BILL ANALYSIS Ó
AB 749
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 749
(Bloom) - As Amended March 26, 2015
As Proposed to be Amended
SUBJECT: COURT REPORTERS: FAMILY LAW
KEY ISSUE: IN ORDER TO ENSURE THAT PARTIES TO CHILD CUSTODY AND
DOMESTIC VIOLENCE PROCEEDINGS, WHICH ARE AMONG THE MOST CRITICAL
AND LIFE-ALTERING OF ALL JUDICIAL PROCEEDINGS, ARE PROVIDED WITH
APPROPRIATE PROTECTION, SHOULD COURT REPORTERS BE REQUIRED IN
THOSE CASES?
SYNOPSIS
Court reporters take shorthand notes of court proceedings and
produce a verbatim record of what transpires in court. Today
court reporters are only mandated in some court proceedings,
generally criminal and juvenile court proceedings. The lack of
mandate for court reporters in civil actions, coupled with
budget cuts to the courts, has resulted in many civil courtrooms
across the state operating without court reporters, unless the
parties decide to provide and pay for their own reporters. In
family law cases, where life-altering decisions are made every
day and the vast majority of litigants are unrepresented, court
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reporters are almost nonexistent in courtrooms. Without a court
reporter to take down the proceeding, there is no report of what
transpires in court. As a result, parties may be unable to
draft orders accurately, and there is effectively no right to
appeal. This bill, sponsored by the California Court Reporters
Association, mandates that court reporters take down all
proceedings in child custody and domestic violence cases. The
author states: "Given the importance of family law proceedings
there is no question as to the need for a complete and accurate
record for these cases. It is vitally important that California
brings court reporters back to family law cases." This bill is
supported by the Service Employees International Union, and has
no reported opposition.
SUMMARY: Requires court reporters in child custody and domestic
violence proceedings under the Family Code. Specifically, this
bill requires that an official court reporter or an official
court reporter pro tempore take down in shorthand all testimony
and all statements and remarks of judges and all persons
appearing at child custody and Domestic Violence Prevention Act
proceedings.
EXISTING LAW:
1)Requires court reporters in all death penalty proceedings,
juvenile court proceedings, and hearings on motions to
withdraw consent to step-parent adoptions. (Penal Code
Section 190.9; Welfare & Institutions Code Sections 347 and
677; Family Code Section 9005(d).)
2)Requires that a court reporter take down all testimony,
objections made, rulings of the court, exceptions taken,
arraignments, pleas, sentences, arguments of the attorneys to
the jury, and statements and remarks made and oral
instructions given by the judge or other judicial officer, in
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the following cases:
a) In a civil case, on the order of the court or at the
request of a party;
b) In a felony case, on the order of the court or at the
request of the prosecution, the defendant, or the attorney
for the defendant; and
c) In a misdemeanor or infraction case, on the order of the
court. (Code of Civil Procedure Section 269.)
3)Permits a judge to have a court reporter in felony, unlimited
civil, probate, juvenile and selected family law proceedings,
including child custody and child support proceedings, take
down any opinion, judgment or testimony, as provided, in short
hand and transcribed, as the court deems necessary. (Code of
Civil Procedure Section 274a.)
4)Provides that the court may direct the making of a verbatim
record and that payment be from the county treasury on order
of the court for: (a) Criminal matters; (b) juvenile
proceedings; (c) proceedings to declare a minor free from
custody; (d) proceedings under the Lanterman-Petris-Short Act;
and (e) as otherwise provided by law. (Government Code
Section 69952.)
5)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
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Section 69957(a)-(b).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Court reporters take shorthand notes of court
proceedings and produce a verbatim record of what transpires in
court. Today court reporters are only mandated in some court
proceedings, generally criminal and juvenile court proceedings.
The lack of mandate for court reporters in civil actions coupled
with budget cuts to the courts has resulted in many civil
courtrooms across the state operating without court reporters,
unless the parties decide to provide and pay for their own
reporters. In family law cases, where life-altering decisions
are made every day and the vast majority of litigants are
unrepresented, court reporters are almost nonexistent. Without
a court reporter to take down the proceedings, there is no
report of what transpires in court. As a result, parties may be
unable to draft orders accurately, and there is effectively no
right to appeal. This bill mandates that court reporters take
down all proceedings in child custody and domestic violence
cases.
