AGO 1989 No. 10 - May 17 1989
COURTS ‑- COUNTIES ‑- CITIES AND TOWNS ‑- INTERPRETERS FOR COURT PROCEEDINGS
1. The 1985 amendments to chapter 2.42 RCW, codified as RCW 2.42.110 through .180 [2.42.180], relate only to interpreter services for the hearing impaired.
2. The pre‑1985 portions of chapter 2.42 RCW, codified as RCW 2.42.010 through 2.42.050, apply only to interpreter services for persons with speech defects or non-English speaking cultural backgrounds, except that RCW 2.42.050 applies also to interpreter services for the hearing impaired.
3. With respect to criminal proceedings, the government whose officer is responsible for initiating the proceeding, usually the county, is responsible for the cost of providing the interpreter as defined in RCW 2.42.040.
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May 17, 1989
Honorable James R. Miller
Lewis County Prosecuting Attorney
P. O. Box 918
Chehalis, WA 98532
Cite as: AGO 1989 No. 10
Dear Mr. Miller:
By letter previously acknowledged, you requested our opinion on questions which we have renumbered and rephrased as follows:
1. Do the 1985 amendments to chapter 2.42 RCW, codified as RCW 2.42.110 through .180 [2.42.180], apply only to the hearing impaired?
2. Do the pre‑1985 provisions, RCW 2.42.010 through .050 [2.42.050], apply only to persons with non-English-speaking cultural backgrounds and speech defects?
3. With respect to criminal proceedings, what constitutes the "governmental body initiating the proceedings" under the provisions of RCW 2.42.040?
[[Orig. Op. Page 2]]
We answer question 1 in the affirmative, and questions 2 and 3 in the manner set forth below.1/
Chapter 2.42 RCW, as first enacted in 1973, required the appointment of a "qualified interpreter" for "impaired persons". In the 1973 act, an "impaired person" was defined as any person who is deaf, deaf mute, or who, because of other hearing or speech defects, cannot readily understand or communicate in spoken language, and who is unable by reason of such defects to obtain due process of law. Laws of 1973, ch. 22, § 2, p. 77 (codified as RCW 2.42.020(1)).2/
In 1983, the definition of "impaired person" was amended to include any person who because of a non-English-speaking cultural background cannot readily speak or understand the English language and who consequently is unable to obtain due process of law. Laws of 1983, ch. 222, § 2, p. 1170 (codified at RCW 2.42.020(1)).
In 1985, sections .110 [2.42.110] through .180 [2.42.180] were added to chapter 2.42 RCW. Laws of 1985, ch. 389, §§ 11-19, pp. 1622-1625. RCW 2.42.110 contains a definition of "qualified interpreter" that is limited to interpreters for the hearing impaired. The definition of "qualified interpreter" in RCW 2.42.110 therefore is narrower than the definitions of "qualified interpreter" and "impaired person" contained in RCW 2.42.020. Furthermore, sections .110 [2.42.110] through .180 [2.42.180] generally cover the same subject matter as the pre‑1985 sections of chapter 2.42 RCW, even though these new sections are to some extent substantively different than the earlier sections.
The statutory construction problem created by the 1985 amendments stems from the fact that, although RCW 2.42.020 and [[Orig. Op. Page 3]] .110 [2.42.110] contain different definitions for the phrase "qualified interpreter", both definitions apply throughout "this chapter". As used in RCW 2.42.020 and .110 [2.42.110], "this chapter" is ambiguous. The phrase normally would be construed as a reference to the chapter within the Revised Code of Washington in which the phrase appears. However, this phrase also conceivably could be a reference to a chapter within the session laws.
When a statute is ambiguous when read as a whole, it is appropriate to turn to the legislative history of the statute to construe the statute. State v. Turner, 98 Wn.2d 731, 734-35, 658 P.2d 658 (1983). Sections .110 [2.42.110] through .180 [2.42.180] of chapter 2.42 RCW were passed by the Legislature in 1985 as part of Senate Bill 4155. These sections were added to Senate Bill 4155 by a floor amendment in the House of Representatives. House Journal, 49th Legislature (1985), at 1399-1401; Senate Journal, 49th Legislature (1985), at 2009-12. The final bill report prepared after final passage of Senate Bill 4155 states that the sections of the bill relating to interpreters pertain to the hearing impaired. Final Legislative Report, 49th Legislature (1985), at 337-38. Although reports prepared after a statute has been enacted may be of little value in ascertaining legislative intent, 2 N. Singer, Statutory Construction § 48.06, at 309 (4th ed. 1984), there is evidence that the final bill report on Senate Bill 4155 reflects actual legislative intent.
