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Tuesday, April 22, 2014

US High Court to hold first full hearing on CNMI case
At issue: Compensation for interpreters

For the first time in CNMI history, a case on Saipan will finally get a full hearing at the U.S. Supreme Court. The issue: Compensation for interpreters.

The U.S. Supreme Court set for Feb. 21, 2012, an oral argument in a petition filed by Kouichi Taniguchi, a former Japanese professional baseball player who sued Kan Pacific Saipan Ltd., owner of Marianas Resort and Spa, in 2008 for alleged negligence.

CNMI attorney Douglas F. Cushnie and Washington D.C.-based lawyer Donald B. Ayer filed the petition on behalf of their client, Taniguchi, to reverse the U.S. Court of Appeals for the Ninth Circuit’s decision that favored Kan Pacific.

Taniguchi raised to the U.S. Supreme Court the question whether costs incurred in translating written documents are “compensation of interpreters.”

Section 1920 of 28 U.S.C. sets out the categories of costs that may be awarded to the prevailing party in a federal lawsuit. “Compensation of interpreters” is one of the listed categories.

Guam attorney Thomas L. Roberts and Washington D.C. lawyer Dan Himmelfarb filed the opposition for their client, Kan Pacific Saipan Ltd.

The National Association of Judiciary Interpreters and Translators, a group with over 1,200 language professionals as members, filed an amicus curiae (friend of the court) brief in support of Taniguchi.

The Interpreting and Translation Professors, a group of scholars with expertise in the language services industry, also filed an amicus curiae brief in support of Taniguchi.

Superior Court associate judge David A. Wiseman believes this is the first time that the U.S. Supreme Court will conduct a full hearing on a CNMI case.

Veteran lawyer Michael Dotts agrees. He said that sometime ago, the late attorney Theodore Mitchell had a case challenging the apportionment of the Commonwealth Senate that went directly from a three-judge panel of the U.S. District Court for the NMI to the U.S. Supreme Court.

“That was the first CNMI case to be decided by the U.S. Supreme Court. However, the U.S. Supreme Court issued a summary affirmance so the case really did not get a full hearing,” Dotts said.

Taniguchi’s case filed by Cushnie, Dotts said, will be the first CNMI case to get a full hearing in the U.S. Supreme Court.

Taniguchi sued Kan Pacific over the injuries he suffered when the hotel’s wooden deck he was standing on collapsed. Taniguchi used to play in Japan for the Yomiuri (Tokyo) Giants and in the U.S. for the New York Mets.

During the course of the litigation, Kan Pacific retained a document translator, Colin P.A. Jones, to translate written documents from Japanese to English.

Then U.S. District Court for the NMI chief judge Alex Munson granted Kan Pacific’s cross-motion for summary judgment on Dec. 22, 2008. Munson ordered that Taniguchi shall take nothing from his complaint.

Kan Pacific then submitted a bill of costs, which requested the taxation of $5,517.20 for “compensation of interpreters.” This amount included $260 that Kan Pacific had spent to compensate an interpreter, Kayoko Irinaka, during his deposition. The remaining $5,257.20 was payment made by Kan Pacific to translator Jones for his document translation services.

Munson taxed the entire amount, $5,517.20 as “compensation of interpreters.”

Taniguchi appealed. The U.S. Court of Appeals for the Ninth Circuit in March 2011 affirmed Munson’s decision. The Ninth Circuit ruled that Taniguchi did not provide enough evidence to dispute Kan Pacific’s lack of negligence.

On award of translation costs, the Ninth Circuit said the district court acted within its discretion when it awarded costs to Kan Pacific for expenses incurred to translate relevant documents.

The Ninth Circuit determined that “the word “interpreter” can reasonably encompass a “translator,” both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech versus written documents.”

Cushnie and Ayer, in Taniguchi’s legal brief, asserted that the Ninth Circuit erred in ruling that document translators are “interpreters” whose compensation may be taxed under the federal law.

Cushnie and Ayer said the word “interpreter” refers to one who facilitates the comprehension of spoken proceedings by communicating content in real time during such proceedings.

“That word does not extend to one who translates written documents,” the two pointed out.

In Kan Pacific’s opposition to Taniguchi’s petition, Roberts and Himmelfarb said the ordinary meaning of “interpreters” encompasses those who translate documents, and there is no indication that Congress intended anything other than the ordinary meaning of the statute.

Roberts and Himmelfarb said even with the court of appeals’ decision in this case, there are only three circuits—not eight, as petitioner maintains—that have squarely addressed the issue, and only one of them has endorsed Taniguchi’s position.

The lawyers said there is particular reason to await further development in the lower courts, because, contrary to petitioner’s claim, the issue is not especially important.

Roberts and Himmelfarb said the issue is also not exceptionally important as awards for the cost of translating documents are typically quite modest.

In the National Association of Judiciary Interpreters and Translators’ support of Taniguchi, attorney Mark K. Stancil of Washington D.C. said the Ninth Circuit incorrectly construed the meaning of “interpreters” as used in the statute.

“At its most basic level, the distinction between interpreters and translators is simple: Interpreters speak, while translators write,” Stancil said.

Stancil said interpreters must have the “analytical skills, mental dexterity” and “exceptional memory” necessary to interpret spoken words from one language into another in real time.

The act of translating a document from one language to another, however, the lawyer said, is a more research-oriented, meticulous process.

Dallas lawyer Scott T. Williams, in Interpreting and Translation Professors’ support of Taniguchi, said because there is no definition of the term “interpreters” in the statute, the high tribunal may look to how that term is commonly used in the language services industry to determine is meaning.

Williams said they believe that the high tribunal should hold that the term “interpreters” under the statute does not include document translation services.

“Specifically, interpreting is defined in the industry as an oral skill, while translation is defined as a written one,” Williams said.

In the language industry, the lawyer pointed out, interpreting is considered a distinct profession from translation, and document translation does not fall within the scope of interpreting services.

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