BILL ANALYSIS �
AB 803
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 803 (Wagner) - As Introduced: February 17, 2011
SUBJECT : ELECTRONIC COURT REPORTING: CONVERSION FROM COURT
REPORTING TO ELECTRONIC RECORDING
KEY ISSUES :
1)SHOULD SUPERIOR COURT PROCEEDINGS GRADUALLY BE RECORDED BY
RECORDING DEVICES RATHER THAN BY COURT REPORTERS?
2)HOW MUCH RISK IS THERE THAT ELECTRONIC REPORTING MAY VIOLATE
PRIVACY AND ACTUALLY INCREASE COSTS TO THE COURTS AND TO THE
PARTIES?
3)MIGHT THIS BILL INADVERTENTLY RISK LOSING COURT REPORTER JOBS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This controversial bill requires the Judicial Council to
"implement" electronic recording in 20 percent of all superior
courtrooms currently not utilizing that technology by July 1,
2012, and continue" implementing" such technology in additional
courtrooms at a rate of 20 percent each year thereafter. The
bill does not state whether "implement" means "use" or simply
"install" such equipment, i.e., it is not clear whether the bill
intends to require that electronic recording gradually
substitute for court reporters, or simply be available in all
courtrooms as a back-up recording opportunity when court
reporters are not available. This is obviously a very important
distinction, though either way it is clear that unless the bill
prohibits the machines from replacing human transcription when
court reporters are available, courts would have the authority
to make that decision using their own discretion. Under the
bill, the Judicial Council would be required to report to the
Governor and the Legislature on the program. The author
believes, based on budget recommendations from the Legislative
Analyst Office (LAO), the program will have initial savings of
$13 million the first year after the startup costs, with an
eventual annual savings of $100 million once fully implemented.
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Court reporters and other labor organizations strongly oppose
the bill, however, arguing that the cost savings are not
accurate and they do not include the loss of user fees or
membership dues. In addition, they argue, electronic recordings
could violate privacy laws, are prone to flaws and errors,
cannot replace the accuracy of a court reporter and may violate
the court's compliance with the Americans with Disabilities Act.
SUMMARY : Requires the Judicial Council to "implement"
electronic court reporting in all trial courts, and ends the
prohibition on use of electronic recording. However the bill
does not define what is meant by "implementation."
Specifically, this bill :
1)Repeals existing limitations that allow the court to order an
electronic recording of the proceeding only when an official
court reporter is unavailable, and then only in a limited
civil case, or a misdemeanor or infraction case, subject to
the availability of approved electronic recording equipment.
2)Requires the Judicial Council to implement electronic
recording in 20 percent of all superior court courtrooms
lacking the technology by July 1, 2012, and at least an
additional 20 percent of the total number of courtrooms
annually thereafter. Allows the Judicial Council to implement
electronic recording in more courtrooms if it will result in
additional savings. Provides that this provision does not
apply in felony cases. However it is not clear in the bill
whether "implement" means "use" or simply "install."
3)Repeals existing limitations that advance approval from the
Judicial Council is required to purchase or lease any
electronic recording equipment, except as specified.
4)Requires the Judicial Council, by January 1, 2014, to report
to the Governor and Legislature on the efforts undertaken to
implement electronic court reporting, the costs incurred,
types of cases affected, savings achieved and plans to
complete implementation.
5)Repeals the existing requirement that each superior court
report to the Judicial Council semiannually and that the
Judicial Council report to the Legislature semiannually
regarding all purchases and leases of electronic recording
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equipment that would be used to record superior court
recordings.
EXISTING LAW :
1)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 officer,
hearing officers and temporary judges. (Government Code
Section 69957(a)-(b). Unless states otherwise, all further
references are to that code.)
2)Requires each court to obtain advance approval from the
Judicial Council for purchases or leasing of electronic
recording technology. (Section 69957(c).)
3)Requires each superior court to report 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. (Section 69958.)
