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Ortega v. Henríquez:
Language Access, Judicial Responsibility, and the Right to Be Heard Language Diversity and the Courts in Pennsylvania By Angélica Matías, Esquire
A
ccording to the 2020 U.S. Census, Pennsylvania had a population of 13 million, of which 1,049,615 identified as Hispanic or Latino. Thirteen percent of Pennsylvania residents speak a language other than English at home. Among these languages, Spanish ranks as the most spoken, followed by Indo-European, Asian and Pacific Islander languages.1 These numbers make clear that many individuals navigating the Pennsylvania Judicial System may require an interpreter to meaningfully participate in legal proceedings. Recognizing this need, the Pennsylvania General Assembly enacted Act 172 of 2006, authorizing the Administrative Office of Pennsylvania Courts (AOPC) to establish a program for the certification and appointment of interpreters in both administrative and judicial proceedings. The Unified Judicial System of Pennsylvania’s Language Access Plan outlines measures to guarantee meaningful access for individuals with limited English proficiency (LEP), as well as those who are deaf or hard of hearing. As the Plan emphasizes, full access is essential to ensure that people can participate in judicial proceedings, court programs and activities in which their rights and interests are at stake.2 In early May 2024, I was invited to join a MidPenn Legal Services team to work on an appeal in a troubling case: Ortega v. Henriquez3, involving a final hearing under the Protection from Abuse (PFA) Act. During the hearing, the trial judge instructed the court-appointed interpreter to stop interpreting while the plaintiff—who had limited English proficiency—was testifying. This case marked my first oral argument before the Pennsylvania Superior Court. The journey became deeply personal as I completed the first draft of the appellate brief on June 19, 2024, the day my father passed away. My father was my biggest supporter. He instilled in me a passion for the written language and taught me my first words in English. The Superior Court issued its opinion on December 31, 2024. The Court granted our application to publish the case, which was supported by the Pennsylvania Bar Association, ACLU, Justice at Work, Community Justice Project, The Pennsylvania Interbranch Commission for 34 | Berks Barrister
Gender, Racial, and Ethnic Fairness and Pennsylvania Legal Aid Network. In Ortega, the trial judge repeatedly asked the plaintiff how long he had lived in the United States and remarked that his English “was pretty good” before directing him to testify in English. But being conversationally functional is not the same as being legally fluent. The plaintiff ’s English proficiency was limited, and the court’s decision to cut off interpretation created an unfair burden. The decision was republished on January 22 of this year as a precedential decision. The Superior Court cited Pennsylvania’s Judicial Code, 42 Pa. C.S.A. §4401, declaring the policy of the Commonwealth to secure the constitutional and statutory rights of individuals who, because of their cultural or linguistic background, cannot communicate effectively in English during judicial proceedings. The opinion clarified that while trial courts have discretion in determining whether an interpreter is needed based on factual findings, they do not have discretion to deny the legal right to an interpreter once that need is established. It reversed the trial court’s decision and remanded the case, reaffirming Pennsylvania’s statutory commitment to language access.
Why Interpreter Access Matters The right to an interpreter is not a luxury; it is a legal necessity. In some states, like California, that right is enshrined in the state constitution. In others, like Pennsylvania and Illinois, it is grounded in statutory law. The appointment of interpreters is a mechanism to uphold due process and equal protection under the law. The interpreter’s role is essential to ensuring a fair trial. It allows LEP individuals to: • Understand what the judge, attorneys, and witnesses are saying. • Communicate their own story using the words that best express their truth, emotions and experiences. • Ensure their words are faithfully conveyed to the Englishspeaking court.