BILL ANALYSIS Ó
AB 251
Page 1
Date of Hearing: April 9, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 251 (Wagner) - As Amended: April 2, 2013
SUBJECT : ELECTRONIC COURT REPORTING: FAMILY LAW
KEY ISSUES :
1)SHOULD FAMILY LAW PROCEEDINGS BE PERMITTED TO BE
ELECTRONICALLY RECORDED IF NO COURT REPORTERS ARE AVAILABLE TO
REPORT THE PROCEEDINGS?
2)IN ORDER TO HELP ENSURE THE ACCURACY OF THE RECORD IN THESE
IMPORTANT AND POTENTIALLY LIFE-CHANGING CASES, MIGHT IT BE
PREFERABLE TO HAVE COURT REPORTERS REPORT ALL FAMILY LAW
PROCEEDINGS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Today, as the result of budget cuts and shifting priorities,
most family law courts no longer provide court reporters for
their proceedings. If parties wants - and can afford - to have
a record of their proceedings, they must bring their own court
reporter. Consequently, there is no record in many, and perhaps
most, family law proceedings today. Lack of court-provided
reporting services can substantially frustrate the goals of
California's system of justice. Without a transcript of court
proceedings, litigants are unable to appeal decisions, parties
may be unable to draft orders effectively, and those attempting
to recount what actually happened during proceedings - including
judges, parties and their attorneys - are unable to do so
accurately. Additionally, the Commission on Judicial
Performance is concerned that lack of court reporters seriously
hampers its efforts to investigate and prove judicial
misconduct.
This bill, sponsored by the Conference of California Bar
Association, attempts to address these concerns by permitting
the use of electronic recording equipment to make a record in a
family law proceeding if an official court reporter is
unavailable. While there is universal agreement that family law
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proceedings should have records, there is significant
disagreement about how that record is to be produced.
The author believes, based on budget recommendations from the
Legislative Analyst Office (LAO), that electronic recording will
save the courts money and guarantee a record in family law
matters. Many family law practitioners argue that while it is
best to have a court reporter present at all court proceedings,
the reality of budget cuts mean that court reporters are absent
from many civil proceedings. They contend that an electronic
record is far better than no record at all.
Court reporters and other labor organizations strongly oppose
the bill, however, arguing that the asserted cost savings are
not accurate and they do not include the loss of user fees or
membership dues. In addition, they argue, electronic recordings
jeopardize the accuracy of the record because they are prone to
flaws and errors, could violate privacy laws, and may violate
the court's compliance with the Americans with Disabilities Act.
The analysis suggests an alternative that both supporters and
opponents might be willing to support - a requirement that court
reporters report all family law proceedings, just as they are
required to do in all juvenile proceedings today.
SUMMARY : Adds family law to the list of court proceedings that
can be electronically recorded if no court reporter is available
for the proceeding. Specifically, this bill allows a court, if
an official court reporter or an official reporter pro tempore
is unavailable, to use electronic recording equipment in a
family law case.
EXISTING LAW :
1)Requires court reporters in all death penalty proceedings,
juvenile court proceedings, hearings on a motion to withdraw
consent to a step-parent adoption; or in any felony or civil
case when ordered by the court or requested by a party. (Code
of Civil Procedure Section 269; Family Code Section 9000(d);
Penal Code Section 190.9; Welfare & Institutions Code Sections
347 and 677.)
2)Permits a judge to have a court reporter in felony, unlimited
civil, probate, juvenile and selected family law proceedings.
(Code of Civil Procedure Section 274a.)
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3)Allows a court, if an official court reporter or an official
reporter pro tempore is unavailable, to use electronic
recording equipment only in a limited civil case, a
misdemeanor or infraction case, or for the internal purpose of
monitoring the performance of subordinate judicial officers,
hearing officers and temporary judges. (Government Code
Section 69957(a)-(b).)
4)Requires each court to obtain advance approval from the
Judicial Council for purchases or leasing of electronic
recording technology. Requires each superior court to report
semiannually to the Judicial Council, and the Judicial Council
to report semiannually to the Legislature, regarding all
purchases and leases of electronic recording equipment that
will be used to record superior court proceedings.
(Government Code Sections 69957(c) 69958.)
