BILL NUMBER: AB 590 CHAPTERED
BILL TEXT
CHAPTER 457
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 9, 2009
PASSED THE ASSEMBLY SEPTEMBER 10, 2009
AMENDED IN SENATE SEPTEMBER 4, 2009
AMENDED IN SENATE AUGUST 20, 2009
AMENDED IN SENATE JUNE 30, 2009
AMENDED IN ASSEMBLY APRIL 30, 2009
AMENDED IN ASSEMBLY MARCH 12, 2009
INTRODUCED BY Assembly Member Feuer
(Coauthor: Senator Leno)
FEBRUARY 25, 2009
An act to add Article 9.6 (commencing with Section 6159.5) to
Chapter 4 of Division 3 of the Business and Professions Code, and to
amend, repeal, and add Sections 68085.1 and 70626 of, and to add
Chapter 2.1 (commencing with Section 68650) to Title 8 of, the
Government Code, relating to the practice of law.
LEGISLATIVE COUNSEL'S DIGEST
AB 590, Feuer. Legal aid.
(1) 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 state the intent of the Legislature to encourage
the legal profession to make further efforts to meet its professional
responsibilities and other obligations by providing pro bono legal
services and financial support of nonprofit legal organizations that
provide free legal services to underserved communities.
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.
This bill would, commencing July 1, 2011, and subject to funding
specifically provided for this purpose, require the Judicial Council
to develop one or more model pilot projects in selected courts for
3-year periods pursuant to a competitive grant process and a request
for proposals. The bill would provide that legal counsel shall be
appointed to represent low-income parties in civil matters involving
critical issues affecting basic human needs in those courts selected
by the Judicial Council, as specified. The bill would provide that
each project shall be a partnership between the court, a qualified
legal services project that shall serve as the lead agency for case
assessment and direction, and other legal services providers in the
community who are able to provide the services for the project. The
bill would require the lead legal services agency, to the extent
practical, to identify and make use of pro bono services in order to
maximize available services efficiently and economically. The bill
would provide that the court partner is responsible for providing
procedures, personnel, training, and case management and
administration practices that reflect best practices, as specified.
The bill would require a local advisory committee to be formed to
facilitate the administration of the local project and to ensure that
the project is fulfilling its objectives. The bill would require the
Judicial Council to conduct a study to demonstrate the effectiveness
and continued need for the pilot program, and to report its findings
and recommendations to the Governor and the Legislature on or before
January 31, 2016.
(2) Existing law sets the fees at $25 or $30 for various court
services, including, but not limited to, issuing a writ for the
enforcement of an order or judgment, issuing an abstract of judgment,
recording or registering any license or certificate, issuing an
order of sale, and filing and entering an award under the Workers'
Compensation Law.
This bill would provide, from July 1, 2011, to June 30, 2017,
inclusive, that $10 of each fee collected pursuant to these
provisions shall be used by the Judicial Council for the expenses of
the Judicial Council in implementing and administering the civil
representation pilot program described in (1) above. Commencing July
1, 2017, the bill would reduce each of those fees by $10.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) There is an increasingly dire need for legal services for poor
Californians. Due to insufficient funding from all sources, existing
programs providing free services in civil matters to indigent and
disadvantaged persons, especially underserved groups such as elderly,
disabled, children, and non-English-speaking persons, are not
adequate to meet existing needs.
(b) The critical need for legal representation in civil cases has
been documented repeatedly, and the statistics are staggering.
California courts are facing an ever increasing number of parties who
go to court without legal counsel. Over 4.3 million Californians are
believed to be currently unrepresented in civil court proceedings,
largely because they cannot afford representation. Current funding
allows legal services programs to assist less than one-third of
California's poor and lower income residents. As a result, many
Californians are unable to meaningfully access the courts and obtain
justice in a timely and effective manner. The effect is that critical
legal decisions are made without the court having the necessary
information, or without the parties having an adequate understanding
of the orders to which they are subject.
(c) The modern movement to offer legal services for the poor was
spearheaded by Sargent Shriver in 1966, aided by the American Bar
Association, then headed by future Supreme Court Justice Lewis
Powell, driven by the large disparity that existed between the number
of lawyers available for poor Americans compared with the
availability of legal services for others. While much progress has
been made since then, significant disparity continues. According to
federal poverty data, there was one legal aid attorney in 2006 for
every 8,373 poor people in California. By contrast, the number of
attorneys providing legal services to the general population is
approximately one for every 240 people - nearly 35 times higher.
(d) The fair resolution of conflicts through the legal system
offers financial and economic benefits by reducing the need for many
state services and allowing people to help themselves. There are
significant social and governmental fiscal costs of depriving
unrepresented parties of vital legal rights affecting basic human
needs, particularly with respect to indigent parties, including the
elderly and people with disabilities, and these costs may be avoided
or reduced by providing the assistance of counsel where parties have
a reasonable possibility of achieving a favorable outcome.
(e) Expanding representation will not only improve access to the
courts and the quality of justice obtained by these individuals, but
will allow court calendars that currently include many
self-represented litigants to be handled more effectively and
efficiently. Increasing the availability of legal representation for
litigants who must currently represent themselves or face loss of
their legal rights is a key priority of the Judicial Council and
Chief Justice Ronald M. George. As the Chief Justice has noted, the
large and growing number of self-represented litigants is one of the
most challenging issues in the coming decade, imposing significant
costs on the judicial system and the public by impairing the ability
of the courts to efficiently process heavy caseloads, and eroding the
public's confidence in our judicial system. While court self-help
services are important, those services are insufficient alone to meet
all needs. Experience has shown that those services are much less
effective when, among other factors, unrepresented parties lack
income, education, and other skills needed to navigate a complex and
unfamiliar court process, and particularly when unrepresented parties
are required to appear in court or face opposing counsel.
