BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2073 (Silva)
As Amended April 30, 2012
Hearing Date: June 19, 2012
Fiscal: Yes
Urgency: No
RD
SUBJECT
Courts: electronic filing and service of documents
DESCRIPTION
Existing law allows for courts to adopt local rules allowing
parties to electronically serve specified documents, consistent
with statutory requirements and conditions and applicable Rules
of Court.
This bill would authorize the Superior Court of Orange County,
until July 1, 2014, to establish a pilot project by local rule
to require parties to specified civil actions to electronically
file and serve documents, as specified.
This bill would also require the Judicial Council to evaluate
and report to the Legislature on the results of that evaluation,
as specified, or before December 31, 2013.
The bill would also require the Judicial Council, by July 1,
2014, to adopt uniform rules to permit the mandatory electronic
filing (e-filing) and service of documents for specified civil
actions in the trial courts of the state, as specified.
BACKGROUND
In 1998 California voters passed a constitutional amendment that
provided for voluntary unification of the superior and municipal
courts in each county into a single, countywide trial court
system. (SCA 4 (Lockyer, Resolution Ch. 56, Stats. 1996);
approved as Proposition 220 on June 2, 1998.) By January 2001,
all 58 California counties had voted to unify their court
(more)
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operations. (See Judicial Council of California Trial Court
Unification: Fact Sheet
< http://www.courts.ca.gov/documents/tcunif.pdf > �as of June 9,
2012].) Among the intended benefits and goals of this
unification was to ensure uniform access to justice for all
Californians, regardless of where they reside in the state, and
to achieve efficiency and economy in providing services to the
public.
Separately, in 1999, SB 367 (Dunn, Ch. 514, Stats. 1999), among
other things, enacted Section 1010.6 of the Code of Civil
Procedure, to allow trial courts to adopt local rules permitting
electronic filing and service of documents, and to require the
Judicial Council to adopt uniform rules for the electronic
filing and service of documents in the trial courts of the state
by January 1, 2003, as specified. SB 367 also reflected the
legislative intent to (1) provide for the eventual
standardization of electronic filing and service procedures on a
statewide level and (2) to provide that a court shall not adopt
an electronic filing procedure that requires a litigant or
attorney to possess specialized, cumbersome, or expensive
equipment or software to utilize the electronic filing system.
More recently, in 2010, SB 1274 (Committee on Judiciary, Ch.
156, Stats. 2010) authorized parties to consent to or the court
to order electronic service of documents that are not required
to be personally served. Among other things, SB 1274 also
required the Judicial Council to adopt uniform rules relating to
the integrity of electronic filing and service of documents in
the trial courts of the state, and redefined "electronic
service" to include both electronic notification and electronic
transmission, as specified.
This bill, sponsored by the Superior Court of Orange County,
authorizes that county, by local rule and through July 1, 2014
only, to establish a pilot project to require parties to
specified civil actions to electronically file and serve
documents, subject to the rules adopted by the Judicial Council
and other specified conditions. The bill would also require the
Judicial Council to report to the Legislature on or before
December 31, 2013, on the results of its evaluation of the pilot
project, as specified. This bill would also require the
Judicial Council to, before July 1, 2014, adopt uniform rules
for mandatory electronic filing and service of documents for
specified civil actions in the trial courts of the state, as
informed by the study it conducted of the pilot and as otherwise
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specified.
CHANGES TO EXISTING LAW
Existing law provides that a document may be served
electronically in an action filed with the court under this
section and in accordance with applicable Rules of Court, as
specified. (Code Civ. Proc. Sec. 1010.6(a).)
Existing law provides that in any action in which a party has
agreed to accept electronic service or in which the court has
ordered electronic service, as specified, the court may
electronically serve any document issued by the court that is
not required to be personally served in the same manner that
parties electronically serve documents. Existing law provides
that electronic service shall have the same legal effect as
service by mail, except as provided. (Code Civ. Proc. Sec.
1010.6(a)(3).)
