In Re: Amendments to the Florida Rules of Judicial Administration 2.430, 2.535, 2.560, and 2.565

Supreme Court of Florida
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No. SC17-1137
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL
ADMINISTRATION 2.430, 2.535, 2.560, AND 2.565.

[May 31, 2018]

PER CURIAM.

The Court has for consideration out-of-cycle1 amendments to the Florida

Rules of Judicial Administration proposed by the Rules of Judicial Administration

Committee (Committee) and the Court Interpreter Certification Board (Board).2

After considering the comments filed with the Court concerning the proposals that

would require the making and retention of audio recordings of both the English and

non-English portions of criminal and juvenile delinquency proceedings when a

1. See Fla. R. Jud. Admin. 2.140(e).
2. We have jurisdiction. See art. V, § 2(a), Fla. Const.
lesser-qualified3 spoken language court interpreter is appointed (recording

requirement), the Committee and Board withdrew those proposals and revised

other proposals. We adopt all the remaining and revised proposals, except the

proposed deletion of the rule 2.560(e) advisement/objection/waiver provisions that

apply in criminal or juvenile delinquency proceedings.

BACKGROUND

The majority of the rule amendments proposed in the joint out-of-cycle

report are in response to a request made by this Court in In re Amendments to Fla.

Rules of Judicial Administration, 206 So. 3d 1, 2 (Fla. 2016) (referring specified

issues back to Committee and Board, at their request, for further consideration). In

the Court’s 2016 opinion amending rule 2.560 (Appointment of Spoken Language

Court Interpreters for Non-English-Speaking and Limited-English-Proficient

Persons) and adopting rule 2.565 (Retention of Spoken Language Court

Interpreters for Non-English-Speaking and Limited-English-Proficient Persons by

Attorneys or Self-Represented Litigants), the Court asked the Committee and the

Board to consider several issues. The Committee and the Board were to consider

3. “Lesser-qualified” interpreter, as used in connection with the withdrawn
recording requirement proposals, means an interpreter appointed under Florida
Rule of Judicial Administration 2.560(e)(2) who has been registered with the
Office of the State Courts Administrator for less than two years, or a nonregistered
interpreter appointed under rule 2.560(e)(3).

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“the utility of requiring non-English speaking or limited-English proficient persons

to make on-the-record objections and waivers pertaining to [spoken language

court] interpreters appointed to assist such individuals,” and “consider the ability

of a non-English speaking or limited English-proficient person to effectively make

a knowing and intelligent objection or waiver and consider other error preserving

mechanisms, including the requirement of audio recording for the purpose of

preserving judicial review of the accuracy of the interpretation.” See id. The

recording requirement proposals are among the rule amendments the Committee

and the Board proposed in response to that referral. According to the report,

several of the other proposals included in the report are not related to the referral

issues. The Executive Committee of the Florida Bar unanimously approved all the

proposed rule amendments.

After considering comments filed by the Chief Judge of the Ninth Judicial

Circuit and the Trial Court Budget Commission (Commission), which pointed out

significant fiscal and operational impacts that likely would result from the

implementation of the recording requirement proposals, the Committee and the

Board withdrew those proposals and revised other unrelated proposals. In their

joint response to the comments, the Committee and the Board also agree with the

Commission’s suggestion that the Court establish a limited pilot program before

the Court considers whether to adopt a statewide recording requirement. The

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Committee and the Board also ask the Court to adopt the remaining and revised

rule amendments that are unrelated to the withdrawn proposals. Those

amendments are to rules 2.560(a) (Criminal or Juvenile Delinquency Proceedings),

2.560(e)(4) (On-the-Record Objections or Waivers in Criminal and Juvenile

Delinquency Proceedings), 2.560(e)(5) (Additional on-the-Record Findings,

Objections, and Waivers Required at Subsequent Proceedings), and 2.565(a)

(Retention of Interpreters when Certified or Other Duly Qualified Interpreters Are

Available).

AMENDMENTS

We adopt the proposed amendments to rules 2.560(a) (Criminal or Juvenile

Delinquency Proceedings) and 2.565(a) (Retention of Interpreters when Certified

or Other Duly Qualified Interpreters Are Available). However, at this time, we

decline to delete the rule 2.560(e) advisement/objection/waiver provisions that

apply in criminal and juvenile delinquency proceedings when a court intends to

appoint an interpreter who is not certified, language skilled, or provisionally

approved, as defined in the Rules for Certification and Regulation of Spoken

Language Court Interpreters.

The amendments to rule 2.560(a) extend the spoken language interpreter

appointment requirement in criminal and juvenile delinquency proceedings to

parents and legal guardians of accused juveniles and to victims and alleged

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victims. As amended, subdivision (a) of rule 2.560 requires an interpreter to be

appointed in any criminal or juvenile delinquency proceeding in which the

accused, the parent or legal guardian of the accused juvenile, the victim, or the

alleged victim cannot understand or has limited understanding of English, or

cannot express himself or herself in English sufficiently to be understood.

The Committee and the Board proposed the amendments to rule 2.565(a) to

clarify that the rule does not require an attorney or self-represented litigant to retain

an interpreter to assist the litigant or a witness when the court is not required to

appoint one. The rule, as amended, requires that when an attorney or self-

represented litigant does retain an interpreter, whenever possible, the attorney or

litigant must retain a certified, language skilled, or provisionally approved

interpreter.

