BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2013-2014 Regular Session AB 648 (Jones-Sawyer) As Amended April 29, 2013 Hearing Date: June 18, 2013 Fiscal: No Urgency: No RD SUBJECT Court Reporters DESCRIPTION This bill would specify that for each proceeding lasting one hour or less, the existing $30 fee for the services of an official court reporter shall be charged only to the party (or parties) that filed the paper that resulted in the proceeding being scheduled. The party paying the fee would be required to deposit the fee with the court clerk as specified by the court, but no later than the conclusion of each day's court session, and be entitled to a refund to the remitting party if no court services were provided at the scheduled proceeding. This bill would provide that the fee can be charged only once per case for all proceedings conducted within the same hour, if the total time taken by those proceedings is one hour or less. If the total time is more than one hour, the party or parties would be required to pay the amount required under existing law for proceedings lasting more than one hour. This bill would also require waiver of the $30 court reporter fee for any person granted a fee waiver pursuant to existing law, as specified. BACKGROUND California law requires that an official reporter or official reporter pro tempore of the superior court take down in shorthand all testimony, objections made, rulings of the court, exceptions taken, arraignments, pleas, sentences, arguments of (more) AB 648 (Jones-Sawyer) Page 2 of ? the attorneys to the jury, and statements and remarks made and oral instructions given by the judge or other judicial officer, in specified cases. These cases include, among others, civil cases that are ordered by the court or requested by a party. (Code Civ. Proc. Sec. 269.) Separately, California law, with the enactment of AB 233 (Escutia and Pringle, Ch. 850, Stats. 1997), consolidated all court funding at the state level, giving the Legislature authority to make appropriations and the Judicial Council responsibility to allocate funds to state courts. In doing so, it required that all court reporters fees collected by the trial courts be deposited into the Trial Court Trust Fund (TCTF), where nearly all court-collected fees are now deposited. The court reporter fees are then returned to the trial courts as part of their annual allocation and are distributed on a pro rata basis, as opposed to on the basis of the dollars collected. More specifically, the Government Code requires that certain fees be charged and be used to pay for the cost for services of an official court reporter in civil proceedings. In proceedings lasting more than one hour, a fee equal to the actual cost of providing that service must be charged per one-half day of services to the parties, on a pro rata basis, for the court reporter services on the first and each succeeding judicial day those services are provided. All parties must deposit their pro rata shares of these fees with the court clerk as specified by the court, but not later than the conclusion of each day's court session. (Gov. Code Sec. 68086(a)(2).) Last year, a budget trailer bill added that for each proceeding lasting less than one hour, a fee of $30 dollars must be charged for the reasonable cost of the services of official court reporters in civil proceedings, pursuant to that existing law. (SB 1021 (Committee on Budget and Fiscal Review, Ch. 41, Stats. 2012). This bill seeks to provide specificity regarding the payment of that fee. CHANGES TO EXISTING LAW 1. Existing law , in relevant part, requires that an official reporter or official reporter pro tempore of the superior court take down in shorthand all testimony, objections made, rulings of the court, exceptions taken, arraignments, pleas, sentences, arguments of the attorneys to the jury, and AB 648 (Jones-Sawyer) Page 3 of ? statements and remarks made and oral instructions given by the judge or other judicial officer, in certain cases, including, among others, in a civil case, on the order of the court or at the request of a party. (Code Civ. Proc. Sec. 269.) Existing law establishes the Trial Court Trust Fund (TCTF). (Gov. Code Sec. 68085.) Existing law requires that, among other fees, the fees collected by the trial courts for official court reporters be deposited in a bank account established by the Administrative Office of the Courts (AOC). The AOC must distribute those deposits as provided, with the remainder going to the TCTF. (Gov. Code Sec. 68085.1.) Existing law requires that for each civil proceeding lasting more than one hour, a fee equal to one-half day of services be charged to the parties, on a pro rata basis, and that the fees collected be used only to pay the cost for services of an official court reporter, as specified. (Gov. Code Sec. 68086(a)(1)(B).) Existing law requires that for that each civil proceeding lasting less than one hour, a fee of $30 be charged for the reasonable cost of services of an official court reporter, as specified(Gov. Code Sec. 68086(a)(1)(A).) This bill would, instead, require that for each proceeding lasting one hour or less, a $30 fee be charged for the reasonable cost of the services of official court reporters in civil proceedings, pursuant to Section 269 of the Code of Civil Procedure, as follows: the fee must be charged only to the party, or parties if filing jointly, that filed the paper that resulted in the proceeding being scheduled; all parties paying the fee must deposit the fee with the court clerk as specified by the court, but not later than the conclusion of each day's court session; the fee must be charged once per case for all proceedings conducted within the same hour if the total time taken by those proceedings is one hour or less; if the total time taken exceeds one hour, the fee must be charged and collected pursuant to the provision governing fees for court reporters in proceedings lasting more than one hour, as outlined above; the fee must be deposited into the TCTF and distributed back to the courts in which the fees were collected on a AB 648 (Jones-Sawyer) Page 4 of ? dollar-for-dollar basis; and the fee must be refunded to the remitting party or parties if no court reporting services were provided at the scheduled proceeding. This bill would recast several related provisions and revise cross-references to those provisions accordingly. 