BILL ANALYSIS Ó
AB 1834
Page 1
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1834
(Wagner) - As Introduced February 9, 2016
SUBJECT: ELECTRONIC COURT REPORTING: FAMILY LAW
KEY ISSUE:
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?
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 want - and can afford - to have a
record of their proceedings, they must pay for and 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
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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. This is a repeat of the author's AB 251 from 2013,
which failed in this Committee on a 3-6 vote. While there is
universal agreement that family law proceedings (and frankly all
proceedings) should have records, there is significant
disagreement about how those records should be produced.
The author believes 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 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. A similar bill -- last year's
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AB 749 (Bloom) -- passed this Committee, but was held on
suspense in the Assembly Appropriations Committee.
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.)
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
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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.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
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 in family law proceedings if no court reporter is
available.
In support of the bill, the author writes:
Current law does not require that trial courts provide
official reporters in family law proceedings, and
electronic reporting is not permitted in these proceedings.
As a result, in many counties family law hearings and
trials are not being recorded and no official record is
created. 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.
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Electronic recording is used in some court proceedings today.
Today, the majority of states use a combination of court
reporters and electronic recording, including California.
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
generally known, though opponents provide a recent anecdote from
a Sacramento courtroom where the voice of a female judge was not
picked up on the electronic record for several months, thus
rendering those records unusable.
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: According to the National Center for State
Courts, a growing minority of states -- Alaska, Colorado,
Connecticut, Delaware, Kentucky, Maine, Indiana, Maryland,
Massachusetts, New Hampshire, New Jersey, Oregon, Tennessee and
Vermont -- use electronic recording for "all or most of their
general-jurisdiction court sessions." Other states, such as
Florida and Minnesota use electronic recording in many of their
courts. Still other state and local jurisdictions use
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electronic recording in some of their courts. (National Center
for State Courts, 2015 Trends in State Courts: Leadership and
Technology, p.45 (2015).)
Court budget reductions in California during the recession
dramatically reduced civil courtrooms with court reporters, but
courts have not added court reporters back in as budgets have
increased. As a result of the recession and state budget
crisis, trial courts budgets were reduced, and, among other
service reductions, many courts reduced or eliminated court
reporters unless their services were mandated by statute. In
order to better understand the impacts of budget reductions on
the trial courts, this Committee independently surveyed the 58
trial courts in 2013 to assess what measures the courts had
taken to address the cuts, including any reduction in court
reporters. Of the 55 (out of 58) courts to respond, six had
reduced expenditures for court reporters, and fully 30 courts
reported that they had ceased providing court reporters for
civil, family and probate proceedings.
Even as the courts budgets have increased by millions of dollars
over the last few years, courts have not added court reporters
back into court proceedings. The Judicial Council provided
updated information from 47 courts this year. Of those courts
reporting, 34 did not generally provide court reporters for
family law matters (including Riverside, Sacramento, San Diego
and San Francisco), while 13 courts (including Los Angeles and
Santa Clara) did.
In those courts that do not provide court reporters, parties who
wish to have an official record of proceedings must hire and pay
the substantial cost of providing their own private court
reporter. If they do not do so, the litigants will be unable
generally to appeal decisions, parties may be unable to draft
orders effectively, and those attempting to recount what
actually happened during proceedings will be unable to so with
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any degree of accuracy.
In this year's January budget, the Governor, while adding
millions to cover specific costs and $20 million for ongoing
additional expenditures, did not mandate that any funds be used
for court reporters. To the contrary, the budget proposed a
one-time $30 million innovation fund for the courts for
"programs and practices that save money and better serve the
public," with the suggestion that an innovative program could
include "the development of electronic recordings in family
courts." (Governor Jerry Brown, Proposed Budget 2016-17 p.116.
(Jan. 7, 2016).)
Recent litigation makes clear the critical need for a record in
court proceedings. In support of this legislation, the author
points to a recent dissolution case in which the appellant was
unable to provide an accurate record because there was no court
reporter present at the trial court, an all too frequent
occurrence in family courts in California. The appellate court
wrote, in a footnote:
We are deeply troubled by the trial court's policy of
conducting all family law matters without a reporter unless
a reporter is engaged by one or both parties at their own
expense. This policy is actually codified in a local rule
stating, "The family court does not provide a court
reporter in family law matters, except when possible a
reporter will be provided for DCSS and restraining order
matters. If you would like to have a court reporter
present you will need to hire and pay all costs associated
with the reporter." (Super. Ct. Santa Cruz County, Local
Rules, rule 3.7.01.) As illustrated by this case, the
absence of a verbatim record can preclude effective
appellate review, cloaking the trial court's actions in an
impregnable presumption of correctness regardless of what
may have actually transpired. Such a regime can raise
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grave issues of due process as well as equal protection in
light of its disparate impact on litigants with limited
financial means. The practice becomes all the more
troubling when viewed in combination with the statewide
prohibition against privately recording court proceedings
"for any purpose other than as personal notes." (Cal.
