Reporter’s Notes – 2017 Amendments

Rule 28 is amended, contemporaneously with conforming amendments of V.R.C.P. 43(f) and V.R.P.P. 43(e), to make clear that the requirements in actions in all Divisions of the Superior Court for court appointment of interpreter services for persons with limited English proficiency (LEP), hearing impairments, or other disability resulting in the need for interpreter services comply with federal law.

The U.S. Department of Justice (DOJ) in 2002 issued final guidance (DOJ Guidance) making clear that court systems receiving federal financial assistance that did not provide meaningful access to LEP persons, including competent interpretation, in civil and other proceedings were not in compliance with Title VI of the Civil Rights Act of 1964, as amended, and the Omnibus Crime and Safe Streets Act of 1968, as amended, and their implementing regulations. See 42 U.S.C. § 2000d et seq.; 42 U.S.C. § 3789d(c); 28 C.F.R. §§ 42.104(b)(2), 42.203(e); 67 Fed. Reg. 41,455, 41,462, 41,471 (June 18, 2002). In a letter of August 16, 2010 to state court officials intended to provide greater clarity regarding these requirements (DOJ Letter), DOJ stated its expectation that “meaningful access will be provided to LEP persons in all court and court-annexed proceedings, whether civil, criminal, or administrative including those presided over by non-judges.” DOJ Letter, p. 2.

While the Vermont Judiciary’s current policy is in basic compliance with the DOJ Guidance and Letter, existing Rule 43(e) does not reflect it. The specific language of the amended rule is intended to address that problem. Thus, “other person” in the amended rule includes LEP nonparties “whose presence or participation is necessary or appropriate,” such as parents or guardians of minors. DOJ Letter, p. 2. The amended rule covers “court proceedings,” which DOJ defines as including proceedings before “magistrates, masters, commissioners, hearing officers, arbitrators, mediators, and other decision-makers.” Id. The rule also covers “court-managed functions in or related to probate proceedings.” DOJ broadly defines programs outside the courtroom to include information counters, filing offices, sheriffs’ offices, probation and parole offices, ADR programs, diversion programs, and similar offices and activities, as well as communication with court-appointed participants, such as counsel and guardians ad litem. Id. at 3. The rule, however, should be understood as requiring judicial appointment of a specific interpreter for a specific individual only when participation in those functions or programs is managed or operated by the court and is a necessary component of participation in a specific action before the court. The rule does not impose on the judiciary the cost of providing interpretation services for communication with individuals who are operating under the control of a different agency, such as public defenders, probation and parole officers, or corrections officers. The rule also complies with the DOJ position that “meaningful access” requires that interpretation services be provided at no cost to the individuals. Id. at 2.

The Americans with Disabilities Act (ADA), 42 U.S.c. §§ 1213112134, as implemented by U.S. Department of Justice Final Rule: Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. Pmi 35, 56 Fed. Reg. 35,694 (July 26, 1991), entitles deaf participants in court activities to “[a]uxiliary aids and services,” such as qualified interpreter services, to ensure effective communication during the proceeding. 28 C.F.R. §§ 35.104, 35.160(b). Court activities include any type of state or local court proceeding as well as court administrative activities. Deaf participants cannot be charged for the auxiliary aid or service. See 28 C.F.R. § 35.130(f), 56 Fed. Reg. 35,705-35,706. See generally http://www.nad.org/issues/justice/coUlis/communication-access-stateand- local-coUlis [http://perma.cc/2DNC-54DT].

The amended rule extends to a person with an “other disability which results in the need for interpreter services,” in recognition that disabilities other than hearing impairment may result in an inability to speak and may require interpreter services. The trial court has always had authority and responsibility for determination of the competency and accuracy of an interpreter’s services and the mode of interpretation. This provision of the amended rule is addressed to language interpretation needs and does not reach other circumstances in which support services may be necessary to facilitate a disabled person’s access to, presence at, and participation in, judicial proceedings, which are a separate concern and obligation of the judiciary.

In Vermont, 1 V.S.A. § 332 provides that “Any person who is deaf or hard of hearing who is a pmiy or witness in any proceeding shall be entitled to be provided with a qualified interpreter” or to be provided with “assistive listening equipment.” Under 1 V.S.A. § 333, the “presiding officer” (e.g., the judge in a court proceeding) is to appoint the interpreter. Section 335 provides that “[i]n civil proceedings, the Court may order that” the interpreter’s fees and expenses “be paid by a party, as justice may require, or it may order that the costs be paid by the State. In criminal proceedings, costs of the interpreter shall be paid by the State.” These provisions are inconsistent with the ADA and implementing regulations described above. Rule 28 as amended extends these statutory provisions and makes the Vermont process consistent with federal requirements.

Rule 28 as amended, which governs actions in the Criminal Division of the Superior Court, will apply in the Civil and Probate Divisions by virtue of confOlming changes to be made in the comparable provisions of the Vermont Rules of Civil Procedure and the Vermont Rules of Probate Procedure. See V.R.C.P. 43(f) and V.R.P.P. 43(e). The civil and criminal rules as amended will apply in celiain other proceedings by virtue of their incorporation in the rules governing those proceedings. See V.R.F.P. 1(a), 2(a), 4.0(a)(2) (Family Division juvenile and civil proceedings); V.R.E.C.P. 3, 4(a), 5(a) (Environmental Division civil, enforcement, and appellate proceedings); V.R.S.C.P. 13 (Civil Division small claims proceedings); V.R.A.P. 2, 21(a) (Supreme Court suspension of the rules, actions for extraordinary relief).

The present amendments govern provision of interpreter services in judicial proceedings, essentially in the courtroom and in those matters and circumstances directly related thereto. They are intended to supplement the Vermont Judiciary Language Access Plan dated December 30,2016 and as amended from time to time, and such administrative directives and procedures as are adopted by the State Court Administrator that independently make provision for access to court documents and services associated with the filing, maintenance, and participation in judicial proceedings and related matters. In particular, in determining the competency of interpretation services, courts should consider the guidelines in the Vermont Judiciary Language Access Plan.