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.
These include conditions relating to electronic signatures and
fee waivers, among other things. (Code Civ. Proc. Sec.
1010.6(b)(1)-(6).)
Existing law provides that a local rule would be subject to,
among other things, the condition that any document that is
electronically filed with the court after the close of business
on any day shall be deemed to have been filed on the next court
day. Existing law specifies that "close of business" means 5
p.m. or at the time at which the court would not accept filing
at the court's filing counter, whichever is earlier. (Code Civ.
Proc. Sec. 1010.6(b)(3).)
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. (Code Civ. Proc. Sec.
1010.6(c).)
Existing law requires the Judicial Council 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 rules to conform to the
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conditions set in Section 1010.6 of the Code of Civil Procedure,
as amended from time to time. (Code Civ. Proc. Sec. 1010.6(d).)
Existing Rules of Court provide for rules regarding electronic
filing and serving of documents that any local rule would be
subject pursuant to Section 1010.6(c), above. (California Rules
of Court, Division 3, Chapter 2, rules 2.250-2.261.)
This bill provides that, notwithstanding the authority of the
trial court to adopt local rules permitting electronic filing of
documents, as specified, the Orange County Superior Court may,
by local rule and until July 1, 2014, establish a pilot project
to require parties to specified civil actions to electronically
file and serve documents, subject to specified requirements and
rules adopted by Judicial Council, as specified, and the
following specified conditions:
the court has the ability to maintain the official court
record in electronic format for all cases where electronic
filing is required;
the court and the parties have access to more than one
electronic service provider capable of electronically filing
documents with the court, including access directly through
the court, and any fees charged by the court or by an
electronic service provided shall be as specified and waived
when appropriate, including for any party who has received a
fee waiver;
the court has a procedure for the filing of nonelectronic
documents in order to prevent the program from causing undue
hardship or significant prejudice to any party in an action,
including unrepresented parties; and
a court that elects to require electronic filing pursuant to
this authority for the Orange County Superior Court to
establish a pilot project, may permit documents to be filed
electronically until 12 a.m. on the day after the Court date
that the filing is due and the filing shall be considered
timely, except as otherwise specified.
This bill would provide that if a pilot project is established,
as specified, the Judicial Council shall evaluate and report to
the Legislature, on or before December 31, 2013, on the results
of the evaluation, including, among other things, the cost of
the program to participants, cost-effectiveness for the court,
effect on unrepresented parties and parties with fee waivers,
and ease of use for participants.
This bill would also require the Judicial Council, before July
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1, 2014, to adopt uniform rules to permit the mandatory
electronic filing and service of documents for specified civil
actions in the trial courts of the state, as informed by the
study it conducted of the pilot. This bill would also require
Judicial Council to include within those rules statewide
policies on vendor contracts, privacy, access to public records,
unrepresented parties, parties with fee waivers, hardships, and
rules relating to the integrity of electronic service, and would
require that those rules conform to the conditions of the
existing law section on electronic filing and service, as
amended time to time.
This bill would make other technical and conforming changes.
COMMENT
1. Stated need for the bill
The author writes, "Section 1010.6 of the Code of Civil
Procedure currently allows for electronic filing of certain
documents in limited types of cases. AB 2073 will permit a
pilot project in Orange County Superior Court to provide more
widespread use of electronic filing of court documents, provided
certain conditions are met. In addition, it will require the
Judicial Council to establish statewide rules on the wider use
of electronic filing. Orange County has already seen
substantial cost and efficiency savings, even from their limited
use of E-filing. �In addition,] the Federal Court System
already uses E-filing."
