BILL NUMBER: AB 3050 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 27, 2008
PASSED THE ASSEMBLY AUGUST 30, 2008
AMENDED IN SENATE AUGUST 21, 2008
AMENDED IN SENATE AUGUST 12, 2008
AMENDED IN SENATE AUGUST 4, 2008
AMENDED IN SENATE JULY 2, 2008
AMENDED IN ASSEMBLY MAY 23, 2008
INTRODUCED BY Assembly Member Jones
(Coauthor: Assembly Member Coto)
(Coauthors: Senators Correa, Kuehl, and Oropeza)
FEBRUARY 28, 2008
An act to add Article 9.6 (commencing with Section 6159.5) to
Chapter 4 of Division 3 of the Business and Professions Code, to add
Section 367.6 to the Code of Civil Procedure, to add Sections 756 and
756.5 to the Evidence Code, and to amend, repeal, and add Section
68563 of the Government Code, relating to legal services.
LEGISLATIVE COUNSEL'S DIGEST
AB 3050, Jones. Legal aid: court interpreters: appearances by
telephone.
(1) Existing law, the State Bar Act, provides for the licensure
and regulation of attorneys by the State Bar of California, a public
corporation. Existing law provides that it is the duty of an attorney
to, among other things, never reject, for any consideration personal
to himself or herself, the cause of the defenseless or oppressed.
Existing law provides that a lawyer may fulfill his or her ethical
commitment to provide pro bono services, in part, by providing
financial support to organizations providing free legal services to
persons of limited means.
This bill would prohibit a person or organization that is not a
specified type of legal aid organization, as defined, from using the
term "legal aid," or any confusingly similar name in any firm name,
trade name, fictitious business name, or other designation, or on any
advertisement, letterhead, business card, or sign. The bill would
subject a person or organization that violates this prohibition to
specified civil liability.
(2) Existing law provides that, in all general civil cases, as
defined, a party who has provided notice may appear by telephone at
certain conferences, hearings, and proceedings, except as specified.
This bill would require the Judicial Council, on or before July 1,
2009, and periodically as appropriate, to enter into one or more
master agreements with a vendor or vendors to provide for telephone
appearances in civil cases under the provisions described above, or
as otherwise permitted by law. The bill would impose requirements
regarding those master agreements, including that the vendor charge a
party for an appearance by telephone in an amount set by the
Judicial Council, and that the vendor pay to the state $15 for each
appearance by telephone and a proportionate share of an amount equal
to the total revenue received from vendors by all courts for
providing telephone appearances for the 2007-08 fiscal year. The bill
would require those funds to be deposited in the Trial Court Trust
Fund and used for specified purposes.
(3) Existing law requires that, when a witness is incapable of
understanding the English language or is incapable of expressing
himself or herself in the English language so as to be understood
directly by counsel, court, and jury, an interpreter be sworn to
interpret for him or her.
This bill would require the Judicial Council, by September 1,
2009, to establish a working group to review, identify, and develop
best practices to provide interpreters in civil actions and
proceedings, as specified. The bill would require the Judicial
Council to select up to 5 courts to participate in a pilot project,
to commence on July 1, 2010, to provide interpreters in civil
proceedings. The bill would provide that the initial pilot courts
shall participate until June 30, 2013, and would require the Judicial
Council to consider whether a pilot court shall continue
participating in the project and whether to select another court or
additional courts. The pilot project would be funded from the revenue
derived from the telephonic appearance fee described above.
(4) Existing law requires the Judicial Council to conduct a study
of language and interpreter use and need in court proceedings, with
commentary, and to report its findings and recommendations to the
Governor and to the Legislature every 5 years. Existing law requires
that this study serve as the basis for determining the need to
establish interpreter programs and certification and establishing
these programs and examinations through the normal budgetary process.
This bill would require, in addition, as of January 1, 2011, that
the study described above serve as the basis of determining the need
for and use of interpreters in civil and criminal court proceedings.