2. Existing law authorizes the granting of a court fee waiver to a litigant who cannot afford to pay the fee, as specified. (Gov. Code Sec. 68631.) This bill would require this fee be waived for a person who has been granted a fee waiver pursuant to existing law, above. COMMENT 1. Stated need for the bill According to the author: The 2012 public safety budget trailer bill [SB 1021 (Committee on Budget and Fiscal Review, Ch. 41, Stats. 2012)] created a new $30 fee to be assessed against litigants for court reporter services in civil proceedings lasting less than one hour. The statute did not provide clear guidance, however, on how to implement this fee. [The J]udicial Council's Policy Coordination and Liaison Committee (PCLC) and the Joint Legislation Working Group of the Trial Court Presiding Judges and Court Executives Advisory Committees (JLWG) therefore recommend addressing the lack of specificity and resulting confusion to better enable courts to collect revenue from this new source. This proposal will streamline procedures and create sufficient flexibility and guidance for the courts and for litigants on how this new fee will be assessed. AB 648 will: Clarify that the fee is for proceedings lasting one hour or less; Clarify that the moving party is responsible for the fee; Clarify that a single $30 fee shall be charged per case per day for all actions as long as the proceeding lasts less than an hour; Authorize the court to collect the fee at the time the party files the papers that result in the scheduled hearing AB 648 (Jones-Sawyer) Page 5 of ? or as otherwise arranged by the court; Specify that the fee is refundable only if the court fails to provide a court reporter at the scheduled hearing; Clarify that the funds may only be used for court reporters; and Provides that the funds shall be deposited in the Trial Court Trust Fund and then shall be returned to the court in which the funds were collected on a dollar for dollar basis. 2. This bill could be unintentionally burdensome for both parties and the courts Existing law requires a $30 fee for any civil proceeding lasting less than one hour for the reasonable cost of the services of an official court reporter in the proceeding. This bill would require that the fee be charged only to the party (or parties, if filing jointly) that files the paper resulting in the scheduling of the proceeding. The bill would require that the party (or parties) paying the fee deposit the fee with the court clerk as specified by the court, but no later than the conclusion of each day's court session. Those fees would be deposited into the Trial Court Trust Fund (TCTF) and distributed back to the courts in which the fees were collected, on a dollar for dollar basis. If no court reporting services were provided at the scheduled proceeding, the party or parties would be entitled to a refund. Among other things, this bill would also require that the fee be charged once per case for all proceedings conducted within the same hour if the total time taken by those proceedings is one hour or less. If the total time is more than one hour, the party or parties would be required to pay the amount required pursuant to an existing provision governing proceedings lasting more than one hour. The author asserts that "[i]n order to consistently and effectively implement the trailer bill legislation creating this new $30 court reporter fee [for civil proceedings lasting less than an hour], the legislation must be clarified. AB 648 amends the statute to make implementation of the $30[ ] court reporter fee clear and precise without changing the intent behind its initial creation." While the author appears to have recently amended the bill to address some issues raised by the Consumer Attorneys of California (CAOC), it appears that some of those concerns still remain. The CAOC writes that: AB 648 (Jones-Sawyer) Page 6 of ? While this legislation is aimed to clean up budget trailer bill language from last year, it goes further than the intent of that language. [. . .] (1) It requires the party to pay a $30 fee, even when the party does not require or request a court reporter. In contrast, the budget trailer bill language said $30 would be charged for the "reasonable costs of an official reporter." (2) It requires the party to deposit this fee even when there is no realistic expectation that a court reporter will be available, and would then apparently require the party to request a refund after the fact. This is an unreasonable and unfair burden on the parties to the litigation." Staff also notes that, as currently drafted, by requiring parties to make a payment and then seek a refund when they know that a reporter will not be needed or when calendar changes are made after the party has already made the required deposit, the foreseeable burden of making an unnecessary deposit and then obtaining a refund is not limited to the parties who did not need those services. Arguably, this bill would also