BILL ANALYSIS Ó
AB 2629
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2629
(Roger Hernández) - As Amended March 18, 2016
As Proposed to be Amended
SUBJECT: COURT REPORTERS: TRANSCRIPT FEES
KEY ISSUES:
1)SHOULD the statutory feeS that court reporters are permitted
to charge for transcriptS, WHICH HAVE NOT beeN INCREASED FOR
25 YEARS, be increased BY 45 PERCENT under a phaseD-in plan
over the next FIVE years?
2)IN ADDITION TO RAISING COSTS FOR COURTS AND LITIGANTS
GENERALLY, WOULD INCREASING THE COST OF TRANSCRIPTS PLACE THE
ABILITY TO OBTAIN NECESSARY TRANSCRIPTS OUT OF THE REACH OF
INDIGENT LITIGANTS IN THE ABSENCE OF IMPROVING ACCESS TO THE
TRANSCRIPT REIMBURSEMENT FUND FOR SUCH LITIGANTS?
SYNOPSIS
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A court transcript is a verbatim record of what occurred at a
court hearing. Without that official record of what transpired
at a court proceeding, litigants may be unable to draft orders
effectively and will generally not be able to appeal decisions,
and those attempting to recount what actually happened during
proceedings will be unable to so with any degree of accuracy.
The fees charged by court reporters for transcripts have not
been increased since 1990. In the 25 years since the transcript
fee was last increased, the Consumer Price Index (CPI), as
calculated by the Bureau of Labor Statistics, has increased by
over 80 percent. As proposed to be amended, this bill,
sponsored by the California Court Reporters Association (CCRA),
seeks to increase the fee by approximately 45 percent, through
step increases over the next five years, commencing in 2017.
The author argues that this bill advances a modest transcript
fee adjustment in order to bring parity and fair compensation
for court reporters. The bill is supported by court reporter
associations and SEIU.
As now in print, the bill would have increased fees the same
amount, but over a three-year period and then be subject to
ongoing CPI increases. As a result of opposition by the
plaintiffs and defense bar, who were concerned that an increase
in transcript costs would harm both trial courts budgets and
increase costs to litigants who can ill afford any increased
costs, the author has agreed to stretch the fee increase over
five years and eliminate the ongoing CPI increases.
However, unless court reporters are in the courtroom, creating
the record, a transcript cannot later be created at any price.
This Committee has repeatedly stated that access to justice
requires that California courts provide court reporters in all
courtrooms. The supporters and the plaintiffs and defense bar
strongly concur and have agreed to work together to seek funding
in this year's Budget to bring court reporters back particularly
to family law, but also to civil courts generally.
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In order to defray the costs of court transcripts for indigent
litigants, the Legislature created the Transcript Reimbursement
Fund, which receives its $300,000 annual funding from court
reporter license fees, but is scheduled to sunset effective
January 1, 2017. To help ensure that indigent litigants have at
least the same access to justice as they have today, supporters
of this bill agree that not only must the Transcript
Reimbursement Fund continue, but that it should be increased as
necessary to cover the cost increase under this bill; and they
have agreed to work to help ensure that occurs.
SUMMARY: Increases the fees charged by court reporters for
original transcripts and copies by 45 percent, through step
increases over the next five years, commencing in 2017.
Specifically, this bill:
1)Provides that the fee for transcription for the original
printed copy, which reflects an amount assessed for each 100
words (also known as the "folio rate") will be charged as
follows:
a) From January 1, 2017 to December 31, 2018: $0.98 per 100
words (an increase from $0.85.)
b) From January 1, 2019 to December 31, 2020: $1.13 per 100
words.
c) Beginning January 1, 2021: $1.24 per 100 words.
2)Provides that the fee for each copy purchased at the same time
by the court, party, or other person purchasing the original
will be charged as follows:
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a) From January 1, 2017 to December 31, 2018: $0.17 per 100
words (an increase from $0.15).
b) From January 1, 2019 to December 31, 2020: $0.20 per 100
words.
c) Beginning January 1, 2021: $0.22 per 100 words.