The sponsor, the Orange County Superior Court, adds:
Our Court accepts approximately one million civil documents
each year for filing by the clerk's office. At present time,
our Court receives about 29% of civil and probate documents by
way of voluntary electronic filing (E-filing). Documents
E-filed by private lawyers and law firms are virtually
guaranteed to be correctly filed as soon as they are
submitted. They do not have to be docketed by a clerk and they
do not have to be scanned by our imaging department to be
placed in our computer network. . . . While paper documents
filed at the clerk's filing window are almost always processed
correctly, paper documents with a unique title or ex-parte
request may be delayed by 24-48 hours before they are sent to
the courtroom. E-filing virtually eliminates the problem of
lost or improperly processed documents. Most importantly,
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once E-filing is complete, the documents will be immediately
available to the research attorney and to the judge reviewing
the document via the court's computer network. . . .
Due to the E-filing presently occurring in Orange County, our
Court has realized substantial budget benefits while
maintaining a high level of service to the attorneys and the
public who use the Orange County Super Court . . . �and] has
averted the need for employee lay-offs or unpaid furloughs.
At least 25 other states have adopted some form of mandatory
E-filing . . . Also the Federal Courts mandate E-filing in
every Federal District Court in the Country. . . . The
pilot program for E-filing in Orange County, established by AB
2073, will be a significant step in providing the trial courts
in the State of California an efficient and cost-saving tool
in difficult budgetary times.
2. Establishing a pilot project to help evaluate statewide
rules for mandatory e-filing
This bill would allow for the Orange County Superior Court to
establish a pilot project that would require mandatory
electronic filing (e-filing) through July 1, 2014, and would
simultaneously require the Judicial Council of California to
evaluate and report on that project and develop statewide rules
for a mandatory e-filing system that all trial courts could then
choose to adopt by that same date. That being said, this bill
does not specifically authorize mandatory e-filing by Orange
County or other superior courts post-July 1, 2014.
The requirement that the pilot program provide for mandatory
e-filing aside, for the most part, this bill would apply the
existing requirements for voluntary e-filing under California
law to the proposed mandatory pilot project. This bill, in
relevant part, would specify that the pilot may require parties
to specified civil actions to electronically file and serve
documents, subject to all but one requirement of an existing
provision in the statute governing electronic filing, which this
bill would amend-Code of Civil Procedure Section 1010.6(b)(3).
That provision specifies that any document that is
electronically filed with the court after the close of business
on any day shall be deemed to have been filed on the next day,
and defines close of business to mean 5 p.m. or at the time at
which the court would not accept filing at the court's filing
counter, whichever is earlier. This bill instead provides that
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a court that elects to require e-filing pursuant to this
subdivision (i.e. Orange County Superior Court) may permit
documents to be filed electronically until 12 a.m. of the day
after the court date that the filing is due, and the filing
shall be considered timely; documents filed on or after 12 a.m.,
or filed upon a noncourt day, would be deemed filed on the
soonest court day after the filing. The bill further provides
for other times in which a document must be filed by 5 p.m. on
the court date that the filing is due, and yet others that must
be filed on the same date and within the same time period as
would be required for the filing of a hard copy of the ex parte
documents at the clerk's window in the participating county.
This resulting disparity between the bill and the existing
provision outlined above could potentially raise concerns
insofar as it would create a disparate rule between the Orange
County Superior Court and all other counties' superior courts
that have voluntary e-filing-an attorney would face one rule in
Orange County Superior Court, and another in any other county.
It could even raise such concerns within the same county between
people who can afford systems that support e-filing, and those
who cannot-giving additional time to one for their filings, but
not to the other. That being said, it is important to note that
this bill's proposed filing deadline would only apply to the
pilot project, and Judicial Council will ultimately evaluate
that project in developing uniform statewide mandatory e-filing
rules for all counties. Thus, it may be appropriate to allow
this county to test mandatory e-filing rules that are, at times,
different from other counties who have voluntary e-filing, in
order to assist the Judicial Council in its consideration of
statewide rules.