COMMENTS : Today court reporters are mandated in certain
important court proceedings, such as death penalty cases and
juvenile court proceedings. On the other end of the spectrum,
electronic recording is permitted in cases that used to be heard
in the old Municipal Courts - limited civil cases (cases under
$25,000), infractions and misdemeanors - if no court reporter is
available. This bill would put potentially life-changing family
law cases on par with those latter cases, and permit electronic
recording if no court reporter is available.
In support of the bill, the author writes:
Many family law courtrooms no longer have court reporters.
Wealthier parties can hire private reporters. Indigent
parties and those without attorneys cannot always do so.
When a hearing has no record, there can be no appeal, no
clarity about what orders were made, and no accountability
for judges. In many respects, without a record, there
cannot be due process. We have reached the point when
electronic reporting is reliable and needs to begin to be
implemented.
Electronic Recording in Court Proceedings Today : As of 2010,
according to Committee research, 46 of the 50 states utilized
some form of electronic recording, mostly in their trial courts.
The majority of states use a combination of court reporters and
electronic recording, including California.
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California: An unknown number of superior courts currently have
electronic reporting equipment installed. Trial courts in
California may use electronic recording equipment in a limited
civil case, a misdemeanor or infraction case, but only if a
court reporter is unavailable. In addition, California Rules of
Court, Rule 2.952(j) allows an electronic recording be the
official record of the proceedings to be used as the record on
appeal, if stipulated to by the parties and approved by the
reviewing court. The record is not required to be transcribed
for appeal. Unfortunately, the extent to which this equipment
is used, and the experience of the courts that use it, is not
known. Neither supporters of the bill, nor the opponents, argue
that the current use of this equipment favors their argument.
The California courts of appeal and the Supreme Court rely
exclusively on electronic recording of the proceedings, but it
is important to note that those proceedings are not part of the
record for appeal. Moreover, since these proceedings do not
involve trial courts, there is less likelihood that participants
may be talking over each other and thus difficult to understand.
Other Jurisdictions: New Hampshire, New Mexico, Oregon, Alaska,
Minnesota, Utah and Vermont rely primarily on digital audio
recording proceedings. New Mexico has reportedly demonstrated a
preference for court reporters but discovered that sufficient
reporters could not be found to staff district courts outside of
Albuquerque. As a result, ninety percent of the cases on appeal
within the state are reviewed on the audio record. Oregon
relies primarily on digital recordings for its state courts. It
reported having only seven stenographic court reporters located
in three counties. Minnesota has taken advantage of a digital
recording system that allows one staff person to monitor
proceedings in four courtrooms simultaneously. (Conference of
State Court Administrators, Digital Recording: Changing Times
for Making the Record, White Paper, p .6 (2009).)
Utah and Vermont switched exclusively to digital in 2009 due to
budget constraints, with an exception for death penalty cases.
Alaska uses audio recording in lieu of a stenographer or video
record and uses the audio recording to verify the subsequent
transcript. Additionally, due to budget constraints, other
states are reportedly considering transitioning to electronic
recording.
Court Budget Reductions in California Have Dramatically Reduced
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Civil Courtrooms with Court Reporters : As a result of the
recession and the state budget crisis, trial courts budgets have
been reduced, although, as a result of backfills and one-time
fixes, the full impact of the reductions has yet to be felt. In
order to better understand the impacts of budget reductions on
the trial courts, this Committee independently surveyed the 58
trial courts to assess what measures the courts have taken to
address the cuts, including any reduction in court reporters.
Responses were received from 55 of 58 trial courts. Of those
trial courts, 6 have reduced expenditures for court reporters,
and fully 30 courts report they have ceased providing court
reporters for civil, family and probate proceedings. In those
courts, parties who wish to have an official record of
proceedings must hire and pay the substantial cost of providing
their own private court reporter. Without a transcript of court
proceedings, litigants are unable generally to appeal decisions,
parties may be unable to draft orders effectively, and those
attempting to recount what actually happened during proceedings
are unable to so with any degree of accuracy.
