OK
v.
High Court of
Appellate Division
AP No. 5-90
__________
Generally, an interlocutory order during the course of a judicial proceeding is not a final decision that can be immediately appealed to the High Court, but is reviewable only by means of appeal from an adverse judgment in the main proceeding.
An interlocutory order is final and thus appealable if it finally determines claims of right separable from and collateral to rights asserted in the main action, too important to be denied review, and too independent of the cause itself to require that appellate review be deferred until the whole case is adjudicated.
To fall within collateral order exception, an order must: (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.
A collateral order is generally regarded as effectively unreviewable and therefore final---even if a later appeal from an adverse judgment in the principal action is possible---when substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated.
Where defendant asserts a right which is or includes a right not to bear the burden of the suit itself, regardless of the outcome, he may immediately appeal a denial of that right under the collateral order exception.
Order on appeal is effectively unreviewable when a showing of prejudice to the defense is required to obtain a reversal.
Denial of an interpreter generally requires a showing of actual prejudice to the defense to justify reversal on appeal.
Defendant's appeal of an interlocutory
order denying his asserted absolute right to appointment of an interpreter on
request falls within the collateral order exception since he is asserting a
right not to be tried under such circumstances, and such right is effectively unreviewable, since denial of an interpreter generally
requires a showing of prejudice to obtain a reversal. [17ASR2d194]
Neither the Due Process Clause of the Fifth Amendment nor the right to a fair trial guaranteed by the Sixth Amendment gives a non-indigent defendant the right to a court- appointed and government-paid interpreter .
Trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept defendant's assertion that he needs one as dispositive, but must balance defendant's right to confrontation and effective assistance against the public's interest in the economical administration of criminal law.
Court employment of Samoan-English
interpreters, but not interpreters of other languages, is simply a practice
which reflects the cultural and juridical history of
Statute providing that the High Court shall have interpreters deals with the method of appointing permanent court employees and does not require Court to find, employ, and compensate special ad hoc officers whenever a litigant demands an interpreter.
Before KRUSE, Chief Justice, REES, Associate Justice, FONG*, Associate Justice, VAIVAO, Associate Judge, and LOGOAI, Associate Judge.
Counsel: For Appellant. Togiola T.A. Tulafono
For Appellee, Jeffrey Buckner, Assistant Attorney General
This is an interlocutory appeal from the denial by the District Court of a court-appointed Korean interpreter for appellant's trial on the charge of driving under the influence of alcohol. The appellant concedes that he is not indigent. There is no evidence in the record before us, with the possible exception of the fact that appellant's counsel requested the appointment of an interpreter, of the extent of appellant's ability or inability to speak or understand English or Samoan.
I. Jurisdiction
The appellee argues that we are without jurisdiction over this appeal because there has been no "final decision" of the District Court. See A.S.C.A. § 3.0309.
Honorable Harold M. Fong, Senior
In general, an interlocutory order during the
course of a trial or other judicial proceeding is not a "final decision"
within the meaning of A.S.C.A. § 3.0309 and similar statutes. Such orders, even
though they may be "fully consummated decisions" with respect to the
issue they address, "are but steps towards final judgment in which they
will merge," and are therefore reviewable only
by means of appeal from an adverse judgment in the main proceeding. Cohen v.
Beneficial Industrial Loan Corp., 337
An interlocutory order is, however, final and
therefore appealable if it falls within the
"collateral order exception." This exception describes "that
small class [of interlocutory orders] which finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important
to be denied review and too independent of the cause itself to require that
appellate considerations be deferred until the whole case is adjudicated."
Cohen, supra, 337
There is no question that the instant order is "collateral" in the sense that it resolves a question that is separate and distinct from the merits of the action. No question raised by this appeal or by the decision below has any bearing on the merits of the criminal action itself, which have to do with whether appellant is guilty of driving under the influence of alcohol. The District Court's ruling on the question of an interpreter was also conclusive: the trial was about to go forward without an interpreter when appellant moved for a stay to accommodate the present appeal.