Recognizing that not all indigent parties may be allowed
representation, even when they have meritorious cases, and that
self-help services cannot meet the needs of all unrepresented
parties, courts presented with disputes regarding basic human needs
that involve low-income litigants facing parties who are represented
by counsel have a special responsibility to employ best practices
designed to ensure that unrepresented parties obtain meaningful
access to justice and to guard against the involuntary waiver or
other loss of rights or the disposition of those cases without
appropriate information and regard for potential claims and defenses,
consistent with principles of judicial neutrality. The experience
and data collected through a pilot program will assist the courts and
the legal community in developing new strategies to provide legal
representation to overcome this challenge.
(f) The doctrine of equal justice under the law is based on two
principles. One is that the substantive protections and obligations
of the law shall be applied equally to everyone, no matter how high
or low their station in life. The second principle involves access to
the legal system. Even if we have fair laws and an unbiased
judiciary to apply them, true equality before the law will be
thwarted if people cannot invoke the laws for their protection. For
persons without access, our system provides no justice at all, a
situation that may be far worse than one in which the laws expressly
favor some and disfavor others.
(g) Many judicial leaders acknowledge that the disparity in
outcomes is so great that indigent parties who lack representation
regularly lose cases that they would win if they had counsel. A
growing body of empirical research confirms the widespread perception
that parties who attempt to represent themselves are likely to lose,
regardless of the merits of their case, particularly when the
opposing party has a lawyer, while parties represented by counsel are
far more likely to prevail. Judicial leaders and scholars also
believe that the presence of counsel encourages settlements. Just as
importantly, court opinion surveys show that more than two-thirds of
Californians believe low-income people usually receive worse outcomes
in court than others. Unfairness in court procedures and outcomes,
whether real or perceived, threatens to undermine public trust and
confidence in the courts. The sense that court decisions are made
through a process that is fair and just, both in substance and
procedure, strongly affects public approval and confidence in
California courts. As many legal and judicial leaders have noted, the
combined effect of widespread financial inability to afford
representation coupled with the severe disadvantages of appearing in
court without an attorney foster a destructive perception that money
drives the judicial system. Respect for the law and the legal system
is not encouraged if the public perceives, rightly or wrongly, that
justice is mainly for the wealthy.
(h) Equal access to justice without regard to income is a
fundamental right in a democratic society. It is essential to the
enforcement of all other rights and responsibilities in any society
governed by the rule of law. It also is essential to the public's
confidence in the legal system and its ability to reach just
decisions.
(i) The adversarial system of justice relied upon in the United
States inevitably allocates to the parties the primary responsibility
for discovering the relevant evidence, finding the relevant legal
principles, and presenting them to a neutral judge or jury.
Discharging these responsibilities generally requires the knowledge
and skills of a legally trained professional. The absence of
representation not only disadvantages parties, it has a negative
effect on the functioning of the judicial system. When parties lack
legal counsel, courts must cope with the need to provide guidance and
assistance to ensure that the matter is properly administered and
the parties receive a fair trial or hearing. Those efforts, however,
deplete scarce court resources and negatively affect the court's
ability to function as intended, including causing erroneous and
incomplete pleadings, inaccurate information, unproductive court
appearances, improper defaults, unnecessary continuances, delays in
proceedings for all court users, and other problems that can
ultimately subvert the administration of justice.
(j) Because in many civil cases lawyers are as essential as judges
and courts to the proper functioning of the justice system, the
state has just as great a responsibility to ensure adequate counsel
is available to both parties in those cases as it does to supply
judges, courthouses, and other forums for the hearing of those cases.
(k) Many of those living in this state cannot afford to pay for
the services of lawyers when needed for them to enjoy fair and equal
access to justice. In some cases, justice is not achievable if one
side is unrepresented because the parties cannot afford the cost of
representation. The guarantees of due process and equal protection as
well as the common law that serves as the rule of decision in
California courts underscore the need to provide legal representation
in critical civil matters when parties cannot afford the cost of
retaining a lawyer. In order for those who are unable to afford
representation to exercise this essential right of participants in a
democracy, to protect their rights to liberty and property, and to
the pursuit of basic human needs, the state has a responsibility to
provide legal counsel without cost. In many cases decided in the
state's adversarial system of civil justice the parties cannot gain
fair and equal access to justice unless they are advised and
represented by lawyers. In other cases, there are some forums in
which it may be possible for most parties to have fair and equal
access if they have the benefit of representation by qualified
nonlawyer advocates, and other forums where parties can represent
themselves if they receive self-help assistance.
(l) The state has an interest in providing publicly funded legal
representation and nonlawyer advocates or self-help advice and
assistance, when the latter is sufficient, and doing so in a
cost-effective manner by ensuring the level and type of service
provided is the lowest cost type of service consistent with providing
fair and equal access to justice. Several factors can affect the
determination of when representation by an attorney is needed for
fair and equal access to justice and when other forms of assistance
will suffice. These factors include the complexity of the substantive
law, the complexity of the forum's procedures and process, the
individual's education, sophistication, and English language ability,
and the presence of counsel on the opposing side of the dispute.
(m) If those advised, assisted, or represented by publicly funded
lawyers are to have fair and equal access to justice, those lawyers
must be as independent, ethical, and loyal to their clients as those
serving clients who can afford to pay for counsel.
