BILL ANALYSIS Ó AB 2244 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2244 (Gatto) As Amended June 13, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |78-0 |(May 12, 2016) |SENATE: |36-1 |(August 16, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY: Prohibits electronic filing vendors from charging a payment method convenience fee that exceeds the cost incurred to provide the processing. Specifically, this bill: 1)Provides that an agent of the court may impose a fee for the use of a credit card or debit card or electronic funds transfer, not to exceed the costs incurred by the agent in providing for that payment method. Provides that fees, if any, charged by the court, an electronic filing manager, or an electronic filing service provider to process a payment shall not exceed the actual costs incurred for processing. 2)Requires the court, an electronic filing manager, or an electronic filing service provider to waive processing payment fees if the court deems waiver appropriate, including in instances where a party has received a fee waiver. AB 2244 Page 2 3)Requires a court or an entity contracted with a court to provide a system for acceptance of electronically transmitted documents to provide a menu of payment options that may include credit or debit cards, electronic funds transfers, electronic networks for financial transactions, and payment methods that do not charge a transaction cost. 4)Allows a prevailing party to recover electronic filing service provider fees as costs. 5)Allows a prevailing party to recover electronic filing service provider hosting fees as cost until January 1, 2022. The Senate amendments: 1)Specify that an electronic filing service provider as defined is deemed an agent of the court for the sole purpose of collecting electronic court filing fees. 2)Provide that the court is not liable for the actions of an agent of the court in imposing fees for the use of a credit or debit card, or electronic funds transfer as a method of payment. 3)Require an agent of the court, as provided, to issue a report on the agent's costs in providing various payment options, and to maintain relevant records for inspection by the Judicial Council. 4)Make technical and clarifying changes. EXISTING LAW: AB 2244 Page 3 1)Authorizes courts to allow parties to electronically file court documents in accordance to rules established by the Judicial Council, and as provided by state law. (Code of Civil Procedure Section 1010.6 (b). Unless stated otherwise, all further statutory references are to the Code of Civil Procedure.) 2)Provides that rules adopted by the Judicial Council relating to mandatory electronic filing and service of documents in trial courts shall include statewide policies on vendor contracts, privacy, access to public records, unrepresented parties, parties with fee waivers, hardships, reasonable exceptions to electronic filing, and the integrity of electronic service. (Section 1010.6 (f).) 3)Sets forth the rules adopted by the Judicial Council regarding electronic filing and serving of court documents. (Cal. Rules of Court, Rules 2.250-2.261.) 4)Requires the court to permit a party or an attorney to file an application for a fee waiver as part of the electronic filing process. (Section 1010.6 (b)(6).) 5)Authorizes a court and other specified public agencies to accept credit card, debit card, or electronic fund transfers for the payment of specified government services and fees. Provides that when a court or other specified public agencies authorizes one of the payment methods, the public agency may impose a fee for the use of a debit card, or electronic fund transfer not to exceed the costs incurred by the public agency in providing for payment. If a court is imposing the fee, the fee shall be approved by the Judicial Council. (Government Code Section 6159.) 6)Provides that a prevailing party is entitled as a matter of AB 2244 Page 4 right to recover costs in any action or proceeding, as provided. (Section 1032.) 7)Provides specified items that are allowable recoverable costs and others that are not allowable recoverable costs. (Section 1033.5) 8)Provides that any award of costs shall be subject to the following: a) Costs are allowable if incurred, whether or not paid. b) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. c) Allowable costs shall be reasonable in amount. d) Items not specifically mentioned and items assessed upon application may be allowed or denied in the court's discretion. (Ibid.) FISCAL EFFECT: According to the Senate Appropriation Committee: 1)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 AB 2244 Page 5 costs of the contracts (General Fund*). 