First, both the Senate and the House had before them in the 1985 legislative session bills that contained proposed amendments to chapter 2.42 RCW. Engrossed Substitute Senate Bill 3740, 49th Legislature (1985); House Bill 421, 49th Legislature (1985). The substance of these two bills was identical, and the language virtually identical, to the substance and language of the floor amendment to Senate Bill 4155 that became RCW 2.42.110 through .180 [2.42.180]. The bill reports prepared by the Senate and the House regarding Engrossed Substitute Senate Bill 3740 indicate that it related only to the hearing impaired.3/
Senate Bill Report, Engrossed Substitute Senate Bill 3740 (1985); House Bill Report, Engrossed Substitute Senate Bill 3740 (1985).
Second, in discussions on the floors of the House and Senate regarding the House floor amendment to Senate Bill 4155, the amendment was explained as pertaining to the hearing impaired. Representative Belcher, speaking in favor of the amendment, described it as a clarification of a current statute that applies [[Orig. Op. Page 4]] to the hearing impaired. Representative Belcher also stated the amendment was "the essence" of a bill that had passed the Senate and had been reported out of the House Judiciary Committee. In the Senate, Senator Talmadge stated that Senate Bill 4155 applied to "the hearing impaired and the blind".4/
In light of this legislative history, RCW 2.42.110 through .180 [2.42.180] are best construed as applying to the hearing impaired only. Accordingly, we answer your first question in the affirmative.
The second question is whether the pre‑1985 provisions, RCW 2.42.010 through .050 [2.42.050], pertain only to persons with non-English-speaking cultural backgrounds and speech defects.
We conclude that RCW 2.42.010 through .040 [2.42.040] no longer apply to the hearing impaired, and now apply only to persons with non-English-speaking cultural backgrounds and speech defects. The substantive areas covered in RCW 2.42.010 through .040 [2.42.040] are covered in greater detail in RCW 2.42.110 through .180 [2.42.180]. In some instances, the substance of the earlier provisions was not changed in RCW 2.42.110 through .180 [2.42.180], 5/
while in other instances, the substance was changed.6/
In construing statutes, courts follow the rules of statutory construction that lead to a logical result. In Re Horse Heaven Irrig. Dist., 11 Wn.2d 218, 226, 118 P.2d 972 (1941);Proctor & Gamble Co. v. King Cy., 9 Wn.2d 655, 662-63, 115 P.2d 962 (1941). More than one rule could be applied to determine whether sections .010 [RCW 2.42.010] through .040 [2.42.040] still apply to the hearing impaired. One such rule provides that repeal of an existing statute occurs by implication when a later statute is so clearly repugnant to the existing statute that the two cannot both be given effect by a fair and reasonable construction. Local 497, Int'l Bhd. of Elec. Workers v. Public Util. Dist. 2, 103 Wn.2d 786, 789, 698 P.2d 1056 (1985). Here, the provisions of the 1985 amendment to chapter 2.42 RCW are in [[Orig. Op. Page 5]] several respects irreconcilable with the pre‑1985 statutes. Another rule that could apply here states that the provisions of a specific statute will prevail if the specific statute was enacted later than and is in conflict with a general statute. Muije v. Department of Social & Health Servs., 97 Wn.2d 451, 453, 645 P.2d 1086 (1982). Here, the 1985 amendments deal specifically with interpreters for the hearing impaired, whereas the pre‑1985 statutes deal generally with the subject of interpreters. Either of these rules leads to the logical result in this instance: the application of the 1985 amendments, but not the overlapping and sometimes conflicting provisions of the pre‑1985 provisions, to the hearing impaired. We therefore conclude that the most reasonable interpretation of chapter 2.42 RCW is that sections .110 [2.42.110] through .180 [2.42.180], but not sections .010 [2.42.010] through .040 [2.42.040], now constitute the operative provisions with respect to interpreters for the hearing impaired.
RCW 2.42.050, on the other hand, still applies to the hearing impaired. It was amended by Senate Bill 4155. Laws of 1985, ch. 389, § 20, p. 1625.7/
Among other changes to RCW 2.42.050, this amendment added the words "or in a manner" after the existing phrase "in a language". The apparent purpose of this particular amendment was to clarify that RCW 2.42.050 would apply to sign language interpreters for the hearing impaired. Furthermore, this interpretation of the 1985 amendment to RCW 2.42.050 is consistent with the evidence of the legislative intent behind Senate Bill 4155 set forth in our answer to question 1.
