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  
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          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  
                                                                      



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            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  
                                                                      



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               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  
                                                                      



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               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: 
                                                                      



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            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  
                                                                      



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            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.  

                                                                      



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             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
                                                                      



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           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)

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