The bill would require trial courts to collect and report the use of
interpreters in all criminal and civil proceedings in the manner
specified by the Judicial Council.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) California is emblematic of the American dream, a place of
stunning natural beauty, a seat of international commerce, and a land
of unparalleled opportunity. As a result, California is the most
populous and demographically diverse state in the nation, a meeting
place of cultures, ethnicities, and ideas unlike any other in the
world. Of the state's 34 million people, about 26 percent (roughly
8.8 million people) are foreign born. Californians speak more than
220 languages, and 40 percent of the state's population speaks a
language other than English in the home. This extraordinary diversity
is among the state's greatest assets and has helped make California
an international leader in business, the arts, entertainment,
engineering, medicine, and other fields. The state's diversity also
poses unique challenges for the delivery of government services,
particularly for the courts.
(b) For Californians not proficient in English, the prospect of
navigating the legal system is daunting, especially for the growing
number of parties who do not have access to legal services and
therefore have no choice but to represent themselves in court, which
is a virtually impossible task for people who are unable to
understand the proceedings. Nearly seven million Californians cannot
access the courts without significant language assistance, cannot
understand pleadings, forms, or other legal documents, cannot
communicate with clerks or court staff, and cannot understand or
participate meaningfully in court proceedings, much less effectively
present their cases without a qualified interpreter. People with
limited English proficiency are also often members of groups whose
cultural traits or economic circumstances make them more likely to be
subjected to legal problems, in part because perpetrators recognize
their victims' limited ability to access judicial protection. It is
essential to provide English learners and other non-English-speaking
litigants with interpreters in order to provide full and equal access
to our justice system without regard to language.
(c) The Legislature has previously recognized that the number of
persons with limited English proficiency in California is increasing
and recognized the need to provide equal justice under the law to all
California residents and to provide for their special needs in their
relations with the judicial and administrative law system. The
Legislature has likewise recognized that the effective maintenance of
a democratic society depends on the right and ability of its
residents to communicate with their government and the right and
ability of the government to communicate with them.
(d) Inadequate resources to assist litigants with limited English
proficiency affect the court's ability to function properly, causing
delays in proceedings for all court users, inappropriate defaults,
and faulty interpretation that can ultimately subvert justice. Court
interpreter services are a core court function. Our judicial system
relies on the adversarial process in which neutral arbiters decide
disputes based upon competing presentations of facts and law.
Conducting court proceedings when one party is incapable of fully
participating significantly impairs the quality and efficiency of the
process and its results, including compliance with court orders. The
courts have made significant efforts to assist litigants with
limited English proficiency, including steps to increase the number
of certified and registered interpreters and to provide interpreters
in civil cases, if resources are available. Nevertheless, court
proceedings are required to be conducted in English, and most crucial
court forms and documents are available only in English, while the
number of skilled interpreters has actually declined over the past
decade and the number of persons requiring interpreter services has
increased. As a result, a qualified interpreter is not provided in
most civil proceedings.
(e) The inability to respond to the language needs of parties in
court impairs trust and confidence in the judicial system and
undermines efforts to secure justice for all. The authority of the
courts depends on public perceptions of fairness and accessibility.
Any significant erosion of public trust and confidence in the
fairness of judicial outcomes threatens the future legitimacy of the
legal system. By excluding a large segment of the population from
participation in an institution that shapes and reflects our values,
we threaten the integrity of the judicial process. Resentment
fostered by the inability to access the benefits of the court system
can ultimately impair enforcement of judicial decrees and attenuate
the rule of law.
(f) Reliance on untrained interpreters, such as family members or
children, can lead to faulty translations and threaten the court's
ability to ensure justice. Court interpretation is extremely
difficult and takes a rare combination of skills, experience, and
training. Apart from the possibility of fraud, unqualified
interpreters often fail to accurately and comprehensively convey
questions and distort testimony by omitting or adding information, or
by stylistically altering the tone and intent of the speaker,
thereby preventing courts from hearing the testimony properly. These
problems compromise the factfinding process and can result in genuine
injustice.
