\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0South Carolina has the fastest growing Hispanic/Latino population in the United States with a growth rate of 148 percent in the last 10 years.1As further evidence of these demographic changes, an estimated 6.6 percent of South Carolina's population, approximately 300, 000 people, speak a language other than English at home.2The legal profession, state agencies and judicial system are looking for ways to serve this growing Spanish speaking population. This article discusses the legal requirements and some best practices for attorneys working with the Limited English Proficient (LEP) population.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Overview of federal laws regarding Limited English Proficiency
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Title VI of the Civil Rights Act of 1964 states: "No Person in the United States shall, on ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. "3 In 2001, the Supreme Court ruled that a private individual had no implied right of action to enforce the Title VI regulations in court.4 However, the Supreme Court did not overturn a previous ruling in Lau v. Nichols that Title VI prohibits discrimination on the basis of language.5
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Apart from the Supreme Court's rulings regarding language access, on August 11, 2000, President Clinton signed Executive Order 13166 requiring all federal agencies to create, implement and adhere to Title VI guidance and standards in providing meaningful access to LEP individuals accessing their programs and services.6 The guidance and standards apply to the agencies themselves and the programs/entities they fund. 7 The U.S. Department of Justice is the lead agency for all federal agencies regarding issues of language access and maintains a website with information regarding language access at www.lep.gov Generally, agencies receiving federal funds must conduct a four factor analysis to determine their obligations with respect to language access:
1. The number or proportion of limited English proficient people who could not access the service without removal of language barriers;
2. The frequency the program/agency is contacted by limited English proficient individuals;
3. The type and importance of the program to the beneficiaries; and
4. The resources available and cost considerations.8
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The agency must also consider the need to provide oral language services (monolingual or interpreter) and written language services (translations), and these services should be competent and generally provided free of cost.9 Given that there is almost no state entity or program that does not receive federal funds, a vast majority, if not all, of these entities/programs are subject to these language access requirements.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Overview of state laws regarding language access
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0S.C. Code § 15-27-155 governs the appointment of an interpreter in civil legal proceedings. Under this provision, the court may appoint a qualified interpreter to interpret the proceedings and the testimony of the party or witness whenever the party or witness does not sufficiently speak the English language to testify 10 The statute defines "interpreter" as a person who:
1. Is eighteen years old or older
2. Is not a family member of the party or witness
3. Is an instructor of foreign language at an institution of education or
4. Has education, training or experience that enables him or her to fluently speak a foreign language and interpret the language of another person.11
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Although the statute uses the word "may, " appointment of a qualified interpreter can only be waived if the court finds that it is "not necessary for the fulfillment of justice."12 Furthermore, the court must make findings on the record that "the waiver of a qualified interpreter is in the best interests of the party or witness and that this action is in the best interest of justice."13 The issue of waiver of a qualified interpreter was addressed by the S.C. Court of Appeals in Melton v. Olenik. In Melton, 14both parties were limited English proficient and raised concerns regarding the language barrier before a default judgment hearing.15 The trial court proceeded with the hearing without an interpreter after the Defendant objected to using the interpreter brought by the Plaintiff. The Court of Appeals reversed and held that proceeding with the default hearing without a qualified interpreter and without making findings on the record that proceeding without an interpreter was in the best interests of the parties and/or witnesses was legal error and an abuse of discretion.16 The court further found that the Plaintiff was unable to convey the facts of the transaction during the hearing due to his limited English proficiency, and that inability coupled with the lack of an interpreter prejudiced the Defendant.17
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In criminal proceedings, interpreters are required to be provided "whenever a party, witness, or victim in a criminal legal proceeding does not sufficiently understand or speak the English language to comprehend the proceeding or to testify"18 These interpreters must be certified or otherwise qualified as defined in the statute.19 Similar to civil proceedings, use of an interpreter can be waived when unnecessary for fulfillment of justice.20
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Requesting an interpreter
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Once an attorney representing a person with limited English proficiency determines that an interpreter is necessary for court appearances, he/she can request an interpreter from the court where the hearing is taking place.21 There is no court mandated procedure for requesting an interpreter, but the attorney can submit a motion requesting the interpreter. The motion should request a hearing on the matter if the court is inclined to deny the motion to ensure that there is a finding on the record regarding the court's decision to decline the request for an interpreter. These findings must be objected to on the record in order to preserve the issue for appeal.22 The request for an interpreter should be sent well ahead of the hearing date to ensure, to the extent possible, that an interpreter will be available for the hearing. The attorney should also include the Order of Appointment form with the motion to be signed by the judge once approved.23 To avoid potential problems, request that the clerk's office use the court interpreter list provided by S.C. Court Administration to select and schedule the interpreters for the hearing/trial.24The judge may order that the interpreter's fees be paid out of funds from the S.C. Judicial Department, by one or more of the parties as the court may direct...