BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1657 (Gomez)
As Amended June 15, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
RD
SUBJECT
Courts: interpreters
DESCRIPTION
This bill would expressly prohibit a party from being charged a
fee for the provision of a court interpreter. This bill would
also clarify that a court may provide an interpreter in any
civil action or proceeding at no cost to the parties, regardless
of the income of the parties. The bill would provide that until
sufficient funds are appropriated to provide an interpreter to
every party who needs one, interpreters must initially be
provided in accordance with priorities set forth by the bill.
BACKGROUND
Both federal and state law prohibit any person, on the basis of
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation (state law only), color, genetic
information (state law only) or disability, from being
unlawfully excluded from participation in, being denied the
benefits of, or being subjected to discrimination under any
program or activity that is funded by the state or receives
federal financial assistance. This includes conduct that has a
disproportionate effect upon persons of limited-English
proficiency. (42 U.S.C. Sec. 2000d et seq.; Gov. Code Sec.
11135.)
California is home to a vast number of non-English and
limited-English speakers. Dating back to at least 1992, the
State Legislature has statutorily recognized "that the number of
non-English-speaking persons in California is increasing, and
(more)
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recognizes the need to provide equal justice under the law to
all California citizens and residents and to provide for their
special needs in their relations with the judicial and
administrative law system." (Gov. Code Sec. 68560(e).)
Furthermore, the 2010 census demonstrated that this state is one
of the most diverse in the nation with 38 percent of its
population being Hispanic, 13 percent Asian, and 6 percent
African American. In addition, the census reflected that 27
percent of Californians (9.9 million) are foreign born with 20
percent of the population considered to have limited-English
proficiency. Meaningful access to the courts for these
individuals, as required under law, hinges on the services of
court reporters who possess the requisite skills to accurately
translate legal proceedings between the court, the attorney, and
the non-English speaker.
While California law requires a court interpreter in civil cases
for parties who are deaf or have a hearing impairment that
prevents them from speaking or understanding English and
requires that the courts provide non- or limited-English
individuals with court interpreters in criminal matters, the law
does not provide a court interpreter for other parties in civil
matters who are not proficient in English. Likewise, existing
law does require an interpreter for witnesses who speak a
language other than English, but not for the parties in the
case. Also, even though existing law does allow courts to
assign interpreters already employed for criminal and juvenile
cases to civil cases (for a fee) when their services are not
required in criminal or juvenile cases, interpreters in civil
cases are not routinely provided, as a matter of right. This
bill is intended to help address the need for interpreters in
civil matters.
Accordingly, this bill, sponsored by the Judicial Council, would
provide that notwithstanding any other law, a court may provide
an interpreter in any civil action or proceeding at no cost to
the parties, regardless of the income of the parties, as
specified. The bill would prioritize cases in which interpreters
shall be provided first, until sufficient funds are appropriated
to provide an interpreter to every party who needs one.
CHANGES TO EXISTING LAW
1.Existing law provides that a person unable to understand
English who is charged with a crime has a right to an
interpreter throughout the proceedings. (Cal. Const., art. I,
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Sec. 14.)
Existing law provides that every written proceeding in a court
of justice in this state shall be in the English language, and
judicial proceedings shall be conducted, preserved, and
published in no other. Existing law provides that nothing in
this section prohibits a court from providing an unofficial
translation of a court order issued pursuant to Code of Civil
Procedure Sections 527.6 and 527.8 (which pertain to temporary
restraining orders and injunctions in harassment and unlawful
violence or credible threats of violence cases). Existing law
also requires the Judicial Council to make available to all
courts translations of domestic violence protective order
forms for protective orders provided pursuant to Sections
527.6 and 527.8 in languages other than English, as it deems
appropriate. (Code Civ. Proc. Sec. 185.)
Existing law permits the court, in small claims cases, to
allow another individual (other than an attorney) to assist a
party that does not speak or understand English sufficiently
to comprehend the proceedings or give testimony. (Code Civ.
Proc. Sec. 116.550(c).)
Existing law requires each small claims court to make
reasonable efforts to maintain and make available to the
parties a list of interpreters, as specified, and requires the
small claims court to postpone a hearing at least once to
allow the party to obtain an interpreter. (Code Civ. Proc.
Sec. 116.550(b), (d).)
Existing law requires, when a witness is incapable of
understanding or expressing him or herself in the English
language so as to be understood directly by counsel, court,
and jury, an interpreter must be sworn to interpret for him or
her. (Evid. Code Sec. 752(a).)