(g) An overwhelming number of Californians believe that
interpreters should be made available to assist non-English speakers
in all court proceedings, and that interpreters should be provided
free of charge to low-income non-English speakers.
(h) California law currently mandates appointment of an
interpreter for all witnesses in civil cases, and for parties with
hearing impairments. In addition, California statutes mandate the
appointment of an interpreter in adjudicative proceedings before
state agencies, boards, and commissions at no charge to the parties
whenever a party or the party's witness does not proficiently speak
or understand English. Other states, by contrast, provide both
witnesses and parties with a right to a court-appointed interpreter
in all civil matters at no cost to the party.
SEC. 2. The Legislature finds and declares that there continues to
be a shortage in the availability of certified and registered
interpreters in the state courts that impacts the state's ability to
provide meaningful access to justice for all court users. It is the
intent of the Legislature that every effort be made to recruit and
retain qualified interpreters to work in the state courts, and that
the Judicial Council make further efforts to improve and expand court
interpreter services and address the shortage of qualified court
interpreters.
SEC. 3. Article 9.6 (commencing with Section 6159.5) is added to
Chapter 4 of Division 3 of the Business and Professions Code, to
read:
Article 9.6. Legal Aid Organizations
6159.5. The Legislature hereby finds and declares all of the
following:
(a) Legal aid programs provide a valuable service to the public by
providing free legal services to the poor.
(b) Private, for-profit organizations that have no lawyers have
been using the name "legal aid" in order to obtain business from
people who believe they are obtaining services from a nonprofit legal
aid organization.
(c) Public opinion research has shown that the term "legal aid" is
commonly understood by the public to mean free legal assistance for
the poor.
(d) Members of the public seeking free legal assistance are often
referred by telephone and other directory assistance information
providers to for-profit organizations that charge a fee for their
services, and there are a large number of listings in many telephone
directories for "legal aid" that are not nonprofit but are actually
for-profit organizations.
(e) The Los Angeles Superior Court has held that there is a common
law trademark on the name "legal aid," which means legal services
for the poor provided by a nonprofit organization.
(f) The public will be benefited if for-profit organizations are
prohibited from using the term "legal aid," in order to avoid
confusion.
6159.51. For purposes of this article, "legal aid organization"
means a nonprofit organization that provides civil legal services for
the poor without charge.
6159.52. It is unlawful for any person or organization to use the
term "legal aid," "legal aide," or any confusingly similar name in
any firm name, trade name, fictitious business name, or any other
designation, or on any advertisement, letterhead, business card, or
sign, unless the person or organization is a legal aid organization
subject to fair use principles for nominative, descriptive, or
noncommercial use.
6159.53. (a) Any consumer injured by a violation of Section
6159.52 may file a complaint and seek injunctive relief, restitution,
and damages in the superior court of any county in which the
defendant maintains an office, advertises, or is listed in a
telephone directory.
(b) A person who violates Section 6159.52 shall be subject to an
injunction against further violation of Section 6159.52 by any legal
aid organization that maintains an office in any county in which the
defendant maintains an office, advertises, or is listed in a
telephone directory. In an action under this subdivision, it is not
necessary to allege or prove actual damage to the plaintiff, and
irreparable harm and interim harm to the plaintiff shall be presumed.
(c) Reasonable attorney's fees shall be awarded to the prevailing
plaintiff in any action under this section.
SEC. 4. Section 367.6 is added to the Code of Civil Procedure, to
read:
367.6. (a) On or before July 1, 2009, and periodically as
appropriate, the Judicial Council shall enter into one or more master
agreements with a vendor or vendors to provide for telephone
appearances in civil cases under Section 367.5, or as otherwise
permitted by law.
(b) Each master agreement shall include the following terms:
(1) The vendor shall charge a party for an appearance an amount
set by the Judicial Council, which shall comply with the provisions
of subdivision (c). The vendor shall report to the Judicial Council
information regarding the number of liens asserted by the vendor for
waived charges pursuant to subdivision (c), and the total amount so
collected.