In summary, RCW 2.42.010 through .040 [2.42.040] apply only to persons with speech defects and with non-English-speaking cultural backgrounds. RCW 2.42.050 applies to the hearing impaired, persons with speech defects, and persons with non-English-speaking cultural backgrounds.
[[Orig. Op. Page 6]]
Your final question asks who pays an interpreter in criminal proceedings under RCW 2.42.040.
RCW 2.42.040 provides in part as follows:
Interpreters appointed pursuant to this chapter shall be adequately compensated for their services and shall be reimbursed for actual expenses as hereinafter provided:
(1) In criminal proceedings, grand jury proceedings, coroner's inquests, mental health commitment proceedings, and other proceedings initiated by agencies of government, the cost of providing the interpreter shall be borne by the governmental body initiating the proceedings.
. . . .
Your question relates solely to "criminal proceedings". We therefore will not address the application of RCW 2.42.040 to grand jury and other proceedings.
RCW 36.27.020(4) requires the prosecuting attorney to prosecute all criminal actions in which the state or the county may be a party. Therefore, in most cases, the county prosecuting attorney initiates criminal proceedings.8/
In our opinion, however, the prosecuting attorney is not the "governmental body" referred to in RCW 2.42.040. "Governmental body" is not defined in chapter 2.42 RCW. Words not defined by the Legislature are given their ordinary meaning. Davis v. Department of Empl. Sec., 108 Wn.2d 272, 277, 737 P.2d 1262 (1987). The ordinary meaning of words may be determined by reference to dictionaries. Brenner v. Leake, 46 Wn. App. 852, 854-55, 732 P.2d 1031 (1987). "Governmental" means "of or relating to government or the government of a particular political unit." Webster's Third New International Dictionary 983 (1981). "Body" has the following meaning:
[[Orig. Op. Page 7]]
6: a group or number of persons or things: as . . . b: a group of individuals united by a common tie or organized for some purpose: a collective whole or totality. . . .
Id.at 246. In our opinion, the prosecuting attorney and his staff are not the "governmental body" referred to in RCW 2.42.040 because they are not a group of individuals comprising a political unit. The county is a group of individuals comprising a political unit, and county officials have the responsibility to initiate criminal proceedings. Therefore, the county is the "governmental body" referred to in RCW 2.42.040, and the county pays for interpreters appointed under RCW 2.42.040(1) for persons with speech defects and with non-English-speaking cultural backgrounds.9/
[[Orig. Op. Page 8]]
Although we conclude that the county is the "governmental body" referred to in RCW 2.42.040, we believe that RCW 2.42.040 does not specify how the county is to budget for the expense of interpreters. The county pays all salaries and expenses associated with the operation of county government, including the salaries and expenses of the prosecuting attorney and the superior and district courts.10/
Const. art. 4, § 13; RCW 2.28.139, 3.62.050, 36.01.060. That being so, the county may pay interpreters appointed under RCW 2.42.040 through the prosecuting attorney's budget,11/
the courts' budget, both budgets, or otherwise in the county's budget.
In summary, the county is responsible for the payment of interpreters appointed under RCW 2.42.040 to provide [[Orig. Op. Page 9]] interpretation in criminal proceedings for persons with speech defects and with non-English-speaking cultural backgrounds.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
JEAN M. WILKINSON
Assistant Attorney General
*** FOOTNOTES ***
1/This opinion was drafted during the 1989 legislative session. It has come to our attention that the Legislature passed a bill in the 1989 session that would amend chapter 2.42 RCW, and that this legislation is awaiting action by the Governor. This opinion addresses the current state of the law only. It does not address what the future state of the law would be under the pending legislation or how the pending legislation would affect the conclusions reached herein.
2/Although the definition of "impaired person" found in RCW 2.42.020(1) is limited to a person who is a party to a legal proceeding, RCW 2.42.030 states that an interpreter shall be appointed "[w]hen an impaired person is a party to any legal proceeding or a witness therein".
3/House Bill 421 was identical in all pertinent respects to Engrossed Substitute Senate Bill 3740. House Bill 421 apparently never received a hearing in the House and no bill report was ever prepared.
