BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1352 (Levine)
As Amended April 1, 2013
Hearing Date: June 11, 2013
Fiscal: Yes
Urgency: No
RD
SUBJECT
Courts: Destruction of Court Records
DESCRIPTION
This bill would authorize the destruction of various court
records earlier than permitted under existing law, delete
records retention provisions for records no longer maintained by
the court (such as coroner's inquest records), and establish
records retention periods for records that are not specifically
addressed under existing law. The proposed record retention
periods would apply to all court records currently in existence,
as well as future records.
The bill would also authorize the clerk of the court to use
electronic or other technological means to generate certified
copies of court records if the means adopted by the court
reasonably ensures that the certified copy is a true and correct
copy of the original record, or of a specified part of the
original record.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
In 1994, AB 1374 (Frazee, Ch. 1030, Stats. 1994) authorized
trial courts to preserve court records electronically, but did
not authorize those courts to create or maintain electronic
court records. That issue was addressed in 2010 when AB 1926
(Evans, Ch. 167, Stats. 2010) authorized trial courts to create,
maintain, and preserve court records in electronic form, as
(more)
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specified. Both of those bills sought to conserve court
resources by facilitating the move to electronic records.
Similarly, this bill seeks to further reduce storage costs by
permitting courts to destroy certain records earlier than is
permitted under existing law, both with respect to future paper
records and those that are already in existence. This bill also
seeks to reorganize and streamline current retention periods,
delete certain retention periods, and provide new, specific,
retention periods for court records not previously addressed
under existing law.
CHANGES TO EXISTING LAW
Existing law provides that trial courts may create, maintain,
and preserve court records, other than court reporter's
transcripts, in any form of communication, including paper,
optical, electronic, magnetic, micrographic media, or other
technology, if the form satisfies rules adopted by the Judicial
Council, as specified. (Gov. Code Sec. 68150(a).)
Existing law requires the Judicial Council to establish the
standards and guidelines for the creation, maintenance,
reproduction, or preservation of court records, including
records that must be preserved permanently. Among other things,
the standards or guidelines must ensure that court records are
created and maintained in a manner that ensures accuracy and
preserves the integrity of the records, are stored and preserved
in a manner that protects the records against loss and ensures
preservation for the required period of time, and are publicly
accessible and reproducible with at least the same amount of
convenience as paper records previously provided. (Gov. Code
Sec. 68150(c).)
Existing law provides that a court record that is created,
maintained, preserved, or reproduced in accordance with the
above provisions must be stored in a manner and place that
reasonably ensures its preservation against loss, theft,
defacement, or destruction for the prescribed retention period
prescribed by statute. (Gov. Code Sec. 68150(h).)
Existing law prescribes the manner by which court records may be
destroyed after proper notice, as specified, and after the
relevant statutory retention period has expired. (Gov. Code
Sec. 68152.)
AB 1352 (Levine)
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Existing law allows the courts to extend the retention period
for court records on its own motion or by application of a party
or interested member of the public for good cause shown. (Gov.
Code Sec. 68152(h).)
This bill would revise and reorganize the statutory retention
periods for court records to streamline and clarify current
retention periods for specified court records, delete
unnecessary retention periods, reduce retention periods for
certain court records, and add retention periods for other
records not previously covered under existing law. (See chart
in Comment 3 for more detail.)
This bill would retain the ability of courts to extend the
retention period for courts on its own motion or by application
of a party or interested member of the public for good cause
shown.
This bill would apply to court records in existence prior to its
January 1, 2014 effective date, as well as court records created
thereafter.
This bill would make conforming changes to a cross-reference
under existing law.
COMMENT
1. Stated need for the bill
According to the author:
The [c]ourts spend more money than is necessary on records
retention. This legislation refines record retention periods
in order to save courts money in a non-controversial way. AB
1352 authorizes the destruction of various court records
earlier than is permitted under existing law, which will
enable the trial courts to reduce their storage costs. In
addition, the bill establishes statutory records retention
periods for new types of records that are not dealt with under
existing law-such as records resulting from the new criminal
realignment process. The amendments will also clarify that
the clerk of the court may use technology to generate
certified copies of court records. Finally, the bill will
result in the main records retention statute, being organized
in a more logical, readable, and understandable manner.
AB 1352 (Levine)
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The sponsor of this bill, the Judicial Council of California,
adds that, "[i]mplementation of AB 1352 will allow courts to
efficiently and effectively manage court records and ensure that
courts are not burdened by excessive record storage costs in
this time of severe budget reductions to court operations which
jeopardize access to justice for all Californians while still
preserving the public's access to records when necessary."
