BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 2244 (Gatto) - Court fees:  electronic filing
          
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          |Version: June 13, 2016          |Policy Vote: JUD. 7 - 0         |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 1, 2016    |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File.


          Bill  
          Summary:  AB 2244 would prescribe specified limits on the fees  
          charged by the courts, an electronic filing manager, or an  
          electronic filing service provider associated with the  
          electronic filing of court documents, as specified.


          Fiscal  
          Impact:  
            Fee restrictions  :  Potentially significant costs to electronic  
            filing service providers (EFSPs) and electronic filing  
            managers (EFMs) for processing costs that are unrecoverable  
            due to fee exemptions/waivers. To the extent a court serves as  
            the EFSP and/or EFM for low-income and self-represented  
            litigants, many of whom are indigent and qualify for fee  
            waivers, these processing costs would be absorbed by the  
            court's operating budget (General Fund*). Alternatively, to  
            the extent courts enter into vendor contracts for EFSP/EFM  
            services, these unrecoverable costs could be built into the  
            costs of the contracts (General Fund*).     







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            EFSP verification process  :  Potential future increase in  
            workload (General Fund*) to the Judicial Council to conduct  
            the verification process described in this measure which would  
            include interviewing EFSP employees, as well as accessing,  
            inspecting, and copying relevant records of fees/costs for  
            auditing purposes. To the extent this process is already in  
            place and operating, any impact to the Judicial Council would  
            be absorbable.   

          *Trial Court Trust Fund


          Background:  Existing law authorizes a court and other specified public  
          entities to accept credit card, debit card, or electronic fund  
          transfers for the payment of certain government services and  
          fees, including the payment of a filing fee or other court fee.   
          A court desiring to authorize the use of a credit card, debit  
          card, or electronic funds transfer must first obtain the  
          approval of the Judicial Council. Existing law provides that,  
          notwithstanding specified law, a court may impose a fee for the  
          use of a credit or debit card or electronic funds transfer, not  
          to exceed the costs incurred by the agency in providing for  
          payment by credit or debit card or electronic funds transfer.  
          Any such fee imposed by a court must be approved by the Judicial  
          Council. (Government Code § 6159(b), (c), (h).) 
          Existing law provides that a trial court may adopt local rules  
          permitting electronic filing of documents, subject to Rules of  
          Court adopted as specified and subject to specified conditions.   
          (Code of Civil Procedure (CCP) § 1010.6(b)(1)-(6).) Existing law  
          requires the court to permit a party or attorney to file an  
          application for waiver of court fees and costs, in lieu of  
          requiring the payment of the filing fee, as part of the process  
          involving the electronic filing of a document, as specified.  
          (CCP § 1010.6(b)(6).)

          Existing law permits a court to require electronic filing of  
          documents in complex civil litigation cases, as specified,  
          provided that it does not cause undue hardship or significant  
          prejudice to any party in the action. The Judicial Council is  
          required to adopt uniform rules for the electronic filing and  
          service of documents in the trial courts of the state, which  
          shall include statewide policies on vendor contracts, privacy,  
          and access to public records, and rules relating to the  
          integrity of the electronic service. Existing law requires these  








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          rules to conform to the conditions set in Section 1010.6 of the  
          Code of Civil Procedure, as amended from time to time. (CCP §  
          1010.6(c), (e).) 

          Existing Rules of Court set forth uniform rules regarding  
          electronic filing and serving of documents. (California Rules of  
          Court, rules 2.250-2.261.) 
            
          Existing law also requires the Judicial Council, on or before  
          July 1, 2014, to adopt uniform rules for mandatory electronic  
          filing and service of documents for specified actions in the  
          state's trial courts, which are to be informed by the pilot  
          project, above, and are to include statewide policies on vendor  
          contracts, privacy, access to public records, unrepresented  
          parties, parties with fee waivers, hardships, reasonable  
          exceptions to electronic filing, and rules relating to the  
          integrity of electronic service.   Existing law provides that  
          upon the adoption of those rules, a superior court may, by local  
          rule, require mandatory electronic filing, pursuant to the  
          requirements and conditions set forth in this section, including  
          several of the conditions that must be met by any court allowing  
          e-filing of documents and several of the requirements specified  
          for the mandatory e-filing pilot project, above.  (CCP §  
          1010.6(f), (g).)  

