BILL ANALYSIS
AB 2038
Page 1
Date of Hearing: April 20, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 2038 (La Suer) - As Amended: April 12, 2004
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : CIVIL BENCH WARRANTS
KEY ISSUE : SHOULD THE LAW INVOLVING THE EXECUTION OF CIVIL
BENCH WARRANTS IN NONCRIMINAL CASES BE CLARIFIED?
SYNOPSIS
This bill clarifies the execution of civil bench warrants in
noncriminal actions. It provides for the imposition of a civil
penalty and the withholding of a vehicle registration as
appropriate tools to encourage persons to make required
appearances in civil cases. It is hoped these tools will
relieve some of the current subsidies in this area by taxpayers.
SUMMARY : Establishes new provisions to improve the execution
of civil bench warrants. Specifically, this bill :
1)Specifies that upon a failure of a party, witness, or other
person in a noncriminal court action to appear in court as
ordered, or to comply with a noncriminal court order, the
court may issue a civil bench warrant commanding any peace
officer to arrest and bring before the court that party,
witness, or other person.
2)Specifies that prior to the issuance of a civil bench warrant
for failure to appear pursuant to a subpoena, the person
seeking the warrant shall file a proof of service with the
court.
3)Provides that the court may order the Department of Motor
Vehicles (DMV) to withhold the issuance of any registration
for a motor vehicle or vessel registered to a person who fails
to appear as promised following arrest on a civil bench
warrant.
4)Further provides that the court may enter a civil judgment for
sheriff's fees and a civil penalty of not more than $5,000 in
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favor of the party requesting service of the warrant issued
pursuant to this law - with judgment enforced in the same
manner as other civil judgments for money.
5)Specifies that a civil bench warrant shall be directed to any
peace officer and contain specified information.
6)Provides that in any case in which a person is arrested on a
civil bench warrant and does not demand to be taken before a
magistrate, that person shall, instead of being taken before a
magistrate, be released as further specified that includes a
promise to appear.
7)Provides that if a person arrested on a civil bench warrant
fails to appear after being released on a promise to appear,
the court may issue another warrant to bring the person before
the court.
EXISTING LAW :
1)Provides that a bench warrant of arrest may be issued whenever
a defendant fails to appear in court as required by law and
such bench warrant may be served in any county in the same
manner as a warrant of arrest. (Penal Code Section 978.5.)
2)Provides that disobedience to a subpoena, or a refusal to
subscribe an affidavit or deposition when required, may be
punished as a contempt by the court issuing the subpoena.
(Code of Civil Procedure Section 1991.)
3)Provides that a witness disobeying a subpoena also forfeits to
the party aggrieved the sum of $500, and all damages which he
may sustain by the failure of the witness to attend, which
forfeiture and damages may be recovered in a civil action.
(Code of Civil Procedure Section 1992.)
4)Provides that in the case of failure of a witness to attend,
the Court or officer issuing the subpoena, upon proof of the
service thereof, and of the failure of the witness, may issue
a warrant to the Sheriff of the county to arrest the witness
and bring him before the Court or officer where his attendance
is required. (Code of Civil Procedure Section 1993.)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
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COMMENTS : In support of the bill, the author and supporters
state:
Each year the single, most problematic issue that arises at
the annual California State Sheriffs Association Civil
Seminar is the matter of enforcing civil bench warrants.
The law on how to enforce civil warrants is vague and far
from being instructive. In addition, budget constraints
severely limit the capacity of the various sheriffs to
arrest, house and transport persons arrested pursuant to
civil bench warrants. Few, if any sheriffs' departments can
afford to fund warrant details dedicated to arresting
hardened criminals who failed to appear in court on serious
misdemeanor and felony charges. As a result, those with
outstanding warrants (civil and criminal) only face arrest
during a traffic stop or other chance encounter with law
enforcement. The authority and dignity of the court to
enforce its arrest orders are rendered ineffectual due to
inadequate funding for law enforcement and a hodgepodge of
outdated statutes.
The dwindling of tax dollars has placed an increased burden
on parties involved in private lawsuits to pay for
government services that were once performed for nominal
fees. Fees for court filing, stenographers, jurors and
other civil fees have increased dramatically over the years
to reduce the tax payer's subsidy of lawsuits between
private parties.
Notwithstanding the above, the execution of a civil bench
is vital to American jurisprudence. Due process under the
law is frustrated when a duly subpoenaed witness can refuse
to appear in court with impunity. Or, when a judgment
debtor chooses to not appear in court for an examination as
to his assets. Historically, it has been the duty of the
sheriff to serve as the enforcement arm of the court and
give effect to the courts orders.
This legislation proposes statutory changes to increase the
financial responsibility of private parties to pay for the
service of civil bench warrants in an effort to better fund
the various sheriffs' departments civil bench warrant
operations. This legislation also decriminalizes the civil
bench warrant process without detracting from the court's
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inherent and statutory contempt powers.
Author's amendment . The author and sponsor have agreed to take
the following amendment suggested by Judicial Council:
On page 2, line 12, insert the following new subdivision (b):
(b) Prior to the issuance of a civil bench warrant for failure
to appear pursuant to a subpoena, as provided in subdivision
(a), the person seeking the warrant shall file a proof of
service with the court.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Sheriff's Department (sponsor)
Association for Los Angeles Deputy Sheriffs
California State Sheriffs' Association
Los Angeles County Professional Peace Officers Association
Riverside Sheriffs' Association
Opposition
None on file
Analysis Prepared by : Cindy Fischer / JUD. / (916) 319-2334