BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009 - 2010 Regular Session
AB 663
Assemblymember Jones
As Amended June 15, 2009
Hearing Date: June 23, 2009
Business and Professions Code; Code of Civil Procedure;
Evidence Code; Government Code
KB/GW
SUBJECT
Legal Aid: Court Interpreters: Appearances by Telephone
DESCRIPTION
This bill, sponsored by the Judicial Council, would
establish a model pilot program to be developed by the
Judicial Council for providing court interpreters in
important civil matters not currently served, and prohibit
the use of the term "legal aid" unless the entity is a bona
fide nonprofit organization that provides civil legal
services for the poor without charge.
BACKGROUND
This bill is substantially similar to AB 3050 (Judiciary
Committee), which was passed by both the Assembly and
Senate last year, but vetoed by the Governor. AB 3050 was
one of many bills which were summarily vetoed by the
Governor because it did not meet the "highest priority for
California" during the passing of the 2008 - 2009 State
Budget. AB 3050 was a follow up to AB 2302 (Committee on
Judiciary, 2006) and AB 1726 (Committee on Judiciary,
2007). Both bills contained provisions regarding the need
for court interpreters in civil court proceedings.
However, AB 2302 was ultimately vetoed by the Governor due
to state budget concerns, although he did express support
for this policy. AB 1726, died in the Assembly Committee
on Appropriations.
(more)
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The California Commission on Access to Justice 2007 report
discusses the problem of fraud by organizations claiming to
be "legal aid" agencies when they are not.
These companies defraud our state's most vulnerable
populations at a very precarious time in their lives.
They take large deposits and fail to file responsive
pleadings essential to protect critical rights; they
overcharge for services; and they charge for services
that could be obtained at no cost. The harm caused by
these fraudulent practices has consequences far beyond
the harm they directly inflict on the consumers who
employ their services. By presenting themselves as
"legal aid" and then not fulfilling their promise and
overcharging their clients, these businesses cause the
public to distrust legal aid agencies generally, not
realizing that these for-profit businesses are not true
legal aid organizations. This distrust can have far
reaching effects if the poor do not seek the assistance
of legal aid under the belief that it will cost them
money they do not have and will not adequately assist
them with their legal problems.
This bill would prohibit an entity from utilizing the term
"legal aid," or variant, unless they are actually a
nonprofit organization that provides pro bono civil legal
services to the poor.
Existing 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. The
law, however, does not provide a court interpreter for
other parties who are not proficient in English, such as
those who speak another language. Existing law does
require an interpreter for witnesses who speak a language
other than English, but not for the parties in the case.
One statute provides for interpreters in certain cases
involving domestic violence, parental rights, and
dissolution of marriage involving a protective order.
However, compliance with this statute is dependent upon
federal funding, which is often unavailable. This bill is
intended to address the need for interpreters in other
civil actions, where courts have declined to provide such
assistance to the parties.
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CHANGES TO EXISTING LAW
1.Existing law , the State Bar Act, provides for the
licensure and regulation of attorneys. (Bus. & Prof.
Code Sec. 6000 et seq.)
This bill would make it unlawful for any person or
organization to use the term "legal aid," "legal aide,"
or any variant or 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.
This bill would define "legal aid organization" to mean a
nonprofit organization that provides civil legal services
to the poor without charge.
This bill would provide that any consumer injured by a
violation of its provisions with respect to legal aid
organizations 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.
This bill would provide that any person who violates its
provisions relating to legal aid organizations would be
subject to an injunction against further violations.
This bill would provide that, in an action under the
bill's provisions, it would not be necessary to allege or
prove actual damage to the plaintiff, or irreparable harm
to the plaintiff. Irreparable harm and interim harm to
the plaintiff would be presumed.
This bill would require that reasonable attorney's fees
be awarded to a prevailing plaintiff under the bill's
provisions.
2.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, Sec. 14.)