Rules of Court, rule 1.150(d).) Perhaps the time has come
at last for California to enter the 20th century and permit
parties to record proceedings electronically in lieu of the
far less reliable method of human stenography and
transcription. Until that day, however, we believe the
right to effective appellate review cannot be permitted to
depend entirely on the means of the parties. (In re
Marriage of Obrecht (2016) 206 Cal. App. Lexis 138, 11,
footnote 3.)
State Supreme Court now considering related issue. The need for
court reporters is also now being briefed before the California
Supreme Court in a medical malpractice case. In that case,
Jameson v. Desta (2015) 241 Cal. App. 491, involving an indigent
plaintiff who was granted a fee waiver, the San Diego trial
court told the parties that there would be no court reporter
available and if they wanted a record they would have to provide
their own reporter. The parties did not. The trial court
granted a motion for nonsuit in favor of the defendant, and the
plaintiff appealed. However, because there was no record of the
court proceedings, the appellate court found that the plaintiff
could not show that any error occurred at the trial court and
upheld the trial court's judgment for the defendant. The
Supreme Court took the case to decide if a party granted a fee
waiver can be denied a court reporter and, as a result, an
effective right to appeal. The decision in that case could
impact whether court reporters are required in cases involving
indigent parties, but would not necessarily impact cases where
parties do not qualify for a fee waiver, but are still unable to
provide their own court reporter.
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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.
(Id. (footnote omitted).)
Judicial Council task force 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
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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.))
Futures Commission considers electronic recording as a possible
way to increase access to justice. The Commission on the Future
of California's Court System was created by the Chief Justice of
the California Supreme Court in 2014 to, according to the Chief
Justice, "take a fresh look at legal and structural challenges
to long-term efficiency and stability for the judicial branch
and develop practical, achievable recommendations that may be
implemented by the Judicial Council, the Legislature, or the
Governor." To that end, the Futures Commission is looking at
the need for court record in all cases:
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A verbatim record of court proceedings is a fundamental
component of access to justice. Verbatim court records show
what the parties said and what the court did throughout a
proceeding. Without a verbatim court record of a
proceeding, the parties and the public know only the final
determination of the proceeding; they do not have a
complete or accurate account of court or party actions. A
party, especially a self-represented party, is less likely
to understand or finalize a court's orders or pursue an
effective appeal without a verbatim court record. Further,
a verbatim court record memorializes a judge's disclosures
to the parties made during the proceedings. Yet despite
the importance of verbatim court records, current law and
the decrease in court funding over the years impede the
right of all parties, including the court, to have a
verbatim record of court proceedings. (Commission on the
Future of California's Court System, Agenda Concept 5
(Feb.8-9, 2016).)
Options that the Futures Commission will consider are: "1) the
costs and benefits of the various methods for creating a record
(e.g., in-court court reporting, remote court reporting, and
electronic recording); 2) the costs and benefits of expanding
the case types in which a court record is required; 3) the costs
and benefits associated with the current ownership of the court
record; and 4) possible statutory changes." (Id.) While it is
not clear when the Futures Commission will be making
recommendations, it is clear that it will take a legislative
change to expand the use of electronic recording, but it would
not require a legislative change to provide court reporters in
all family law and civil actions. Courts can do that today and,
indeed, as discussed above, some do.
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
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litigants, so many of whom are without counsel, is better than
no record at all. They argue that equal access to justice
necessitates an official record in all family law proceedings.
Writes the Bar Association of San Francisco:
While it would be ideal if court reporters could be present
at all court proceedings, the unfortunate reality today is
that due to budget constraints courts have largely removed
reporters from civil courtrooms, including family law
courtrooms. . . . The creation of a recording in family
law proceedings is critically important. Family law cases
routinely involve fundamental constitutional rights, such
as the right to parent a child. Family law matters often
involve victims seeking protection from domestic violence.
The majority of family law litigants proceed without
counsel. Many are unable to afford a private reporter, or
even know that they might need one. The lack of a record
means that there can be no meaningful appellate review, a
lack of clarity about the orders made, and less
accountability for judges.
The Family Violence Project (along with 20 public interest
organizations), while neither supporting nor opposing this bill,
has written to the Futures Commission of the need to provide all
parties, but particularly survivors of domestic violence, with a
record of their court proceedings: "Denying indigent family
violence litigants a meaningful right to litigate their cases in
the trial and appellate courts because they cannot afford a
reporter's transcript imposes impermissibly discriminatory
economic barriers to access to justice and raises severe die
process concerns."