At this time, we decline to delete the rule 2.560(e)

advisement/objection/waiver provisions. Those provisions were originally

proposed by the Supreme Court Interpreter Committee and adopted by this Court

as part of the overall interpreter-preference scheme for criminal and juvenile

delinquency proceedings. See In re Petition to Adopt Fla. Rules for Certification

& Regulation of Court Interpreters and Fla. Rule of Jud. Admin. 2.073, 933 So. 2d

504, 506, 518 (Fla. 2006) (adopting rule 2.073 (now rule 2.560) and including the

subdivision (e) advisement/objection/waiver provisions to be followed when the

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court intends to appoint an interpreter who is not certified or duly qualified in a

criminal or juvenile delinquency proceeding). Those provisions (1) emphasize to

the court that a subdivision (e)(1) interpreter (now a certified, language skilled, or

provisionally approved interpreter) must be appointed in a criminal or juvenile

delinquency proceeding, when one is available, and (2) give the accused notice

when the court intends to appoint a less qualified interpreter, so the accused can

raise any objection to the appointment before the appointing court. According to

the joint report, the deletion of the advisement/objection/waiver provisions was

originally proposed in anticipation of the adoption of the “protective net” of

requiring the making and retention of audio recordings to preserve interpreter error

in criminal and juvenile delinquency proceedings. Because this Court is not

putting that “protective net” in place at this time, we defer consideration of

whether the subdivision (e) advisement/objection/waiver provisions should remain

in the rule until such time as a proposed statewide recording requirement is before

this Court.

PILOT PROGRAM

The Commission in its comment and the Committee and the Board in their

joint response recommend that before the Court considers requiring the making

and retention of audio recordings when a lesser-qualified interpreter is appointed in

a criminal or juvenile dependency proceeding, the Court should establish a limited

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pilot program to assess the fiscal and operational impacts of such a requirement

and the best practices for statewide implementation. In light of the significant

fiscal and operational impacts identified in the comments, before the Court moves

forward with the suggested pilot program, the Chief Justice, in consultation with

the Office of the State Courts Administrator (OSCA), will appoint a special

workgroup to advise the Court on the need for and the feasibility of such a pilot

program and to suggest program parameters and participants. If, after considering

the advisory workgroup’s recommendations, the Court approves going forward

with a pilot program, the workgroup, with the support of OSCA, will oversee the

program. And, after that pilot program ends, the workgroup will make

recommendations to the Court as to whether a recording requirement to preserve

interpreter error should be implemented statewide and the best practices for a

statewide requirement. If the Court ultimately decides it should require statewide

compliance, the Court will direct the Rules Committee and the Board to file a new

out-of-cycle rules report proposing the necessary rule amendments.

In conclusion, we amend the Florida Rules of Judicial Administration as

reflected in the appendix to this opinion. New language is indicated by

underscoring; deletions are indicated by struck-through type. The amendments

shall become effective July 1, 2018, at 12:01 a.m. We also take this opportunity to

thank the Rules of Judicial Administration Committee and the Court Interpreter

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Certification Board for their continued work on these important rules. And we

thank the Trial Court Budget Commission and Chief Judge Frederick J. Lauten for

their valuable input on the recording requirement proposals.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and
LAWSON, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Judicial Administration

Judson Lee Cohen, Chair, Miami Lakes, Florida, and Honorable Steven Scott
Stephens, Past Chair, Rules of Judicial Administration Committee, Tampa, Florida;
Honorable J. Kevin Abdoney, Chair, Court Interpreter Certification Board, Bartow,
Florida; Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison, The
Florida Bar, Tallahassee, Florida,

for Petitioners

Honorable Frederick J. Lauten, Chief Judge, Ninth Judicial Circuit, Orlando,
Florida; Honorable Margaret O. Steinbeck, Chair, Trial Court Budget Commission,
Twentieth Judicial Circuit, Fort Myers, Florida, and Eric Maclure, Staff Liaison,
Office of the State Courts Administrator, Tallahassee, Florida,

Responding with comments

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 APPENDIX

RULE 2.560. APPOINTMENT OF SPOKEN LANGUAGE COURT
INTERPRETERS FOR NON-ENGLISH-SPEAKING AND
LIMITED-ENGLISH-PROFICIENT-PERSONS

(a) Criminal or Juvenile Delinquency Proceedings. In any criminal or
juvenile delinquency proceeding in which a non-English-speaking or limited-
English-proficient person is the accused, the parent or legal guardian of the
accused juvenile, the victim, or the alleged victim cannot understand or has limited
understanding of English, or cannot express himself or herself in English
sufficiently to be understood, an interpreter for the non-English-speaking or
limited-English-proficient person shall be appointed. In any criminal or juvenile
delinquency proceeding in which a non-English-speaking or limited-English-
proficient person is a victim, an interpreter shall be appointed unless the court finds
that the victim does not require the services of a court-appointed interpreter.

(b) – (g) [No Change]

RULE 2.565. RETENTION OF SPOKEN LANGUAGE COURT
INTERPRETERS FOR NON-ENGLISH-SPEAKING AND
LIMITED-ENGLISH-PROFICIENT PERSONS BY
ATTORNEYS OR SELF-REPRESENTED LITIGANTS

(a) Retention of Interpreters when Certified or Other Duly Qualified
Interpreters Are Available. In the absence of a requirement that a spoken
language interpreter be appointed by the Court under rule 2.560, wWhen an
attorney or self-represented litigant retains the services of an interpreter are
required to assist a non-English-speaking or limited-English-proficient litigant or
witness in a court proceeding or court-related proceeding as defined in the Rules
for Certification and Regulation of Spoken Language Court Interpreters, anthe
attorney or self-represented litigant shall, whenever possible, retain a certified,
language skilled or provisionally approved interpreter, as defined in the Rules for
Certification and Regulation of Spoken Language Court Interpreters. Preference
shall be given to retention of certified and language skilled interpreters, then to
persons holding a provisionally approved designation.

(b) – (f) [No Change]

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