COMMENTS : According to the author, this bill, which requires
the Judicial Council to "implement" electronic recording in all
trial courts over a period of years, is designed to enact the
recommendations from the Legislative Analyst Office (LAO) and
Governor Schwarzenegger's proposed 2009-2010 budget for an
appropriate transition to the use of electronic recording
equipment. Since 2003, writes the author, the LAO, with some
reservations, has viewed there to be merit in establishing
electronic court reporting in order to save the state money.
The bill does not however state whether "implement" means "use"
or simply "install" such equipment, i.e., it is not clear
whether the bill intends to require that electronic recording
gradually substitute for court reporters, or simply be available
in all courtrooms as a back-up recording opportunity when court
reporters are not available. This is obviously a very important
distinction, though either way it is clear that unless the bill
prohibits the machines from replacing human transcription when
court reporters are available, courts would have the authority
to make that decision using their own discretion.
Current California Data on Court Reporters : According to the
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California Court Reporters Association (CCRA), court reporters
currently produce and deliver transcripts acting as independent
contractors using privately purchased hardware, software,
computer networks, supplies, shipping costs and labor. There
are over 7,000 certified court reporters in the state, including
the freelance and official markets. Freelance court reporters
are used in the private sector for closed captioning,
depositions or out of court proceedings. Official court
reporters work in the courts and receive a base salary and
benefits. All official court reporters are paid extra for
producing transcripts.
Since the early 1990's, California's courts have experienced a
steady decline in the number of available qualified shorthand
reporters. In 2001, 40 applicants passed the California
Certified Shorthand Reporter Exam, compared to a high of 309
persons in November 1995. In March 2004, a total of 28
applicants passed the exam. In July 2004, 21 individuals were
successful in passing the exam. (Judicial Council, Final Report
of the Reporting of the Record Task Force, (Feb. 18, 2005).)
The Availability and Use of Electronic Recording in Court
Proceedings : As of 2009, according to Committee research, 46 of
the 50 states utilized some form of electronic recording, mostly
in their trial courts. 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, despite the arguments for and
against this bill, the extent to which this equipment is used,
and the experience of the courts that use it, is not known.
Neither supporters of the bill, nor the opponents, argue that
the current use of this equipment favors their argument.
The California courts of appeal and the Supreme Court rely
exclusively on electronic recording of the proceedings, but it
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is important to note those proceedings are not part of the
record for appeal.
Other Jurisdictions: New Hampshire, New Mexico, Oregon, Alaska,
Minnesota, Utah and Vermont rely primarily on digital audio
recording proceedings. New Mexico has reportedly demonstrated a
preference for court reporters but discovered that sufficient
reporters could not be found to staff district courts outside of
Albuquerque. As a result, ninety percent of the cases on appeal
within the state are reviewed on the audio record. Oregon
relies primarily on digital recordings for its state courts. It
reported having only seven stenographic court reporters located
in three counties. Minnesota has taken advantage of a digital
recording system that allows one staff person to monitor
proceedings in four courtrooms simultaneously. (Conference of
State Court Administrators, Digital Recording: Changing Times
for Making the Record, White Paper, p .6 (2009).)
Utah and Vermont switched exclusively to digital in 2009 due to
budget constraints, with an exception for death penalty cases.
Alaska uses audio recording in lieu of a stenographer or video
record and uses the audio recording to verify the subsequent
transcript.
In Florida, supporters of electronic reporting note, digital
recording has become widespread and firmly ingrained into the
culture of trial courts, according to Sharon Buckingham, Senior
Court Operations Consultant, Florida Office of the State Courts
Administrator:
�T]here is a cost savings with the release of audio/video
recordings because it is less time consuming (uses less
court resources) than producing a transcript. It is also
less expensive to the requestor ($15-$25 per CD or DVD vs.
$4-$7 per transcript page). This increases access to the
court system, a main goal of the Florida Judicial Branch.