(2) The vendor shall indemnify and hold the court harmless from
claims arising from a failure or interruption of service.
(3) Except as provided by paragraph (2) of subdivision (c), for
each appearance a party makes by telephone, the vendor shall pay to
the state fifteen dollars ($15), which shall be transmitted quarterly
to be deposited in the Trial Court Trust Fund and used by the
Judicial Council for the expenses of the Judicial Council in
implementing and administering the civil interpreter pilot program
under Sections 756 and 756.5 of the Evidence Code and for
reimbursement to those courts providing civil interpreters pursuant
to those sections.
(4) In addition to the amount provided by paragraph (3), all
vendors shall pay to the state, on a quarterly basis, an amount equal
to one-quarter of the total amount of revenue received from all
vendors by all courts for providing telephone appearances for the
2007-08 fiscal year. Each vendor shall pay a proportionate share of
this total amount. The Judicial Council shall notify each vendor, on
a quarterly basis, of its share of this amount, which shall be based
on that vendor's percentage of the total number of appearances by
telephone during the previous quarter. Following receipt of the
notice, each vendor shall transmit its share of the amount to the
state for deposit in the Trial Court Trust Fund to provide funding
for the prevention of significant disruption in services in courts
where those services were previously funded by revenue received from
providing telephone appearances.
(5) The master agreement shall include other terms as the Judicial
Council deems appropriate. These terms may include, but are not
limited to, a provision providing the circumstances in which the
charge shall be made for a telephone appearance canceled by the
party.
(c) The amount the vendor shall charge a party for an appearance
shall be uniform statewide.
(1) The Judicial Council shall establish the amount to be charged
a party for an appearance.
(2) If the party has received a waiver of fees because he or she
is proceeding in forma pauperis under Section 68511.3 of the
Government Code, the vendor shall not charge that party for an
appearance and shall not pay fifteen dollars ($15) as otherwise
required by paragraph (3) of subdivision (b). The vendor shall be
granted a lien in the amount of the waived charge on any judgment
that the party may receive. Notice of the lien shall be given to the
parties under rules and on forms adopted by the Judicial Council. If
the vendor later receives the amount previously waived, for each
appearance for which the vendor receives payment, the vendor shall
transmit fifteen dollars ($15) to the state for deposit as provided
in paragraph (3) of subdivision (b). If the charge has been waived in
part, or the amount recovered by the vendor is not the full amount,
the amount transmitted to the state shall be reduced proportionally.
(3) The Judicial Council may establish an additional amount to be
charged, which shall also be uniform statewide, when a party requests
service from a vendor within a short period of time prior to the
hearing, as determined by the Judicial Council.
(d) If a court elects to make telephone appearances available
through one or more vendors, the court shall enter into one or more
participation agreements under one or more of the master agreements
entered into by the Judicial Council.
(e) If a court elects to provide telephone appearance services to
parties directly, either in addition to or in lieu of a participation
agreement, the court shall charge a party no more than the same
amount that a vendor may charge under the master agreements provided
for in subdivision (a), subject to the same conditions, waivers, and
transmission of amounts to the state as apply to a vendor.
(f) Notwithstanding any other provision in this section, a
judicial officer is authorized to allow the appearance by telephone
of parties in that judicial officer's courtroom without the
requirement of using a vendor or paying any amount for the appearance
by telephone.
SEC. 5. Section 756 is added to the Evidence Code, to read:
756. (a) (1) On or before September 1, 2009, the Judicial Council
shall establish a working group to review, identify, and develop
best practices to provide interpreters in civil actions and
proceedings. The best practices developed by the working group shall
be used in carrying out the pilot project described in Section 756.5.
(2) In developing the best practices, the working group shall
consider ways to maximize the use of existing resources, calendaring
issues, the effective use of technology, and other practices that
will assist courts effectively deploying interpreters in civil
proceedings.