3)Provides that the fee for a first copy to any court, party, or
other person who does not simultaneously purchase the original
will be charged as follows:
a) From January 1, 2017 to December 31, 2018: $0.23 per 100
words (an increase from $0.20), and $0.17 for each
additional copy purchased at the same time.
b) From January 1, 2019 to December 31, 2020: $0.26 per 100
words, and $0.20 for each additional copy purchased at the
same time.
c) Beginning January 1, 2021: $0.29 per 100 words, and
$0.22 for each additional copy purchased at the same time.
4)Clarifies that the fee for special daily copy service
transcription is an additional 50 percent.
5)Makes legislative findings and declarations.
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EXISTING LAW:
1)Specifies the following transcript-related fees:
a) The fee for transcription for the original copy is $0.85
for each 100 words.
b) The fee for each copy purchased at the same time by the
court, party, or other person purchasing the original is
$0.15 per 100 words.
c) The fee for a first copy to any court, party, or other
person who does not simultaneously purchase the original is
$0.20 per 100 words, and $0.15 for each additional copy
purchased at the same time. (Government Code Section
69950.)
2)Provides that, notwithstanding #1), above, if a local trial
court had established transcription fees in effect on January
1, 2012 based on an estimate as to the number of words or
folios on a typical transcript page, those transcription fees
shall be the transcription fees for proceedings in those trial
courts, and the policy or practice for determining
transcription fees in those trial courts shall not be
unilaterally changed. (Id.)
3)Establishes the Transcript Reimbursement Fund (Fund) for the
purpose of providing shorthand reporting services to
low-income litigants in civil cases who are unable to
otherwise afford those services. More specifically, requires
funds generated by court reporter licensing fees, in excess of
funds needed to support the Court Reporter Board's operating
budget, to be used by the Board for the purpose of
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establishing and maintaining the Fund. Authorizes the Fund
only until January 1, 2017, unless another statute is enacted
before that date that deletes or extends the sunset date.
(Business & Professions Code Section 8030.2.)
4)Permits, until January 1, 2017, a person appearing pro se at
any stage of the case to apply to receive assistance with
transcription costs from the Fund, subject to a limit of
$1,500 per case and not to exceed $30,000 annually for all
cases. (Business & Professions Code Section 8030.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: A court transcript is a verbatim record of what
occurred at a court hearing. Without that official record of
what transpired at a court proceeding, litigants may be unable
to draft orders effectively and will generally not be able to
appeal decisions, and those attempting to recount what actually
happened during proceedings will be unable to so with any degree
of accuracy. The fee charged by court reporters for original
transcripts has not been increased since 1990. This bill, as
proposed to be amended, seeks to increase the fee by
approximately 45 percent, through step increases over the next
five years, commencing in 2017. According to the author:
California has not adjusted the court transcript fee
collected by court reporters since 1990. Court
reporters employed by the courts are currently paid
under a dual compensation structure in which the base
salary of a court reporter is supplemented by the
income from preparing required transcripts and
providing other required transcription services.
The dual compensation structure protects the state from
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bearing the full cost of transcript preparation and
other transcription services. This avoids the
resulting consequences of overtime liability related to
these services.
In order to bring parity and fair compensation for
court reporters, this bill advances a modest transcript
fee adjustment. This will ensure the system of dual
compensation is up to date in providing sufficient
payment for transcription services.
The last increase in the transcript fee occurred through SB 2376
(Presley), Chap. 505, Stats. 1990, which increased the
transcription fee, effective 1991, for court reporters from
$0.70 to $0.85 per 100 words for an original transcript, and
from $0.10 to $0.15 per 100 words for each copy of a transcript
ordered at the same time as the original. Since 1990, the CPI,
as calculated by the Bureau of Labor Statistics, has increased
by 81 percent, but the costs of transcriptions has not
increased.