2. Reducing storage costs would help courts realize additional
savings
This bill would reorganize, streamline, and modernize the
statutes relating to retention of court records to provide
additional clarity with existing law, delete unnecessary
provisions, introduce specific guidelines where existing law is
silent, and at times, reduce the number of years that court
records must be retained. In doing so, the proponents assert
that the bill would reasonably reduce storage costs of paper
files, and increase court savings at a time when severe budget
cuts jeopardize access to justice.
The Judicial Council also sponsored legislation in 2010 to
modernize the statutes on the management of court records to
authorize courts to create, maintain, and preserve records in a
variety of forms, including paper; electronic, optical,
magnetic, or photographic media; or other technology, in order
to help reduce court costs associated with storage of paper
files. (See AB 1926 (Evans, Ch. 167, Stats. 2010.) With
respect to the court costs of storing paper records, the
Judicial Council states that:
In California, a vast amount of storage space is currently
devoted to maintaining and preserving paper files of court
records. [ . . . ] The total cost associated with records
management during the fiscal year 2006-2007 was $21,619,815,
which includes storage costs of $1,813,530 and staff cost of
$14,908,919.
[Even with the passage of AB 1926 in 2010], large quantities
of existing records still remain in paper formats and it would
be prohibitively costly to convert all these records to
electronic form. Moreover, expending scarce court resources
to convert or maintain outdated records does not serve the
public that needs to access the courts.
As such, this bill seeks to reorganize and streamline the
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current retention periods to provide additional clarity as to
the applicable retention periods for various records, and also
decrease the retention periods for certain records where the
Judicial Council's Policy Coordination and Liaison Committee and
Court Executives Advisory Committee, together with the Court
Records Management Working Group, determined that a shorter time
period would suffice. Of note, these changes were proposed as
part of a Judicial Council report on improving court records
retention laws, and were released for public review and comment.
(See Report to the Judicial Council, Modernization and
Improvement of Statutes on Trial Court Records Retention and
Management (Feb. 15, 2013).) Based upon the comments received,
Judicial Council has removed any controversial changes to
existing law retention periods.
3. Overview of changes made to existing statutory retention
periods
This bill would largely reorganize and streamline the existing
statutory retention periods to properly group similar types of
cases to make the statute more readily accessible, add retention
periods for records not specifically addressed under existing
law, provide added clarity as to existing retention periods for
certain records, and reduce the current retention period for
other records.
As noted in Comment 2, the sponsor and author elected to leave
certain retention periods unaltered by this bill in an effort to
avoid any controversy. As such, court records relating to
family and civil (except for mental health cases) remain largely
the same as under existing law, despite any reorganization or
clarifying amendments made to those provisions. For example,
the retention periods for family law records generally, as well
as records relating to adoption, name change and parentage cases
would remain unchanged, but would be grouped together and
relocated as part of the larger goal of increasing the
accessibility of the statute. Similarly, the provisions
relating to civil records in unlimited and limited civil cases
would substantively remain unchanged, but the bill would
specifically state the retention periods for records in such
cases and also would include retention periods for judgments in
those cases, which are currently located in a different part of
the statute. Additionally, while the retention periods for
civil harassment records and domestic violence orders would
remain unchanged, the provisions would be grouped, relocated,
and expanded to include records in cases involving protective
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orders to prevent elder and dependent adult abuse and work place
violence, among other things.
The main substantive changes (as further outlined in the chart
below) can be generally described as follows:
the statutory retention periods for civil cases involving
mental health records would be reduced;
the statutory retention periods for various types of probate
records (probate, conservatorships, and guardianships) would
be revised to provide more precise times for specific
categories of probate records, and to expressly address
important probate records not previously covered under
existing law (such as trusts and minors' compromises);
the statutory retention periods for mental health records in
civil cases would be amended to create separate and shorter
retention periods for cases or hearings brought under
specified acts;
the statutory retention periods for capital felony cases would
be amended to create separate retention periods ranging from
permanent retention periods to 50 years to 10 years, based
upon whether (1) the sentence was for death, life without
possibility of parole, or life; (2) the sentence was for less
than death, life, or life without possibility of parole; (3)
the defendant was acquitted;
the statutory retention periods for cases involving other
felonies; misdemeanors; warrants; and infractions would also
be amended to distinguish among certain cases (such as where
cases are dismissed or charges are reduced) and, at times,
reduce the retention period; and
the statutory retention periods for certain records, including
parking infractions and coroner inquest records, would be
deleted.