Existing law provides that the court in counties with
populations of 900,000 or over may employ as many foreign
language interpreters as may be necessary to interpret in
criminal cases, and in juvenile courts, and to translate
documents, as specified. Existing law requires that the court
assign interpreters in criminal and juvenile cases when those
interpreters are needed. Existing law permits the court to
assign interpreters in civil cases when their services are not
required in criminal or juvenile cases and, when so assigned,
the court must collect a fee from the litigants. (Gov. Code
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Sec. 26806(a)-(c).)
Existing law requires that court interpreters' and
translators' fees or other compensation be paid (1) in
criminal cases, by the court, and (2) in civil cases, by the
litigants, as specified. (Gov. Code Sec. 68092.)
This bill would provide that notwithstanding any other law,
including the Government Code Sections above, relating to the
provision of court interpreters in civil cases where available
and at the cost of the litigants, a court may provide an
interpreter in any civil action or proceeding at no cost to
the parties, regardless of the income of the parties. However,
until sufficient funds are appropriated to provide an
interpreter to every party who needs one, the bill would
require that interpreters initially be provided in accordance
with specified priorities set forth below.
2. Existing law provides that in any action or proceeding in
specified cases involving domestic violence, parental rights,
and marriage dissolution or legal separation involving a
protective order, an interpreter must be present to interpret
the proceedings in a language that the party understands, and
to assist communication between the party and his or her
attorney. (Evid. Code Sec. 755(a).) Existing law provides
that this requirement is contingent upon federal funding.
(Evid. Code Sec. 755(e).)
This bill would repeal Evidence Code Section 755, above, and
would instead enact Section 756 of the Evidence Code requiring
the Judicial Council, to the extent required by other state or
federal laws, to reimburse courts for court interpreter
services provided in civil actions and proceedings to any
party who is present in court and who does not proficiently
speak or understand the English language for the purpose of
interpreting the proceedings in a language the party
understands, and assisting communications between the party,
his or her attorney, and the court.
This bill would provide that if sufficient funds are not
appropriated to provide an interpreter to every party that
meets the standard of eligibility, court interpreter services
in civil cases reimbursed by the Judicial Council, pursuant to
the provision above, shall be prioritized by case type by each
court in the following order:
(1) Actions and proceedings:
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in which a protective order has been granted or is being
sought, and for dissolution or nullity of marriage or legal
separation of the parties in which a protective order has
been granted or is being sought;
relating to a petition that alleges that a person has
inflicted or threatened violence against the petitioner, or
stalked the petitioner, or acted or spoken in any other
manner that has placed the petitioner in reasonable fear of
violence, and that seeks a protective or restraining order
or injunction restraining stalking or future violence or
threats of violence; and
for physical abuse or neglect under the Elder Abuse and
Dependent Adult Civil Protection Act.
(1) Actions and proceedings relating to unlawful detainer.
(2) Actions and proceedings to terminate parental rights.
(3) Actions and proceedings relating to conservatorship or
guardianship, including the appointment or termination of a
probate guardian or conservator.
(4) Actions and proceedings by a parent to obtain sole legal
or physical custody of a child or rights to visitation.
(5) All other actions and proceedings under Section 527.6 of
the Code of Civil Procedure relating to protective orders
or the Elder Abuse and Dependent Adult Civil Protection
Act.
(6) All other actions and proceedings related to family law.
(7) All other civil actions or proceedings.
This bill would require, if funds are not available to provide
an interpreter to every party that meets the standard of
eligibility, that preference be given for parties proceeding
in forma pauperis pursuant to existing law in any civil action
or proceeding described in provisions (3), (4), (5), (6), (7),
or (8) above.
This bill would authorize courts to provide an interpreter to
a party outside the priority order above when a qualified
interpreter is present and available at the court location and
no higher priority action is taking place at that location
during the period of time for which the interpreter has
already been compensated.
This bill would prohibit a party from being charged a fee for
the provision of a court interpreter.
This bill would require the court, in seeking reimbursement
for court interpreter services, to identify to the Judicial
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Council the case types for which the interpretation to be
reimbursed was provided.
This bill would provide that its provisions shall not be
construed to alter, limit, or negate any right to an
interpreter in a civil action or proceeding otherwise provided
by state or federal law, or the right to an interpreter in
criminal, traffic, or other infraction, juvenile, or mental
competency actions or proceedings.
This bill also provides that the above provisions 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.
