Cambridge Management Inc. v. Jadan. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
16-FEB-2021
07:52 AM
Dkt. 29 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
________________________________________________________________
CAMBRIDGE MANAGEMENT, INC.,
Respondent/Plaintiff-Appellee,
vs.
NICOLE JADAN,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 1RC16-1-4118)
FEBRUARY 16, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE TONAKI, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
The Hawaiʻi State Judiciary has committed that all
litigants who cannot meaningfully access court proceedings based
on their English proficiency will be given language access
assistance, including the services of a court-appointed
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interpreter. The courtroom setting is often intimidating; its
language, technical. In light of this reality, it is the
court’s responsibility to determine whether a litigant can speak
and understand English such that they are able to meaningfully
access justice in this extraordinary setting – not simply
whether their English is passable, adequate, or otherwise “good
enough” to meet ordinary day-to-day demands.
In the instant case, the Judiciary’s language access
commitment was not kept. Specifically, the District Court of
the First Circuit (district court) failed to determine whether
defendant Nicole Jadan’s participation in the court proceedings
would be meaningful absent language assistance when it resolved
her repeated requests for an interpreter. We accordingly vacate
the judgment with respect to Jadan’s counterclaim for damages
and remand to the district court, which must give due
consideration to her request for the services of an interpreter,
for further proceedings.
We also clarify that the meaningful access mandate
extends to all proceedings in Hawaiʻi state courts, including
appeal. We recognize, however, that our rules do not
contemplate how to ensure adequate language access on appeal.
We therefore refer this matter to the Hawaiʻi Supreme Court
Committee on Court Interpreters and Language Access to determine
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what services are necessary and how best to provide those
services in the course of the appellate process.
II. BACKGROUND
A. District Court Proceedings
All told, the district court held nine hearings on
respondent Cambridge Management’s (Cambridge) complaint and
Jadan’s counterclaim, presided over by five different judges.
Although the record lacks transcripts of the district court
proceedings, in light of the issues presented by this case and
pursuant to Hawaiʻi Court Records Rules Rule 4 1 and our authority
under Hawaiʻi Rules of Appellate Procedure (HRAP) Rules 11(b)(3) 2
and 10(e)(2), 3 this court ordered that the audio and video
recordings of the proceedings below be transmitted. 4 We have
reviewed those recordings, and we observe that at eight of those
1 Hawaiʻi Court Records Rules Rule 4 provides that “[t]he record of
each case . . . shall include . . . (d) . . . audio or video recordings of
court proceedings[.]”
2 HRAP Rule 11(b)(3) provides in relevant part: “Physical exhibits
other than documents, and such other parts of the record shall not be
transmitted by the clerk of the court or agency appealed from unless he or
she is directed to do so by appellate court order.”
3 HRAP Rule 10(e)(2) provides in relevant part: “If anything
material to any party is omitted from the record by error or accident or is
misstated therein, corrections or modifications may be as follows: . . . (C)
by direction of the appellate court before which the case is pending, on
proper suggestion or its own initiative.”
4 Cambridge urges this court not to rely on the audio and video
recordings of the proceedings. However, Hawaiʻi court rules contemplate that
the appellate courts may order parts of the record that were not previously
transmitted. We chose to exercise that authority under the exceptional
circumstances presented by this case.
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court dates, Jadan either requested the assistance of an
interpreter – including once by written motion during the short
period in which she was represented by counsel – or indicated to
the court that she struggled with understanding and
communicating in English. These requests were denied all but
once. Even after one judge agreed to appoint an interpreter
midway through the district court proceedings, subsequent court
dates proceeded without the services of an interpreter. The
following description of the district court proceedings reflects
the recordings of the proceedings and the written record on
appeal. 5
Cambridge, the managing agent of the apartment in
which Jadan lived, filed a complaint for writ of possession
against Jadan on June 21, 2016. The complaint alleged that
Jadan broke her rental agreement because she gave notice she
would move out by June 2, 2016, but failed to do so. With the
assistance of the district court’s Access to Justice Room, a
volunteer-driven program providing free legal advice to pro se
litigants, Jadan filed a counterclaim for about $40,000 in
damages and an injunction. She claimed, among other things,
that Cambridge had “destroy[ed] medical equipment” in her unit,
that her unit was “not fit to be lived in,” and that Cambridge
5 Given that the only issue presented by Jadan’s application for
certiorari relates to her interpreter requests, we review and describe the
record only as it relates to her language access needs.
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should be enjoined from “interfering with [her] ability to enter
into another rental agreement,” alleging that Cambridge had been
“speaking untruths about [her] ability to pay rent[.]”
The first status hearing was held on July 15, 2016. 6
Immediately after stating her name, she asked the court whether
a friend could assist her with English. The court never
resolved this request. It instead referred the parties to
mandatory mediation and, when they returned from mediation
unsuccessful, set the case for trial.
The trial regarding the writ of possession occurred on
August 5, 2016. 7 Jadan initially told the court that her
interpreter had not arrived, but she would attempt to proceed on
her own. But roughly ten minutes later, she requested the
services of an interpreter. The court asked how long she had
been in the United States; Jadan responded that she had been in
this country a long time, and the court told her that her
English was “pretty good.” Jadan explained that she had been
badly injured and that the injury made it difficult for people
to understand her; the court did not conclude the injury was
grounds for language assistance and denied her request. The
minutes reflect that the request for a Polish interpreter was
denied because “[Jadan’s] English is fine.”