Existing law requires that, in any civil or criminal
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action of any kind where a party or witness is deaf or
hearing impaired, as defined, the proceedings shall be
interpreted in a language that the individual understands
by a qualified interpreter appointed by the court or
other appointing authority, or as agreed upon. (Evid.
Code Sec. 754.)
Existing law provides, except as specified, 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 shall 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.)
Existing law provides that interpreter fees, except as
specified, shall be paid by the litigant in proportion as
the court directs. (Id.)
Existing law provides that interpreter fees shall be
waived for a party who needs an interpreter and appears
in forma pauperis, as defined. (Id.)
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.)
Existing law requires specified state agencies, boards,
and commissions to provide language assistance in
adjudicative proceedings. (Gov. Code Sec. 11435.15.)
Existing law provides, pursuant to federal and state law,
that no person shall, on the basis of race, national
origin, ethnic group identification, religion, age, sex,
color, or disability, be unlawfully excluded from
participation in, denied the benefits of, or subjected to
discrimination under any program or activity that is
funded by the state or receives federal financial
assistance, including conduct that has a disproportionate
effect upon persons of limited English proficiency. (42
U.S.C. Sec. 2000 et seq.; Gov. Code Sec. 11135.)
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Existing law provides that, in small claims court cases,
the court may permit 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 of Civ. Proc. Sec.
116.550.)
This bill would require the Judicial Council, on or
before September 1, 2010, to establish a working group to
review, identify, and develop best practices to provide
interpreters in civil matters.
This bill would require that the working group 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. This bill would also
require that the working group include a representative
from a rural community.
This bill would require the Judicial Council to select up
to five courts to participate in a pilot project, from
July 1, 2011 until June 20, 2014, to provide interpreters
in civil proceedings as specified.
This bill would require pilot courts to provide
interpreters to any party proceeding in forma pauperis
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 that
party, his or her attorney, and the court in specified
actions and proceedings.
This bill would require pilot courts to 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 of the interpretation
needs in the specified actions and proceedings.
This bill would require pilot courts to develop a
methodology for deploying available interpreter resources
if funds provided are insufficient to meet the needs for
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court interpreters in all of the specified actions and
proceedings, or if after a diligent search, a sufficient
number of interpreters is not available.
This bill would require the Judicial Council to report
its findings and recommendations based on the pilot
project by Septemeber 1, 2013.
This bill would require the Judicial Council to assess
the need for court interpreters in court proceedings and
report its findings and recommendations to the
Legislature by July 1, 2016 and every five years
thereafter. This revises and recasts a current needs
assessment requirement that will sunset January 1, 2011.
This bill would require the Judicial Council to enter
into a master agreement or agreements with one or more
vendors to provide for telephone appearances in civil
cases, as permitted by law.
This bill would require the master agreements to require
an appearance fee in an amount set by the Judicial
Council and would require the vendor to pay the state $15
for every telephone appearance, with revenue to be used
by the Judicial Council to pay the costs of the pilot
court interpreter program.
This bill would provide that its provisions may 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.
This bill would make a number of legislative findings and
declarations regarding: 1) the number of languages spoken
by Californians and the unmet need for interpreters in
civil actions and proceedings; 2) pro bono legal services
and financial support of nonprofit legal organizations
that provide free legal services; and 3) legal aid
programs.
COMMENT
1.Stated need for the bill
California will soon be, if it is not already, a "minority
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- majority" state. The population of English as a second
language continues to increase as this state serves as a
gateway into the United States, providing a new home to
immigrants from various foreign countries. According to
the author, approximately 26 percent of the state's
population is foreign born, with 40 percent of the
population speaking a language other than English at home.