The Commission on Judicial Performance Believes Elimination of
Court Reporters Impairs Its Ability to Protect the Public :
While electronic reporting can be used for monitoring
subordinate judicial officers, it specifically cannot be used to
monitor judges. The CJP Director-Chief Counsel writes that she
is concerned that the significant reduction in court reporters
impairs the Commission's "ability to fulfill its mandate to
protect the public, and undermines the administration of justice
in court proceedings in California." (Letter from Victoria
Henley to Governor Brown, Supreme Court Chief Justice Cantil-
Sakauye, Speaker Pérez and Senate President Pro Tempore
Steinberg (Feb. 29, 2012).) Without a record of court
proceedings, CJP states:
[I]t can be difficult, if not impossible, to establish what
occurred in the courtroom, where 95% of the complaints to
the Commission each year originate In December 2011, there
were transcripts or recordings in only half of the
Commission's pending investigations that involve courtroom
conduct. . . . The absence of transcripts or recordings
thus impedes the commission in determining that misconduct
has occurred and in protecting the public from abusive
judges. Equally important, the absence of a record of
court proceedings prevents the swift and complete
exoneration of judges by the commission when appropriate.
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(Id. (footnote omitted).)
Judicial Council Task Force Has Highlighted the Need For Better
Access To Records In Family Law Proceedings: As discussed
above, currently it appears that the vast majority of family
court proceedings in California do not have a court reporter.
As a result, there is no official record of the proceeding and
little ability to appeal a ruling, even a grossly unjust one.
There is also all too frequent confusion by unrepresented
litigants about the basic nature of the court's orders as they
attempt to fend for themselves, and there is no recording or
reporting of any kind for them to review after the hearing. Yet
family law matters arguably include some of the most important
matters facing children and families: dissolution, domestic
violence, child custody and child support cases. As a result,
the Judicial Council's Elkins Family Law Task Force has
recommended:
Legislation should be enacted to provide that
cost-effective options for creating an official record be
available in all family law courtrooms in order to ensure
that a complete and accurate record is available in all
family law proceedings. These options would include court
reporters, high quality electronic audio recording, or
other available mechanisms to create an accurate, timely,
and cost-effective official record. Access to the record
in family law is a serious access-to-justice issue and must
be significantly improved both to ensure that parties
understand and can finalize the court's orders and to
ensure that the parties' right to appeal is protected.
Parties' current inability to access the record in their
family law proceedings is an area of long-standing concern.
This inability to have an accurate record of their family
law cases makes the ability of family law litigants to
appeal too often illusory.
(Judicial Council's Elkins Family Law Task Force, Final Report
and Recommendations, p. 80 (April 2010.))
Family Law Practitioners Strongly Support the Need For a Record
in Family Law Proceedings : Many family law practitioners contend
that having any record of such important proceedings for
litigants, so many of whom are without counsel, is better than
no record at all. They argue that equal access to justice
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necessitates an official record in all family law proceedings.
Writes the Association of Certified Family Law Specialists:
We have considered and duly note the advantages of a
certified shorthand reporter, but the reality is that an
electronic record is preferable to none, and no record is
currently being experienced in family law courtrooms
throughout California, even when such weighty matters as
child custody and property division are litigated.
Individual practitioners add that if the courts are not going to
staff their courtrooms with reporters, then the Legislature must
"open the doors to electronic recording" in family law.
While a Record is Critical, Opponents Argue That a Court
Reporter Provides a Far Superior Record Than an Electronic
Recording : The California Court Reporters Association (CCRA)
agrees that court reporters are lacking in many family law
proceedings and that, as a result, there is currently no
official record in these proceedings. CCRA also agrees that
family law matters are important, and deal with serious and
complex issues. Indeed, the importance and complexity of these
cases, CCRA contends, is a strong argument against electronic
reporting in these cases because a verbatim record is regularly
needed for clarification and resolution of issues. Moreover, a
court reporter can ensure appropriate protection of confidential
information. "A court reporter in a family case is keenly aware
of what is and what is not appropriate for public disclosure."
Judge Matthew Gray of the Sacramento Superior Court disagrees
that electronic recording works in family court: "Sacramento
Superior Court did use electronic recording in family law
proceedings in the past. The assertion [from an editorial in
the Sacramento Bee] that, 'The system worked just fine back
then,' is historical fiction. . . . In family law courts and
elsewhere, only skilled court reporters can be trusted to create
a reliable record of trial court proceedings." (Another View:
Court reporters needed in family court," Sacramento Bee (March
8, 2013).) The California Official Court Reporters Association
adds: "Given what's at stake in family law proceedings, we
should require that an official court reporter be available for
every proceeding like we do in criminal court."