(n) The services provided for in Section 5 of this act are not
intended to, and shall not, supplant legal services resources from
any other source. This act does not entitle any person to receive
services from a particular legal services provider, nor shall this
act override the local or national priorities of existing legal
services programs. The services provided for in Section 5 of this act
are likewise not intended to undermine any existing pilot programs
or other efforts to simplify court procedures or provide assistance
to unrepresented litigants. Furthermore, nothing in this act shall be
construed to prohibit the provision of full legal representation or
other appropriate services funded by another source.
SEC. 2. In light of the large and ongoing justice gap between the
legal needs of low-income Californians and the legal resources
available to meet those needs, it is the intent of the Legislature to
encourage the legal profession to make further efforts to meet its
professional responsibilities and other obligations by providing pro
bono legal services and financial support of nonprofit legal
organizations that provide free legal services to underserved
communities.
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 68085.1 of the Government Code is amended to read:
68085.1. (a) This section applies to all fees and fines that are
collected on or after January 1, 2006, under all of the following:
(1) Sections 177.5, 209, 403.060, 491.150, 631.3, 683.150,
704.750, 708.160, 724.100, 1134, 1161.2, 1218, and 1993.2 of,
subdivision (g) of Section 411.20 and subdivisions (c) and (g) of
Section 411.21 of, and Chapter 5.5 (commencing with Section 116.110)
of Title 1 of Part 1 of, the Code of Civil Procedure.
(2) Section 3112 of the Family Code.
(3) Section 31622 of the Food and Agricultural Code.
(4) Subdivision (d) of Section 6103.5, Sections 68086 and 68086.1,
subdivision (d) of Section 68511.3, Sections 68926.1 and 69953.5,
and Chapter 5.8 (commencing with Section 70600).
(5) Section 103470 of the Health and Safety Code.
(6) Subdivisions (b) and (c) of Section 166 and Section 1214.1 of
the Penal Code.
(7) Sections 1835, 1851.5, 2343, 7660, and 13201 of the Probate
Code.
(8) Sections 14607.6 and 16373 of the Vehicle Code.
(9) Section 71386 of this code, Sections 304, 7851.5, and 9002 of
the Family Code, and Section 1513.1 of the Probate Code, if the
reimbursement is for expenses incurred by the court.
(10) Section 3153 of the Family Code, if the amount is paid to the
court for the cost of counsel appointed by the court to represent a
child.
(b) On and after January 1, 2006, each superior court shall
deposit all fees and fines listed in subdivision (a), as soon as
practicable after collection and on a regular basis, into a bank
account established for this purpose by the Administrative Office of
the Courts. Upon direction of the Administrative Office of the
Courts, the county shall deposit civil assessments under Section
1214.1 of the Penal Code and any other money it collects under the
sections listed in subdivision (a) as soon as practicable after
collection and on a regular basis into the bank account established
for this purpose and specified by the Administrative Office of the
Courts. The deposits shall be made as required by rules adopted by,
and financial policies and procedures authorized by, the Judicial
Council under subdivision (a) of Section 77206. Within 15 days after
the end of the month in which the fees and fines are collected, each
court, and each county that collects any fines or fees under
subdivision (a), shall provide the Administrative Office of the
Courts with a report of the fees by categories as specified by the
Administrative Office of the Courts. The Administrative Office of the
Courts and any court may agree upon a time period greater than 15
days, but in no case more than 30 days after the end of the month in
which the fees and fines are collected. The fees and fines listed in
subdivision (a) shall be distributed as provided in this section.
(c) (1) Within 45 calendar days after the end of the month in
which the fees and fines listed in subdivision (a) are collected, the
Administrative Office of the Courts shall make the following
distributions:
(A) To the small claims advisory services, as described in
subdivision (f) of Section 116.230 of the Code of Civil Procedure.
(B) To dispute resolution programs, as described in subdivision
(b) of Section 68085.3 and subdivision (b) of Section 68085.4.
(C) To the county law library funds, as described in Sections
116.230 and 116.760 of the Code of Civil Procedure, subdivision (b)
of Section 68085.3, subdivision (b) of Section 68085.4, and Section
70621 of this code, and Section 14607.6 of the Vehicle Code.
(D) To the courthouse construction funds in the Counties of
Riverside, San Bernardino, and San Francisco, as described in
Sections 70622, 70624, and 70625.
(E) Commencing July 1, 2011, to the Trial Court Trust Fund, as
described in subdivision (d) of Section 70626, to be used by the
Judicial Council to implement and administer the civil representation
pilot program under Section 68651.
(2) If any distribution under this subdivision is delinquent, the
Administrative Office of the Courts shall add a penalty to the
distribution as specified in subdivision (i).
(d) Within 45 calendar days after the end of the month in which
the fees and fines listed in subdivision (a) are collected, the
amounts remaining after the distributions in subdivision (c) shall be
transmitted to the State Treasury for deposit in the Trial Court
Trust Fund and other funds as required by law. This remittance shall
be accompanied by a remittance advice identifying the collection
month and the appropriate account in the Trial Court Trust Fund or
other fund to which it is to be deposited. Upon the receipt of any
delinquent payment required under this subdivision, the Controller
shall calculate a penalty as provided under subdivision (i).
(e) From the money transmitted to the State Treasury under
subdivision (d), the Controller shall make deposits as follows:
(1) Into the State Court Facilities Construction Fund, the Judges'
Retirement Fund, and the Equal Access Fund, as described in
subdivision (c) of Section 68085.3 and subdivision (c) of Section
68085.4.
(2) Into the Health Statistics Special Fund, as described in
subdivision (b) of Section 70670 of this code and Section 103730 of
the Health and Safety Code.
(3) Into the Family Law Trust Fund, as described in Section 70674.