With less than 2% of cases appealed in Florida, the need
for transcription for the purposes of appeal is very low in
comparison to the millions of proceedings that are
recorded. Further, I would point out that cost savings is
also achieved during the recording of a proceeding. With
stenography, you have to have one court reporter for each
courtroom. With digital, you can have one court reporter
monitor multiple courtrooms. So you save money not just
with reducing transcripts, but also with reducing court
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monitoring costs.
(National Association for Court Management, State Responses to
the "Courts Bring Back Court Reporters After Electronic
Recording Use" Document, p. 4 (2010).)
Additionally, due to budget constraints, other states are
reportedly considering transitioning to electronic recording:
Courts in Iowa, Minnesota and New York are considering
replacing at least some court reporters with digital
recording systems to cut costs. . . .
"The budget crisis since January 2009 is behind the push
now," �SueLynn Morgan, president of the National Court
Reporters Association (NCRA)] said.
Utah was the most recent state to go digital in July,
laying off 18 court reporters, with expected savings of
more than $1 million per year, courts spokeswoman Nancy
Volmer said.
(Lisa Rajala, More courts swear by digital technology, USA Today
(March 16, 2010).) Most recently, Baltimore County, Maryland
will move to all electronic reporting by summer, with four court
reporters monitoring the electronic recording equipment, in
place of 14 court reporters now in the courtrooms. (Associated
Press, End of an era for court reporters at Baltimore County
Circuit Court, Washington Post (April 10, 2011).)
LAO Forecasts Cost Savings By Using Electronic Recording Of
Court Proceedings In Place Of Court Reporters . A 2011 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), the
transition could lead to a first year savings of $13 million.
According to the LAO (though challenged by the California Court
Reporters Association), upon full implementation of court
electronic reporting there could be an annual savings thereafter
exceeding $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, p. 3 (Jan. 24, 2011).)
The California Court Reporters Association Vehemently Disputes
The Accuracy Of The LAO's Reported Savings, And Contends That
Use Of Court Reporters Will Not Be Cost-Effective And Will In
Fact Result In Inaccurate Records Of Court Proceedings . CCRA
analyzed the LAO report and states strongly that implementation
of electronic recording as this bill proposes clearly would not
be cost-effective. CCRA states that implementation in Los
Angeles County, with 550 courtrooms, would cost almost $13
million in upfront costs. Since Los Angeles represents 30
percent of the courts in California, statewide implementation
would, CCRA states, cost upwards of $48.6 million.
The cost to purchase a single ER �electronic recording]
unit is approximately $2,800, hardwire installation is
approximately $20,000, and a one-year maintenance agreement
is approximately $200. As with all technology, ER
equipment must have a life-cycle replacement, which we
estimate to be every five years.
(Chris Crawford, A Cost Study of the Legislative Analyst's
Office Proposal To Expand Use of Digital Recording in California
Courts, Justice Served (2009).)
The CCRA also stresses that electronic recording does not ensure
accuracy.
�T]here is a false belief that recording technology has
advanced to the stage where mechanical problems are few and
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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.
(Id.)
To support its concerns about inaccurate transcripts, the CCRA
has provided the Committee with several examples of inaudible or
indiscernible moments on transcripts and highlighted several
cases, including a 2008 case from Newark, NJ where a civil
$800,000/$280,000 high-low settlement inadvertently triggered
the low-end amount when a mistrial was declared after a jury
requested a reading back of a digital recording of crucial
testimony that was found to be blank.
CCRA Also Notes That Income Currently Generated By User Fees
Will Be Substantially Impacted By This Bill : Under existing
law, litigants pay a user fee for court reporters in civil cases
lasting more than one hour on the first day and each succeeding
judicial day of the proceeding. (Sections 68086 and 68086.1.)