          While the practice of electronic filing may create substantial  
          efficiencies and cost savings for both litigants and the courts,  
          the state has been cautious of the hardships that electronic  
          filing might cause for some courts or litigants, particularly  
          low income or unrepresented litigants, given that access to  
          electronic communications are still widely disparate among  
          different cities and counties within this state, and even from  
          home to home in the same neighborhoods based on one's economic  
          means. Some might not be able to afford the technology needed to  
          electronically file, or have access to broadband or internet  
          services. Thus, while it has been long anticipated that  
          electronic filing will be adopted widely, it has been with the  
          understanding that public policy ultimately dictates that  
          uniform access to justice in the courts is imperative. 

          This bill would update specified statutory rules and conditions  
          surrounding mandatory electronic filing, in particular relating  
          to processing fees charged for electronic filing payments,  
          payment options, and the ability of prevailing parties to  








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          recover electronic filing fees.  


          Proposed Law:  
           This bill would prescribe the following specified limits on  
          fees associated with the electronic filing of court documents:
                 Adds a new condition to the list of conditions that  
               would have to be met both by courts that elect to permit,  
               and courts that otherwise mandate, e-filing and service of  
               documents. Specifically, it would provide that a fee, if  
               any, charged by a court, an electronic filing manager  
               (EFM), or an electronic filing service provider (EFSP) to  
               process a payment for filing fees and other court fees  
               shall not exceed the costs incurred. 


                 Consistent with existing law, specifies that the court,  
               an EFM, or an EFSP shall waive any fees charged if the  
               court deems waiver appropriate, including in instances  
               where a party has received a fee waiver.


                 Prohibits an EFSP, as described, from collecting or  
               attempting to collect a fee to complete an electronic  
               filing transaction, including a fee to process a payment, a  
               filing or other court fee, or a fee charged by the EFSP for  
               electronically filing documents, from a party who is exempt  
               from paying fees; provided, however, that the EFSP must  
               complete the filing notwithstanding the fee exemption. 


                 Further requires a court or an EFM that provides a  
               court, pursuant to contract, a system for acceptance of  
               electronically transmitted documents and associated filing  
               and other court fees accept more than one method of payment  
               to an EFSP who is required to collect and remit a payment  
               of a filing or other court as an agent of the court, as  
               specified, below. The bill would require the court to  
               determine which methods of payment shall be accepted by the  
               court and the electronic filing manager, and specifies that  
               the methods of payment may include credit or debit cards,  
               electronic funds transfers, electronic networks for  
               financial transactions such as Automated Clearing House and  
               other payment methods that do not charge a transaction  








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               cost. 


                 Authorizes an "agent of the court" to impose a fee for  
               use of a credit or debit card or electronic funds transfer,  
               not to exceed the costs incurred by the agent in providing  
               for payment by credit or debit card or electronic funds  
               transfer. This bill would provide for these purposes, that  
               an EFSP who is required to collect and remit a payment of a  
               filing fee or other court fee, as specified, complete an  
               electronic filing transaction is deemed an agent of the  
               court, and, unless specified otherwise, the electronic  
               filing service provider is deemed an agent of the court for  
               the sole purpose of collecting and remitting such payments  
               for an electronic filing transaction. This bill would  
               further ensure that, consistent with the existing  
               requirement under Section 6159 of the Government Code,  
               above, that any such fees charged by the court be approved  
               by the Judicial Council, that any fees charged by the EFSP  
               be approved by the Judicial Council. 


                 Prohibits a court from being held liable for the actions  
               of an agent of the court under the above provisions and  
               would require that an agent of the court report its costs  
               in providing for payment by credit or debit card or  
               electronic funds transfer pursuant to Judicial Council  
               guidelines. 


                 Requires the Judicial Council or its authorized  
               representative to have access to and the right to examine  
               the records and documents of an agent of the court for  
               purposes of verifying the accuracy of the fee and cost  
               reports to be issued pursuant to guidelines adopted by the  
               Judicial Council and to verify compliance with this  
               reporting requirement. The agent of the court must: (1)  
               provide the Judicial Council all relevant information  
               requested; (2) permit access to its premises at reasonable  
               times, for the purposes of interviewing employees and  
               inspecting and copying any relevant records; and (3)  
               maintain all records and documents relating to its fees and  
               costs for a minimum of four years from the date the fee is  
               imposed or until the verification process is complete,  








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               whichever is later.  


                 Adds to the list of recoverable costs by prevailing  
               parties: 


                  o         Fees for the electronic filing or service of  
                    documents through an EFSP if a court requires or  
                    orders electronic filing or service.
                  o         Fees for the hosting of electronic documents  
                    if a court requires or orders a party to have  
                    documents hosted by an EFSP. This bill provides that  
                    this paragraph shall become inoperative on January 1,  
                    2022. 
                 Makes other technical, clarifying and non-substantive  
               changes.