(4) Into the Immediate and Critical Needs Account of the State
Court Facilities Construction Fund, established in Section 70371.5,
as described in Sections 68085.3, 68085.4, and 70657.5, and
subdivision (e) of Section 70617.
(5) The remainder of the money shall be deposited into the Trial
Court Trust Fund.
(f) The amounts collected by each superior court under Section
116.232, subdivision (g) of Section 411.20, and subdivision (g) of
Section 411.21 of the Code of Civil Procedure, Sections 304, 3112,
3153, 7851.5, and 9002 of the Family Code, subdivision (d) of Section
6103.5, subdivision (d) of Section 68511.3 and Sections 68926.1,
69953.5, 70627, 70631, 70640, 70661, 70678, and 71386 of this code,
and Sections 1513.1, 1835, 1851.5, and 2343 of the Probate Code shall
be added to the monthly apportionment for that court under
subdivision (a) of Section 68085.
(g) If any of the fees provided in subdivision (a) are partially
waived by court order or otherwise reduced, and the fee is to be
divided between the Trial Court Trust Fund and any other fund or
account, the amount of the reduction shall be deducted from the
amount to be distributed to each fund in the same proportion as the
amount of each distribution bears to the total amount of the fee. If
the fee is paid by installment payments, the amount distributed to
each fund or account from each installment shall bear the same
proportion to the installment payment as the full distribution to
that fund or account does to the full fee. If a court collects a fee
that was incurred before January 1, 2006, under a provision that was
the predecessor to one of the paragraphs contained in subdivision
(a), the fee may be deposited as if it were collected under the
paragraph of subdivision (a) that corresponds to the predecessor of
that paragraph and distributed in prorated amounts to each fund or
account to which the fee in subdivision (a) must be distributed.
(h) Except as provided in Sections 470.5 and 6322.1 of the
Business and Professions Code, and Sections 70622, 70624, and 70625
of this code, no agency may take action to change the amounts
allocated to any of the funds described in subdivision (c), (d), or
(e).
(i) The amount of the penalty on any delinquent payment under
subdivision (c) or (d) shall be calculated by multiplying the amount
of the delinquent payment at a daily rate equivalent to 11/2 percent
per month for the number of days the payment is delinquent. The
penalty shall be paid from the Trial Court Trust Fund. Penalties on
delinquent payments under subdivision (d) shall be calculated only on
the amounts to be distributed to the Trial Court Trust Fund and the
State Court Facilities Construction Fund, and each penalty shall be
distributed proportionately to the funds to which the delinquent
payment was to be distributed.
(j) If a delinquent payment under subdivision (c) or (d) results
from a delinquency by a superior court under subdivision (b), the
court shall reimburse the Trial Court Trust Fund for the amount of
the penalty. Notwithstanding Section 77009, any penalty on a
delinquent payment that a court is required to reimburse pursuant to
this section shall be paid from the court operations fund for that
court. The penalty shall be paid by the court to the Trial Court
Trust Fund no later than 45 days after the end of the month in which
the penalty was calculated. If the penalty is not paid within the
specified time, the Administrative Office of the Courts may reduce
the amount of a subsequent monthly allocation to the court by the
amount of the penalty on the delinquent payment.
(k) If a delinquent payment under subdivision (c) or (d) results
from a delinquency by a county in transmitting fees and fines listed
in subdivision (a) to the bank account established for this purpose,
as described in subdivision (b), the county shall reimburse the Trial
Court Trust Fund for the amount of the penalty. The penalty shall be
paid by the county to the Trial Court Trust Fund no later than 45
days after the end of the month in which the penalty was calculated.
(l) This section shall become inoperative on July 1, 2017, and, as
of January 1, 2018, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2018, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 5. Section 68085.1 is added to the Government Code, to read:
68085.1. (a) This section applies to all fees and fines that are
collected on or after January 1, 2006, under all of the following:
(1) Sections 177.5, 209, 403.060, 491.150, 631.3, 683.150,
704.750, 708.160, 724.100, 1134, 1161.2, 1218, and 1993.2 of,
subdivision (g) of Section 411.20 and subdivisions (c) and (g) of
Section 411.21 of, and Chapter 5.5 (commencing with Section 116.110)
of Title 1 of Part 1 of, the Code of Civil Procedure.
(2) Section 3112 of the Family Code.
(3) Section 31622 of the Food and Agricultural Code.
(4) Subdivision (d) of Section 6103.5, Sections 68086 and 68086.1,
subdivision (d) of Section 68511.3, Sections 68926.1 and 69953.5,
and Chapter 5.8 (commencing with Section 70600).
(5) Section 103470 of the Health and Safety Code.
(6) Subdivisions (b) and (c) of Section 166 and Section 1214.1 of
the Penal Code.
(7) Sections 1835, 1851.5, 2343, 7660, and 13201 of the Probate
Code.
(8) Sections 14607.6 and 16373 of the Vehicle Code.
(9) Section 71386 of this code, Sections 304, 7851.5, and 9002 of
the Family Code, and Section 1513.1 of the Probate Code, if the
reimbursement is for expenses incurred by the court.
(10) Section 3153 of the Family Code, if the amount is paid to the
court for the cost of counsel appointed by the court to represent a
child.