6 The Honorable Gerald H. Kibe presided.
7 The Honorable Ronald A. Albu presided.
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The possession trial proceeded. Numerous times that
day, Jadan expressed that she was finding it challenging to
translate what she wished to say into English and that
interruptions (such as Cambridge’s objections) made it difficult
for her to communicate. For example, during cross-examination
of one of Cambridge’s witnesses, the district court cautioned
Jadan that she was wasting time by asking irrelevant questions;
Jadan responded that expressing herself in English was proving
challenging and that she would be able to better communicate
with an interpreter. As another example, during direct
examination of one of her witnesses, Jadan stated that she was
ashamed of her poor English. And one of her witnesses testified
that Jadan had difficulty with the English language and that the
witness had suggested that Jadan get the services of a
translator.
The trial was characterized by the court’s repeated
admonishments for Jadan to ask relevant questions and avoid
using examination as an opportunity to testify. This dynamic
proved frustrating for the court – at one point, the court
expressed anger at Jadan for refusing to follow the rules. At
another, the court told her that if she did not cooperate and
stop wasting time, it would simply find for the plaintiff.
However, Jadan repeated on several occasions that she was
struggling to express herself in English, implying that this
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challenge, rather than any dilatory intent, caused her often-
lengthy questions and responses.
The court ruled in favor of Cambridge and ordered a
writ of possession to issue forthwith. Per the minutes, “[t]he
court found that defendant had no legal reason for not moving
out.”
The parties reconvened for a status hearing on
September 30, 2016, at which point Jadan once more asked for an
interpreter. She explained to the court that she could speak
English, but she could not understand technical terms, and that
the assistance of an interpreter would help her more fully
express herself in English. The court again asked her how long
she had lived in the United States; she again responded that she
had been in the country for some time but recently was injured.
The court denied her interpreter request, reasoning that she did
not have an interpreter during the trial, which was only a few
months prior. The minutes state, “[Jadan] speaks English well
and manage[d] on her own at the trial[.]”
By the time of an October 21, 2016 status hearing,
Jadan had procured counsel. 8 This was the only hearing at which
no interpreter request was made.
8 At the hearing, the court and counsel discussed their pre-
existing professional relationship. Counsel accordingly requested Judge
Albu’s recusal, and Judge Albu recused from the case thereafter.
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Through counsel, Jadan moved for appointment of an
interpreter on October 31, 2016. The written motion argued:
[A] review of the videotape transcript of the
[possession trial] make[s] it clear that Defendant was in
need of an interpreter. Defendant’s lack of proficiency in
the English language should have been apparent to the
Court, which indicated that it could not understand
Defendant. In addition, Defendant’s lack of proficiency
most likely caused the Court to grow impatient with her,
which caused Defendant to cry, and which lead to the
Court’s threat to impose sanctions on Defendant who was
trying to ask questions of witnesses and of the Court.[ 9]
The Court should have recognized that Defendant was
in need of an interpreter, instead of ignoring her requests
and her quite obvious non-fluency in English. This motion
seeks to right that injustice.
Cambridge’s written opposition argued that the request
should be denied because Jadan had already twice asked for, and
was twice denied, an interpreter. Cambridge’s counsel attested
in a declaration that he had met with Jadan in person in June of
2016; counsel “did not have any trouble understanding Defendant
and does not believe Defendant had any trouble understanding
[him].” Cambridge also cited court records indicating that
Jadan had been a party in at least six other cases, one of which
also involved a denied interpreter request. Cambridge argued
these records indicated she had the “wherewithal” to handle
matters such as orally requesting dismissal without language
assistance. And Cambridge responded to the claim that the court
had grown “impatient” with Jadan by asserting that any
9 This likely refers to the court’s statement at the possession
trial that Jadan was wasting Cambridge’s attorney’s time and that attorney’s
fees could be imposed if she lost, asking her: “Do you want to pay his
attorney’s fees too?”
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impatience was “the result of Defendant’s disagreement with the
Court’s rulings and refusal to move on with the case.”
Cambridge argued appointment of an interpreter would only cause
further delay.
A hearing was held on the motion on December 16,
2016. 10 Jadan’s counsel asserted that, in addition to the
arguments raised in the written motion, he himself could not
understand his client, and he would not have brought the motion
if he could.
The court denied the motion, noting that it had
presided over a case involving Jadan in the past and had denied
an interpreter request in that case, as had prior judges in the
instant proceeding. The court also noted that Jadan had been a
paid interpreter for the judiciary. 11
10 The Honorable Thomas A. Haia presided.
11 Cambridge supported this contention in its memorandum in
opposition by reference to the minutes of an August 2014 hearing in one of
the six other cases involving Jadan – the case over which Judge Haia also
presided, as he referenced at the December 16, 2016 hearing. The minutes of
the 2014 hearing, which occurred more than two years prior in an unrelated
case, state that “[Jadan] made representation that she was previously a
translator for the Judiciary[.]” Jadan briefly mentioned that she once
served as an interpreter during the September 30, 2016 hearing before Judge
Albu, but it is not clear from the district court record when and under what
circumstances this occurred.
Cambridge raised the same assertion in its answering brief at the
Intermediate Court of Appeals. In her opening brief, Jadan said that twenty-
six years ago, she assisted her son in a case in which he was a party, and in
her reply brief, she indicated that this was the occasion to which Cambridge
referred. The reply brief asserted that she “was not adequate” in that case,
and “[the judge in that case] got the truth of my son by herself without me.”
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Jadan began to speak while the court announced its
ruling. The court noted for the record that Jadan “just spoke
English.” Her counsel, however, responded that the issue was
not whether she could simply speak English, but whether she
could speak English such that they could effectively communicate
with each other. Nonetheless, the motion was denied.
The parties appeared for a status hearing on
January 6, 2017. 12 Jadan’s counsel did not appear. Although the
case was continued, Jadan twice told the court during the
hearing that it was a challenge for her to translate her
thoughts and express herself in English.
Another status hearing occurred on January 13, 2017.
