BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2612 (Achadjian)
As Amended April 30, 2012
Hearing Date: June 19, 2012
Fiscal: Yes
Urgency: No
RD
SUBJECT
Courts: witness fees
DESCRIPTION
Existing law requires that the compensation and expenses of
certain public employees subpoenaed to appear in court for
testimony in a civil action are paid by the subpoenaing party.
This bill would increase the amount that the subpoenaing party
must advance, together with the subpoena, from $150 to $275 for
each day that the employee is required to remain in attendance
pursuant to the subpoena.
BACKGROUND
California law allows specified public employees, including
peace officers, firefighters, trial court employees, state and
county employees, to be subpoenaed as witnesses in civil trials
with regard to events or transactions they perceived or
investigated in the course of their duties. In doing so,
however, existing law requires that the subpoenaing party
provide, at the same time that the subpoena is provided, an
advance of a fee for each day that the employee is required to
remain in attendance pursuant to that subpoena. The public
entity must return any amount later proven to have been in
excess, while the subpoenaing party must pay any difference
between the amount advanced and the actual amount.
In 1963, when this law was first passed, the amount was $25 for
each day. By 1969, it was raised to $45, followed by $75 in
1974, $125 by 1980, and $150 by 1986. That amount has stayed
static since 1986, despite increases seen in salaries and travel
(more)
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costs. As a result, the amount paid in advance is necessarily a
smaller portion than the actual cost and is more likely to be
inadequate to cover the actual expenses as the years pass
without any increase. While the public entity is entitled to
demand payment for the remaining portion, it has proven
difficult at times and invoices can go unpaid.
To address this issue and to close the widening gap between the
advanced amount and the actual amount owed, this bill would
raise the rate from $150 to $275 a day.
CHANGES TO EXISTING LAW
Existing law allows specified public employees to be subpoenaed
as a witness with regard to events or transactions they
perceived or investigated in the course of their duties. (Gov.
Code Sec. 68097.1.)
Existing law provides that any peace officer, as defined,
firefighter, state employee, trial court employee, or county
employee, who is subpoenaed as a witness, shall receive the
salary or other compensation to which he or she is normally
entitled to from the public entity, as well as the actual
necessary and reasonable traveling expenses incurred in
complying with the subpoena. (Gov. Code Sec. 68097.2(a).)
Existing law requires that the party at whose request the
subpoena is issued to reimburse the public entity for the full
cost to the public entity incurred in paying for the employee's
salary or other compensation and traveling expenses, as
provided, for each day that the employee is required to remain
in attendance pursuant to the subpoena. (Gov. Code Sec.
68097.2(b).)
Existing law requires that the public entity refund any excess
amount paid if the actual expenses later prove to be less than
the amount tendered, and that the party at whose request the
subpoena is issued pay the difference between the amount
tendered and the actual expenses incurred by the public entity
if the amount proves to be more than the amount tendered. (Gov.
Code Sec. 68097.2(c)-(d).)
Existing law specifies that the amount of $150, together with
the subpoena, must be tendered on the person accepting the
subpoena for each day that the specified employee is required to
remain in attendance pursuant to the subpoena. (Gov. Code Sec.
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68097.2(b).)
This bill would raise the above amount from $150 to $275.
COMMENT
1. Stated need for the bill
According to the author:
Assembly Bill 2612 would increase the subpoena deposit amount
from $150 to $275 per day, to reflect a reasonable amount to
cover the current cost to the public entity. The $150 court
subpoena deposit �(CSD)] has not been increased since 1986
even though salaries and travel expenses have increased
dramatically since then. Consequently, the cost of appearance
often exceeds $150. While the public entity is entitled to
collect the amount owed by sending an invoice for the balance
due, there are occasions when these invoices are ignored.
Due to the California Highway Patrol's (CHP) regular
interaction with the public, CHP employees frequently testify
in court on civil cases. This has resulted in uncollected
fines being especially detrimental for this agency. The
average cost of a civil court appearance by a CHP officer is
$400. CHP currently has an outstanding balance of uncollected
appearance fees of over $225,000 for the period of 1990 to
2011. The proposed increase would allow CHP and other
agencies to recoup more of the costs associated with civil
court appearances by requiring a large amount of the
appearance fee to be deposited up front, thereby decreasing
the amount of potential unpaid fees the CHP or other agencies
must pursue. This would result in public agencies reducing
personnel-hours needed for collection, decreasing commission
charges being paid to collection agencies, and it would
minimize write-offs when fees cannot be collected.
The California Highway Patrol (CHP), the sponsor of this bill,
adds "�t]his increase is a reasonable amount to cover costs
associated with employees' salary, travel expenses,
administrative costs, and benefits. . . . AB 2612 would benefit
all public entities involved with the civil subpoena deposit
process."