(b) On and after January 1, 2006, each superior court shall
deposit all fees and fines listed in subdivision (a), as soon as
practicable after collection and on a regular basis, into a bank
account established for this purpose by the Administrative Office of
the Courts. Upon direction of the Administrative Office of the
Courts, the county shall deposit civil assessments under Section
1214.1 of the Penal Code and any other money it collects under the
sections listed in subdivision (a) as soon as practicable after
collection and on a regular basis into the bank account established
for this purpose and specified by the Administrative Office of
the Courts. The deposits
shall be made as required by rules adopted by, and financial
policies and procedures authorized by, the Judicial Council under
subdivision (a) of Section 77206. Within 15 days after the end of the
month in which the fees and fines are collected, each court, and
each county that collects any fines or fees under subdivision (a),
shall provide the Administrative Office of the Courts with a report
of the fees by categories as specified by the Administrative Office
of the Courts. The Administrative Office of the Courts and any court
may agree upon a time period greater than 15 days, but in no case
more than 30 days after the end of the month in which the fees and
fines are collected. The fees and fines listed in subdivision (a)
shall be distributed as provided in this section.
(c) (1) Within 45 calendar days after the end of the month in
which the fees and fines listed in subdivision (a) are collected, the
Administrative Office of the Courts shall make the following
distributions:
(A) To the small claims advisory services, as described in
subdivision (f) of Section 116.230 of the Code of Civil Procedure.
(B) To dispute resolution programs, as described in subdivision
(b) of Section 68085.3 and subdivision (b) of Section 68085.4.
(C) To the county law library funds, as described in Sections
116.230 and 116.760 of the Code of Civil Procedure, subdivision (b)
of Section 68085.3, subdivision (b) of Section 68085.4, and Section
70621 of this code, and Section 14607.6 of the Vehicle Code.
(D) To the courthouse construction funds in the Counties of
Riverside, San Bernardino, and San Francisco, as described in
Sections 70622, 70624, and 70625.
(2) If any distribution under this subdivision is delinquent, the
Administrative Office of the Courts shall add a penalty to the
distribution as specified in subdivision (i).
(d) Within 45 calendar days after the end of the month in which
the fees and fines listed in subdivision (a) are collected, the
amounts remaining after the distributions in subdivision (c) shall be
transmitted to the State Treasury for deposit in the Trial Court
Trust Fund and other funds as required by law. This remittance shall
be accompanied by a remittance advice identifying the collection
month and the appropriate account in the Trial Court Trust Fund or
other fund to which it is to be deposited. Upon the receipt of any
delinquent payment required under this subdivision, the Controller
shall calculate a penalty as provided under subdivision (i).
(e) From the money transmitted to the State Treasury under
subdivision (d), the Controller shall make deposits as follows:
(1) Into the State Court Facilities Construction Fund, the Judges'
Retirement Fund, and the Equal Access Fund, as described in
subdivision (c) of Section 68085.3 and subdivision (c) of Section
68085.4.
(2) Into the Health Statistics Special Fund, as described in
subdivision (b) of Section 70670 of this code and Section 103730 of
the Health and Safety Code.
(3) Into the Family Law Trust Fund, as described in Section 70674.
(4) Into the Immediate and Critical Needs Account of the State
Court Facilities Construction Fund, established in Section 70371.5,
as described in Sections 68085.3, 68085.4, and 70657.5, and
subdivision (e) of Section 70617.
(5) The remainder of the money shall be deposited into the Trial
Court Trust Fund.
(f) The amounts collected by each superior court under Section
116.232, subdivision (g) of Section 411.20, and subdivision (g) of
Section 411.21 of the Code of Civil Procedure, Sections 304, 3112,
3153, 7851.5, and 9002 of the Family Code, subdivision (d) of Section
6103.5, subdivision (d) of Section 68511.3 and Sections 68926.1,
69953.5, 70627, 70631, 70640, 70661, 70678, and 71386 of this code,
and Sections 1513.1, 1835, 1851.5, and 2343 of the Probate Code shall
be added to the monthly apportionment for that court under
subdivision (a) of Section 68085.
(g) If any of the fees provided in subdivision (a) are partially
waived by court order or otherwise reduced, and the fee is to be
divided between the Trial Court Trust Fund and any other fund or
account, the amount of the reduction shall be deducted from the
amount to be distributed to each fund in the same proportion as the
amount of each distribution bears to the total amount of the fee. If
the fee is paid by installment payments, the amount distributed to
each fund or account from each installment shall bear the same
proportion to the installment payment as the full distribution to
that fund or account does to the full fee. If a court collects a fee
that was incurred before January 1, 2006, under a provision that was
the predecessor to one of the paragraphs contained in subdivision
(a), the fee may be deposited as if it were collected under the
paragraph of subdivision (a) that corresponds to the predecessor of
that paragraph and distributed in prorated amounts to each fund or
account to which the fee in subdivision (a) must be distributed.
(h) Except as provided in Sections 470.5 and 6322.1 of the
Business and Professions Code, and Sections 70622, 70624, and 70625
of this code, no agency may take action to change the amounts
allocated to any of the funds described in subdivision (c), (d), or
(e).
(i) The amount of the penalty on any delinquent payment under
subdivision (c) or (d) shall be calculated by multiplying the amount
of the delinquent payment at a daily rate equivalent to 11/2 percent
per month for the number of days the payment is delinquent. The
penalty shall be paid from the Trial Court Trust Fund. Penalties on
delinquent payments under subdivision (d) shall be calculated only on
the amounts to be distributed to the Trial Court Trust Fund and the
State Court Facilities Construction Fund, and each penalty shall be
distributed proportionately to the funds to which the delinquent
payment was to be distributed.