COMMENT
1. Stated need for the bill
According to the author:
Current law is ambiguous as to whether or not a court may
assign interpreters at no cost to the parties where the
parties are not indigent. Courts are required to provide sign
language interpreters in all cases, and to provide spoken
language interpreters in criminal and juvenile cases. Some
[c]ourts also use employee interpreters [to] provide limited
interpreter services in civil matters without requiring
parties to pay where the use and cost of these interpreters is
incidental to their use in criminal or juvenile proceedings.
There is an ongoing investigation of the Superior Court of Los
Angeles County and the Judicial Council by the federal
Department of Justice [U.S. DOJ] on civil rights matters
relating to language access. As noted above, U.S. DOJ is in
support of the council seeking the proposed clarification.
The bill makes it clear that courts can provide interpreters
in all civil matters, regardless of the income of the parties
involved. As amended, the bill creates an order of priority
by case type if there is insufficient funding appropriated to
provide interpreters for all parties in all cases.
In support of the bill, numerous individuals write that, "[t]he
stakes are high on this issue. Any person or company can use
you, in civil court, for money they claim you owe. The person
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or company suing you . . . can be a credit card company, a
hospital, a bank or any other person or company that says you
did not pay money you owed. If you lose a case in civil court,
you could end up owing many thousands of dollars. You could
lose your home. And all the institutions listed above can
afford to pay high priced, very skilled, lawyers to sue you. [
. . . ] An essential key to defending yourself is the ability
to understand the proceedings in the court, and these
proceedings are usually conducted in English. The problem is,
according to the U.S. Census Bureau, there are roughly 7 million
Californians who speak limited English. Many of them are on
limited income as well. For them, hiring an interpreter is
beyond their means."
The Judicial Council, sponsor of this bill, writes:
Courts must provide interpreters to non-English speaking
defendants in all criminal cases, including juvenile
delinquency cases and traffic cases. In civil cases, however,
interpreters must be provided in some cases, are provided by
some courts, and are not in others. Statutory and case law
require courts to provide interpreters in juvenile dependency
cases, certain family law cases where the parties are
indigent, and in some small claims cases where no volunteer
or other free interpreters are available. In other cases,
whether or not an interpreter is provided can depend on the
size of the county, the availability of funds, and the local
rules of the specific court.
These local rules, coupled with various interpretations of
Government Code requirements, have led to some courts
providing civil interpreters in some cases where they are not
explicitly required, and other courts not providing them. The
income of the parties can impact the ultimate decision as
well. The Federal Department of Justice believes that courts
are already required to provide these services. Without a
clarification in the Government Code, however, individual
courts are left to their own devices to decide how to
interpret the Government Code's requirements. It is in the
interest of Californians statewide to have a consistent
application of the Government Code in every region of the
state, which AB 1657 will provide.
2. U.S. DOJ warnings and the removal any statutory impediments
to the provision of court interpreters in civil matters and
free of cost to the parties
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As recognized by the author in Comment 1 above, adequate access
to interpreters has also been the subject of attention from the
U.S. DOJ in an attempt to ensure compliance with Title VI of the
Civil Rights Act of 1964. In February 2011, the Civil Rights
Division of the U.S. DOJ, prompted by a complaint by the Legal
Aid Foundation of Los Angeles alleging discrimination against
limited-English proficient (LEP) individuals on the basis of
national origin, initiated an investigation of the Los Angeles
County Superior Court (LASC) and the Judicial Council of
California. As a result of that investigation, the U.S. DOJ
issued a letter in May 2013 to the Chief Justice, Administrative
Director of the Courts for the Administrative Office of the
Courts (AOC), and the Presiding Judge of LASC, making various
observations and recommendations primarily aimed at achieving
voluntary compliance to ensure that LEP individuals have
meaningful access to court proceedings and court operations.
In its letter, the U.S. DOJ noted several major areas of concern
for California. Most relevant to this bill is that Title VI
requires that interpreter services in all court proceedings be
provided free of charge, yet, limitations on providing free
court-certified or qualified interpreters for LEP litigants in
non-criminal and non-juvenile proceedings in California are
codified under statute, and reflected in Rules of Court and AOC
guidelines and policy. This "disproportionately and negatively
impacts national origin minorities, resulting in, among other
things, great costs, delays, and lack of full participation
because of the use of family and friends, or similar volunteers,
with untested language and interpreting skills serving as
interpreters."