The author writes:
When people are sued or need legal advice, they are
commonly directed to "legal aid" agencies in court forms
and by court staff, by information and referral lines, or
by word of mouth. Indigent people sued for eviction,
divorce, debt collection, or car repossessions, believe
that by contacting "legal aid" they are reaching out to
the appropriate agency that will assist them for little
or no fee. Because the term "legal aid" is not defined
in statute, anyone can use it as part of their business
name. The result is that unscrupulous individuals create
company names that include the term "legal aid" or "legal
aide" and take advantage of the term and the widely held
belief that it means a place that low-income people and
other vulnerable populations can turn to for legal
assistance.
Nearly seven million Californians cannot access the
courts without significant language assistance, cannot
understand pleadings, forms or other legal documents,
cannot communicate with judges, clerks or other 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.
For Californians who are not proficient in English, the
prospect of navigating the legal system is daunting,
especially for the growing number of parties in family
court and other cases who do not have access to legal
services and therefore have no choice but to represent
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themselves in court - a virtually impossible task for
people who are unable to understand the proceedings.
Court interpreters should be available to all
Californians who need them, just as they are for persons
who are deaf or hard of hearing, in order to protect the
fair and efficient administration of justice, allow
parties to be understood by the court when they are not
represented by lawyers, encourage trust and confidence in
the judicial system and promote respect for the rule of
law and compliance with court orders.
In 2006, the Governor vetoed AB 2302 (Committee on
Judiciary), a nearly identical bill to AB 663. In his
message, the Governor recognized that "it is essential to
provide non-English speaking litigants with interpreters in
order to provide meaningful access to our justice
system?.," however he declined to sign the measure
believing in light of the State Budget concerns it would be
an inappropriate time for the expansion of state programs.
AB 663 was introduced as an effort to address the growing
need for court interpreters in civil proceedings, and to
protect litigants from persons using the term "legal aid"
deceptively. This bill will be self supported, as
specified, as to have no impact on the General Fund, which
should address the fiscal concerns raised by the Governor
with AB 3050.
2.This bill's pilot program will help to ensure that civil
litigants with limited English proficiency have equal
access to justice.
In 2002, the California Commission on Access to Justice
issued a report entitled, The Path to Equal Justice. The
Commission found that "people with limited English
proficiency are among those most likely to need assistance
in accessing the courts and least likely to receive it."
Therefore, the Commission asserts, it is necessary for
litigants with limited English proficiency to receive
assistance so that they may fully participate and
understand the judicial process and to ensure equal access
to justice.
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The California Constitution provides that a "person unable
to understand English who is charged with a crime has the
right to an interpreter throughout the proceedings." (Cal.
Const. Art. I, Sec. 14.) However, there is no
corresponding right in civil proceedings. Exiting law
provides that a court shall appoint an interpreter in cases
where the witness is not proficient in English, but does
not say whether a court may appoint an interpreter when the
parties are not English proficient. (Evid. Code Sec. 732.)
According to the Judicial Council, the Los Angeles
Superior Court has a policy of making court interpreters
available to parties for an hourly fee, subject to
discretionary waiver for indigent parties. However, both
the Judicial Council and the United States Department of
Justice has found this practice controversial, as it can be
viewed as conditioning equal access to the courts on
payment of a fee that, in practice, is arguable primarily
applied to minority groups.
According to the Access Commission reports, the starkest
consequence of these linguistic barriers to the courts is
that justice is denied. In his dissent from the majority
in Jara v. Municipal Court for the San Antonio Judicial
District of Los Angeles County (1978) 21 Cal.3d 181,
190-191, Justice Tobriner reminded the court that in
determining whether a litigant has been deprived of due
process turns on the circumstances, and the failure of the
court "to appoint an interpreter for a defendant who has
requested one, or whose conduct has made it obvious to the
court that he is unable because of linguistic difficulties
knowingly to participate?is fundamentally unfair." (Jara
citing People v. Annet (1967) 251 Cal.App.2d 858.)
