In Re MH 2007-001895 – 2/10/2009

March 3, 2009

Arizona Court of Appeals Division One Holds That the Trial Court Has Discretion to Decide Whether an Interpreter is Qualified.

On the merits, the court ruled that L.R. was persistently and acutely disabled as a result of a mental disorder and ordered psychiatric treatment.   L.R. timely appealed, arguing that her due process rights and her right to a fair hearing were violated because the interpreter was only “court-qualified” and not “court-certified.”  She also argued on appeal that there is no way to know whether she received a continuous simultaneous interpretation of the hearing proceedings because the transcript of the proceedings indicates that the interpreter occasionally asked the participants to speak up, and as a result, certain words or phrases were “indiscernible” to the transcriber.

The Arizona Appeals Court affirmed.  The Court concluded that L.R. had the burden of showing that the interpreter was deficient and that an unfair hearing resulted.  The Court found that L.R. failed to meet this burden as she cited no legal authority for her contention that an interpreter must be “court-certified.”  In the absence of any other authority, the Court applied A.R.S. § 12-241, which provides that the court may appoint interpreters “who may be summoned in the same manner as witnesses, and shall be subject to the same penalties for disobedience.”  The decision regarding whether an interpreter is qualified rests within the discretion of the trial court.  The Court found no abuse of discretion by the trial court in finding the interpreter qualified.    

Addressing L.R.’s argument regarding the continuous simultaneous translation of the hearing, the Court noted that this argument was raised for the first time on appeal and therefore was waived.  The Court further noted that even if the argument had not been waived, L.R.’s argument was not supported by the record because the interpreter’s request that the participants speak up demonstrates only that the interpreter could not hear what was said; it does not demonstrate that the parties or the court were unable to hear the interpreter.  Furthermore, the hearing was recorded by audio or videotape, making it L.R.’s responsibility to clarify the record in the lower court; something she did not do.  

Judge Kessler authored the opinion; Judges Norris and Gemmill concurred.