online interpreter roster and placed only on an internal list.

E. Finally, there were those states that simply denied reciprocity or highly discouraged it. Some individual state court coordinators seemed to exhibit personal program ownership issues as opposed to serving the state’s courts. Comments included: “you are too far for us,” “we have registered and approved interpreters,” “we insist that orientation and/or ethics class be done in our state at your expense,” “maybe we can use you for future telephonic or video interpreting,” “to be listed on the roster a one-time fee is required, no charge if listed on an internal list,” “must do orientation locally because your resume may be padded,” “we do not pay for travel,” “not enough need for your language,” to “it would be a joke for me to put you on the official online registry because you are too far away.”

The Marchers’ Duty, or an Objective Review of Reasons for Denying or Discouraging a Reciprocity Request, and Suggestions for Remedying the Situation

The marchers here are particular member state court interpreter program coordinators. It goes without saying that interpreters, themselves, also march to this tune, but their task has always been clear.

The working definition of how we understand the notion “reciprocity” should probably include both of the concepts that were previously mentioned: that those who relocate should not have to repeat the certification process, and that that they should, in turn, offer help in “building a qualified interpreter corps” pursuant to Executive Order 13166.3.5

Those states that are indeed rural and do not have much need for languages, other than possibly Spanish, understandably do not rush to establish an interpreter program. But if the state is a CLAC member, it should at least take small steps towards compliance. The non-rural states that are in this category really need to take active steps toward compliance in order to avoid the appearance of willful negligence and possible lawsuits or court decisions that are subsequently appealed or vacated because proper interpreters were not provided.

Those states that have extensive and involved requirements for reciprocity most likely have good intentions when attempting to satisfy their own state laws in addition to CLAC requirements; but if a certification from one state carries no weight in another and certain requirements need to be repeated, then reciprocity is a misleading term. Requirements for reciprocity need to be uniform, and if an interpreter becomes certified in one state then certification in a different state should be little more than a formality.

Those states that flat out deny or highly discourage reciprocity need to re-examine their obligations as CLAC member states and perhaps provide training for the individual who is the contact for any “Equal Access to Justice” program requiring the use of interpreters.

The states that cite “too far” or “no pay for travel” as reasons need to budget appropriately because “fiscal pressures do not provide an exemption from civil rights requirements.” 6  Insisting that court observation, classes or orientation be done locally, even when such requirements have already been fulfilled as part of the CLAC certification, is an unnecessary obstruction, as is charging fees for reciprocity applications. The excuse of “not having enough need for a particular language” is a subjective observation that could historically be correct for a region, but it fails to take into account the possibility that this situation could change very quickly. Having a certified interpreter on a roster means being prepared for any contingency.

Arguably, the worst reason for denying or obstructing reciprocity is “we have registered or approved interpreters.” This excuse defeats the purpose of the very founding of the CLAC. Not providing the very best qualified interpreters (certified) to LEP persons in instances where they may spend life in prison is a gross violation of civil rights. The bottom line is that if no certified interpreter is available for a particular language in some US state for a serious case, and this state refuses to make reasonable efforts to fly in a certified interpreter who happens to be in a distant state, LEP rights are violated.

It must be acknowledged and emphasized that obtaining an interpreter from out of state can be very costly and a logistical nightmare. State interpreter coordinators encounter problems when a litigating party delays a case unexpectedly or requests a continuance. This happens frequently, sometimes just barely before the assigned court date. In such cases, it is not unusual that coordinators must pay the interpreter when cancelling with less than 24 hours’ notice, and again when the court event actually occurs. Also, in order to ensure that LEP persons are provided with the most qualified interpreter possible, states have an ordinance, law or guideline that a certified interpreter must be used unless one is not reasonably available. This is immensely positive, since it finally provides for a certain degree of standards for interpreters. However, it obliges a particular state’s coordinator to employ a certified interpreter from their roster even if that interpreter is 5,000 miles away, unless he is not available. With this in mind, it is understandable why some states would impose obstructions to reciprocity so as not to create the necessity for an expensive solution. Administrative and fiscal challenges for compliance with CLAC obligations and underlying civil rights requirements are great, but if there is a fulltime individual responsible for coordinating CLAC requirements who is allocated reasonable funds, it should be sufficient. “Consortium states were required to appoint an official representative and to abide by the administration standards. You can have a nice instrument and screw it all up with administration.” 7

Drummer’s Duty, or Suggestions for Improving CLAC

Some sources indicate that the pass rate for the CLAC’s state certification between  2000 and 2011 for all languages was around 8%-16%. 8 This is appropriately low, since it is CLAC’s duty to ensure that exams for various languages are relevant, appropriate and fair. The scoring units system appears to be an adequate solution, although further research on other possibly more efficient grading systems could be helpful.

Pursuant to the discussion in this article, CLAC needs to provide at least some guidelines for reciprocity requirements. Although the requirement that a certified interpreter must be used unless one is not reasonably available must never be eliminated, it can possibly be softened exclusively for reciprocity cases when in-state certified interpreters are not available. For example, a reciprocity requirement might state that a certified interpreter must be used for all felonies, longer trials, anticipated longer proceedings, high profile cases, etc., and not brief appearances such as arraignments and the like. Somebody very experienced in the length and perceived gravity of a given proceeding would need to address this proposal appropriately. This alone could resolve interstate reciprocity problems if, indeed, what most state coordinators fear is the need to employ an expensive out-of-state certified interpreter for each and every case.