In Gardiana v. Small Claims Court, the First Appellate
District for the Court of Appeal of California was the
first to expressly hold that an indigent,
non-English-speaking litigant in a civil small claims
proceeding was entitled to be furnished with a court
appointed interpreter at county expense if no competent
volunteer interpreters were available. (Gardiana v. Small
Claims Court (1976) 59 Cal.App.3d 412.) The court reasoned
that every court has the "inherent power to swear
interpreters whenever such a course is necessary to the due
administration of justice." (Gardiana citing People v.
Walker, at 423.)
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As stated earlier, in order to ensure that non-English
proficient litigants are given equal access to justice,
they must be afforded assistance. To deny them that
assistance would not allow for the litigant to participate
fully in the judicial process and could arguably result in
a proceeding that is fundamentally unfair to the litigant.
3.New injunctive relief standard would be implemented.
This bill would provide that it is unlawful for any person
or organization to use the term "legal aid," "legal aide,"
or any variant or similar name unless the organization is a
legal aid organization, i.e., a nonprofit organization that
provides civil legal services for the poor without charge.
This bill would provide that any person who violates its
provisions relating to legal aid organizations would be
subject to an injunction against further violations. This
bill would further provide that, in an action under the
bill's provisions, it would not be necessary to allege or
prove actual damage to the plaintiff, or irreparable harm
to the plaintiff. Irreparable harm and interim harm to the
plaintiff would be presumed.
Generally, the standard a court uses for providing
injunctive relief is that the plaintiff is likely to
prevail on the merits of the case and there is a likelihood
of irreparable harm in the absence of the injunction.
This bill, as did AB 3050, sets a lower standard for
injunctive relief under its provisions, in that irreparable
harm and interim harm would be presumed. This bill, like
AB 3050, contains the same injunctive relief standard as SB
1150 (Burton, Chapter 197, Statutes of 2004) with respect
to the use of names, trade names, logos, and tag lines of a
lender in consumer solicitations for financial services
from someone other than the consumer's lender. (Bus. &
Prof. Code Sec. 14704.)
The author and sponsor of SB 1150 argued that the departure
in the bill from ordinary injunctive relief law was
justified because it would help prevent harm to consumers.
(See Senate Judiciary Committee analysis, SB 1150, April
20, 2004.) That same argument would arguably apply here
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with respect to AB 663. Departure from the ordinary
injunctive relief standard is justified because the new
standard would help to prevent deception of unknowing
clients.
Support : AIDS Legal Referral Panel; American Civil
Liberties Union; Asian Americans for Civil Rights and
Equality; Bet Tzedek Legal Services; California Commission
on the Status of Women; California Communities United
Institute; California Federation of Interpreters;
California Immigrant Policy Center; California National
Organization for Women; California Rural legal Assistance
Foundation; Disability Rights Education and Defense Fund
(DREDF); Harriett Buhai Center; Inland Counties Legal
Services; Inner City Law Center; Legal Aid Society of
Orange County; Legal Aid Society of San Diego; Legal
Services of Northern California; Legal Services for
Prisoners with Children; Los Angeles Center for Law and
Justice; Neighborhood Legal Service of Los Angeles County;
Public Advocates; Public Counsel; Public Interest
Clearinghouse; State Bar of California; Watsonville Law
Center
Opposition : None Known
HISTORY
Source : Judicial Council
Related Pending Legislation : AB 590 would establish a
pilot project to provide legal counsel to low income
parties in civil cases, and combats the deceptive misuse of
the term "legal aid," as defined.
Prior Legislation :
AB 2302 (Committee on Judiciary, 2006) This bill was
vetoed. See Background.
AB 1726 (Committee on Judiciary, 2007) This bill died in
the Assembly Appropriations Committee. See Background.
AB 3050 (Committee on Judiciary, 2008) This bill was
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vetoed. See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 7, Noes 2)
Assembly Appropriations Committee (Ayes 12, Noes 5)
Assembly Floor (Ayes 51, Noes 28)
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