Jadan expressed dissatisfaction with counsel and told the court
she wished to proceed on her own, with the assistance of an
interpreter. Neither Cambridge nor Jadan’s counsel objected to
her proceeding pro se, although Cambridge objected to the
appointment of an interpreter, noting the same request had been
denied three times. The court granted both requests after
engaging directly with Jadan to ascertain exactly what
assistance she was requesting and why she needed it.
On February 3, 2017, no interpreter appeared; Jadan
proceeded on her own. The court set a trial date for Jadan’s
12 The Honorable Michael K. Tanigawa presided.
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counterclaim. When Jadan asked whether she could get an
interpreter for that date, the court responded that it could
try, but that trial would proceed on the next date either way
because Jadan was able to express herself. The minutes
reflected the same: “The court ordered a Polish interpreter but
informed [Jadan] that trial will proceed even if one is
unavailable.”
The trial for damages on the counterclaim proceeded
before a fifth judge on February 17, 2017. 13 When asked why she
thought Cambridge owed her money, Jadan tried to explain to the
court that she needed an interpreter, saying that although she
spoke English, “legal English” was different, akin to a new
language altogether. A few minutes later, she reiterated this
need; the court responded that she had appeared in court many
times since the case began. But Jadan told the court that
without an interpreter, what could normally be said in a
sentence would take her a paragraph.
Jadan took the stand. After being sworn in, Jadan
once again asked for an interpreter, asking why the previous
judge had found that she could not speak the kind of English
required by the courtroom. The court responded that many people
proceed pro se, that her English was adequate, and that one does
13 The Honorable Maura M. Okamoto presided.
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not need to be a lawyer to do what Jadan was doing. Per the
minutes: “The court . . . noted . . . Jadan appeared to
understand and speak English competently and that per court
minutes from 2/3/17 trial could proceed even if a Polish
interpreter was unavailable.”
Jadan’s testimony proceeded. Multiple times, she
exhibited difficulty in communicating. Later, Cambridge
presented a witness; during cross-examination, Jadan again
expressed the challenge of formulating a question in English
absent an interpreter. As in the possession trial, Jadan was
repeatedly admonished to keep her questions relevant and to
avoid testifying while asking them.
The court found for Cambridge and awarded attorney’s
fees against Jadan.
On February 22, 2017, Jadan moved for reconsideration.
Her handwritten motion argued that Judge Tanigawa had ordered
the appointment of an interpreter, no language services were
ever provided, and the damages trial proceeded without an
interpreter over her objections. The motion was denied. Jadan
appealed thereafter.
B. Proceedings on Appeal
On appeal, Jadan again filed a request for a Polish
interpreter. Her handwritten motion said, “I am 71 years old
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and I can not[ 14] even start to begin with NO interpreter. There
was Court order for Polish interpreter for me ordered by the
honorable Judge, but the interpreter didn’t show up because
there is NO justice.” The Intermediate Court of Appeals (ICA)
construed Jadan’s filing as a motion for appointment of a Polish
interpreter on appeal and denied the request. It determined
that “appointment of an interpreter is not necessary to raising
any argument on appeal,” and “[b]ased upon consideration of
[Jadan]’s motion and the record, we observe no authority for
appointment of an interpreter on appeal.” However, the ICA
indicated that “a renewed request” could be filed “in the event
that the merit panel schedules oral argument.”
Jadan, who was relieved of the requirement to pay
court filing fees before the district court due to indigency and
granted in forma pauperis status for her appeal, also moved for
a fee waiver in order to acquire the transcripts she requested.
The ICA determined that Jadan had “fail[ed] to demonstrate that
she is statutorily exempt from transcript fees” and denied the
motion. It later explained in its summary disposition order
that Hawaiʻi Revised Statutes (HRS) § 802-7 (2014), which
provides for the waiver of transcript expenses for certain
14 Any errors in the quotations from Jadan’s briefs included in this
opinion are in the original and have been intentionally left given the nature
of the issues in this case.
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criminal defendants, was inapplicable in a civil appeal, and
“Jadan remains responsible for providing the appellate court
with appropriate transcripts to support her contentions on
appeal.”
Jadan’s handwritten opening brief requested that the
award of attorney’s fees be “take[n] away” and that the ICA
grant her counterclaim. The brief stated: “It is very difficult
for me to express what I want to express information and
explanation in American English without interpretor nor
translator.” Jadan went on to point out, as relevant here, that
one of the five district court judges who heard her case indeed
ordered the appointment of an interpreter, but no interpreter
was ever appointed.
Cambridge’s answering brief argued in response that
the absence of transcripts in the record alone warranted
affirmance. Even if the court did proceed to the merits, “[t]he
record shows that [Jadan] understands, speaks and writes English
well,” pointing again to the six other cases in which she
appeared upon which Judge Haia had relied; “in one of those
cases, she represented she was a [c]ourt translator.” 15 Plus,
Cambridge argued, she proceeded through the district court and
15 See supra note 11.
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filed the instant appeal without the assistance of an
interpreter.
Jadan’s handwritten reply brief reiterated, as
relevant here, that she had “plead[ed] for Polish interpreter
because [she is] not saying nor understand one half of this what
[she] did master in Polish language to the perfection.” She
argued that she told the court that, besides her limited
English, she was in “tormenting pain,” and a jaw injury impeded
her ability to speak.
The ICA affirmed. It noted the conflicting rulings
with respect to her interpreter requests, but concluded that
“without the transcripts we are unable to review what
examinations (if any) the district court conducted and why or
how the district court judges arrived at contrary conclusions.”
It also pointed to the want of evidence in the record “showing
that [Jadan] was unable to make herself understood before the
district court,” relying on the fact that Jadan had “represented
herself in two trials and numerous hearings after the district
court’s finding that she did not require an interpreter.”