This bill increases the fee for the original transcript per 100
words to $0.98 for 2017-18, $1.13 for 2019-20 and $1.24 for 2021
and thereafter. The bill similarly increases the fees, over
five years, for each copy purchased at the same time as the
original transcript from $0.15 to $0.22 per 100 words, and for a
copy purchased without the original transcript from $0.20 to
$0.29 per 100 words, while additional copies purchased at that
time would increase from $0.15 to $0.22 per 100 words. These
increases all represent a 45 percent increase from the current
fees.
In support of raising these fees, which again have not been
increased in over 25 years, CCRA writes that court reporter
transcripts "are vital to the delivery of justice in California.
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Parties regularly rely on court records to prepare for future
hearings, explore potential legal theories, as well as, ensure
compliance with statutory and constitutional requirements. In
essence, an official transcript is used both to enable parties
to fully exercise their legal rights and to provide some level
of accountability of our judicial process." CCRA explains that
court reporters spend thousands of dollars to purchase their own
equipment and "are subject to a dual compensation structure.
The hours we work at the courthouse are paid for through a
traditional employee wage or salary model. However, whenever an
official transcript must be produced, we are required to spend
evenings and weekends doing the work. This is uncompensated
through salary or wages." Instead, it is compensated by a
statutory transcript fee, which has not "been updated since
1991, falling far behind the rate of inflation."
Despite previous attempts, transcript fees not raise since 1990.
There have been several attempts to raise the transcript fee
since 1990, none of which have been successful. In 1999, SB 449
(Burton), passed the Legislature, but was vetoed by the
Governor. That bill would have raised fees on the original
transcript to $1.15 per 100 words, but, at the same time, would
have lowered the fees on copies purchased with the original
transcript from $0.15 to $0.10 per 100 words. That bill would
also have expanded access to the Transcript Reimbursement Fund
for indigent litigants to help ensure that any increase in
transcription costs did not impact their ability to access
justice. That bill was vetoed by then Governor Gray Davis, who
wrote: "I am vetoing this bill because it would result in a
significant increase in costs for the State's trial court
system, which is supported by the General Fund, and the Court
Reporters Board, which is supported by license fees paid by
registered court reporters. . . . I believe this issue should
be examined in the annual budget process."
AB 2305 (Klehs), 2006, would have changed the transcript fee
from a folio rate to per page rate and set the fee for the
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original transcript at $3.57 per page, with the cost of
additional copies set at $0.63 per page. That bill was referred
to this Committee, but was not heard. The most recent attempt
to raise the fee was AB 582 (Evans) in 2007, which would also
have changed to a per page rate and increased the fees. That
bill passed the Assembly, but was not heard in the Senate.
As a result of this lack of legislative action, transcript fees
have not increased in 25 years, even though the cost of living,
as measured by the CPI, has increased approximately 80 percent.
Access to a court transcript is an important component of access
to justice. As discussed above, without the official record of
what transpired at a court proceeding, litigants may be unable
to draft orders effectively and will generally not be able to
appeal decisions, and those attempting to recount what actually
happened during proceedings will be unable to so with any degree
of accuracy. For example, when issuing a judgment in a
contested family law matter, the judge often requires one of the
parties to prepare a written judgment memorializing the orders
of the court. Without a transcript, preparation of a judgment,
and therefore enforcing the orders made by the judge, may be all
but impossible. Similarly, if a litigant seeks to modify a
judgment based on a change of circumstances, it is often
necessary to understand, and communicate to the court, the
circumstances the court initially took into account in making a
custody or support order, for example. Absent a transcript,
this too may be very difficult.
The Transcript Reimbursement Fund for represented and
unrepresented indigent litigants. In order to defray the costs
of court transcripts for indigent litigants, the Legislature
created the Transcript Reimbursement Fund. The Fund was
established by AB 1017 (Alatorre), Chap. 1350, Stats. 1980, and
is maintained by a percentage of the dues imposed on certified
shorthand reporters. AB 1017 was sponsored by the Western
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Center on Law and Poverty and California Rural Legal Assistance
who argued that "because indigent litigants are unable to pay
for transcripts they are effectively denied appropriate legal
remedies." The Fund is used to reimburse court reporters the
cost of preparing official court and deposition transcripts for
indigent litigants, as defined, served by a qualified legal
services project, qualified support center or other qualified
project, or a pro bono attorney. Because of concerns that the
huge volume of unrepresented parties could overwhelm the Fund,
it had historically excluded litigants representing themselves
at any stage of the case. The Fund receives $300,000 each year
from court reporter license fees.