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| Type of | Current Retention |Proposed Retention Period |
| Action/Document | Period | |
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| CIVIL CASES |
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|-----------------+---------------------+--------------------------|
| | | |
|Mental Health |Lanterman |Lanterman Developmental |
| |Developmental |Disabilities Services |
| |Disabilities |Act: 10 years |
| |Services Act and | |
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| |Lanterman-Petris-Shor| |
| |t Act: 30 years |Lanterman-Petris-Short |
| | |Act: 20 years |
| | | |
| |(Gov. Code Sec. | |
| |68152(c)(7)) |Riese (capacity) |
| | |hearings: the latter of |
| | |either (i) 20 years after |
| | |the date of the capacity |
| | |determination order or |
| | |(ii) the retention date |
| | |for court records related |
| | |to any underlying |
| | |involuntary treatment or |
| | |commitment proceeding, if |
| | |any |
| | | |
| | | |
| | |Petitions for return of |
| | |firearms to petitions who |
| | |relinquished them while |
| | |detained in a mental |
| | |health facility: 10 years |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(a)(13)(A)-(D)) |
| | | |
| | | |
| | | |
| | | |
|-----------------+---------------------+--------------------------|
| | | |
|Probate Records |All probate records, |Decedent estates: |
| |including probated | All orders, judgments, |
| |wills, except as | decrees of the court, |
| |otherwise specified: | all inventories and |
| | Permanently | appraisals, and all |
| | | wills and codicils of |
| | | the decedent filed in |
| |(Gov. Code Sec. | the case, including |
| |68152(h)(3)) | those not admitted to |
| | | probate: Permanently |
| | | |
| | | Other records: Five |
| | | years after final |
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| | | disposition of the |
| | | estate proceeding |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(a)(11)(A)) |
| | | |
| | | |
| | |Wills and codicils |
| | |transferred or delivered |
| | |to the court pursuant to |
| | |specified provisions of |
| | |the Probate Code: |
| | |Permanently |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(a)(11)(B)) |
| | | |
| | | |
| | |Substitutes for decedent |
| | |estate administration: |
| | | |
| | | Affidavit procedures |
| | | for real property of |
| | | small value: retain |
| | | permanently |
| | | |
| | | Proceedings for |
| | | determining succession |
| | | to property and |
| | | proceedings for |
| | | determination of |
| | | property passing or |
| | | belonging to surviving |
| | | spouse: retain |
| | | permanently all |
| | | inventories and |
| | | appraisals and court |
| | | orders. Other records: |
| | | retain for five years |
| | | after final disposition |
| | | of the proceeding |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
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| | |68152(a)(11)(C)) |
| | | |
|-----------------+---------------------+--------------------------|
| | | |
|Conservatorship |10 years |Court orders: |
| | |Permanently, except as |
| | |specified |
| |(Gov. Code Sec. | |
| |68152(h)(1)) | |
| | |Other conservatorship |
| | |records: 5 years after |
| |Judgments: |the latter of either (i) |
| |Permanently |the final disposition of |
| | |the conservatorship |
| | |proceeding or (ii) death |
| |(Gov. Code Sec. |of the conservatee, if |
| |68152(j)(12)) |that date is disclosed in |
| | |the court's file |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(a)(11)(D)) |
| | | |
|-----------------+---------------------+--------------------------|
| | | |
|Guardianships |10 years after 18 |Court orders terminating |
| |years of age |the guardianship, if any, |
| | |and court orders settling |
| | |final account and |
| |(Gov. Code Sec. |ordering distribution of |
| |68152(h)(2)) |the estate: Permanently |
| | | |
| | | |
| |Judgments: |Other records: 5 years |
| |Permanently |after the latter of (1) |
| | |the final disposition of |
| | |the guardianship |
| |(Gov. Code Sec. |proceeding; or (2) the |
| |68152(j)(12)) |earlier date of the |
| | |ward's death, if that |
| | |date is disclosed in the |
| | |court's file, or the date |
| | |the ward turns 23 |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
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| | |68152(a)(11)(E)) |
| | | |
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| | | |
|Minors' and |No comparable |Judgments in favor of |
|Disabled |provision; treated |minors or disabled |
|Persons' |like a civil record |persons, orders approving |
|Compromises |- 10 years |compromises of claims and |
| | |actions and disposition |
| | |of the proceeds of |
| | |judgments, orders |
| | |directing payment of |
| | |expenses, costs, and |
| | |fees, orders directing |
| | |deposits into blocked |
| | |accounts and receipts and |
| | |acknowledgments of those |
| | |orders, and orders for |