Represented by counsel, Jadan asked us to resolve one
question in her application for writ of certiorari: “Did the ICA
commit a grave error of law by failing to recognize that
Petitioner, whose first language is Polish, was entitled to the
appointment of an interpreter below and on appeal, pursuant to
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(1) Hawaii Judiciary Policy, (2) this Court’s Rules pertaining
to the appointment of an interpreter, and (3) the requirements
of due process of law?” 16
III. STANDARDS OF REVIEW
Interpretation of court rules “is a question of law,
which the appellate court reviews de novo.” State v. Metcalfe,
129 Hawaiʻi 206, 222, 297 P.3d 1062, 1078 (2013) (brackets
omitted) (quoting Barcai v. Betwee, 98 Hawaiʻi 470, 479, 50 P.3d
946, 955 (2002)).
The decision to appoint an interpreter rests within
the sound discretion of the trial court. “An abuse of
discretion occurs if the trial court has ‘clearly exceeded the
bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.’”
Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445 P.3d 701, 706 (2019)
(quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw.
85, 114, 839 P.2d 10, 26 (1992)).
16 We resolve this case based on the application of court rules and
therefore decline to reach the issue of due process.
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IV. DISCUSSION
A. The District Court Erred by Failing to Determine Whether
Jadan’s Access to the Courts Would Be “Meaningful” Absent
an Interpreter
Title VI of the Civil Rights Act of 1964 forbids any
program receiving federal aid from discriminating on the basis
of national origin. 42 U.S.C. § 2000d. In 2006, the Hawaiʻi
Legislature enacted HRS Chapter 321C, Hawaiʻi’s Language Access
Law, to reduce language barriers that inhibit limited English
proficient (LEP) persons from meaningful access to services,
programs, and activities offered by the State of Hawaiʻi. The
legislature recognized:
Many individuals living in Hawaii read, write, speak,
and understand English. There are many individuals,
however, who are limited English proficient. Language for
limited English proficient persons can be a barrier to
accessing important benefits or services, understanding and
exercising important rights, complying with applicable
responsibilities, or understanding other information
provided by state-funded programs and activities.
The purpose of this chapter is to affirmatively
address, on account of national origin, the language access
needs of limited English proficient persons.
HRS § 321C-1 (Supp. 2012).
The Hawaiʻi State Judiciary is obligated under this
chapter to “take reasonable steps to ensure meaningful access to
services, programs, and activities by [LEP] persons[.]”
HRS § 321C-3(a) (Supp. 2012). HRS § 321C-3(b) requires “each
state agency . . . [to] provide competent, timely oral language
services to limited English proficient persons who seek to
access services, programs, or activities.” The Judiciary
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accordingly set forth a Language Action Plan (LAP) pursuant to
its obligations under HRS § 321C-4 (Supp. 2012); the LAP guides
judges and judiciary personnel in ensuring access to the courts
for people with limited English proficiency. 17 See Language
Access Plan for Persons with Limited English Proficiency, Hawaiʻi
State Judiciary (2017-2018), https://perma.cc/UCJ4-VSMY.
Additionally, the Hawaiʻi Rules for Certification of
Spoken-Language Interpreters (HRCSLI) 18 provide: “All persons
involved in proceedings before the Hawaiʻi State Courts,
regardless of literacy or proficiency in the English language,
have the right to equal access to the courts and to services and
programs provided by the Hawaiʻi State Courts.” HRCSLI Rule 1.2.
Further, “A person who is Limited English Proficient (LEP)
17 Judiciary Policy #12 provides the guiding framework:
The Hawaiʻi State Judiciary is committed to providing
meaningful access to court processes and services to
persons with limited English proficiency. In all case
types, the Judiciary shall reasonably provide, free of
charge, and in a timely manner, competent court
interpreters for parties, witnesses and individuals with a
substantial interest in a case. It shall also provide
language assistance services at points of contact with the
Judiciary, including over-the-counter and over-the-
telephone encounters for all Judiciary-related business.
The Judiciary shall notify the public of the Judiciary’s
language assistance commitment.
Language Access Plan for Persons with Limited English Proficiency, Hawaiʻi
State Judiciary, 7 (2017-2018), https://perma.cc/UCJ4-VSMY.
18 In March 2019, this court ordered that the previous version of
these rules, the Hawaiʻi Rules for Certification of Spoken and Sign Language
Interpreters, be vacated and replaced with the HRCSLI, effective July 2019.
This change did not affect the substance of the relevant rules.
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shall, throughout a legal proceeding, have the right to the
assistance of a spoken-language interpreter appointed by the
court as provided by court rule.” HRCSLI Rule 1.3. The HRCSLI
also incorporates as Appendix B the June 22, 1995 “Order
Adopting the Policies for Interpreted Proceedings in the Courts
of the State of Hawaiʻi,” issued by Chief Justice Ronald Y. Moon.
Appendix B provides:
An interpreter is needed if, upon examination by the court,
(1) a party or witness is unable to speak English so as to
be understood directly by counsel, court, and jury, or (2)
if a party is unable to hear, understand, speak, and/or use
English sufficiently to comprehend the proceedings and to
assist counsel in the conduct of the case.
HRCSLI Appendix B, § I(A); In re Doe, 99 Hawaiʻi 522, 535, 57
P.3d 447, 460 (2002) (“To assess whether an interpreter is
necessary, trial courts should consider the guidelines adopted
by the Chief Justice on June 22, 1995.”).
Appendix B, § I(B) further provides that an
examination by the court is required “[i]f it appears that a
party’s or witness’ primary language is not English or that a
party or witness may not hear, understand, speak and/or use
English well enough to fully participate in the proceedings[.]”