(j) If a delinquent payment under subdivision (c) or (d) results
from a delinquency by a superior court under subdivision (b), the
court shall reimburse the Trial Court Trust Fund for the amount of
the penalty. Notwithstanding Section 77009, any penalty on a
delinquent payment that a court is required to reimburse pursuant to
this section shall be paid from the court operations fund for that
court. The penalty shall be paid by the court to the Trial Court
Trust Fund no later than 45 days after the end of the month in which
the penalty was calculated. If the penalty is not paid within the
specified time, the Administrative Office of the Courts may reduce
the amount of a subsequent monthly allocation to the court by the
amount of the penalty on the delinquent payment.
(k) If a delinquent payment under subdivision (c) or (d) results
from a delinquency by a county in transmitting fees and fines listed
in subdivision (a) to the bank account established for this purpose,
as described in subdivision (b), the county shall reimburse the Trial
Court Trust Fund for the amount of the penalty. The penalty shall be
paid by the county to the Trial Court Trust Fund no later than 45
days after the end of the month in which the penalty was calculated.
(l) This section shall become operative on July 1, 2017.
SEC. 6. Chapter 2.1 (commencing with Section 68650) is added to
Title 8 of the Government Code, to read:
CHAPTER 2.1. CIVIL LEGAL REPRESENTATION
68650. This chapter shall be known, and may be cited, as the
Sargent Shriver Civil Counsel Act.
68651. (a) Legal counsel shall be appointed to represent
low-income parties in civil matters involving critical issues
affecting basic human needs in those specified courts selected by the
Judicial Council as provided in this section.
(b) (1) Subject to funding specifically provided for this purpose
pursuant to subdivision (d) of Section 70626, the Judicial Council
shall develop one or more model pilot projects in selected courts
pursuant to a competitive grant process and a request for proposals.
Projects authorized under this section shall provide representation
of counsel for low-income persons who require legal services in civil
matters involving housing-related matters, domestic violence and
civil harassment restraining orders, probate conservatorships,
guardianships of the person, elder abuse, or actions by a parent to
obtain sole legal or physical custody of a child, as well as
providing court procedures, personnel, training, and case management
and administration methods that reflect best practices to ensure
unrepresented parties in those cases have meaningful access to
justice, and to gather information on the outcomes associated with
providing these services, to guard against the involuntary waiver of
those rights or their disposition by default. These pilot projects
should be designed to address the substantial inequities in timely
and effective access to justice that often give rise to an undue risk
of erroneous decision because of the nature and complexity of the
law and the proceeding or disparities between the parties in
education, sophistication, language proficiency, legal
representation, access to self-help, and alternative dispute
resolution services. In order to ensure that the scarce funds
available for the program are used to serve the most critical cases
and the parties least able to access the courts without
representation, eligibility for representation shall be limited to
clients whose household income falls at or below 200 percent of the
federal poverty level. Projects shall impose asset limitations
consistent with their existing practices in order to ensure optimal
use of funds.
(2) (A) In light of the significant percentage of parties who are
unrepresented in family law matters, proposals to provide counsel in
child custody cases should be considered among the highest priorities
for funding, particularly when one side is represented and the other
is not.
(B) Up to 20 percent of available funds shall be directed to
projects regarding civil matters involving actions by a parent to
obtain sole legal or physical custody of a child. This subparagraph
shall not apply to distributions made pursuant to paragraph (3).
(3) For the 2012-13 fiscal year, and each subsequent fiscal year,
any amounts collected pursuant to subdivision (d) of Section 70626 in
excess of the total amount transferred to the Trial Court Trust Fund
in the 2011-12 fiscal year pursuant to subparagraph (E) of paragraph
(1) of subdivision (c) of Section 68085.1 and subdivision (d) of
Section 70626 shall be distributed by the Judicial Council without
regard to subparagraph (B) of paragraph (2). Those amounts may be
distributed by the Judicial Council as set forth in this subdivision
beginning July 1, 2012. If the funds are to be distributed to new
projects, the Judicial Council shall distribute those amounts
pursuant to the process set forth in this subdivision.
(4) Each project shall be a partnership between the court, a
qualified legal services project, as defined by subdivision (a) of
Section 6213 of the Business and Professions Code, that shall serve
as the lead agency for case assessment and direction, and other legal
services providers in the community who are able to provide the
services for the project. The lead legal services agency shall be the
central point of contact for receipt of referrals to the project and
to make determinations of eligibility based on uniform criteria. The
lead legal services agency shall be responsible for providing
representation to the clients or referring the matter to one of the
organization or individual providers with whom the lead legal
services agency contracts to provide the service. Funds received by a
qualified legal services project shall not qualify as expenditures
for the purposes of the distribution of funds pursuant to Section
6216 of the Business and Professions Code. To the extent practical,
the lead legal services agency shall identify and make use of pro
bono services in order to maximize available services efficiently and
economically. Recognizing that not all indigent parties can be
afforded representation, even when they have meritorious cases, the
court partner shall, as a corollary to the services provided by the
lead legal services agency, be responsible for providing procedures,
personnel, training, and case management and administration practices
that reflect best practices to ensure unrepresented parties
meaningful access to justice and to guard against the involuntary
waiver of rights, as well as to encourage fair and expeditious
voluntary dispute resolution, consistent with principles of judicial
neutrality.
(5) The participating projects shall be selected by a committee
appointed by the Judicial Council with representation from key
stakeholder groups, including judicial officers, legal services
providers, and others, as appropriate. The committee shall assess the
applicants' capacity for success, innovation, and efficiency,
including, but not limited to, the likelihood that the project would
deliver quality representation in an effective manner that would meet
critical needs in the community and address the needs of the court
with regard to access to justice and calendar management, and the
unique local unmet needs for representation in the community.