Adds the Association of Certified Family Law Specialists:
"Family law has a very high percentage of self-represented
litigants and most of them do not understand the need to request
or bring with them a court reporter to ensure that their record
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is not only protected, but that they have a transcript that they
can review with other parties to understand what may or may not
have happened during their hearing and to assist them in the
preparation of the Order After Hearing where there is a
dispute."
The Association of Family and Conciliation Courts writes that
court reporters are best, but without adequate funding, some
other record must be provided:
Ideally California courts court should have the ability and
funding (without funding this cannot happen) to have actual
court reporters in each courtroom for all Family Law
proceedings. That is not occurring and until the
Legislature and Governor make this a priority it will not.
The situation has created in effect a two-tier system that
leaves the least financially able litigants (the
overwhelming majority) unable to obtain a record of vital
proceedings, let alone exercise their constitutional right
to appeal a decision. This is a truly unacceptable and
shameful state of affairs that even Appellate Courts are
now commenting on and justifiably condemning.
While a record is critical, opponents argue that a court
reporter provides a far superior record than an electronic
recording. Opponents agree that court reporters are lacking in
many family law proceedings and that, as a result, there is
currently no official record in these proceedings. They also
agree that family law matters are important, and deal with
serious and complex issues. Indeed, the importance and
complexity of these cases, opponents contend, 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.
Furthermore, they argue that a court reporter produces a vastly
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superior record to an electronic recording, and that a court
reporter's transcript does not, unlike an electronic record,
have missing or inaudible testimony.
The Alliance of California Judges, which has not submitted a
letter either in support or opposition to this legislation,
states:
We firmly believe that a certified shorthand reporter
preparing a paper transcript provides the most accurate
record for the parties and the strongest bulwark against
false complaints of judicial misconduct. Anyone who has
listened to an electronic recording of a court proceeding
knows that it is no substitute for a reporter's transcript.
Moreover, further steps to reduce compensation to
reporters will leave California struggling to find
certified reporters, already a huge problem in states like
Illinois and Pennsylvania, leaving courts with no option
but to compromise due process by using unreliable and
undecipherable electronic recordings.
LAO forecasts cost savings by using electronic recording of
court proceedings in place of court reporters. A 2011
Legislative Analyst's Office (LAO) 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
opponents), 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:
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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).) In 2011,
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 is available.
Opponents vehemently dispute the accuracy of the LAO's reported
savings, and contend that use of electronic recording will not
be cost-effective and will in fact result in inaccurate records
of court proceedings. The California Court Reporters
Association (CCRA) analyzed the LAO 2011 report and stated, in
response to the author's 2013 legislation, that implementation
of electronic recording would not be cost-effective since the
cost to purchase the equipment and hardwire the courtrooms would
outweigh any personnel cost savings. The CCRA also stresses
that electronic recording does not ensure accuracy:
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[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).)
Adds the Service Employees International Union:
A recording of a proceeding is NOT a verbatim record and it
is NOT a transcript. It is simply a recording with
unfortunate flaws. An accurate and complete record
verbatim record is critical in a legal proceeding and ER
[electronic recording] simply does not provide this. It
has been repeatedly demonstrated that the use of audio
recordings have jeopardized the accuracy and completeness
of the verbatim record. Further, these electronic
recordings have real and serious problems with inaudibles
and inaccuracies, a sound such as ruffling of papers or a
cough could muffle several words.
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
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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 by using audio reporting and $42,000 per
courtroom per year by using video, compared to using a court
reporter. The 2011 LAO estimates of saving, presented above,
are based on those Judicial Council findings.
The CCRA, however, strongly contended, in response to 2013
legislation, that 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, argued CCRA, included in the LAO's
cost projections. Today, the CCRA cites a recent comparison of
court reporting and audio recording in California courts, which
"demonstrated that when all costs [of switching to audio
recording] are taken into account, 'the budgetary impact is an
increase to the trial courts as a result of a shifting of costs
from the court reporters to the courts.'" (Citation omitted.)
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.
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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
reporter "without objection." These rules would have given the
superior courts greater discretion than the Los Angeles rules.
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
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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
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
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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.
AB 803 (Wagner), 2011, would have required the Judicial Council
to implement electronic court reporting in all trial courts.
That bill failed passage in this Committee.
AB 251 (Wagner), 2013, is identical to this bill and would have
permitted use of electronic recording in family law proceedings.
That bill failed passage in this Committee.
AB 749 (Bloom), 2015, would have required court reporters in
domestic violence and contested child custody cases. That bill
passed this Committee, but was held on the suspense file in the
Assembly Appropriations Committee.