Such an examination must occur “with or without a motion,” and
the court must conduct the examination and state its conclusions
on the record. HRCSLI Appendix B, § I(B). Appendix B sets
forth the following guidance as to the content of the
examination:
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The examination of a party or witness to determine if an
interpreter is needed should usually include questions
about the following:
(1) Identification (for example: name, address, birthdate,
age, place of birth);
(2) Active vocabulary in vernacular English (for example:
“How did you come to court today?” “What kind of work do
you do?” “Where did you go to school?” “What was the
highest grade you completed?” “Describe what you see in the
courtroom.” “What have you eaten today?”). Questions
should be phrased to avoid “yes-no” replies;
(3) The court proceedings (for example: the nature of the
charge or the type of case before the court, the purpose of
the proceedings and function of the court, the rights of a
party or criminal defendant, and the responsibilities of a
witness).
HRCSLI Appendix B, § I(C).
In this case, the district court erred by failing to
conduct the examination mandated by the HRCSLI to determine
whether Jadan could “speak English so as to be understood
directly by counsel, court, and jury,” whether she could
communicate and speak in English “sufficiently to comprehend the
proceedings,” and whether she could “understand, speak and/or
use English well enough to fully participate in the
proceedings[.]” HRCSLI Appendix B, § I(A)-(B).
The district court had multiple opportunities to fully
probe Jadan’s language access needs, but it repeatedly failed to
do so. For example, on the day of the possession trial, Jadan
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expressly requested an interpreter. 19 The court’s only question
before denying the request was how long she had been in the
United States. This sole question failed to resolve whether
Jadan could “speak English so as to be understood,” “use English
sufficiently to comprehend the proceedings,” or “understand
. . . English well enough to fully participate in the
proceedings[.]” HRCSLI Appendix B, §1(A)-(B). A person who has
lived in the United States their entire life may nonetheless
have limited English proficiency such that they require an
interpreter in court. 20
19 This was not the first time Jadan asked for an interpreter.
During the first status hearing, she asked for assistance as well (and
although she asked for her friend to assist, the LAP is unequivocal that the
assistance of a lay relative or friend is no substitute for a professional).
Rather than consider the request, the court instead referred the parties to
mandatory mediation. When it is court-ordered, mediation constitutes a
“court process[]” or “service[]” to which the Judiciary has promised
litigants “meaningful access.” Language Access Plan for Persons with Limited
English Proficiency, Hawaiʻi State Judiciary, 7 (2017-2018),
https://perma.cc/UCJ4-VSMY; HRCSLI Rule 1.3 (guaranteeing “throughout a legal
proceeding, . . . the right to the assistance of a spoken-language
interpreter appointed by the court as provided by court rule.” (emphasis
added)). It was therefore improper for the court to fail to address Jadan’s
request before ordering her to participate in mediation. The court should
have, at minimum, ascertained her English proficiency and assessed her
language access needs prior to ordering Jadan to mediate.
20 Indeed, this question could, in some circumstances, have a
chilling effect on access to the courts because it could be perceived as
relating to the individual’s immigration status. The American Bar
Association’s Standards for Language Access in Courts cautions:
Courts should avoid requesting or compiling individualized
information that may inhibit requests for language access
services, such as information or documents potentially
reflecting immigration status (i.e., green cards, work
permits and social security numbers). This type of
information is irrelevant to determine language access
needs and potentially erects a barrier to the courts.
(continued . . .)
21
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The court also based its denial of an interpreter
during the possession trial in part on the fact that it did not
consider Jadan’s jaw injury relevant to the determination.
Injuries or illness are absolutely relevant if they exacerbate
communication challenges for LEP persons. The court should not
have dismissed the injury as irrelevant; instead, consistent
with court rules, it should have probed how and why, if at all,
the injury affected her ability to communicate in English.
This pattern continued throughout the proceedings,
during which Jadan repeatedly requested language assistance.
Even during the brief period in which Jadan had counsel, the
court merely inquired into whether Jadan could, in some ordinary
sense, speak English – even noting for the record that when
Jadan spoke in court, it was in English. 21 As her counsel aptly
pointed out, the key question, about which the court was
mandated to inquire, is whether Jadan could speak English at a
high-enough level to meaningfully access the courts.
Jadan’s written motion was resolved in part by
reference to past cases in which Jadan was a party, which
Standards for Language Access in Courts, American Bar Association, 39 (Feb.
2012), https://perma.cc/MMW9-9KY4.
21 It should also be noted our rules provide that appointment of an
interpreter is appropriate when “a party . . . is unable to speak English so
as to be directly understood by counsel[.]” HRCSLI Appendix B, § I(A)
(emphasis added). Certainly, counsel’s representations that he could not
understand and effectively communicate with his own client should have been
given due weight under the rules.
22
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occurred years before the instant case began. But the key
inquiry is not whether Jadan once spoke proficient English,
which is the most that the minutes of past cases could possibly
reflect – and even that inference is tenuous at best. Rather,
the court is bound to ask whether she now speaks English well
enough to give her meaningful access to the court. Language
proficiency is not static, so that determination requires the
court to probe her English proficiency afresh.
In a similar vein, the ICA pointed to the fact that
“Jadan represented herself in two trials and numerous hearings
after the district court’s finding that she did not require an
interpreter.” Respectfully, this reasoning is flawed – once her
request was denied, it would seem she had little choice but to
go it alone. To hold that against her on appeal upends the
purpose of appellate review.