Again, while the bill appears to suggest, and proponents sought
to allow, authority for counties to choose to adopt mandatory
e-filing pursuant to the Judicial Council rules and standards,
the language of this bill not specifically authorize mandatory
e-filing by superior courts upon the formulation of those
rules-which could be potentially before, but no later than July
1, 2014. The pilot itself would expire on July 1, 2014, and the
bill is silent as to any county's ability to require mandatory
e-filing after that date, even though it also requires the
Judicial Council to have created rules for mandatory e-filing by
that same date. To address this, and to ensure that counties
requiring e-filing would adhere to certain statutory rules, as
they may be amended from time to time, as well as the Judicial
Council's rules, the following amendment is suggested:
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Suggested Amendment :
On page 6, after line 28, add:
(g) (1) Upon the adoption of uniform rules by the Judicial
Council for mandatory electronic filing and service of
documents for specified civil actions in the trial courts of
the state, as specified in subdivision (f) above, a superior
court may, by local rule, require mandatory electronic filing,
pursuant to paragraph (2) of this subdivision.
(2) Any superior court that elects to adopt mandatory
electronic filing must do so pursuant to the requirements and
conditions set forth in this section, as amended from time to
time, including, but not limited to, paragraphs (1), (2), (4),
(5), and (6) of subdivision (b) of this section, and
subparagraphs (A), (B), and (C) of paragraph (1) of
subdivision (d), and pursuant to the rules adopted by Judicial
Council, as specified in subdivision (f) above.
3. Striking a balance between advancing e-filing benefits and
providing for safe and secure filing, and uniform access to
the courts by all parties, on a statewide basis
This bill would authorize the Superior Court of Orange County,
by local rule and through July 1, 2014, to establish a pilot
project to generally require parties to specified civil actions
to electronically file and serve documents. Simultaneously, the
bill would require the Judicial Council, if such a pilot project
is established, to evaluate and report to the Legislature on the
pilot project, on or before December 31, 2013, on the results of
the evaluation, including, among other things, the cost of the
program to participants, cost-effectiveness for the court,
effect on unrepresented parties and parties with fee waivers,
and ease of use for participants. The bill would also require
the Judicial Council to, before July 1, 2014, adopt uniform
rules to permit the mandatory electronic filing and service of
documents for specified civil actions in the trial courts of the
state, as informed by the study it conducted of the pilot. (See
Comment 4 for more information.)
a. Move towards electronic filing in California and elsewhere
in the nation
Information provided from the author states that at least 25
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states, the District of Columbia and federal trial courts have
adopted some form of e-filing, and that three states have
mandated e-filing in broad categories of cases. (See Fed. Rule
Civ. Proc. rule 5(d)(3), which provides that a court may, by
local rule, allow papers to be filed, signed, or verified by
electronic means that are consistent with any technical
standards established by the Judicial Conference of the United
States, and may require electronic filing only if reasonable
exceptions are allowed.)
Likewise, California authorizes limited e-filing under Section
1010.6 of the Code of Civil Procedure. The author lists some of
the benefits of e-filing as follows: substantial cost savings to
both the courts and litigants in labor, postage, supplies, file
storage and travel; easier and timelier access to records and
documents by the courts and the public; more efficient use of
staff time; remote access to court records by lawyers and the
public over the Internet; ability to file documents after hours
when courts are closed; and the ability for multiple parties to
view the same documents simultaneously. The author also notes
that partial implementation of e-filing in Orange County has
resulted in over $1 million in savings.
Indeed, as noted when this Committee reviewed SB 1274 (Committee
on Judiciary, Ch. 156, Stats. 2010), the last bill to
substantially amend the section governing electronic filing and
service, "�e]lectronic mail, or email, has become a popular form
of communication all over the world. To some, the �I]nternet is
considered to be a necessity, allowing instantaneous
communication with friends, family, and businesses. It has
become a part of every day office life, allowing companies to
communicate cheaply, effectively, and efficiently. In the
litigation context, parties have increasingly begun
electronically serving documents in civil cases, and it is
likely electronic service will become the principal method of
service in the years to come." (Sen. Judiciary Com. analysis of
SB 1274 (Reg. Session 2009-2010) April 13, 2010, p. 1.) At the
same time however, access to such forms of communication 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. Public policy
equally dictates, when it comes to our courts, access, and
uniform access at that, is imperative.