The LAO analysis on user fees found that:
Trial courts spent about $80 million for court reporting
services in civil cases (including for those proceedings
that lasted less than an hour) in 2009-10. However, the
total fee revenue collected that year to offset these costs
was only $30 million-resulting in a $50 million shortfall
that was essentially funded by the state General Fund
budget for the courts. (LAO, The 2011-2012 Budget: Making
Targeted Reductions to the Judicial Branch, LAO Policy
Brief, p. 4 (Jan. 24, 2011).)
The reasons presented for the shortfall included fee waivers for
indigent parties; numerous cases lasting less than an hour; and
fourteen trial courts that reported not receiving any revenue
from the fee which may be a result of either smaller courts not
having cases that exceed an hour or courts not imposing or
collecting the fee. LAO found that while the court user fee
income would be further reduced by greater reliance on
electronic recording, the total court reporting services costs
would also be reduced.
The CCRA counters, however, that the loss of the user fee would
result in decreased revenue for the state. "If official court
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reporters were eliminated in civil courts, the state would lose
revenue of $40 million per year." Also, CCRA argues that court
reporters are licensed and certified through the Court Reporters
Board (CRB) to which they pay an annual fee. This fee
self-funds their board and the Transcript Reimbursement Fund
(TRF) for indigent parties, enabling their access to justice.
"Elimination of court reporters would mean less funding for the
TRF and diminish the meaningful and timely access to justice for
all litigants."
In this regard it should be noted that the TRF is supported by
fees paid by all licensed shorthand reporters, including those
that work outside the court system as deposition reporters. The
impact on the TRF therefore may depend on whether persons who
are currently employed as court reporters decide not to renew
their licenses.
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
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 in using audio reporting and $42,000 per
courtroom per year using video, compared to using a court
reporter. The current LAO estimates of saving, presented above,
are based on those Judicial Council findings.
The CCRA, however, strongly contends 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
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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, argues CCRA, included in the LAO's cost projections.
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.
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 by
also allowing use of electronic recording over one party's
objections. 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
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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
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.)
Judicial Council Task Force Has Highlighted the Need For Better
Access To Records In Family Law Proceedings Where Court
Reporters Are Apparently Lacking. Currently, there regrettably
appear to be many family court proceedings in California that do
not have a court reporter. As a result, there is no official
record of the proceeding and no ability to appeal a ruling, even
a grossly unjust one. There is also all too frequent confusion
by litigants about the basic nature of the court's orders as
they financially must fend for themselves, and there is no
recording or reporting of any kind for them to review after the
hearing. Yet 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 of the lack of court reporters in some
family law courts, the Judicial Council's Elkins Family Law Task
Force recently 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
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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.))
CCRA agrees that court reporters are lacking in some family law
proceedings and that, as a result, there is currently no record
in these proceedings. CCRA also agrees that family law matters
are important, and deal with serious and complex issues.
Indeed, the importance and complexity of these cases, CCRA
contends, is a strong argument against electronic reporting in
these cases because a verbatim record is regularly needed for
clarification and resolution of issues: "The relatively high
volume of transcript production in family cases justifies
continued use of court reporters to report that record. . . . A
court reporter in a family or juvenile case is keenly aware of
what is and what is not appropriate for public disclosure."
Nevertheless, some family law judicial officers and family law
practitioners contend that having any record of such important
proceedings for litigants, so many of whom are without counsel,
is better than no record at all, which, they believe, continues
to be the case in many of the state's family courts.
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.
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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
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.
SB 1102 (Committee on Budget and Fiscal Review), Chap. 277,
Stats. 2004, prohibited courts from expending funds for
electronic recording technology to make an unofficial record of
an action or proceeding or to make an official record of action
or proceeding in circumstances not authorized in current law,
and required each superior court to report to the Judicial
Council semiannually and the Judicial Council to report to the
Legislature semiannually on all purchases and leases of
electronic recording equipment.
SB 13 (Ducheny) (4th Ex. Sess.), Chap. 22, Stats. 2009,
prevented a court from using electronic recording technology for
notetaking, but allows a court to use such equipment for
monitoring subordinate judicial officer performance, as
specified. That bill also required advance Judicial Council
approval prior to purchasing or leasing any electronic recording
equipment.