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ARGUMENTS IN SUPPORT: The bill's sponsor, the Conference of
California Bar Associations, writes that a record is necessary
in family law cases to preserve the right to appeal, especially
for unrepresented litigants, hold parties accountable for any
threats or lies that are made on the record, help non-English
speaking litigants, and protect the judicial disciplinary
system. The bill does not seek to replace court reporters with
electronic recording, writes the Conference of California Bar
Associations. Rather, it has "the rights of family law
litigants and their families take precedence even over the
employment rights of court reporters. The arguments that
electronic recording of court proceedings are not sufficiently
accurate to be relied on certainly were valid in the 1990's when
first proffered, and may even have been valid in the past
decade. They are no longer true today."
Practitioners and advocates most familiar with the family courts
strongly concur in the need for a record in family law
proceedings. Writes the California Protective Parents
Association:
There are numerous due process issues in California family
courts currently. The most pressing issue is the absence
of a court record made by a court reporter or electronic
means in most courts. We wish to publically applaud the
integrity of small Solano County and huge Los Angeles
County for electing to employ court reporters in all family
law hearings. The lack of a court record in other counties
creates a huge problem for litigants, including a barrier
to appeal. Litigants may get their day in court, but they
do not have proof they did. These hearings impact the
lives of California citizens every day, and must have due
process. All courts need to ensure a record of hearing in
family courts, whether by a court reporter or electronic
means.
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Adds the Association of Family and Conciliation Courts:
Many practitioners have had experience with the electronic
recording of hearings that was fairly prevalent years ago.
Although the quality of that recording raised concern, and
a real obstacle ultimately to appeals, it did give both
unrepresented and represented litigants needed facts and
information to prepare adequate Findings and Orders After
Hearing documents so enforceable orders existed to protect
the parties and frequently their children. It was a
workable and acceptable system in light of the decreasing
availability of court reporters.
Since then the technology has vastly improved and costs are
not anywhere near as great as the use of court reporters.
To be clear, the [Association of Family and Conciliation
Courts] supports the availability of court reporters to all
litigants in Family Law. Given the harsh reality that the
State will not allow this by providing sufficient funding,
AB 1834 is viewed as a step in the right direction and
absolutely necessary at this point in time.
ARGUMENTS IN OPPOSITION: In opposition, LIUNA Locals 777 & 792
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
that this bill would actually take court technology "five steps
backward":
The Court Reporter's instantaneous real-time record of the
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oral proceedings is available to everyone in the courtroom
within a nanosecond of the spoken word and is available for
the judicial officer to read, and assist him/her in ruling
on objections, motions, and case decisions. The real-time
written record is available to litigants, their counsel,
the jury and judicial officers for assistance and access to
each ruling in a case's judicial life. It is written
record of the justice occurring to the participants as it
is happening, and it provides access to the judicial
process for others to access, and is available immediately.
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
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
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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 also
express frustration that while the state has begun reinvesting
in the courts, courts have not prioritized accurate court
records and court reporters: "Now that California has begun to
reinvest in the trial courts, we unfortunately have not
experienced the rehiring of court reporters in any meaningful
way. The lack of prioritizing the use of court reporters to
create a verbatim record for the public is in itself a great
injustice to the public."
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 cost and critical access to justice issues. In
light of the competing concerns raised by this bill, the
Committee, as was suggested in the analysis of the author's 2013
AB 251, 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 generated by
instituting electronic recording in trial courts in
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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.A court reporter's transcript is presumptively admissible.
Would an electronic recording be presumptively admissible or
would it need to be transcribed into a written record in order
to be presumptively admissible in court? If so, given the not
insubstantial costs of transcribing electronic recordings into
a written transcripts, might electronic recording actually
result in addition costs for the courts and for the parties?
5.How if at all can electronic recordings be made compliant with
federal and state disability access laws?
6.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?
Despite the passage of three years since these questions were
first asked with respect to AB 251, these questions still remain
unanswered today. These questions should be explored more
fully. Particularly in light of the fact that the situation
remains unchanged from three years ago -- no more court
reporters have been added and no greater access to justice has
been achieved. In the interim, this Committee may wish to
discuss with the author the possibility that, given the
importance of family law proceedings, the need for a complete
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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 and Conciliation Courts
Bar Association of San Francisco
California Protective Parents Association
One individual
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Opposition
Alameda County Official Court Reporters Association
American Federation of State, County and Municipal Employees,
AFL-CIO
California Labor Federation
California Court Reporters Association
California Official Court Reporters Association
LIUNA Locals 777 & 792
Los Angeles County Court Reporters Association
Orange County Employees Association
Orange County Superior Court Reporters Association
Organization of SMUD Employees
Northern California Court Reporters Association
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Professional and Technical Engineers, IFPTE Local 21
Sacramento Official Court Reporters Association
San Diego County Court Employees Association
San Diego Superior Court Reporters Association
San Luis Obispo County Employees Association
Service Employees International Union
We Never Sleep Proofreading
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334