In support of the bill, the author writes: "Given the
importance of family law proceedings there is no question as to
the need for a complete and accurate record for these cases. It
is vitally important that California brings court reporters back
to family law cases."
Basics on Court Reporters: According to the California Court
Reporters Association, court reporters currently produce and
deliver transcripts acting as independent contractors using
privately purchased hardware, software, computer networks,
supplies, shipping costs and labor. There are over 7,000
certified court reporters in the state, including the freelance
and official markets. Freelance court reporters are used in the
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private sector for closed captioning, depositions or out of
court proceedings. Official court reporters work in the courts
and receive a base salary and benefits. All official court
reporters are paid extra for producing transcripts.
While Court Reporters are Permitted in Court Proceedings, They
are Only Mandated in Certain Cases: California law specifically
mandates that court reporters take down in shorthand all court
proceedings and provide transcripts of those proceedings to
certain cases, including all death penalty cases and dependency
and delinquency proceedings in juvenile court. Additionally,
both the United States Supreme Court and the California Supreme
Court have held that an indigent criminal defendant has a right
to a free transcript. (Britt v. North Carolina (1971) 404 U.S.
226, 230; People v. Hosner (1975) 15 Cal.3d 60, 65.) The right
to a transcript - and hence the right to a court reporter - in
felony cases is also codified in Code of Civil Procedure Section
269 and California Rule of Court, Rule 8.336.
More generally, Code of Civil Procedure Section 269 provides
that an official court reporter shall transcribe civil, felony,
and misdemeanor proceedings if ordered by the court or, in civil
or felony cases, if requested by the parties. However this
provision does not require that, in civil cases, a court
reporter be provided free of charge, nor does it require that
transcripts be provided for free. Parties have a right to hire
a court reporter for their civil matters, but unless
specifically required otherwise, the court is currently not
required to provide a court reporter for them. In particular
Rule of Court 2.956(c) states:
If the services of an official court reporter are not
available for a hearing or trial in a civil case, a party may
arrange for the presence of a certified shorthand reporter to
serve as an official pro tempore reporter. It is that party's
responsibility to pay the reporter's fee for attendance at the
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proceedings, but the expense may be recoverable as part of the
costs, as provided by law.
Except as provided for indigent parties under the Transcript
Reimbursement Fund (a limited fund that helps indigent parties
in civil actions obtain transcripts for free, see Business &
Professions Code Section 8030.2 et seq.), courts are only
authorized to provide free transcripts in limited instances:
criminal matters, juvenile proceedings, Lanterman-Petris-Short
Act proceedings, or other proceedings provided by law.
(Government Code Section 69952.) In fact, state law provides
that: "Except as provided in [Government Code] Section 69952,
no reporter shall perform any service in a civil action other
than transcriptions until his fee for it has been deposited with
the clerk of the court or with the reporter." (Government Code
Section 69953.)
Court Budget Reductions in California Have Dramatically Reduced
Civil Courtrooms with Court Reporters: As a result of the
recession and the state budget crisis, the trial courts' budget
has been reduced significantly (although the courts' budget has
increased each of the last two years and is scheduled for
another increase this year, but still below pre-recession
levels). On February 12, 2013, this Committee held an
informational hearing titled "The Access to Justice Crisis
Facing California's Families" in order to identify and better
understand the impacts of budget reductions on the trial courts.
In preparing for that hearing, this Committee independently
surveyed the 58 trial courts to assess what measures the courts
have taken to address the cuts and discovered that fully 30
courts had 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.
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Judicial Council Task Force Has Highlighted the Need For Better
Access To Records In Family Law Proceedings Generally: As a
result of the dearth of court reporters in family law
proceedings, there is all too often 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 - who make up the vast majority of
family law litigants - about the basic nature of the court's
orders, and there is no recording or reporting of any kind for
them to review after the hearing, often making it impossible to
draft accurate orders. Yet family law matters generally, and
the specific matters covered by this bill - child custody and
domestic violence - arguably include some of the most important
matters facing children and families. 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.))