In assessing a litigant’s language access needs -
self-identified or otherwise - no particular colloquy must be
performed or checklist met. Our rules provide that the
suggested open-ended questions about the specified topics
“should usually” be included in an examination, but they do not
require them. HRCSLI Appendix B, § I(C). Given that our rule
is flexible, we believe it useful to draw from other
authorities’ approaches toward inquiring into a party’s language
access needs, which offer additional lines of inquiry that our
23
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courts may find instructive. In particular, the American Bar
Association (ABA) adopted Standards for Language Access in
Courts in 2012. 22 In addition to some of the questions captured
in Appendix B of the HRCSLI, the ABA suggests asking LEP
persons: “Please tell me about your country of origin”; “How did
you learn English and what is most difficult about communicating
in English?”; and “Tell me a little about how comfortable you
feel speaking and understanding English.” Standards for
Language Access in Courts, American Bar Association, 44 (Feb.
2012), https://perma.cc/MMW9-9KY4. We agree with the ABA that
these may prove useful inquiries. This case demonstrates as
much. Had similar questions been asked of Jadan, she may have
been able to communicate what she repeatedly attempted to share
with the district court: that she did not feel her English was
of a courtroom level; that she struggled to translate her
thoughts from Polish to English; and that what would normally
take her a sentence to convey in Polish took far longer when she
phrased it in English. And armed with those answers, the
district court would have been positioned to determine whether
22 This court has turned to ABA standards as persuasive authority in
a variety of contexts. See, e.g., Office of Disciplinary Counsel v. Au, 107
Hawaiʻi 327, 341, 113 P.3d 203, 217 (2005) (attorney discipline); State v.
Hussein, 122 Hawaiʻi 495, 504, 229 P.3d 313, 322 (2010) (justification of a
criminal sentence); State v. Scalera, 139 Hawaiʻi 453, 461-62, 393 P.3d 1005,
1013-14 (2017) (accused’s right to communicate with counsel); State v.
Hernane, 145 Hawaiʻi 444, 451, 454 P.3d 385, 392 (2019) (speedy trial).
24
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Jadan’s access to the courts would in fact be meaningful without
language assistance.
We emphasize that in evaluating a litigant’s answer to
these questions, the touchstone is whether the person can “be
understood directly by counsel, court, and jury,” and
“understand, speak and/or use English sufficiently to comprehend
the proceedings,” “to assist counsel in the conduct of the
case,” and “to fully participate in the proceedings[.]” HRCSLI
Appendix B, § I(A)-(B). In other words, the court must evaluate
the answers to determine whether the litigant’s access will be
meaningful. 23
Importantly, a court should conduct its examination on
the record, and if it decides in its discretion to deny the
request, it should make its reasons clear by expressing why the
litigant’s English ability enables him or her to be understood,
to comprehend the proceedings, to assist counsel, and to fully
participate. HRCSLI Appendix B, § I(B); see also Strook v.
Kedinger, 766 N.W.2d 219, 226 (Wis. Ct. App. 2009) (“[O]nce a
circuit court has notice of a language difficulty such that the
ability to understand testimony or make him or herself
understood may be a problem, it has an obligation to make a
23 The LAP instructs to assess the speaker’s responses for the
following: “[i]nappropriate grammar,” “[a]wkward vocabulary,” “[l]ack of
fluency,” “[u]nintelligible accents,” “[r]epeated statements,” or a “[b]lank
look.” Language Access Plan for Persons with Limited English Proficiency,
Hawaiʻi State Judiciary, 11 (2017-2018), https://perma.cc/UCJ4-VSMY.
25
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factual determination on the need for an interpreter.” (citation
omitted)). Our review of the recordings of the proceedings
confirms that the district court’s on-the-record findings in
response to Jadan’s interpreter requests were superficial and
insufficient. The thrust of these findings is reflected in the
minutes: The minutes from the August 5, 2016 possession trial
reflect that the judge simply found that “[h]er English is
fine.” Likewise, the September 30, 2016 status hearing minutes
reflect that Jadan “speaks English well[.]” Concluding that a
party’s English proficiency is “fine” fails to address his or
her English competency in the unique context of the courtroom,
where “good” or “fine” language ability may nonetheless fail to
afford meaningful access to justice. 24
The ABA contemplates this misconception - that the
ability to merely “speak English” suffices - and explains why a
litigant’s self-identified language access needs should be given
some deference:
Courts should allow an LEP person to self-identify as
needing services. When an individual or [their]
representative requests an interpreter, a judge or
adjudicator should presume the need is bona fide. This
preference for self-identification recognizes that
assessing language proficiency is a difficult and intensive
task that requires training in language acquisition and
language proficiency assessment – training not usually
possessed by a judge or court personnel. For example, a
judge might be inclined to deny an interpreter for an
individual after observing him or her conversing with an
24 The September 30, 2016 minutes also state that an interpreter was
denied because Jadan “manage[d] on her own at the [possession] trial[.]”
During the possession trial, Jadan repeatedly requested language assistance
precisely because she self-assessed as struggling to “manage on her own.”
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attorney without the aid of an interpreter, or after
observing the individual following simple instructions such
as “sit down.” Such a denial could be erroneous because it
incorrectly assumes that the ability to use English for
simple communications and rote statements (which are often
memorized) is an indication of the language proficiency
necessary for the meaningful comprehension and effective
communication that is required to protect a person’s
interest in a legal matter.
Understanding legal proceedings and communications in
court settings is particularly challenging to LEP
individuals due to a number of factors: the complexity of
legal proceedings; the use of specialized terminology; the
importance of detailed and accurate information; the lack
of familiarity with the legal system in the United States;
the stressful and emotional content of the communication;
and the impact of court proceedings on a person’s life,
liberty, family relationships, or property interest. As a
result, many individuals who are comfortable speaking in
English in less formal settings require interpreter
services and translated written materials in court.
Communicating under these circumstances should be done in
the language in which the individual is most proficient.