(3) Best practices shall include training guidelines to be
utilized by courts participating in the pilot project described in
Section 756.5 to ensure that court interpreters receive training
necessary to comply with the requirements of Section 756.5. Training
activities may include, but are not limited to, video broadcasts,
Internet-based training, and dissemination of written materials.
(b) The working group shall include court executive officers,
presiding judges, interpreter coordinators, interpreters, at least
two of whom shall be nominated by an exclusive representative of
interpreter employees, representatives of legal services
organizations and organizations representing individuals with limited
English proficiency, and others the Judicial Council determines
necessary. The working group shall also include a representative from
a rural community in order to highlight the particular challenges of
providing court interpreter services in rural communities.
SEC. 6. Section 756.5 is added to the Evidence Code, to read:
756.5. (a) (1) The Judicial Council shall select up to five
courts to participate in a pilot project, which shall commence on
July 1, 2010, to provide interpreters in civil proceedings as
specified in this section. The pilot courts shall be selected from
among those participating in the working group described in Section
756.
(2) The initial pilot courts shall participate in the pilot
project until June 30, 2013. The Judicial Council, in consultation
with pilot courts, shall consider whether a pilot court shall
continue participating in the project and whether to select another
court or additional courts to join the project. Courts selected to
join the project shall participate for three years or another
duration determined by the Judicial Council, in consultation with the
pilot courts. In the selection of the pilot courts, the Judicial
Council shall assess the court's capacity for success.
(b) The pilot project shall be conducted for the purpose of
creating models for effectively providing interpreters in civil
matters, implementing best practices, and ascertaining the need for
additional interpreter resources and funding to provide interpreters
in civil matters on a statewide basis. The pilot project shall be
funded from the revenue derived from the telephonic appearance fee
pursuant to Section 367.6 of the Code of Civil Procedure.
(c) Interpreters shall be provided by the pilot courts as follows:
(1) The pilot courts shall provide interpreters to any party
proceeding in forma pauperis, pursuant to Section 68511.3 of the
Government Code, who is present and who does not proficiently speak
or understand the English language for the purpose of interpreting
the proceedings in a language that the party understands and
assisting communications between the party, his or her attorney, and
the court in the following types of actions and proceedings:
(A) Actions and proceedings under Section 527.6 of the Code of
Civil Procedure.
(B) Actions and proceedings brought under the Family Code.
(C) Actions and proceedings relating to unlawful detainer.
(D) Actions and proceedings involving the appointment or
termination of a probate guardian or conservator.
(E) Actions or proceedings under the Elder Abuse and Dependent
Adult Civil Protection Act (Chapter 11 (commencing with Section
15600) of Part 3 of Division 9 of the Welfare and Institutions Code).
(2) The pilot courts shall provide interpreters in other civil
actions or proceedings or in matters in which the party is not
appearing in forma pauperis if there is sufficient funding and
interpreter resources available to meet all the interpretation needs
in actions and proceedings described in paragraph (1).
(3) The fees of interpreters utilized under this section shall be
paid for any party proceeding in forma pauperis pursuant to Section
68511.3 of the Government Code.
(4) The pilot courts shall develop a methodology for deploying
available interpreter resources if funds provided pursuant to
subdivision (b) are insufficient to meet the needs for court
interpreters in all of the actions and proceedings set forth in
paragraph (1), or if, after diligent search, a sufficient number of
interpreters is not available. The pilot courts shall not consider
the order in which the case types are listed in paragraph (1) in
developing this methodology. For purposes of developing this
methodology, the pilot courts shall consider the most effective way
to deploy limited resources. A pilot court shall not be obligated to
provide services in the areas set forth in paragraph (1) beyond the
services that can be provided with the funding provided by the
telephonic appearance fee pursuant to Section 367.6 of the Code of
Civil Procedure.
(5) The interpreter shall be certified or registered pursuant to
Article 4 (commencing with Section 68560) of Chapter 2 of Title 8 of
the Government Code. Subdivisions (c) and (d) of Section 755 of the
Evidence Code shall apply to proceedings described in this section.
(d) This section shall not be construed to negate or limit any
right to an interpreter in a civil action or proceeding otherwise
provided by state or federal law.