Unfortunately, not all indigent litigants are able to secure
counsel to represent them. In fact, most indigent litigants in
areas such as family law are forced to represent themselves in
court. In response to concerns that indigent, unrepresented
litigants have no ability to access the Fund, SB 1181 (Cedillo),
Chap. 581, Stats. 2010, established a small sub-fund to help
cover the costs of transcripts for indigent, unrepresented
litigants. That sub-fund is limited to $30,000 annually, which
is taken from the $300,000 in the Fund for represented
litigants, and covers, at most, $1,500 per case. It appears
that while the total Fund has not been fully expended in the
last decade, the $30,000 sub-fund for unrepresented litigants is
used up early every year, so that many unrepresented litigants
are still unable to obtain assistance from the Fund.
Regardless of the effectiveness of both programs in meeting the
needs of indigent litigants, both the Fund for indigent
represented litigants and the sub-fund for unrepresented
litigants are scheduled to sunset effective January 1, 2017. In
order to help provide access to justice for indigent litigants,
the Transcript Reimbursement Fund for both represented and
unrepresented litigants must be continued beyond this year.
Moreover, given that raising the cost of a transcript by 45
percent for indigent litigants may result in even less access to
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transcripts than they currently have, it is important that the
Transcript Reimbursement Fund, particularly the fund for
unrepresented litigants which today is underfunded, be increased
at the same rate that the transcript fees are being increased by
this bill. This will help ensure that indigent litigants have
at least the same access to justice as they have today. The
supporters of this bill, the court reporters whose licensing
fees fund the Transcript Reimbursement Fund, agree that not only
must the Fund continue in order to help ensure that indigent
litigants have access to justice, but that it should be
increased as necessary to cover the cost increase under this
bill.
Cost increases for government entities: According to Judicial
Council, the trial courts spent over $19 million on court
transcripts in the 2014-15 fiscal year. If the fee increases
proposed by this bill become effective, costs to the trial
courts would increase by roughly $3 million in 2017 and by $9
million in 2021. Some courts purchase transcripts in criminal
cases on behalf of the district attorneys and the public
defenders, and thus this bill would not increase their costs.
In other counties, the district attorneys and the public
defenders purchase their own court transcripts. This Committee
has heard from district attorney's offices in eight counties,
including Contra Costa, Fresno and Santa Clara Counties. The
2015 transcript costs for those counties was $170,000, so the
fee increase from the bill would amount to approximately $25,000
in 2017 and $76,000 in 2021. In addition, the Attorney
General's Office estimates that it spends approximately $500,000
a year on court transcripts. The proposed increase would cost
the Attorney General's office approximately an additional,
$75,000 in 2017 and $225,000 in 2021.
Amendments remove opposition from plaintiff and defense bars.
The cost increases in this bill will also impact other
litigants. Consumer Attorneys of California and the California
Defense Counsel had jointly opposed the bill because of
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significant concerns about how the bill "would harm trial court
budgets and increase costs for litigants who can ill afford
additional increases." The attorneys' groups had stated:
Our members who appear in court every day on civil cases have
borne the brunt of the drastic cuts in court funding. We have
faced escalating user fees for filing cases and motions while
finding fewer civil courtrooms open for access to justice.
This has included hourly and daily fees imposed for the use of
court reporters employed by the court. Our members have asked
whether they will soon be asked to pay hourly user fees for
the services of the bailiff or the judge. Our tax dollars are
intended to fund the judicial branch, and the devolution into
excessive reliance on user fees has gone too far. As court
reporters have been disappearing from civil courtrooms over
the last several years, our members have been forced to bring
in private pro tempore court reporters who are performing an
official function. This is a highly dysfunctional situation
that does not serve anyone well.
