D.Z. v. Bethlehem Area School District

In D.Z. v. Bethlehem Area School District (D.Z. I), A.2d, 2 A.3d 712, (Pa. Cmwlth., Dkt. Nos. 1263, 1264 C.D. 2009, filed July, 27, 2010), the Court addressed an identical interpretational arrangement between the same parties, which addressed similar administrative proceedings before the same Hearing Officer, with the same interpreter, involving litigation over the gifted and special education of another of D.Z.'s children. There, we held D.Z.'s due process rights were safeguarded by the statute affording her access to an interpreter for the proceedings. See 2 Pa. C.S. 562. Furthermore, the Court held the Hearing Officer did not impair D.Z.'s due process rights by using a procedure that afforded D.Z. full access to interpretation of the proceedings. The Court explained that the Hearing Officer's decision to employ a procedure that required full, rather than partial, translation was an appropriate exercise of his discretion pursuant to the General Rules of Administrative Practice and Procedure, 1 Pa. Code 35.187. That regulatory provision authorizes the presiding officer of an administrative tribunal to regulate the course of the proceedings before him, including the exercise of discretion over the disposition of procedural matters. In D.Z. I, the Court explained 2 Pa. C.S. 563(b)(2)(ii) requires a presiding officer state on the record that an "otherwise qualified interpreter" has read, understands and agrees to abide by the code of professional conduct; nevertheless, that provision does not excuse a party from raising an objection where the presiding officer does not make this statement on the record. Cf. United States v. Huang, 960 F.2d 1128, 1135 (2d Cir. 1992) ("though the federal Court Interpreters Act, 28 U.S.C. 1827, 1828, speaks in mandatory terms as to the duty of the court to establish an interpreter program to protect the rights of a defendant whose only or primary language is other than English, it does not preclude a defendant from ... waiving any objection he may have to the certification or performance of a translator for a witness.") The Court further stated that, although we are bound to apply the plain language of pertinent statutes, our review of the record revealed no indication that D.Z. raised an issue regarding the code of conduct at any time before the Hearing Officer. Thus, the Court deemed the issue waived.