4/Representative Belcher's and Senator Talmadge's remarks are taken from a tape recording of floor action on Senate Bill 4155, maintained by the minute‑journal clerk of the House of Representatives and the minute‑journal clerk of the Senate, respectively.
5/For example, compare RCW 2.42.030 and .040(1) [2.42.040(1)] with RCW 2.42.120(1) with respect to the requirement that an interpreter be appointed.
6/For example, compare RCW 2.42.040(1) with RCW 2.42.120(1) with respect to the issue of who pays the interpreter. Also, compare RCW 2.42.040(2) with RCW 2.42.120(2) through (6).
7/Section 20, chapter 389, Laws of 1985 amended RCW 2.42.050 as follows:
Every qualified interpreter appointed ((
pursuant to)) under this chapter in a judicial or administrative proceeding shall, before (( entering upon his duties as such)) beginning to interpret, take an oath that (( he will make)) a true interpretation will be made to the person being examined of all the proceedings in a languageor in a manner which (( said)) the person understands, and that (( he))the interpreter will repeat the statements of (( said)) the person being examined to the court or other agency conducting the proceedings, in the English language, to the best of (( his))the interpreter's skill and judgment.
8/Cities and towns are authorized to prosecute misdemeanors. See RCW 35.22.280(35), 35.23.440(29), 35.24.230, 35.27.320. Similarly, the Attorney General is authorized to bring certain specified criminal charges. RCW. 43.10.035, .090 [43.10.090].
9/RCW 2.42.040 states that "the cost of providing the interpreter shall be borne by the governmental body initiating the proceedings." The word "shall" is given an imperative meaning unless a contrary legislative intent is manifest. State v. Q.D., 102 Wn.2d 19, 29-30, 685 P.2d 557 (1984); Spokane v. Spokane Police Guild, 87 Wn.2d 457, 465, 553 P.2d 1316 (1976). With respect to the 1983 amendments to chapter 2.42 RCW, there is an indication that the Legislature intended that there not be mandatory employment at county expense of interpreters for persons of non-English-speaking cultural background. The 1983 amendments derived from Engrossed Senate Bill 3501. Immediately prior to final passage of Engrossed Senate Bill 3501 by the Senate, the following colloquy occurred:
POINT OF INQUIRY
Senator Metcalf: "Maybe I missed this in debate. What is the cost of this? What is the fiscal note? Everything costs money and I don't imagine anybody believes in a free lunch. What is the cost?"
Senator Talmadge: "Senator, this is merely a statement of policy. It is an inducement or an encouragement to local courts to provide this kind of service. In King County, it is done voluntarily with an interpreter service and does not cost the county anything. . . ."
Senate Journal, 48th Legislature (1983), at 725-26. Even though the 1983 amendments might not have been intended to be mandatory, the 1983 amendments by their terms apply only where due process requires that an interpreter be appointed. Since the Legislature is not able to eliminate a constitutional due process requirement that a criminal defendant receive interpretation services at public expense, the practical effect of the colloquy set forth above is not clear. See generally Annot.,Right of Accused to Have Evidence or Court Proceedings Interpreted, 36 A.L.R.3d 276 (1971) (a criminal defendant has no absolute right to the appointment of an interpreter; rather, the courts have decided on a case‑by-case basis whether interpretation is necessary for the fair trial required by constitutional guarantees of due process).
10/Except for one‑half of the salaries of superior court judges, which are paid by the State. Const. art. 4, § 13.
11/In your letter requesting this opinion, you raise several concerns relating to payment of interpreters by the prosecuting attorney. The nature of your concerns is that payment by the prosecuting attorney may give rise to questions regarding the interpreters' impartiality. We do not believe concerns of this nature are an absolute bar to the payment of interpreters from the budget of the prosecuting attorney. Interpreters must take an oath that they will make true interpretations to the best of their skill and judgment. RCW 2.42.050. Your concerns are similar to the issue addressed in State v. Laureano, 101 Wn.2d 745, 766-67, 682 P.2d 889 (1984). There, the Supreme Court found no abuse of discretion by the trial court where it allowed into evidence translations made by a Spanish-speaking employee of the sheriff's office of interrogations of the defendant conducted by that office. Courts have the discretion to rule on a case‑by-case basis whether an interpreter can maintain the necessary neutrality to perform his interpretation duties, and the burden is on the opposing party to bring to the court's attention potential problems of partiality. It seems to us that payment by the prosecutor for services necessarily rendered would not in and of itself make the interpreter partial to the prosecution.