LAO Forecasts Cost Savings By Using Electronic Recording Of
Court Proceedings In Place Of Court Reporters . A 2011 LAO
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report estimates savings from courts instituting electronic
recording. According to the LAO, after factoring in one-time
costs for audio and video equipment and updating the figures
from a prior demonstration program (discussed below), a
transition could lead to savings the very first year. According
to the LAO (though challenged by the California Court Reporters
Association), upon implementation of electronic reporting in all
trial courts in California, annual savings could exceed $100
million. The numbers for the projected savings are based on an
earlier demonstration project that installed electronic
recording equipment in a sample group of courtrooms, discussed
below. In addition:
Under current law, trial courts use certified shorthand
reporters to create and transcribe the official record of
many court proceedings. The prepared transcripts are
effectively "owned" by the court reporters and, for certain
types of cases, are purchased by the court. However,
electronic court reporting systems involving audio and/or
video devices could be used instead of court reporters to
record the statements and testimony delivered in the
courtroom. The actual recordings created during the
proceedings could be used in a manner similar to a
transcript, and the sales of these recordings could
generate additional revenue for the court.
(LAO, The 2011-2012 Budget: Making Targeted Reductions to the
Judicial Branch, LAO Policy Brief, 3 (Jan. 24, 2011).) Last
year, the author attempted to do just that with AB 803 (Wagner),
which failed passage in this Committee on a vote of 2-7.
Alternatively, the LAO suggests that the Legislature could
simply give courts the authority to permit electronic recording
when the judge determined that was appropriate. (LAO, The
2013-14 Budget: Governor's Criminal Justice Proposals, 16 (Feb
15, 2013.) This bill would do just that for family law
proceedings if no court reporter were available.
The California Court Reporters Association Vehemently Disputes
The Accuracy Of The LAO's Reported Savings, And Contends That
Use Of Electronic Recording Will Not Be Cost-Effective And Will
In Fact Result In Inaccurate Records Of Court Proceedings . CCRA
analyzed the LAO 2011 report and states strongly that
implementation of electronic recording would not be
cost-effective since the cost to purchase the equipment and
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hardwire the courtrooms would outweigh any personnel cost
savings.
The CCRA also stresses that electronic recording does not ensure
accuracy:
[T]here is a false belief that recording technology has
advanced to the stage where mechanical problems are few and
voice-recognition software will produce cost effective
transcript. . . . A recording device is only as good as
the operator who turns it on, it records only what a
microphone "hears," and is subject to system failure.
(Chris Crawford, A Cost Study of the Legislative Analyst's
Office Proposal To Expand Use of Digital Recording in
California Courts, Justice Served (2009).)
To support its concerns about inaccurate transcripts, the CCRA
has provided the Committee with several examples of inaudible or
indiscernible moments on transcripts and highlighted several
cases, including a 2008 case from Newark, NJ where a civil
$800,000/$280,000 high-low settlement inadvertently triggered
the low-end amount when a mistrial was declared after a jury
requested a reading back of a digital recording of crucial
testimony that was found to be blank.
A Brief History of Electronic Recording in California Courts :
The Findings of the Demonstration Project of 1986-1994: In
1986, AB 825 (Harris) Chap. 373, Stats. 1986, required the
Judicial Council to establish a demonstration project to assess
the costs, benefits, and acceptability of utilizing audio and
video recording as a means of producing a verbatim record of
proceedings. Equipment was installed in several counties
including Los Angeles, Alameda and Sacramento. As a result of
the demonstration project, approximately fifteen percent of
superior court courtrooms were equipped for video and audio
recording by May 1996. The final report from the Judicial
Council to the Legislature in 1992 found: "The use of
electronic recording as an alternative method to produce and
preserve the verbatim court record has been successfully
demonstrated in the current pilot project."
According to the LAO report reviewing the Judicial Council's
final report, the project was cost-effective. Between 1991 and
1994, the study found significant savings of $28,000 per
courtroom per year in using audio reporting and $42,000 per
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courtroom per year using video, compared to using a court
reporter. The current LAO estimates of saving, presented above,
are based on those Judicial Council findings.