Furthermore, the importance of accuracy in legal
proceedings outweighs any concern for abuse of the system
in those rare instances where an LEP person appears to be
unnecessarily requesting an interpreter. Legal proceedings
can be confusing and intimidating even for an individual
who speaks English fluently; the potential for
misunderstanding is more acute for one who does not. In
addition to misunderstanding information due to the
language barrier, LEP persons from a country where legal
systems and concepts vary substantially from those of the
United States may be further confused when an interpreter
is not used. The failure to appoint an interpreter when
one has been requested not only impairs that person’s
access to justice but also can result in costs and
inefficiencies to the court system in the form of appeals,
reversals, and remands.
Standards for Language Access in Courts, American Bar
Association, 41-42 (Feb. 2012), https://perma.cc/MMW9-9KY4
(emphases added) (footnotes omitted).
We agree. The unique considerations of the courtroom
setting mean that the mere fact a litigant can speak English
passably in everyday life might nonetheless fail to afford her
meaningful access to the courts. And we reject the notion that
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a base level of English proficiency alone can suggest that a
request for an interpreter is not made in good faith. In our
view, the harms of the erroneous denial of an interpreter
outweigh the risk that the rare bad faith request will be
erroneously granted. This is not to say that the court must
grant every request for an interpreter – the court, of course,
retains discretion to deny the request if the litigant’s English
proficiency suffices to afford meaningful access to the courts.
But that discretion only lies after the court ascertains the
litigant’s actual, not assumed, language access needs based on
an on-the-record probe.
Jadan’s pro se status for most of the district court
proceedings also heightened the need for a careful inquiry into
whether her access to the court would be meaningful absent an
interpreter. During the damages trial, the court told Jadan, in
response to yet another request for an interpreter, that her
request was denied because litigants proceed pro se frequently
and that she did not need a lawyer. But Jadan was not asking
for a lawyer, and the comparison is inapt – while she had no
right to counsel, she certainly did have a right to an
interpreter if she needed one. HRCSLI Rule 1.3.
Indeed, the fact that she did not have a lawyer should
have made the court more, not less, sensitive to her language
access needs. Cf. Villars v. Villars, 305 P.3d 321, 328 (Alaska
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2013) (“[W]e encourage trial courts to assess the need for
interpreters for pro se litigants even in the absence of any
formal request[.]”). A litigant, especially a pro se litigant,
as a threshold matter must be able to express why she is in
court before a judge can consider the merits of her claim.
Thus, just as courts must construe the pleadings of pro se
litigants liberally, see Waltrip v. TS Enterprises, Inc., 140
Hawaiʻi 226, 239, 398 P.3d 815, 828 (2016), courts should
consider the request for an interpreter by a pro se litigant
even more carefully and resolve doubt in favor of appointment
where the court has questions about a pro se litigant’s ability
to understand and be understood. “[T]he underpinnings of this
tenet” – as with the liberal construction rule – “rest on the
promotion of equal access to justice.” Villaver, 145 Hawaiʻi at
36, 445 P.3d at 708 (brackets omitted); Standards for Language
Access in Courts, American Bar Association, 2 (Feb. 2012),
https://perma.cc/MMW9-9KY4 (“[L]anguage services are critical to
ensure access to justice for LEP persons[.]”). The Nevada
Supreme Court recognized this principle in connection with
similar proceedings:
It is apparent that unless the non-English speaking party
has an interpreter he is effectively barred from access to
the small claims proceeding. Because small claims court
proceedings are informal and involve the spoken language to
resolve conflicts between the parties, rather than relying
on counsel representation, a particular concern arises when
a non-English speaking litigant lacks an interpreter’s
assistance: “[a]lthough the small claims court functions
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successfully without lawyers, pleadings, legal rules of
evidence, juries, and formal findings, it cannot function
without the use of language.” This heightened need for
ready and accurate oral communications in small claims
proceedings is echoed in other types of cases in which the
parties are self-represented.
Caballero v. Seventh Judicial Dist. Court ex rel. Cty. of White
Pine, 167 P.3d 415, 420 (Nev. 2007) (emphasis added) (footnotes
and citations omitted).
In sum, when a party asks for an interpreter, or if
the court has difficulty understanding a litigant’s English or
otherwise suspects they may need language assistance, the record
should reflect that the court has engaged in a meaningful
examination into the party’s language proficiency by asking
open-ended questions designed to assess his or her ability to
understand the proceedings and communicate with the court and
counsel. Furthermore, the record should include findings about
the party’s English language proficiency in the context of court
proceedings. Courts should not merely evaluate whether a party
can speak English; the critical inquiry is whether the party
would be able to meaningfully access the court absent an
interpreter because their English enables them to understand and
be understood by the court and counsel.
In the instant case, the district court abused its
discretion by denying Jadan’s requests for an interpreter
without adequate inquiry into her language access needs. The
court’s examination - or lack thereof - into Jadan’s language
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proficiency failed to assess whether Jadan’s access would be
meaningful without an interpreter. Cf. Villaver, 145 Hawaiʻi at
37, 445 P.3d at 709 (failing to consider the factors required by
court rule constituted an abuse of discretion).
The proper remedy is the vacatur of the judgment in
favor of Cambridge with respect to damages and attorney’s fees,
and remand for additional proceedings. 25 The failure to conduct
the inquiry our rules prescribe would perhaps be harmless if our
review of the record “satisfie[d] us that [Jadan] was able to
express [her]self with clearness in the English language and to
understand the questions asked.” Cornwell v. Wailuku Sugar Co.,
20 Haw. 585, 586 (Haw. Terr. 1911); see also Doe, 99 Hawaiʻi at
535, 57 P.3d at 460. 26 In other words, we would leave the
judgment undisturbed if, despite the district court’s failure to
thoroughly probe her language access needs, Jadan nonetheless
25 This is the only relief Jadan requests on appeal. We therefore
do not address the writ of possession.