          Prior  
          Legislation:  AB 2073 (Silva) Chapter 320/2012 authorized the  
          Orange County Superior Court to establish a pilot project  
          mandating that parties electronically file documents in  
          specified civil cases, and required the Judicial Council to  
          adopt a rule on mandatory electronic filing before July 1, 2014.


          Staff  
          Comments:  The Judicial Council has indicated the provisions of  
          this measure are consistent with ongoing internal efforts to  
          promote the use and fairness of electronic filing. 
          Staff notes that due to the restrictions placed on charging fees  
          for persons subject to fee exemptions/waivers, this bill could  
          result in ongoing operating costs to the entities responsible  
          for the processing costs, which could be the vendor EFSP, the  
          EFM, or the court. To the extent a court serves as the EFSP  
          and/or EFM for low-income and self-represented litigants, many  
          of whom are indigent and qualify for fee waivers, these  
          processing costs would be absorbed by the court's operating  
          budget. Alternatively, to the extent courts enter into vendor  
          contracts for EFSP/EFM services, these unrecoverable costs could  
          be built into the costs of the vendor contracts, which would  








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          also be a state cost. The magnitude of these costs would be  
          dependent on the unit processing cost and the volume of  
          transactions subject to the processing fee waiver annually,  
          which is unknown but potentially significant. As reported by the  
          Judicial Council:


            A fully functioning e-filing system (as opposed to  
            "e-delivery," which allows for documents to be delivered to a  
            court email address or other electronic drop box, but does not  
            integrate those documents into the court's case management  
            system) requires both an electronic filing service provider  
            (EFSP) to receive the filing, and an electronic filing manager  
            (EFM), to serve as a "translator" of the information received  
            on the forms from the EFSPs and deliver that information into  
            an individual court's case management system. In California,  
            local courts that are pursuing e-filing are working with their  
            case management system vendors to determine a certification  
            process for e-filing service providers (EFSPs) and an  
            appropriate number of EFSPs for certification. They will also  
            be contracting with a vendor for the development of an EFM to  
            communicate with their case management systems, in order to  
            deliver the benefits of truly paperless filing. 

            Early experiences with e-filing, both in California and in  
            other states, suggest that many private vendor EFSPs are not  
            focused on serving the market segment of self-represented  
            litigants, many of whom are indigent and qualify for fee  
            waivers. The access community believes that the exclusion of  
            self-represented litigants from electronic filing "has the  
            potential to enlarge the access to justice gap in the long  
            run." Electronic filing is an area in which a slight tip of  
            the balance means that the technology tool is no longer used  
            to achieve greater access; rather, it becomes a barrier. The  
            California judicial branch has the opportunity to "place a  
            finger on the scale" in favor of low-income and  
            self-represented litigants by developing the capacity to serve  
            as the EFSP and EFM for all self-represented litigants in the  
            state. 
            
            In other states, the judicial branch serves as either a sole  
            EFSP or sole EFM for all forms of electronic filing (or  
            manages contracts with outside vendors for these services) on  
            behalf of all courts throughout the state. In California, the  








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            Judicial Council can ensure that electronic filing is  
            available to all court users by serving as a one-stop EFSP and  
            EFM for self-represented litigants. (Judicial Council, The  
            Critical Role of the State Judiciary in Increasing Access for  
            Self-Represented Litigants: Self-Help Access 360? (Jul. 2015)
          
          This bill requires the Judicial Council or its authorized  
          representative to have access to and the right to examine the  
          records and documents of an EFSP for purposes of verifying the  
          accuracy of its fee and cost reports issued, and to verify the  
          EFSP's compliance with the bill's provisions. Additionally, the  
          bill requires EFSPs to maintain records and documents relating  
          to its fees and costs for a minimum of four years from the date  
          the fee is imposed, or until the verification process is  
          completed, whichever is later. This requirement would imply that  
          the verification process must be conducted, although it does not  
          impose a strict timeline within which the process must be  
          completed. As a result, the Judicial Council could potentially  
          incur additional workload to conduct the verification process  
          described in this measure which would include interviewing EFSP  
          employees, as well as accessing, inspecting, and copying  
          relevant records of fees/costs for auditing purposes. To the  
          extent this process is already in place and operating, any  
          impact to the Judicial Council would be absorbable.   


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