impose additional administrative costs on the courts to process payments and refunds that could have been otherwise avoided. Additionally, in conjunction with the language allowing that $30 be charged as specified by the court, "but not later than the conclusion of each day's court session," this bill could result in the confusing situation where a party would be required to deposit the fee by the end of that day's session, even it is clear they will not be receiving the services of a court reporter. In that circumstance, the party could then request a refund, but, it is also unclear how long it would take for a party to receive their refund given that the bill requires the fee to be placed in the TCTF. Furthermore, if the fees are to be deposited into the TCTF and distributed back to the courts in which the fees were collected on a dollar-for-dollar basis, the processing of refunds could significantly complicate the process or otherwise result in inaccurate distributions. In support of the need to charge the $30 fee up-front at the time of filing, the Judicial Council asserts that: Logistically, and to ensure that the money is actually collected, courts must have the option of collecting the money at the time of filing. The individuals are present and already paying a filing fee at this time. This fee is for civil AB 648 (Jones-Sawyer) Page 7 of ? proceedings lasting one hour or less. Often, we are talking about civil law and motion calendars, OSC calendars, etc[.], where there are as many as 50 proceedings or more on the morning or afternoon calendar. Collecting the fee in the courtroom would interfere with the ability of the court to conduct the hearings on these matters, creating delay. If it is not collected in the courtroom, the party will have to voluntarily go to the clerk's office to pay the fee, or be invoiced. The end result - the fee often will not be paid, and the courts do not have the additional resources to collect these fees. Collecting the fee in the courtroom or at the clerk's window creates an administrative burden and will result in considerably lower collections. It cannot be compared to the fees for proceedings lasting more than one hour, because the volume is vastly different. By allowing the trial courts to continue to collect this fee at the filing window as parties are paying their filing fees, the trial court is guaranteed to receive the fee without additional time and labor costs. Staff notes that the main purpose of charging the $30 fee up-front appears to be to ensure collection, and as a result, the fee would be collected before any services are rendered. In this way, the court reporter fee can be distinguished from filing fees because at the time a party pays their filing fee, the paperwork is actually filed. As noted by CAOC's letter, the intent of the trailer bill in adding this $30 fee was to ensure an appropriate amount is charged to parties for the reasonable cost of the services of a court reporter in their proceeding-not to create a deposit for court reporters services more generally, regardless of whether or not they will be provided in a particular proceeding. The following amendments would address such issues by: ensuring that the $30 is charged only where the court reporting services of an official court reporter are going to be provided by the court pursuant to existing law (requiring court reporting services in civil proceedings upon request of a party or on order of the court); ensuring that unless the court reporter is provided pursuant to court order, the party requesting the court reporter pay the fee; ensuring that any refunds are issued as soon as practicable; and making other technical or clarifying amendments. AB 648 (Jones-Sawyer) Page 8 of ? Suggested amendments: On page 2, line 5, after "proceeding" insert "anticipated to last" On page 2, line 7, after "reasonable cost of the" insert "court reporting" On page 2, line 7, strike "official court reporters in civil proceedings" and insert "an official court reporter that is provided by the court" On page 2, line 23, strike "only" On page 2, line 25, after the period add "If no fee is charged, and another party subsequently requests a court reporter, that party shall be charged the fee if the court determines a reporter will be provided." On page 3, line 10, strike "fees" and insert "fee" On page 3, line 12, strike "in" and insert "from" On page 3, line 12, strike "fees were" and insert "fee was" On page 3, line 13, after ""refunded" insert "as soon as practicable" On page3, line 14, strike "at the scheduled" and insert period On page 3, strike line 15 in its entirety 3. Chaptering-out issues Staff notes that a budget trailer bill, AB 80 (Assembly Committee on Budget, 2013) also amends Government Code Section 68086. Language should be added to this bill before returning to the Assembly to avoid causing chaptering-out issues. Support : California Court Reporters Association; San Bernardino Public Employees Association; San Luis Obispo County Employees Association Opposition : None Known HISTORY AB 648 (Jones-Sawyer) Page 9 of ? Source : Judicial Council Related Pending Legislation : AB 80 (Assembly Committee on Budget, 2013) would, among other things, amend the existing provision requiring a $30 fee to be charged for the reasonable cost of court reporter services in civil proceedings lasting less than one hour, to specify that the proceeds of the fee shall be distributed to the court in which the fee was collected. Prior Legislation : SB 1021 (Committee on Budget and Fiscal Review, Ch. 41, Stats. 2012) See Background. Prior Vote : Assembly Floor (Ayes 49, Noes 24) Assembly Judiciary Committee (Ayes 8, Noes 1) **************