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ARGUMENTS IN SUPPORT : The Association of Certified Family Law
Specialists (ACFLS) expressed their support for the intent of
this bill, stating:
ACFLS proposes that family law courts immediately be
provided with electronic recording capability. Currently,
in some family law courts in the state, there is no
recording of the proceedings. This bill would allow every
litigant in a family law matter throughout the state to
have his or her proceedings recorded. Parties' ability to
record proceedings will no longer be dependent upon the
practice of the county in which their litigation is filed.
This bill will allow for equal treatment and access to
justice to all litigants in the state.
The ACFLS also stressed the importance of ensuring the record
made by electronic recording is clear. Monitoring, they
suggest, will be needed to insure that individuals are not
speaking over each other and that the record is not garbled or
otherwise distorted.
ARGUMENTS IN OPPOSITION : In addition to the concerns discussed
above, the CCRA 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 and juvenile proceedings.
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."
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Moreover, they argue that "electronic recording is simply not as
reliable. 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
recording can be done in compliance with the 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. Adds the
California Labor Federation: "Electronic reporting is bad for
workers who lose their jobs, but even worse for the court
system. . . . Electronic reporting simply cannot match the
accuracy of a professional court reporter."
The California Public Defenders opposes the bill's expansion of
electronic reporting in misdemeanor cases and its authorization
to use felony proceedings because the group is "gravely
concerned about the implications of using an electronic recorder
in lieu of a trained court reporter in proceedings where
individual's liberty interests are at stake." However, the
bill, by its own terms, seeks to exclude felony cases from
electronic recording.
The California Defense Council adds its concerns about
electronic recording: "Timely access to transcripts has been
difficult, the record has been filled with unintelligible
material, and members have found it difficult to locate and cite
to portions of the record in an efficient and precise way. In
short, despite claims of improvement, our members report that
the systems simply do not work as advertised."
The California District Attorneys Association also opposes the
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bill over concerns that court reporters may not be available in
all courtrooms where felony cases may be heard and that,
"although a proper recording can sometimes provide an adequate
substitute for a court reporter, with a recording, many problems
can arise that are not as likely to occur with a court reporter
present."
Regardless Of One's Position On The Overall Issue, This Measure
Clearly Raises Important Cost And Access To Justice Issues Which
the Committee May Wish to Explore in Coming Years With All
Stakeholders to See What Options May Be Available to Ensure
Litigants, and Especially Lower Income Litigants, Have
Meaningful Access to Court Reporting . In light of the competing
concerns raised by this bill, the Committee may wish to consider
exploring with all stakeholders in the future the following
questions, amongst others:
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, if any, are the actual savings, if any, that may
be generated by instituting electronic recording in trial
courts in 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. How many proceedings in California today occur without a
court reporter, and without an appealable record of the
proceedings, including in the state's family courts? What
options may be available to increase the availability of an
accessible and affordable record for all litigants?
5. How if at all can electronic recordings be made
compliant with federal and state disability access laws?
6. Will litigants, especially those who must represent
themselves in family and other important case types, be
helped or potentially harmed if electronic recording is
made available to them in those courts where court
AB 803
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reporters are not?
REGISTERED SUPPORT / OPPOSITION :
Support
Association of Certified Family Law Specialists
Opposition
American Federation of State, County and Municipal Employees,
AFL-CIO
California Court Reporters Association
California Defense Counsel
California District Attorneys Association
California Labor Federation
California Official Court Reporters Association
California Public Defenders Association
Laborers' Local 777
Laborers' Local 792
Los Angeles County Court Reporters Association
Professional and Technical Engineers, IFPTE Local 21
Sacramento Official Court Reporters
San Diego County Court Employees Association
San Diego Superior Court Reporters Association
Service Employees International Union
Analysis Prepared by : Drew Liebert, Kevin Baker and Leora
Gershenzon / JUD. / (916) 319-2334