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Family Law Judges and Practitioners Strongly Support the Need
For a Record in Family Law Proceedings: Judges and family law
practitioners alike support having court reporters in family law
proceedings. Judge Kimberly Nystrom-Geist, testifying at the
Senate Judiciary Committee's March 11, 2014 informational
hearing entitled "Family Law Courts: Budget Cutbacks and Access
to Justice," stated: "Without a court reporter, there is no
record. Everyone suffers. The public doesn't know if the judge
did the job right. The litigants can't have an appeal. Without
appeals, we have no case law, and it stifles the development of
family law."
Family law practitioners strongly concur in the need for a
record in important family law proceedings. Wrote one
practitioner in support of AB 251 (Wagner), 2013, which would
have permitted electronic recording in family law cases, but
failed in this Committee:
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 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.
The Commission on Judicial Performance Believes Elimination of
Court Reporters in Civil Proceedings Impairs Its Ability to
Protect the Public: Without court reporters in the courtroom,
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there is very limited review of judges' actions, as well as
their behavior. The Director-Chief Counsel of the Commission on
Judicial Performance (CJP) wrote, in a letter to the Governor,
the Chief Justice and legislative leaders, 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.
(Id. (footnote omitted).)
This Bill May Not Go As Far As Necessary to Ensure That All
Parties' Rights Are Protected: While this bill mandates that
court reporters take testimony in all child custody and domestic
violence proceedings, it does not require that court reporters
are present in other family law proceedings or in civil
proceedings generally. Moreover, while this bill directs that
court reporters make a record of the proceedings, it does not
require that parties be provided with a transcript. In order to
obtain a transcript, the parties would first have to pay the
court reporter for the transcript, which may make it nearly
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impossible for some parties to get a copy of the court record
(other than through the limited Transcript Reimbursement Fund).
Thus, while this bill is a good first step to helping ensure all
parties have a right to a record in their court proceedings, it
does not fully accomplish this important goal.
ARGUMENTS IN SUPPORT: The Service Employees International
Union, writing about the need for the bill, states that family
law "affects the most critical aspects of a person's life
including child custody, personal safety, child support to be
paid and received, and how assets will be divided between
separating parties. These decisions have lasting impacts on
individuals and families."
The sponsor adds:
As certified shorthand reporters, we know how important it is
to have a complete and accurate record of court proceedings.
Without a transcript, litigants are unable to appeal, parties
struggle to draft orders effectively and it is nearly
impossible to recount what happened during the trail with
accuracy.
Under current law, court reporters are required to be made
available in all criminal and juvenile proceedings because of
the trial's significant importance and impact on the litigants
and individuals involved. However, in family law, California
now has a two-tied justice system, where only parties who
could afford to hire a private court reporter receive the
benefits of a complete and accurate transcript. Given the
importance of family law proceedings, there is no question as
to the need for a complete and accurate record in these cases.
Related Pending Legislation: AB 804 (Hernández) would require
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the Court Reporters Board of California to establish minimum
continuing education requirements for court reporters. That
bill is now in the Assembly Appropriations Committee.
SB 270 (Mendoza) would allow the Court Reporters Board to bring
a civil action to enjoin any person or entity from rendering
court reporter services without being licensed. That bill is
now in the Senate Business, Professions and Economic Development
Committee.
Related Recent Legislation: ACR 20 (Stone), Res. Chap. 12,
2015, proclaims February 15, 2015, through February 21, 2015, as
California Court Reporting and Captioning Week.
AB 251 (Wagner), 2013, would have allowed use of electronic
recording in family law if a court reporter is unavailable. AB
803 (Wagner), 2011, would have allowed electronic recording in a
specific percentage of courtrooms each year. Neither bill
passed this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Court Reporters Association (sponsor)
Service Employees International Union
AB 749
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Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334