Projects approved pursuant to this section shall initially be
authorized for a three-year period, commencing July 1, 2011, subject
to renewal for a period to be determined by the Judicial Council, in
consultation with the participating project in light of the project's
capacity and success. After the initial three-year period, the
Judicial Council shall distribute any future funds available as the
result of the termination or nonrenewal of a project pursuant to the
process set forth in this subdivision. Projects shall be selected on
the basis of whether in the cases proposed for service the persons to
be assisted are likely to be opposed by a party who is represented
by counsel. The Judicial Council shall also consider the following
factors in selecting the projects:
(A) The likelihood that representation in the proposed case type
tends to affect whether a party prevails or otherwise obtains a
significantly more favorable outcome in a matter in which they would
otherwise frequently have judgment entered against them or suffer the
deprivation of the basic human need at issue.
(B) The likelihood of reducing the risk of erroneous decision.
(C) The nature and severity of potential consequences for the
unrepresented party regarding the basic human need at stake if
representation is not provided.
(D) Whether the provision of legal services may eliminate or
reduce the potential need for and cost of public social services
regarding the basic human need at stake for the client and others in
the client's household.
(E) The unmet need for legal services in the geographic area to be
served.
(F) The availability and effectiveness of other types of court
services, such as self-help.
(6) Each applicant shall do all of the following:
(A) Identify the nature of the partnership between the court, the
lead legal services agency, and the other agencies or other providers
that would work within the project.
(B) Describe the referral protocols to be used, the criteria that
would be employed in case assessment, why those cases were selected,
the manner to address conflicts without violating any attorney-client
privilege when adverse parties are seeking representation through
the project, and the means for serving potential clients who need
assistance with English.
(C) Describe how the project would be administered, including how
the data collection requirements would be met without causing an
undue burden on the courts, clients, or the providers, the particular
objectives of the project, strategies to evaluate their success in
meeting those objectives, and the means by which the project would
serve the particular needs of the community, such as by providing
representation to limited-English-speaking clients.
(7) To ensure the most effective use of the funding available, the
lead legal services agency shall serve as a hub for all referrals,
and the point at which decisions are made about which referrals will
be served and by whom. Referrals shall emanate from the court, as
well as from the other agencies providing services through the
program, and shall be directed to the lead legal services agency for
review. That agency, or another agency or attorney in the event of
conflict, shall collect the information necessary to assess whether
the case should be served. In performing that case assessment, the
agency shall determine the relative need for representation of the
litigant, including all of the following:
(A) Case complexity.
(B) Whether the other party is represented.
(C) The adversarial nature of the proceeding.
(D) The availability and effectiveness of other types of services,
such as self-help, in light of the potential client and the nature
of the case.
(E) Language issues.
(F) Disability access issues.
(G) Literacy issues.
(H) The merits of the case.
(I) The nature and severity of potential consequences for the
potential client if representation is not provided.
(J) Whether the provision of legal services may eliminate or
reduce the need for and cost of public social services for the
potential client and others in the potential client's household.
(8) If both parties to a dispute are financially eligible for
representation, each proposal shall ensure that representation for
both sides is evaluated. In these and other cases in which conflict
issues arise, the lead legal services agency shall have referral
protocols with other agencies and providers, such as a private
attorney panel, to address those conflicts.
(9) Each pilot project shall be responsible for keeping records on
the referrals accepted and those not accepted for representation,
and the reasons for each, in a manner that does not violate any
privileged communications between the agency and the prospective
client. Each pilot project shall be provided with standardized data
collection tools, and required to track case information for each
referral to allow the evaluation to measure the number of cases
served, the level of service required, and the outcomes for the
clients in each case. In addition to this information on the effect
of the representation on the clients, data shall be collected
regarding the outcomes for the trial courts.
(10) A local advisory committee shall be formed for each pilot
project, to include representatives of the bench and court
administration, the lead legal services agency, and the other
agencies or providers that are part of the local project team. The
role of the advisory committee is to facilitate the administration of
the local pilot project, and to ensure that the project is
fulfilling its objectives. In addition, the committee shall resolve
any issues that arise during the course of the pilot project,
including issues concerning case eligibility, and recommend changes
in project administration in response to implementation challenges.
The committee shall meet at least monthly for the first six months of
the project, and no less than quarterly for the duration of the
pilot period. Each authorized pilot project shall catalog changes to
the program made during the three-year period based on its
experiences with best practices in serving the eligible population.
(c) The Judicial Council shall conduct a study to demonstrate the
effectiveness and continued need for the pilot program established
pursuant to this section and shall report its findings and
recommendations to the Governor and the Legislature on or before
January 31, 2016. The study shall report on the percentage of funding
by case type and shall include data on the impact of counsel on
equal access to justice and the effect on court administration and
efficiency, and enhanced coordination between courts and other
government service providers and community resources. This report
shall describe the benefits of providing representation to those who
were previously not represented, both for the clients and the courts,
as well as strategies and recommendations for maximizing the benefit
of that representation in the future. The report shall describe and
include data, if available, on the impact of the pilot program on
families and children. The report also shall include an assessment of
the continuing unmet needs and, if available, data regarding those
unmet needs.
(d) This section shall not be construed to negate, alter, or limit
any right to counsel in a criminal or civil action or proceeding
otherwise provided by state or federal law.
(e) The section shall become operative on July 1, 2011.
SEC. 7. Section 70626 of the Government Code is amended to read:
70626. (a) The fee for each of the following services is
twenty-five dollars ($25). Subject to subdivision (d), amounts
collected shall be distributed to the Trial Court Trust Fund under
Section 68085.1.
(1) Issuing a writ of attachment, a writ of mandate, a writ of
execution, a writ of sale, a writ of possession, a writ of
prohibition, or any other writ for the enforcement of any order or
judgment.