In response to those concerns, the author has agreed to stretch
the fee increase over five years and eliminate the ongoing CPI
increases. Moreover, the sponsors and the plaintiff and defense
bar have agreed to work cooperatively to help bring court
reporters back into courtrooms across California, as discussed
more fully below. As a result, the Consumer Attorneys of
California and the California Defense Counsel have removed their
opposition to the bill.
Access to a court transcript begins with access to a court
reporter. If no court reporter is present at the court
proceeding, no transcript can be available; and, unfortunately,
most courts in California today no longer provide court
reporters in civil and family law matters. Thus for most of
these matters, unless parties bring in their own court reporter
to court, there is at best limited access to justice and an
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increase in the transcript fee is not relevant since there is no
record of the court proceeding to transcribe.
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 court 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
any degree of accuracy.
A recent appellate court decision summarized the problems of
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access to justice in a dissolution case in which the appellant
was unable to provide an accurate transcript of the proceedings
because there had not been a court reporter present at the trial
court, an all too frequent occurrence in courts in California
today. 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
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.)
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The need for court reporters and for accurate records 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
(and hence the availability of a transcript) 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.
Supporters and the plaintiff and defense bars committed to work
together to bring court reporters back into the courtroom. All
stakeholders agree strongly that access to justice requires that
California courts provide court reporters in all courtrooms, and
for years this has been an issue of great concern to this
Committee. To that end, the supporters of the bill, as well as
the plaintiff and defense bar, have agreed to work together to
seek funding in this year's Budget to bring court reporters back
particularly to family law, but also to civil courts generally.
Do the statutory transcript fees apply to pro tempore court
reporters brought in by private parties? Court reporters
include official court reporters, who are employed by the court,
and official court reporters pro tempore, who may be brought in
by the court and appointed by the court to perform the duties of
an official reporter if one is not available. (Government Code
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Section 70044.) Court reporters also include private court
reporters who are brought in, and paid for, by private parties
when no court reporter is provided by the court. These
reporters are not court employees, but nonetheless prepare the
official court record of the proceeding. The fees that are the
subject of this bill do not explicitly state whether they apply
to court reporters brought in by private parties, though it had
been presumed by many that the statutory fee structure applied
to them as well. However, a recent superior court decision from
Los Angeles County, Burd v. Barkley Court Reporters Inc., held
that the statutory fee limits do not apply to court reporters
pro tempore brought in by private parties. (America Hernandez,
Pro tem reporters' fees not capped, Daily Journal (Jan. 11,
2016).) Given that more and more courts no longer provide court
reporters, more and more parties are relying on private, pro
tempore reporters that they bring to court themselves and courts
then appoint for a particular matter. If the Burd v. Barkley
Court Reporters Inc. case were to become precedent -- and that
is not at all clear since the case was just appealed last week
and the parties are awaiting a briefing schedule -- this bill
would likely not impact court reporters in civil and family law
actions in the majority of courts today where official court
reporters have been eliminated and parties' can only have a
court reporter present if they choose to bring in their own
private, pro tempore reporter. Thus, the impact of the bill, at
least on non-criminal and juvenile court matters (since official
court reporters are not required in those cases) is not
completely clear.
Pending Related Legislation: AB 1834 (Wagner) would permit use
of electronic recording in family law cases when a court
reporter is unavailable. That bill was held in this Committee
after a hearing.
REGISTERED SUPPORT / OPPOSITION:
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Support
California Court Reporters Association (sponsor)
Los Angeles County Court Reporters Association
Northern California Court Reporters Association
Orange County Superior Court Reporters Association
Sacramento Official Court Reporters Association
San Diego Superior Court Reporters Association
SEIU California
Opposition (as proposed to be amended)
None on file
Analysis Prepared by:Anthony Lew and Leora Gershenzon / JUD. /
(916) 319-2334
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