| | |the withdrawal of funds |
| | |from blocked accounts: |
| | |Permanently |
| | | |
| | | |
| | |Other Records: For the |
| | |same retention period as |
| | |for records in the |
| | |underlying case. If there |
| | |is no underlying case, |
| | |retain for five years |
| | |after the latter of |
| | |either (1) the date the |
| | |order for payment or |
| | |delivery of the final |
| | |balance of the money or |
| | |property is entered, or |
| | |(2) the earlier of the |
| | |date of the minor's |
| | |death, if that date is |
| | |disclosed in the court's |
| | |file, or the date the |
| | |minor reaches 23 years of |
| | |age. |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(a)(11)(F)(i)-(ii)) |
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| | | |
|-----------------+---------------------+--------------------------|
| | | |
|Trusts |No comparable |Trusts proceedings: |
| |provision; treated |Permanently |
| |like a civil record | |
| |- 10 years | |
| | |Trusts instruments and |
| | |court orders for trusts |
| | |created by substitute |
| | |judgment: Permanently |
| | | |
| | | |
| | |Other records for trusts |
| | |created by substitute |
| | |judgment: retain as long |
| | |as the underlying |
| | |conservatorship file is |
| | |retained |
| | | |
| | | |
| | |Trust instruments and |
| | |court orders for special |
| | |needs trusts: permanently |
| | | |
| | | |
| | |Other records relating to |
| | |special needs trusts: |
| | |retain until the latter |
| | |of either (1) the |
| | |retention date of "other |
| | |records" in the |
| | |beneficiary's |
| | |conservatorship or |
| | |guardianship file, as |
| | |specified, if any, or (2) |
| | |five years after the date |
| | |of the beneficiary's |
| | |death, if that date is |
| | |disclosed in the court's |
| | |file |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(a)(11)(G)(i)-(iv)) |
| | | |
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| CRIMINAL CASES |
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| | | |
|Capital Felony |If prosecution seeks |Capital felony cases in |
|(death penalty) |the death penalty: |which the defendant is |
| |Permanently, except |sentenced to death, and |
| |as specified |in any felony resulting |
| | |in a sentence of life or |
| | |life without the |
| |(Gov. Code Sec. |possibility of parole: |
| |68152(e)(1)) |Permanently |
| | | |
| | | |
| | |If a capital felony is |
| | |disposed of by a sentence |
| | |less than death, life, or |
| | |life without possibility |
| | |of parole: Retain |
| | |judgment permanently, and |
| | |record for 50 years or |
| | |for 10 years after the |
| | |defendant's death |
| | | |
| | | |
| | |If a capital felony is |
| | |disposed of by acquittal: |
| | |10 years |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(c)(1)) |
| | | |
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| | | |
|Other Felonies |75 years |Judgments: permanently |
|and Registered | | |
|Sex Offender | | |
|Misdemeanors |(Gov. Code Sec. |Other documents: 50 years |
| |68152(e)(2), (10)) |or the maximum term of |
| | |the sentence, whichever |
| | |is longer, or 10 years |
| | |after the defendant's |
| | |death |
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| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(c)(2). |
| | | |
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| | | |
|Felony Reduced |No comparable |In accord with relevant |
|to Misdemeanor |provision, treated |misdemeanor rules, or in |
|or Misdemeanor |like felony or |accord with relevant |
|Reduced to |misdemeanor |infraction rules |
|Infraction | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(c)(3), (9)) |
| | | |
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| | | |
|Dismissed |No comparable |Felony charge is |
|Criminal Cases |provision, treated |dismissed: 3 years, |
| |like underlying |except as provided |
| |criminal case record | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(c)(4)) |
| | | |
| | | |
| | |Misdemeanor charge is |
| | |dismissed: 1 year, except |
| | |as provided |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(c)(5)) |
| | | |
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| | | |
|Infractions |Except as otherwise |Except as otherwise |
| |specified: three |specified: 1 year |
| |years | |
| | | |
| | |(Proposed Gov. Code Sec. |
| |(Gov. Code Sec. |68152(c)(10)) |
| |68152(e)(11)) | |
| | | |
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| | | |
|Parking |Two years |Eliminates the current |
|Infractions | |two-year retention period |
| | | |
| |(Gov. Code Sec. | |
| |68152(e)(12)) | |
| | | |
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| | | |
|Search Warrants |10 years, generally |Same retention period as |
| | |for records in underlying |
| | |case. If none, retain |
| |If issued in |for five years from date |
| |connection with a |of issue |
| |capital felony case: | |
| | permanently. | |