There is a serious question about whether this order would be effectively unreviewable upon final judgment in the criminal case. If the trial had taken place without an interpreter and had resulted in a conviction, an appeal from the conviction might have been taken on the same grounds asserted in the present appeal. An acquittal would have rendered appeal unnecessary , at least insofar as the harm appellant sought to avoid was limited to the possibility of conviction and punishment. [17ASR2d196]
Collateral orders are, however, generally
regarded as "effectively unreviewable" and
therefore final ---notwithstanding the possible availability of a later appeal
from an adverse judgment in the principal action---when "substantial
rights would be lost, if appeal were delayed until the main stream of the
litigation is terminated." Kowalski v. Holden,
276 F.2d 359 (6th Cir. 1960). This principle has been applied, at least
until recently, to the denial of court-appointed counsel in criminal cases. See
United States v. Harris, 707 F.2d 653 (2d Cir.), cert. denied, 464
U.S. 997 (1983); United States v. Deutsch, 599 F.2d 46 (5th Cir.), cert.
denied, 444 U.S. 935 (1979). Such treatment has been based partly on the
risk that uncounseled defendants would unwittingly
surrender substantive and procedural rights in ways that would tend to evade
later appellate review, and partly on the idea that "the unedifying
spectacle of a trial of a lawyerless defendant"
is a harm separate from that represented by any conviction and sentence that
might result. Harris, supra, 707 F.2d at 657; see Deutsch,
supra, 599
Where the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of the suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealable immediately by virtue of the collateral order doctrine. An appeal after judgment would come too late to protect the right.
A fairly recent United States Supreme Court case
on a related question raises serious doubts about whether the federal courts
will continue to regard denials of appointed counsel as immediately appealable. In Flanagan v. United States, 465 U.S.
259 (1984), the Court ordered the dismissal for lack of jurisdiction of an
interlocutory appeal from a pre-trial order disqualifying defendants' counsel
for conflict of interest. The Court observed that defendants were not asserting
"a right not to be tried," but merely "a right not to be
convicted in certain circumstances."
The only federal court of appeals to consider the
question since Flanagan has held that denials of appointed counsel are no
longer immediately appealable, because the earlier
contrary cases "do not survive the rationale" of Flanagan.
The constitutional and statutory right to an
interpreter asserted in the present appeal is closely related to the right of
an indigent person to appointed counsel. To require someone to undergo a
criminal trial without a court-appointed interpreter in circumstances where
such appointment was required by law---if, for instance, the defendant were
penniless and understood not a word of the proceedings against him---might well
occasion palpable injury beyond the possibility of conviction and sentence.
"Trying a defendant in a language he does not understand has a Kafka-like
quality," and it is at least in part to avoid forcing people to undergo
such an ordeal that courts have sometimes recognized a constitutional right to
a court-appointed interpreter. United States v. Desist, 384 F.2d 889,
902 (2d Cir. 1967); see
In this respect the denial of an interpreter is unlike the denial of the "right" to a particular lawyer with which the Court was confronted in Flanagan. A person required to undergo a trial with the assistance of competent counsel other than the one he most prefers may not enjoy the [17ASR2d198] proceeding, but an acquittal or a reversal on appeal will do much to help him get over his disappointment. The same cannot be said for someone who has been forced, in violation of his constitutional or legal rights, to endure a "Kafka-like" experience such as that described in Desist. Moreover, there is a significant chance that a defendant unable to understand anything the judge, the witnesses, or his own counsel was saying would enter a guilty plea that would be uninformed, effectively uncounseled, and yet most unlikely ever to be reviewed on appeal. Cf. Deutsch, supra, 599 F.2d at 48.
We note further that the denial of an
interpreter, unlike the denial of appointed counsel, has not generally been
held to justify reversal on appeal in the absence of a showing of actual
prejudice to the defense. See, e.g., Cervantes
v. Cox, 350 F.2d 855 (10th Cir. 1965). Appellant in the present case
asserts a broad constitutional and statutory right to appointment of an
interpreter upon request. This right, as asserted by appellant, is absolute; it
does not depend on a finding that an interpreter is necessary to guarantee a
fair trial, and it is available even to a defendant who speaks some English or
Samoan and who therefore might manage to survive a trial without demonstrable
prejudice. In such a case the denial of an interpreter (assuming that there
really was an absolute right to one) would constitute a violation of an
independent substantive right, and yet reversal on appeal would not be an
appropriate remedy. In this respect the right being asserted in the present
case differs importantly from the right to appointed counsel. See Celani, supra, at 365-66; cf. Flanagan, supra,
465
Despite doubts occasioned by the Court's opinion in Flanagan---and despite our strong agreement with the sentiments expressed in that opinion to the effect that criminal litigation should be expeditious and not piecemeal---we conclude that the right being asserted in the present appeal is not merely a right not to be convicted under certain circumstances, but a right not to be tried under such circumstances. We further conclude that at least some violations of the asserted right would not be remediable by reversal on appeal, or even by acquittal. We therefore hold that the District Court's order denying the appointment of an interpreter is within the small class of pre-judgment orders that are "final decisions" immediately appealable under A.S.C.A. § 3.0309.