Relatedly, the U.S. DOJ letter noted "an area of great concern"
with respect to the underutilization and transfer of funds
appropriated for court interpreters. The U.S. DOJ confirmed
that in each of the last three fiscal years, the Trial Court
Trust Fund (also known as TCTF 45.45) has received an annual
$92.794 million appropriation as part of the state budget but
has been consistently underused, leaving a total of over $8
million in reserve-funds that, as noted by the U.S. DOJ, could
have been used to cover thousands of hours of interpreter
services without costs to LEP litigants. The U.S. DOJ also took
special notice of the fact that the Judicial Council has in the
past diverted $3 million of the unused funds from TCTF 45.45 to
fund trial court operations, and in July 2012 considered a
recommendation to transfer another $6.5 million of the unused
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funds for other uses-a recommendation that was ultimately
withdrawn. While under the current Chief Justice, the Judicial
Council has taken efforts to protect these funds from another
transfer, those funds still remain unused and "at risk of being
diverted to uses other than the interpreter services for which
they were intended." (Id. at pp. 6-7.)
Ultimately, the U.S. DOJ offered steps to help bring the state
into voluntary compliance with federal law. Among these were
recommendations that the Judicial Council "refrain from taking
any actions to re-allocate the unspent appropriations in TCTF
45.45" and that the AOC provide formal notification to LASC that
there is no statutory impediment or Judicial Council authority
that prevents the AOC from reimbursing the court for eligible
expenditure. (Notably, under the current Chief Justice, the
Judicial Council has taken efforts to protect these funds from
another transfer.)
Seeking to help move the state into voluntary compliance, this
bill would not only codify a finding and declaration that it is
imperative that the courts provide interpreters to all parties
who require one, and that both the legislative and judicial
branches of government continue in their joint commitment to
carry out this shared goal, but it would also add a provision to
the Government Code that would expressly prohibit a party from
being charged a fee for the provision of a court interpreter.
Significantly, this bill would also resolve an ongoing dispute
relating to the interpretation of certain Government Code
statutes that are seen by some as precluding the courts from
providing interpreters in civil cases at no cost to the parties.
As the issue has been described by the California Immigrant
Policy Center, a supporter of this bill:
Current law, including Government Code [S]ections 26806 and
68092, is ambiguous as to whether or not the courts can
provide [court interpreter] services, or if parties in civil
cases need to pay for interpreter services on their own.
Courts are already required to provide . . . foreign
language interpreters in all criminal, and certain civil,
cases. [ . . . ] In other cases, whether or not an
interpreter is provided can depend on the size of the county,
the availability of funds, and the local rules of the specific
court. These local rules, coupled with various
interpretations of the Government Code requirements, have led
to some courts providing civil interpreters in some cases
where they are not explicitly required, and other courts not
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providing them. The Federal Department of Justice believes
that courts are already required to provide these services.
Without a clarification in the Government Code, however,
individual courts are left to their own devices to decide how
they view the Government Code's requirements."
To address that issue, the bill would provide that
notwithstanding any other law, including the Government Code
sections referenced above, a court may provide an interpreter in
any civil action or proceeding at no cost to the parties,
regardless of the income of the parties. Finally, in light of
the current budgetary realities that would pose difficulty for
the provision of court interpreters in every case across
California that involves LEP litigants, this bill would
prioritize cases in which interpreters shall be provided first,
until sufficient funds are appropriated to provide an
interpreter to every party who needs one. The bill would also
allow for further prioritization within certain case types, when
the budget necessitates, that would give priority to parties
proceeding in forma pauperis pursuant to existing law. At the
same time, the bill makes clear that the courts can still
provide an interpreter to a party outside the priority order
above when a qualified interpreter is present and available at
the court location and no higher priority action is taking place
at that location during the period of time for which the
interpreter has already been compensated.
Support : California Chamber of Commerce; California Immigrant
Policy Center; 40 individuals
Opposition : None Known
HISTORY
Source : Judicial Council
Related Pending Legislation : None Known
Prior Legislation :
AB 1127 (Chau, 2013) would have required the Judicial Council to
establish a California Language Access Task Force, on or before
March 1, 2014, charged with developing a comprehensive statewide
Language Access Plan (LAP) for use by courts to address the
needs of all limited-English-proficient individuals in
conformance with state and federal law, as specified. The bill's
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implementation would only have been contingent upon
appropriation of funding, as specified. This bill was vetoed by
Governor Brown.
SB 597 (Lara, 2013) would have created a pilot project to
provide for interpreters in civil proceedings in up to five
courts, as specified, 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 bill
died in the Senate Appropriations Committee.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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