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b. Uniformity
Notably, a prior version of this bill would have allowed each
presiding judge in every one of the 58 trial courts, under their
own potentially unique rules, to mandate that parties to civil
actions e-file their pleadings. As amended in the Assembly
Judiciary Committee, this bill would now instead allow for the
creation of a single pilot project in Orange County, until July
1, 2014, to provide for mandatory e-filing, by local rule,
pursuant to specified statutory requirements and conditions, as
well as Judicial Council rules. During that period, the
Judicial Council would also be required to report on the pilot
project to the Legislature and adopt uniform statewide rules to
permit the mandatory electronic filing and service of documents
for specified civil actions in the trial courts of the state, as
informed by the study it conducted of the pilot.
Since California first adopted statutory provisions allowing for
e-filing on a limited basis, one of the primary goals has been
to maintain uniformity throughout the state. As noted in the
Background, when SB 367 (Dunn, Ch. 514, Stats. 1999) was signed
into law to, among other things, allow trial courts to adopt
local rules permitting electronic filing and service of
documents, subject to prescribed rules and specified conditions,
that bill also required the Judicial Council to adopt uniform
rules for the electronic filing and service of documents in the
trial courts of the state. SB 367 expressly reflected the
legislative intent to: (1) provide for the eventual
standardization of electronic filing and service procedures on a
statewide level; and (2) to provide that a court shall not adopt
an electronic filing procedure that requires a litigant or
attorney to possess specialized, cumbersome, or expensive
equipment or software to utilize the electronic filing system.
In similar fashion, when SB 1274 (Committee on Judiciary, Ch.
156, Stats. 2010) passed last session, the Senate Judiciary
Committee analysis commented that the bill required the Judicial
Council to adopt rules to ensure that electronic notification
using hyperlinks was a reliable and cost effective means of
service, and to maintain the integrity of the document served
and the process of the service. It added that "�t]hese rules
would provide uniformity of electronic service throughout the
state, instead of having each county adopt its own rules."
(Sen. Judiciary Com. analysis of SB 1274 (Reg. Session
2009-2010) April 13, 2010, p. 4.)
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The balancing of these sometimes-competing interests is crucial.
This is not to state that the interests cannot coexist or help
advance one another; it is merely to acknowledge that any rules
adopted need to be cognizant of the very real concerns related
to access so as to not compromise them in the name of
technological advancement and efficiency. To balance those
interests, this bill would not only require access to multiple
electronic filing service providers, including access directly
through the court, but it would also prohibit the courts from
charging of fees more than the actual cost of the e-filing and
require the fees to be waived when appropriate, including for
any party that has received a fee waiver. Likewise, any fees
charged by a service provider would have to be reasonable and
waived when appropriate, including for any party who received a
fee waiver. In addition, the pilot project would have to
provide for a procedure for the filing of nonelectronic
documents in order to prevent the program from causing undue
hardship or significant prejudice to any party in an action,
including unrepresented parties. A technical amendment is
suggested so that these provisions are not limited to only those
parties who receive a fee waiver, or unrepresented parties who
would face a hardship or significant prejudice if forced to
e-file, as follows:
Suggested Amendment :
On page 5, in each of the lines 10, 13, and 17, after
"including" insert ", but not limited to,"
4. Judicial Council responsibility to establish statewide
rules
At the same time that Orange County operates its pilot program,
this bill requires the Judicial Council, if such a pilot project
is established, to evaluate and report to the Legislature, on or
before December 31, 2013, on the results of the evaluation,
including, among other things, the cost of the program to
participants, cost-effectiveness for the court, effect on
unrepresented parties and parties with fee waivers, and ease of
use for participants. The bill would also require the Judicial
Council, before July 1, 2014, to adopt uniform rules to permit
the mandatory electronic filing and service of documents for
specified civil actions in the trial courts of the state, as
informed by the study it conducted of the pilot. Within those
rules, Judicial Council would be required to include statewide
policies on vendor contracts, privacy, access to public records,
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unrepresented parties, parties with fee waivers, hardships, and
rules relating to the integrity of electronic service, and that
those rules conform to the conditions of the existing law
section on electronic filing and service, as amended time to
time.