II. The Right to An Interpreter
Neither the due process clause of the Fifth
Amendment to the United States Constitution nor the right to a fair trial
guaranteed by the [17ASR2d199] Sixth Amendment confers upon a
non-indigent defendant the right to a court-appointed and government-financed
interpreter. United States v. Martinez, 616 F.2d 185 (5th Cir. 1980); Desist,
supra. Even an indigent defendant is entitled to a court-appointed
interpreter only insofar a such appointment is
necessary to enable him to understand the proceedings and to communicate with
his counsel; the trial judge has wide discretion in deciding whether to appoint
an interpreter and need not accept as dispositive the
defendant's assertion that he needs one. Cervantes v. Cox, supra;
see Valladares v.
The American Samoa Constitution contains a due process clause identical to its federal counterpart, as well as a fair trial guarantee substantially similar to that provided by the Sixth Amendment. See Rev. Const. Am. Samoa art. I §§ 2, 6 ("In all criminal prosecutions, the accused shall have the right. ..to be confronted with the witnesses against him. ..and to have the assistance of counsel for his defense."). We know of no evidence that those who ratified and promulgated the territorial constitution in 1967 meant these provisions to derogate from the settled interpretations of the sources upon which they drew. Moreover, we find the federal jurisprudence most persuasive. Notwithstanding the strong policy against trying any defendant in a language he does not understand, a defendant's ability to remedy the situation by providing his own interpreter "dissipates substantially---perhaps completely---any feeling of unease." Desist, supra, 384 F.2d at 902.
[I]f the real point is guarantee of a fair trial, ...[and if the defendant] denied himself the interpreter and stands on his own right to do so, does not the issue become solely who should have paid for one? ... [W]e doubt that [the] claimed absolute constitutional right to an interpreter is stronger than the absolute right to a court-appointed counsel; the latter is held only by the indigent. ...
Appellant also
suggests that the employment by the Court of Samoan-English interpreters but
not of Korean-English ones is a "racially based classification" which
deprives appellant of equal protection f the laws. On the contrary, the
practice simply reflects the cultural and juridical history of
Finally, appellant contends that his right to a court-appointed interpreter is guaranteed by A.S.C.A. § 3.0205, a territorial statute entitled "Appointment of clerk and other officers." This section provides that the High Court" shall have a clerk, interpreters, who may also be deputy clerks," and various other employees who shall be appointed by the Chief Justice and shall have salaries fixed by him. Assuming for the sake of argument that this statute requires the Chief Justice to appoint interpreters not only for the High Court but also for the District Court,(2) it must be read in its context.
A.S.C.A. § 3.0205 deals with the method of appointment of permanent court employees; those with "fixed" salaries, who are [17ASR2d201] appointed by the Chief Justice and are "subject to removal" by him. The reference to "interpreters, who may also be deputy clerks" is obviously also a reference to regular Court employees. Moreover, at the time of the enactment of this law in 1962, the Court had been in existence for over sixty years; it had always employed Samoan-English interpreters and had never employed any other kind. The language of section 3.0205 is hardly the sort of language a legislature would use to impose on the Court a new and important obligation to find, employ, and compensate special ad hoc officers whenever a litigant should demand them. Nor has this been the practical construction of the law during the thirty years since its enactment; neither the Fono nor the United States Department of the Interior has ever appropriated money to pay such ad hoc officials, and the Court has never appointed them except in cases involving indigents, where such appointment was compelled by the constitutional guarantees of due process and a fair trial.
Accordingly, the order of the District Court is AFFIRMED.
********
1. The above analysis assumes
that the federal equal protection clause has some application to the question
at hand. It should be noted that "the extent to which the equal protection
clause of the Fourteenth Amendment applies in the territory is unclear." Macomber v.
American Samoa Government, 12 A.S.R.2d 29, 30
(1989). See generally Banks v.
American Samoa Government, 4 A.S.R.2d 113, 123-28 (1987) (discussing
the extent to which federal equal protection doctrine applies in
The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.
2. A.S.C.A. § 3.0205 applies on its face only to the High Court. A.S.C.A. § 3.0307, the section regulating the appointment of officers of the district court, provides that the Chief Justice "may" assign High Court employees to work part-time or full-time for the district court, and that he may also appoint such other district court officers as he "may consider necessary."