| | |(Proposed Gov. Code Sec. |
| | |(c)(13)) |
| |(Gov. Code Sec. | |
| |68152(j)(18) | |
| | | |
|-----------------+---------------------+--------------------------|
| | | |
|Arrest Warrant |Same period as |Same period as period for |
| |period for retention |retention of the records |
| |of the records in |in the underlying case |
| |the underlying case |category. If none, 1 |
| |category |year from date of issue. |
| | | |
| | | |
| |(Gov. Code Sec. |(Proposed Gov. Code Sec. |
| |68152(j)(2)) |(c)(12)) |
| | | |
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| Other Records |
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| | | |
|Court Orders Not |3 years |1 year |
|Associated With | | |
|an Underlying | | |
|Case |(Gov. Code Sec. |(Gov. Code Sec. |
| |68152(h)(6)) |68152(g)(12)) |
| | | |
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| | | |
|Habeas Corpus |Same period as |In criminal and family |
| |period for retention |law matters: retain for |
| |of the records in |the same retention period |
| |the underlying case |as for records in the |
| |category |underlying case, whether |
| | |granted or denied. |
| | | |
| |(Gov. Code Sec. | |
| |68152(f)) |In mental health matters: |
| | |retain all records for |
| | |the same retention period |
| | |as for records in the |
| | |underlying case, whether |
| | |granted or denied. If no |
| | |underlying case, retain |
| | |records for 20 years. |
| | | |
| | | |
| | |(Proposed Gov. Code Sec. |
| | |68152(d)(1)-(2)) |
| | | |
|-----------------+---------------------+--------------------------|
| | | |
|Coroner's |Same period as |Eliminates the retention |
|Inquest Report |period for retention |period |
| |of the records in | |
| |the underlying case | |
| |category; if no | |
| |case, then | |
| |permanent. | |
| | | |
| | | |
| |(Gov. Code Sec. | |
| |68152(j)(5)) | |
| | | |
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4. Technical amendments
This bill would provide that the record retention periods
provided in this bill apply to all court records in existence
prior to January 1, 2014, as well as to records created after
that date. As such, the bill would technically not apply to
court records created on January 1, 2014. The following
amendment would correct this unintended consequence:
AB 1352 (Levine)
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Suggested amendment
On page 18, line 1, after "record created" insert "on or"
Also, throughout the bill, various retention requirements are to
be determined by the later of two possible dates. However, the
current language states that the applicable retention period is
the "latter of" of two possible dates. To correct potential
confusion, the following amendments are suggested:
Suggested amendment
On page 11, line 13, strike "latter" and insert "later"
On page 11, line 19, strike "latter" and insert "later"
On page 11, line 36, strike "latter" and insert "later"
On page 12, line 14, strike "latter" and insert "later"
On page 12, line 26, strike "latter" and insert "later"
5. Author's amendment to be offered in committee
The following amendments are offered by the author to resolve
stakeholder concerns:
Author's amendments
On page 10, line 17, before "restraining" add "temporary"
On page 10, line 17, before "orders" add "temporary"
On page 11, line 38, strike "ward's" and insert "minor's"
On page 11, line 40, strike "ward" and insert "minor"
On page 12, line 2, strike "Litigation" and insert
"Proceedings"
On page 12, line 2, strike "Chapter 1 (commencing with Section
17000)" and strike line 3
On page 12, line 4, strike "(commencing with section 17200)
of" and after "Part 5 of Division 9 of the Probate Code"
insert "(commencing with Section 17000)"
AB 1352 (Levine)
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On page 4, strike lines 6-8, inclusive
On page 4, line 9, renumber "(iii)" to (ii)"
On page 4, line 13, renumber "(iv)" to "(iii)"
6. Chaptering-out issues
Staff notes that AB 1167 (Dickinson), relating to electronic
transmission of court records to and from levying officers,
would amend a section of the Government Code also being amended
by this bill and that language should be added to the bill
before it leaves the Senate to avoid chaptering-out issues.
Support : None Known
Opposition : None Known
HISTORY
Source : Judicial Council of California
Related Pending Legislation : None Known
Prior Legislation :
AB 1926 (Evans, Chap. 167, Stats. 2010) See Background. This
bill also required the Judicial Council to establish standards
and guidelines for the creation, maintenance, reproduction, or
preservation of court records and also provided that documents
electronically signed, subscribed, or verified would have the
same validity and legal force and effect as paper documents.
AB 1374 (Frazee, Ch. 1030, Stats. 1994) See Background.
Prior Vote :
Assembly Floor (Ayes 70, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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