In support of the bill, Judicial Council writes, "�e]lectronic
filing is a critically important technology that will achieve
significant efficiencies and cost savings for both litigants and
the courts. The Judicial Council strongly supports e-filing and
the beneficial effects it will have in improving court
operations. The council appreciates being given until July of
2014 to adopt the statewide rules governing mandatory e-filing
that are required under AB 2073, but it fully intends to
accomplish this task well before the statutory deadline so that
more courts will be able to take advantage of this important
technology."
While the bill does require that the resulting Judicial Council
rules include statewide policies on certain issues, such as
hardships or unrepresented parties, as well as parties with fee
waivers, the following amendment is suggested in order to
emphasize and ensure that those rules must specifically into
account and provide for reasonable exceptions to e-filing for
persons who would face hardship in complying with mandatory
e-filing, for varying reasons, such as not being able to afford
the technology (i.e. computers) needed for e-filing, or the cost
of e-filing:
Suggested Amendment :
On page 6, line 25, after "hardships" insert "reasonable
exceptions to electronic filing,"
Staff notes that this would be consistent with the Federal Rules
of Civil Procedure on e-filing (see Fed. Rule Civ. Proc. rule
5(d)(3)) which requires that reasonable exceptions be provided
to mandatory e-filing.
5. Other technical and clarifying amendments
The following technical and clarifying amendments are also
suggested:
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Suggested Amendment :
On page 5, on both lines 3 and 15, strike "has" and insert
"shall have"
On page 5, line 5, after "parties" insert "shall"
On page 5, line 7, strike "including" and insert "or
electronic filing"
On page 5, on both lines 6 and 11, after "electronic" insert
"filing"
On page 5, line 10, strike "appropriate" and insert "deemed
appropriate by the court"
On page 5, line 13, strike "appropriate" and insert "deemed
appropriate by the electronic filing service provider"
On page 6, line 7, after "evaluation of" insert "the pilot
project"
On page 6, line 19, after "The Judicial Council shall," insert
"on or"
6. Additional question
Interested parties have raised a question of whether the cost of
e-filing, in a county in which e-filing is made mandatory, is a
form of recoverable fees under Section 1033.5 of the Code of
Civil Procedure. That section lists costs that are generally
recoverable, in the court's discretion, by a prevailing party,
including, "�f]iling, motion, and jury fees." (Code Civ. Proc.
Sec. 1033.5(a)(1).) Staff notes that where e-filing is made
mandatory pursuant to this pilot project, the direct cost of
using the designated e-filing systems to file documents is
arguably among those filing fees that can be recoverable under
that section under the plain meaning of the term, "filing fees."
Support : Judicial Council; Los Angeles Superior Court; San
Diego Superior Court; Orange County Bar Association; Superior
Court of California, County of Riverside
Opposition : None Known
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HISTORY
Source : Orange County Superior Court
Related Pending Legislation : None Known
Prior Legislation :
AB 1023 (Wagner, Ch. 296, Stats. 2011), a Maintenance of the
Codes bill, among other things, made a technical change to a
cross-reference in the section on electronic filing.
SB 1274 (Committee on Judiciary, Ch. 156, Stats. 2010) See
Background and Comments 3a and 3b.
AB 496 (Aghazarian, Ch. 300, Stats. 2005) clarified the
procedure for electronically transmitting a summons.
AB 1700 (Steinberg & Frommer, Ch. 824, Stats. 2001) made
technical changes to the statutory provisions regarding
electronic filing of court documents.
SB 367 (Dunn, Ch. 514, Stats. 1999) See Background and Comment
3b.
Prior Vote :
Assembly Floor (Ayes 70, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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