(e) This section shall not be construed to alter the right of an
individual to an interpreter in criminal, traffic or other
infraction, juvenile, or mental competency actions or proceedings.
(f) This section shall not result in a reduction in staffing or
compromise the quality of interpreting services in criminal,
juvenile, or other types of matters in which interpreters are
provided.
(g) (1) On or before September 1, 2012, the Judicial Council shall
report to the Legislature its findings and recommendations based on
the experiences of the model pilot program. The report shall include
findings and recommendations regarding the need for additional
interpreters and funding, or other resources, to provide interpreters
in both of the following:
(A) Case types that were the subject of the pilot.
(B) All civil actions and proceedings.
(2) The report shall also describe, to the extent possible, the
impact of the availability of interpreters on access to justice and
on court administration and efficiency.
(3) The report shall also describe the factors affecting selection
of pilot courts, such as the court's capacity for success,
innovation, and efficiency, including, but not limited to, strategies
for collaborating with organizations representing stakeholders,
utilizing local resources, and methods for addressing the
availability of qualified interpreters.
(h) Nothing in this chapter shall limit or restrict courts from
providing interpreters in civil proceedings when those services are
already being provided or in matters in which the judicial officer
deems it necessary to appoint an interpreter.
(i) Nothing in this chapter shall alter or negate the application
of the Trial Court Interpreter Employment and Labor Relations Act
(Chapter 7.5 (commencing with Section 71800) of Title 8 of the
Government Code) to the provision of interpreters pursuant to this
section.
SEC. 7. Section 68563 of the Government Code is amended to read:
68563. (a) The Judicial Council shall conduct a study of language
and interpreter use and need in court proceedings, with commentary,
and shall report its findings and recommendations to the Governor and
to the Legislature not later than July 1, 1995, and every five years
thereafter. The study shall serve as a basis for (1) determining the
need to establish interpreter programs and certification
examinations, and (2) establishing these programs and examinations
through the normal budgetary process. The study shall also serve as a
basis for (1) determining ways in which the Judicial Council can
make available to the public, through public service announcements
and otherwise, information relating to opportunities, requirements,
testing, application procedures, and employment opportunities for
interpreters, and (2) establishing and evaluating these programs
through the normal budgetary process.
(b) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 8. Section 68563 is added to the Government Code, to read:
68563. (a) The Judicial Council shall conduct a study of language
and interpreter use and need in court proceedings, with commentary,
and shall report its findings and recommendations to the Governor and
to the Legislature not later than July 1, 2015, and every five years
thereafter.
(b) (1) The study shall serve as a basis for all of the following:
(A) Determining the need to establish interpreter programs and
certification examinations.
(B) Establishing these programs and examinations through the
normal budgetary process.
(C) Demonstrating the need for and use of interpreters in civil
and criminal court proceedings, and the extent to which that need is
being met.
(2) To assist with the completion of the study, trial courts shall
collect and report the use of interpreters in all criminal and civil
proceedings in the manner specified by the Judicial Council,
including, but not limited to, the following data:
(A) The extent of the need for, and the languages for which
parties need, an interpreter, by type of action or proceeding, and
whether the party is appearing in propria persona or in forma
pauperis.
(B) The languages for which an interpreter is provided, by type of
action or proceeding, and whether the party is appearing in propria
persona or in forma pauperis.
(C) The extent to which the interpreters provided are court
employees or independent contractors.
(D) The extent to which interpreters are appointed pursuant to
subdivision (c) of Section 68561.
(E) The extent to which interpreters are provided pursuant to
subdivision (d) of Section 68561.
(c) The study shall also serve as a basis for both of the
following:
(1) Determining ways in which the Judicial Council can make
available to the public, through public service announcements and
otherwise, information relating to opportunities, requirements,
testing, application procedures, and employment opportunities for
interpreters.
(2) Establishing and evaluating these programs through the normal
budgetary process.
(d) This section shall become operative on January 1, 2011.