The CCRA, however, strongly contends the LAO reliance on the
1992 study seriously omits two major findings. The final report
does not recommend use of electronic recording "in courtrooms
with regular testimony or regular production of transcripts,
preferring the increased productivity and lower cost of using
court reporters." Secondly, the report did recommend use of a
dedicated monitor, without other duties, on a
one-person-per-courtroom basis. The cost of this person was
not, argues CCRA, included in the LAO's cost projections.
Litigation, Based On Court Interpretation Of Legislative Intent,
Has Limited The Use Of Electronic Recording: During the
demonstration project's final years, the superior courts in Los
Angeles, Sacramento and Orange Counties expanded electronic
recording equipment into courtrooms not under the demonstration
program, exceeding the number of courtrooms permitted by AB 825.
In Los Angeles, the practice in those courtrooms was to provide
a court reporter if requested. If one was not requested, the
court could electronically record the proceedings without
requiring explicit agreement of the parties even though the
courtroom was not operating under the demonstration project.
The Los Angeles County Court Reporters Association (LACCRA)
brought suit against the Los Angeles court.
The Fifth District Court of Appeal, in a narrow holding, found
for the court, holding that "the court is not prohibited, by any
explicit or implicit legislative command contained in those
specific statutes cited by the association, from choosing to
maintain a record of general civil proceedings by means of
electronic recording devices where neither the court nor any
party requests that a verbatim record be taken by an official
shorthand reporter pursuant to the provisions of section 269."
(Los Angeles County Court Reporters Ass'n v. Superior Court
(1995) 31 Cal. App. 4th 403, 415.)
While that initial suit was pending, the Judicial Council
promulgated the Electronic Recording Rules, effective January 1,
1994, which authorized all superior courts to use electronic
recording to make the verbatim record under either of two
circumstances: (1) when an official reporter is "unavailable,"
or (2) when the parties proceed in the absence of an official
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reporter "without objection." These rules would have given the
superior courts greater discretion than the Los Angeles rules by
also allowing use of electronic recording over one party's
objections. The CCRA filed suit against the Judicial Council.
The First District Court of Appeal, which issued its decision
nine months after the LACCRA case was decided, found that there
was no statute expressly prohibiting a superior court from
making an official record by electronic means, rather than by
using certified shorthand reporters or expressly mandating that
the official superior court record be made by shorthand
reporters. However, the court determined that the legislative
intent was to authorize electronic recording only when a
statutory exception was provided, not in all superior courts.
The court found that the normal practice was for a court
reporter to be used unless a statutory exemption was provided,
such as exemptions that allowed for electronic court recording
in municipal and justice court proceedings, superior courts that
were part of the demonstration projects and depositions. Based
on its interpretation of these limited exceptions, the court
found that the Judicial Council's rules "inconsistent with
statute." (Ca. Court Reporters Assn. v. Judicial Council (1995)
39 Cal. App. 4th 15, 34.)
Previous Legislation: Historically, most bills to allow for
electronic recording of court proceedings have been unsuccessful
in the Legislature. AB 626 (Filante), 1982, for example, would
have allowed electronic recording upon the stipulation of both
parties. AB 2034 (Bradley), 1983, would have authorized
electronic recording of administrative hearings upon consent of
all the parties. AB 586 (Frazee), 1984, would have allowed
electronic recording in judicial proceedings. All were not
successful.
AB 825 (Harris), Chap. 373, Stats. 1986, required the Judicial
Council to "establish a demonstration project to assess the
costs, benefits, and acceptability of utilizing audio and video
recording as a means of producing a verbatim record of
proceedings" in a limited number of superior court departments.
The project contained a sunset provision, terminating on January
1, 1992. AB 1854 (Speier), Chap. 678, Stat. 1989, extended the
demonstration project to up to 75 superior court departments,
and extended the termination date to January 1, 1994.