(2) Issuing an abstract of judgment.
(3) Issuing a certificate of satisfaction of judgment under
Section 724.100 of the Code of Civil Procedure.
(4) Certifying a copy of any paper, record, or proceeding on file
in the office of the clerk of any court.
(5) Taking an affidavit, except in criminal cases or adoption
proceedings.
(6) Acknowledgment of any deed or other instrument, including the
certificate.
(7) Recording or registering any license or certificate, or
issuing any certificate in connection with a license, required by
law, for which a charge is not otherwise prescribed.
(8) Issuing any certificate for which the fee is not otherwise
fixed.
(b) The fee for each of the following services is thirty dollars
($30). Subject to subdivision (d), amounts collected shall be
distributed to the Trial Court Trust Fund under Section 68085.1.
(1) Issuing an order of sale.
(2) Receiving and filing an abstract of judgment rendered by a
judge of another court and subsequent services based on it, unless
the abstract of judgment is filed under Section 704.750 or 708.160 of
the Code of Civil Procedure.
(3) Filing a confession of judgment under Section 1134 of the Code
of Civil Procedure.
(4) Filing an application for renewal of judgment under Section
683.150 of the Code of Civil Procedure.
(5) Issuing a commission to take a deposition in another state or
place under Section 2026.010 of the Code of Civil Procedure, or
issuing a subpoena under Section 2029.300 to take a deposition in
this state for purposes of a proceeding pending in another
jurisdiction.
(6) Filing and entering an award under the Workers' Compensation
Law (Division 4 (commencing with Section 3200) of the Labor Code).
(7) Filing an affidavit of publication of notice of dissolution of
partnership.
(8) Filing an appeal of a determination whether a dog is
potentially dangerous or vicious under Section 31622 of the Food and
Agricultural Code.
(9) Filing an affidavit under Section 13200 of the Probate Code,
together with the issuance of one certified copy of the affidavit
under Section 13202 of the Probate Code.
(10) Filing and indexing all papers for which a charge is not
elsewhere provided, other than papers filed in actions or special
proceedings, official bonds, or certificates of appointment.
(c) The fee for filing a first petition under Section 2029.600 or
2029.620 of the Code of Civil Procedure, if the petitioner is not a
party to the out-of-state case, is eighty dollars ($80). Amounts
collected shall be distributed to the Trial Court Trust Fund pursuant
to Section 68085.1.
(d) From July 1, 2011, to June 30, 2017, inclusive, ten dollars
($10) of each fee collected pursuant to subdivisions (a) and (b)
shall be used by the Judicial Council for the expenses of the
Judicial Council in implementing and administering the civil
representation pilot program under Section 68651.
(e) This section shall become inoperative on July 1, 2017, and, as
of January 1, 2018, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2018, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 8. Section 70626 is added to the Government Code, to read:
70626. (a) The fee for each of the following services is fifteen
dollars ($15). Amounts collected shall be distributed to the Trial
Court Trust Fund under Section 68085.1.
(1) Issuing a writ of attachment, a writ of mandate, a writ of
execution, a writ of sale, a writ of possession, a writ of
prohibition, or any other writ for the enforcement of any order or
judgment.
(2) Issuing an abstract of judgment.
(3) Issuing a certificate of satisfaction of judgment under
Section 724.100 of the Code of Civil Procedure.
(4) Certifying a copy of any paper, record, or proceeding on file
in the office of the clerk of any court.
(5) Taking an affidavit, except in criminal cases or adoption
proceedings.
(6) Acknowledgment of any deed or other instrument, including the
certificate.
(7) Recording or registering any license or certificate, or
issuing any certificate in connection with a license, required by
law, for which a charge is not otherwise prescribed.
(8) Issuing any certificate for which the fee is not otherwise
fixed.
(b) The fee for each of the following services is twenty dollars
($20). Amounts collected shall be distributed to the Trial Court
Trust Fund under Section 68085.1.
(1) Issuing an order of sale.
(2) Receiving and filing an abstract of judgment rendered by a
judge of another court and subsequent services based on it, unless
the abstract of judgment is filed under Section 704.750 or 708.160 of
the Code of Civil Procedure.
(3) Filing a confession of judgment under Section 1134 of the Code
of Civil Procedure.
(4) Filing an application for renewal of judgment under Section
683.150 of the Code of Civil Procedure.
(5) Issuing a commission to take a deposition in another state or
place under Section 2026.010 of the Code of Civil Procedure, or
issuing a subpoena under Section 2029.300 to take a deposition in
this state for purposes of a proceeding pending in another
jurisdiction.
(6) Filing and entering an award under the Workers' Compensation
Law (Division 4 (commencing with Section 3200) of the Labor Code).
(7) Filing an affidavit of publication of notice of dissolution of
partnership.
(8) Filing an appeal of a
determination whether a dog is potentially dangerous or vicious under
Section 31622 of the Food and Agricultural Code.
(9) Filing an affidavit under Section 13200 of the Probate Code,
together with the issuance of one certified copy of the affidavit
under Section 13202 of the Probate Code.
(10) Filing and indexing all papers for which a charge is not
elsewhere provided, other than papers filed in actions or special
proceedings, official bonds, or certificates of appointment.
(c) The fee for filing a first petition under Section 2029.600 or
2029.620 of the Code of Civil Procedure, if the petitioner is not a
party to the out-of-state case, is eighty dollars ($80). Amounts
collected shall be distributed to the Trial Court Trust Fund pursuant
to Section 68085.1.
(d) This section shall become operative on July 1, 2017.