2)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 COMMENTS: California's court system is one of the largest in the world, with more than 2,000 judicial officers and approximately 19,000 judicial branch employees statewide who assist in the court's management of cases every year. (2015 Courts Statistics Report: Statewide Caseload Trends, Judicial Council of California (2015).) During the 2013-14 fiscal year, there were 7.5 million cases filed statewide in the superior courts. (Ibid.) Given the high volume of filings in California's courts each year, a party's ability to file and serve documents electronically significantly improves the court's capacity to process filings. Ideally, parties could file their legal documents electronically directly to the court through a statewide case management system at no additional cost (aside from the court filing fee). But given the reality of the courts not having such a system, trial courts are doing the best they can to facilitate electronic filing with county systems that rely upon fees for service. How Does Electronic Filing Work? According to a recent staff report from the Judicial Council, an electronic filing system requires both an electronic filing service provider (EFSP) and an electronic filing manager (EFM). Generally, the litigant AB 2244 Page 6 files the legal document with the EFSP which translates the information, and sends it to the EFM, which delivers and communicates that information to the court's case management system. (The Critical Role of the State Judiciary in Increasing Access for Self-Represented Litigants: Self-Help Access 360, Judicial Council, July 2015.) If Electronic Filing Is Not Managed Correctly, It May Create Barriers to Justice for Self-Represented and Low-Income Litigants. In that same report, concerns about electronic filing and access to justice were raised: 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. To date, thirteen trial courts have adopted some form of mandatory electronic filing system. Although mandatory electronic filing may be an attractive option for trial courts because of the significant efficiencies to courts, electronic filing has not been perfect. To some extent, this bill addresses several of the issues confronting electronic filing. Consistent with Existing Law, this Bill Prevents Electronic Filing Vendors from Charging a Payment Method Convenience Fee that Exceeds the Cost to Vendors of that Payment Transaction. AB 2244 Page 7 Government entities may accept credit cards, debit cards, or electronic funds transfers for the payment of certain government services, including court filings. Although current law allows a government entity, including a court, to impose a convenience fee for those transactions, the government entity may not charge a convenience fee that exceeds its costs for providing that payment method. Consistent with current law, this bill sensibly provides that an electronic filing service provider, who remits funds in order to complete an electronic filing transaction, acts as an agent of the court, and may not charge a convenience fee that exceeds the provider's cost to provide that service. In order to further protect litigants and provide greater clarity about convenience costs associated with processing payment methods, this bill also requires that when a trial court adopts rules for mandatory electronic filing, the fees (if any) that are charged by the court, an electronic filing manager, or an electronic filing service provider to process a payment shall not exceed the actual costs incurred by the court, manager, or provider. This Bill Makes Electronic Filing More Accessible to Indigent Litigants and Litigants with Fee Waivers, Consistent with California's Goals of Promoting Access to Justice. To ensure that litigants with fee waivers have true access to electronic filing without fees, this bill does two important things. First, it prohibits those litigants from being required to pay transaction processing fees. Second, it clarifies existing law to require an electronic filing service provider to electronically file a fee-waiver-litigant's documents if that is the litigant's preferred method. In order to protect litigants who may not have access to credit or debit cards, this bill also sensibly requires electronic filing managers to accept alternative forms of payment beyond credit cards for the payment of filing fees and e-filing transaction costs. Specifically, this bill requires the court (or the electronic filing manager) to offer a menu of payment options, including but not limited to, credit cards or debit AB 2244 Page 8 cards, electronic fund transfers, Automated Clearing House, and other payment methods that do not charge a transaction cost, such as an electronic check. Given That Some Courts Mandate Electronic Filing, this Bill Would Allow Costs Associated With Electronic Filing to Be Recoverable Litigation Costs. Throughout litigation, parties pay for costs associated with the legal proceeding, such as filing fees, expert-witness fees, and attorney's fees. In addition to any judgment award, current law allows the prevailing party to recover specific litigation costs from the unsuccessful party. Current law specifically provides which items are allowable or not allowable as recoverable costs. Given that some courts have mandated electronic filing, this bill reasonably adds electronic filing service provider fees to the list of allowable recoverable costs when a court requires or orders a party to file and serve documents electronically with the court. This bill also limits those costs to costs that are actually incurred. Recovering Hosting Costs. In some matters, courts will order parties to have their documents "hosted" by an electronic filing service provider. This often occurs in complex cases when certain documents are never lodged with the court, and courts lack the infrastructure to hold these out-of-court documents. Although this bill still allows parties to recover these hosting costs, the bill includes a five-year sunset which allows the Legislature to determine whether it is appropriate for these responsibilities to be shifted to third-party vendors. Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0004197 AB 2244 Page 9