The most important duty of CLAC is to make sure that the exams to be graded are without exception anonymous and that the raters are highly qualified linguists who are knowledgeable, competent, ethical, objective, patient and pure of heart. The last qualifier “pure of heart” is included here because the author of this article is also an advocate for strict standards and criteria for interpreters and translators in general. (During one presentation of what he felt should be criteria for translators and interpreters, a colleague with a differing opinion added the same qualifier.) It is without question acknowledged that professional standards and criteria can be subjective and arguable. “All perfection is foreign to life.” Having said that, a lot is at stake in court interpreting—some states still enforce capital punishment. If a rater fails to recognize a competent interpreter, she/he is literally risking someone’s life.

Once it has its “star raters,” CLAC needs to find a way to keep them interested, whether that means generous compensation or a desirable full-time position–whatever it takes. Some countries have numerous dialects and variants in their respective languages. In some countries, languages have not yet been standardized by consensus. (A good example for this is the Croatian language, a new official language in the European Union).9 Raters need to collaborate on a regular basis to keep a consistently updated database of acceptable solutions for the scoring units. This may currently be top-notch for Spanish, but such a database also needs to be very advanced for lesser-spoken languages. This is something that can be greatly improved by CLAC; there have been a few accounts of very competent interpreters not passing the exam because there may be terms they used that are semantically appropriate, but were not included on a list of acceptable scoring units. It is also preferable that raters not be active court interpreters themselves. There is something to be said about being in a position to either increase or decrease your competition.

The exam results should be made available to the examinee, who then should have the opportunity to dispute the scoring. Notwithstanding any arguments CLAC may have for deciding not to share results with examinees, transparency needs to reign supreme. The U.S. Department of State Office of Language Services may be able to afford itself the luxury of not having to be accountable for its scoring, but CLAC needs to lead by example. Lastly, the focus of the exam should be realigned to assess who is the most competent language expert and not whose memory is the best. This statement is a journal paper topic in itself, one that shall not be expanded upon here, but is food for thought. The minimum professional requirements mentioned by the NCSC Overview do not include the need for a retentive, unfailing and tenacious memory.10

In conclusion, while CLAC and member states have made efforts to improve the availability of certified interpreters to LEPs, uniform requirements are essential in resolving the issue of inconsistencies in granting reciprocity to better ensure equal access to justice for speakers of lesser diffused languages.

1Editorial, In memoriam Lidija Tocilj. (September 24, 2013). Novi List.hr (Croatian online edition newspaper). http:Unovine.novilist.hr/default.asp?WCI-Rubrike&WCU=285A285C2863285F2863285A285828 59285B286328912896289E2897288C28632863285E285F2859285F285F285C286328632863286 3G. (Article accessed 10/10/2014, no longer available)

2 Kelly, N., Zetzsche, J. (2012). Found in Translation.  New York, New York. Penguin Group USA, Inc.

3 Perez, T.E. (2010). U.S. Department of Justice, Civil Rights Division Assistant Attorney General, August 16, 2010 correspondence to Chief Justice/State Court Administrators.  (Accessible at http://www.najit.org/advocacy/advocacy.php)

4(2011). National Center for State Courts; Language Access Programs by State. http://www.ncsc.org/Services-and-Experts/Areas-of-expertise/Language-access/Resources-for-Program-Managers/LAP-Map/Map.aspx

5 Executive Order 13166. Limited English Proficiency (LEP): A Federal Interagency Website. http://www.lep.gov/13166/eo13166.html

6 Perez (2010)

7Hewitt, W. (2007). UMTIA; Final Report Expert Panel on Community Interpreter Testing and Certification.

http://www.umtia.org/ExpertPanel/BiII%20Hewitt%20-%20Expert%20Panel.pdf (Article accessed 10/14/2014, no longer available).

8 (2011). Judicial Council of California, Administrative Office of the Courts. “What’s New in California Court Interpreting?” http://www.courts.ca.gov/documents/cipnews050611.pdf (accessed 9/07/2014, no longer available).

9Predstav/jen novl hrvatski pravopis (Eng.; “New Croatian Grammar Introduced”) (2103) Jutarnji List (Croatian online edition newspaper) (2013);. http://www.jutarnii.hr/-htjeli-smo-napokonzavrsiti-sve-jezicne-prijepore–filolozipredstavili-radnu-verziiu-novog-hrvatskogpravopisa/l097262/ (accessed 10/14/2014, no longer available).

10 2011). National Center for State Courts; Court Interpreter Oral Examination: Overview. http://www.ncsc.org/Services-and-Experts/Areas-of-expertise/Language-access/Written-and-Oral-Exam-Resources.aspx

See also: Hewitt, W.E. (1995). Court Interpretation: Model Guidelines for Policy and Practice In the State Courts (National Center For State Courts), Chapter 3, “Job Analysis and Position Descriptions for Professional Court Interpreters. ” http://cdm16501.contentdm.oclc.org/cdm/ref/collection/accessfair/id/170

[Chris Kunej was born in Zagreb, Croatia, but has alternated residences between the US and Croatia throughout his life. He attended the University of Zagreb, College of Humanities and Social Studies for English Language and Literature/Teaching and Translation. He has published papers on the subject of translation standards in Croatia; one such paper was used for a seminar at the University of Tubingen in Germany (yearly enrollment 24,000) in 2008. He was an activist in Croatia for continued improvement of the interpretation/translation/language teaching standards, and some of his activism was covered by the Croatian national media. He currently resides in the US, is one of the very first certified state court interpreters for the BCS (Bosnian/Croatian/Serbian) languages in about a dozen states and works for Utah state government.]

The views and opinions expressed are those of the author and do not necessarily reflect the official position of NAJIT.

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