AB 2937 (Isenberg), 1992, anticipating the January 1, 1994
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sunset of the demonstration project, would have given any court,
including superior courts, the discretion to "utilize audio or
video recording as the means of making a verbatim record of any
hearing or proceedings." SB 211 (Marks), 1993, would have
allowed Marin County courts to use electronic recording in all
judicial proceedings except death penalty cases. AB 721
(Horcher), 1993, would have required the use of official court
reporters that use computer-aided transcription equipment to
make the verbatim record of all pretrial motions and trial
proceedings in superior court civil cases, and all felony
proceedings in justice, municipal, and superior court. AB 2113
(Miller), 1996, would have authorized the Judicial Council to
promulgate rules of court providing unqualified authorization to
superior courts to produce a verbatim record of proceedings. AB
128 (Morrow), 1998, would have expressly authorized the Judicial
Council to promulgate rules of court providing unqualified
authorization to any court to produce a verbatim record of
proceedings. AB 1023 (Margett), 1999, would have expressly
authorized the Judicial Council to promulgate rules of court
providing unqualified authorization to any court to produce a
verbatim record of proceedings. AB 1354 (Lampert), 1999, would
have stated the intent of the Legislature to enact provisions
permitting the use of electronic recording of court proceedings
in participating counties. All of these bills were
unsuccessful.
SB 1102 (Committee on Budget and Fiscal Review), Chap. 277,
Stats. 2004, prohibited courts from expending funds for
electronic recording technology to make an unofficial record of
an action or proceeding or to make an official record of action
or proceeding in circumstances not authorized in current law,
and required each superior court to report to the Judicial
Council semiannually and the Judicial Council to report to the
Legislature semiannually on all purchases and leases of
electronic recording equipment.
SB 13 (Ducheny) (4th Ex. Sess.), Chap. 22, Stats. 2009,
prevented a court from using electronic recording technology for
notetaking, but allows a court to use such equipment for
monitoring subordinate judicial officer performance, as
specified. That bill also required advance Judicial Council
approval prior to purchasing or leasing any electronic recording
equipment.
AB 803 (Wagner), 2011, would have required the Judicial Council
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to implement electronic court reporting in all trial courts.
That bill failed passage in this Committee.
ARGUMENTS IN SUPPORT : The bill's sponsor, Conference of
California Bar Associations, writes that the bill does not seek
to replace court reporters with electronic recording. Rather,
it places "the rights of family law litigants foremost,
demanding that they have the ability to produce a record by any
reasonable means available. If the court is able to provide a
certified court reporter to all family law litigants, in all
family law proceedings, great. But if the court does not, or
cannot, provide litigants with a live court reporter in all
family law proceedings, we believe that the interests at stake -
such important issues as with whom a child will reside, the
safety of the parties, child and spousal support, and the
division of a family's assets and debts, which can affect
families for a lifetime - are far too important to sacrifice
simply because one disagrees with the means of making the
record. Denying these litigants the right to a record rather
than permit one to be produced using electronic technology is
cynical and wrong."
The sponsor also challenges opponents' arguments about the
quality of electronic recordings: "Judicial officers who have
actually had the opportunity to use electronic recording
technology in their courtrooms in recent years can testify to
the effectiveness and quality of the process and end product.
We may not have yet reached the point where electronic
recordings of judicial proceedings are invariably better than
those produced by court reporters, but to allege that the
opposite is true denies reality."
Family law practitioners strongly concur in the need for a
record in family law proceedings. Writes one practitioner:
Due to budgetary restraints, many family law hearings and
trials are taking place without any record at all. Without
a record there can be no meaningful appellate review, nor
oversight of the family law judiciary. This situation also
complicates preparation of written orders. This situation
has a special impact in family law because these cases
routinely involve fundamental constitutional rights; the
vast majority of family law litigants represent themselves
without counsel; and a large proportion of family law
litigants are indigent. The courts are making orders
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regarding child custody and visitation, child support,
spousal support and the division of assets and debts and
there is often no written record. Access to justice should
not be based on one's ability to pay for a court reporter.
Another adds: "No one wants a court reporter to lose his or her
job. However, courts across the state have already laid off
numerous court reporters and many court rooms do not have court
reports at all (unless the litigants can afford a private
reporter.) Permitting electronic reporting in family law will
assist in bridging the justice gap and providing litigants,
particularly self-represented low-income litigants, with due
process rights of access to justice afforded to them under the
Constitution."
ARGUMENTS IN OPPOSITION : In addition to the concerns discussed
above, the CCRA believes that the distribution of electronic
recordings could violate privacy and security of health
information and increase the possibility of identity theft as
well as distribution of sensitive material related to minors in
family law proceedings.