26 In its supplemental brief, Cambridge urges us to affirm based on
Doe, but its reliance on that case is misplaced. In Doe, we held that a
mother in a proceeding affecting her parental rights was not “substantially
prejudiced” by the absence of an interpreter for some of the proceedings. 99
Hawaiʻi at 532, 57 P.3d at 457. In that case, however, “[s]everal witnesses
testified that Mother comprehends and speaks English in daily conversation,
and specifically at home.” Id. at 535, 57 P.3d at 460. Moreover, Mother –
who was represented by counsel – “agree[d] to proceed without an interpreter
in some instances” and was given the opportunity to request postponement in
an interpreter’s absence. Id. at 535, 57 P.3d at 460.
This case presents markedly different circumstances than Doe.
Here, by contrast, Jadan – who was pro se for the majority of the proceedings
– repeatedly requested an interpreter to no avail. And the record reflects
the court failed to even adequately inquire into her language access needs –
let alone hear from several witnesses (and it bears repeating, her own
counsel claimed he could not communicate with her).
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received meaningful access to justice. But that is not the
case. Based on our review of the nine district court hearings,
there were numerous occasions in which Jadan struggled to
understand and to be understood. On this record, it cannot be
said that the district court’s failure to adequately inquire
into Jadan’s language access needs was harmless.
B. Our Rules Allow for Language Assistance on Appeal
This case reveals an important gap in the Judiciary’s
language access provisions. In light of the disposition of this
case, evaluating whether the ICA abused its discretion in
denying Jadan’s interpreter request on appeal is unnecessary.
However, the ICA, in denying Jadan’s request for language
assistance, suggested that there is “no authority for
appointment of an interpreter on appeal.”
We respectfully disagree. Our rules provide that
“[a]ll persons involved in proceedings before the Hawaiʻi State
Courts, regardless of literacy or proficiency in the English
language, have the right to equal access to the courts and to
services and programs provided by the Hawaiʻi State Courts.”
HRCSLI Rule 1.2 (emphasis added). Rule 1.3 further mandates
that “[a] person who is Limited English Proficient (LEP) shall,
throughout a legal proceeding, have the right to the assistance
of a spoken-language interpreter appointed by the court as
provided by court rule.” HRCSLI Rule 1.3 (emphasis added).
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Appellate proceedings are self-evidently “proceedings before the
Hawaiʻi State Courts” and “legal proceeding[s],” and therefore
fall within the ambit of the HRCSLI.
However, our rules are particularly tailored to the
context of legal proceedings taking place in a courtroom
setting. An examination by the presiding judge must be
conducted “on the record” and such an examination is oral and
in-person. HRCSLI Appendix B, § I(B)–(C). But appellate judges
will rarely have the opportunity to perform such an inquiry
given the nature of the appellate process. And although the ICA
contemplated an interpreter could perhaps be appointed for oral
argument, many cases in our appellate courts are resolved on the
briefs without any occasion for in-court argument. At present,
the rules do not contemplate the appointment of a translator to
assist in the translation of appellate briefs, and the criteria
for determining when an interpreter is needed focuses on a
party’s ability to “speak” English so as to be understood or
“hear” English so as to understand the proceedings, rather than,
for instance, ability to “write” in English so as to be
understood, or “read” English so as to understand as would be
more applicable to the appellate process. See HRCSLI Appendix
B, § I(A). Moreover, Jadan’s application to this court
indicates that Jadan requested an interpreter on appeal to help
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her understand the rules of appellate procedure, 27 including HRAP
Rules 28 and 10, and to help her submit transcripts and
appellate briefs in accordance with these rules. 28 Translated
versions of the appellate rules are not available. 29
Even though an appeal is no doubt a “proceeding[]
before the Hawaiʻi State Courts,” HRCSLI Rule 1.2, this court
lacks the necessary information to decide whether, when, and how
language services should be provided in this new context. We
decline to go farther than clarifying the HRCSLI furnishes
authority for the provision of language assistance on appeal.
Instead, we find it appropriate to refer this matter to the
Hawaiʻi Supreme Court Committee on Court Interpreters and
Language Access to develop standards and best practices to
ensure meaningful language access during appellate proceedings.
27 We note, however, that Rule 9 of the Code of Professional
Responsibility for Court Interpreters, to which court interpreters are
subject, prohibits an interpreter from giving legal or any other kind of
advice to parties. HRCSLI § 5.1; HRCSLI Appendix B, § III, Rule 9.
28 Eligible parties are entitled to over-the-counter language access
services that provide meaningful access, which are sometimes provided through
a bilingual judiciary employee or through telephonic interpretation services,
and a live interpreter may not be required.
29 When written translations are not available, sight translation
services, whether live, remote, or telephonic, or other methods that provide
meaningful language access, could perhaps be considered. However, it is for
the Hawaiʻi Supreme Court Committee on Court Interpreters and Language Access
to develop standards and best practices to ensure meaningful language access
during appellate proceedings.
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V. CONCLUSION
For the foregoing reasons, the ICA’s May 1, 2019
judgment on appeal is affirmed in part, and vacated in part with
respect to Jadan’s counterclaim. The district court’s March 13,
2017 judgment is vacated, and we remand this case to the
district court for proceedings consistent with this opinion.
Gary Victor Dubin and /s/ Mark E. Recktenwald
Frederick J. Arensmeyer
for petitioner /s/ Paula A. Nakayama
Michael A. Glenn /s/ Sabrina S. McKenna
for respondent
(Richard A. Yanagi /s/ Michael D. Wilson
on the brief)
/s/ John M. Tonaki
35