The Orange County Superior Court Reporters Association writes of
its concerns about this bill actually costing the courts money:
In the current economic climate in which state courts are
being stripped of their funding at every turn, now is not
the time to shift from utilizing professional court
reporters in the family law setting to a prohibitively
expensive and less reliable system of electronic recording
to capture the record of highly sensitive court
proceedings. After examining all the costs - direct,
hidden, and shifting - electronic recording is far more
costly than the continued utilization of a licensed
official court reporter.
The California Official Court Reporters Association (COCRA) and
the Professional and Technical Engineers (PTE) both oppose the
bill because it fails "to save money and, on a policy level,
jeopardizes the integrity of court proceedings, eliminates
efficiencies in making the record available in a timely fashion,
and makes compliance with the Americans with Disabilities Act
(ADA) much more difficult and expensive."
The COCRA and the PTE believe that the move to electronic
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recording "would require the courts to spend a significant
amount of money to purchase the recording equipment. The courts
would likely have to purchase the existing court reporters'
equipment to make this work as well. With computer assisted
technology (CAT), it isn't uncommon for a court reporter to have
$25,000 or more worth of equipment. The equipment purchases
alone make savings in the near future illusory."
Moreover, they argue that electronic recording is "simply not as
reliable [as court reporters]. It is not uncommon for gaps to
appear in the recording. For example, in one of the Oklahoma
City Bombing trials, whole days of the proceeding were blank.
Unfortunately, you can't have a do-over in court."
The COCRA and PTE also raise concerns about whether electronic
recording can be done in compliance with the ADA: "Court
reporters use CAT to facilitate a real time record in the
courtroom. This helps the hearing impaired because they can
read along as the court proceeding progresses. Likewise, court
reporters can produce transcripts in Braille to assist the
visually impaired. This proposal would require the courts to
purchase the technology and hire the personnel to perform ADA
compliance functions."
Other labor organizations, including the Service Employees
International Union and the American Federation of State, County
and Municipal Employees, share the concerns of other opponents
that the bill will not result in cost savings, and could result
in violations of privacy and incomplete records. They argue
that "the use of an official reporter is extremely valuable to
the legal process and the benefits of using an official far
outweigh those provided by electronic recordings."
Regardless Of One's Position On Electronic Recording, All
Stakeholders Appear to Agree That Court Reporters, When
Available, are Superior to Electronic Recording and That This
Measure Raises Important Cost And Access To Justice Issues . In
light of the competing concerns raised by this bill, the
Committee may wish to consider exploring with all stakeholders:
1. What has been the experience of California courts
regarding accuracy, cost, and other factors, under the
existing authority to use electronic reporting?
2. What are the actual savings, if any, that may be
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generated by instituting electronic recording in trial
courts in California, considering the cost of installing
the equipment and the court staff necessary to monitor the
equipment and ensure useable recordings of court
proceedings?
3. How accurate is today's electronic recording equipment
and what can be done to ensure an accurate record for all
court proceedings?
4. How if at all can electronic recordings be made
compliant with federal and state disability access laws?
5. Will family law litigants, especially those who must
represent themselves, be helped or potentially harmed if
electronic recording is made available to them in those
courts where court reporters are not?
While these questions are explored more fully, this Committee
may wish to discuss with the author the possibility that, given
the importance of family law proceedings, the need for a
complete and accurate record in these cases, and the agreement
by both supporters and opponents that court reporters are highly
desirable in family law proceedings, the bill be amended to
require court reporters in all family law proceedings, just as
they are required today in, among other matters, all juvenile
court proceedings.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Association of Certified Family Law Specialists
Association of Family Conciliation Courts
Bar Association of San Francisco and its Family Law Section
Individual family law attorneys
Opposition
American Federation of State, County and Municipal Employees,
AFL-CIO
California Court Reporters Association
California Official Court Reporters Association
Deposition Reporters Association of California
AB 251
Page 17
Los Angeles County Court Reporters Association
National Court Reporters Association
Orange County Superior Court Reporters Association
Professional and Technical Engineers, IFPTE Local 21
Sacramento Official Court Reporters
Service Employees International Union
Individual court reporters
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334