2. Raising the advance deposit rate for the first time in over 25
years.
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For the first time in over 25 years, this bill proposes to raise
the amount that a requesting party must advance together with a
subpoena, for the attendance of specified public employees in a
civil proceeding. Specifically, it would raise the amount from
$150 to $275 for each day that the employee is required to
remain in attendance pursuant to the subpoena.
In 1986, when the rate was last raised to the current $150
level, the Senate Judiciary Committee analysis noted that "�i]t
is a long-standing principle that the party demanding the
officer's presence should pay for his or her time and expenses,
as the public is denied the officers' services for the period
that he or she is in court. To ensure that payment is made and
to facilitate bookkeeping, the subpoenaing party is required to
provide the court with an advance deposit which is intended to
approximate the ultimate cost of appearance. In 1974�,] the
amount of the deposit, as set by statute, was raised from $45
per day to $75; in 1980�,] it was raised to $125. In each case
proponents argued that an increase was justified because of
higher peace officer salaries and inflated costs. The sponsors
of this measure make� ] a similar argument. (Sen. Judiciary Com.
analysis of AB 3138 (Reg. Session 1985-1986) July 8, 1986, p.
6.)
Here, the proponents also make a similar argument. (See Comment
1.) The fact that the deposit amount has remained static over
the last 25 years while other costs have arguably increased,
suggests that some increase is justifiable. Thus, it appears
appropriate to increase the deposit, although the amount of the
increase should take into account the present economic crisis
and budgetary constraints that have arguably increased costs for
litigants, as discussed further in Comment 3 below.
3. Sufficiency of the proposed rate in light of other pertinent
considerations
This bill would raise the amount that a requesting party must
advance together with a subpoena, for the attendance of
specified public employees, from $150 to $275 for each day that
the employee is required to remain in attendance pursuant to the
subpoena.
A prior version of the bill proposed to increase the fee to
$300, a 100 percent increase, but the proposed increase was
reduced to the present value to address concerns about the
impact on litigants.
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The author argues that "�i]n the 13-year period �in which the
deposit amount was increased from $25 to $150], the CSD amount
increased by 600 percent. If this rate of increase is applied
to the 25-year period since 1986, the CSD would have increased
by 1,154 percent over the 1986 amount, which would bring the
current CSD rate to $1,731." It should be noted that using that
calculation would result in a rate that is vastly over the daily
cost estimate provided by the author with respect to officers
($400).
In its review of the 1986 deposit increase, the Senate Judiciary
Committee commented that, "the best test for a need in increase
was the sufficiency in the figure. In general, the Legislature
has sought to ensure that the deposit is sufficient to cover
cost in 80% of the cases." (Sen. Judiciary Com. analysis of AB
3138 (Reg. Session 1985-1986) July 8, 1986, p. 8.) The sponsors
of that bill pointed out "the actual cost per day in salary for
a deputy sheriff would be $162.62 plus mileage, room and board,
and $215.28 for a sergeant" and argued that "the deposit amount
should be raised to once again approximate the actual amount, in
order to avoid billings of subpoenaing parties following the
officer's appearance." (Id. at p. 7.) Ultimately, the increase
to $150 was approved. Similarly, the sponsor of this bill, CHP,
argues that the average cost for an officer is $400 and seeks an
increase of the rate to $275.
While it is unknown if $275 would cover 80 percent of all cases,
the figure offered by the sponsor suggests it would be a
reasonable amount considering all the circumstances. Moreover,
other considerations caution against a higher rate-namely, that
a more substantial increase could raise concerns about the
impact on cases of persons who might not be able to afford that
rate, especially during times of severe economic crisis.
Budgetary factors aside, such considerations have historically
proven an important part of the determination of an appropriate
rate; even in 1986, similar issues were raised. Just as with
this bill, the original proposal in 1986 was to raise the rate
from the then-current rate of $125 to $300. That was lowered to
$150 after stakeholders raised concerns that a $300 rate would
discourage or prevent litigation involving peace officers as
witnesses. Stakeholders also argued that using the full day
figure was misleading as many witnesses are present in court for
only a portion of the day. (Id. at 7-8.)
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As a matter of public policy, it is important to keep in mind
the impact of a $125 increase on litigants today, compared to
the impact of prior increases on litigants when the rates were
raised incrementally every six years or so by an average of $20
to $30. (Interestingly, if the Legislature had continued to
authorize a $20-30 increase every six years post-1986, in
similar fashion to pre-1986, the current rate would be slightly
over $250.) Again, staff notes that too significant of an
increase could have a detrimental impact on the ability of
persons to have their claims heard. That being said, the
Legislature has not increased the rate in 25 years and the
proposed increase appears to be reasonable given the information
provided by the sponsor.
Support : California Fire Chiefs Association; California Peace
Officers' Association; California Peace Officers Research
Association of California; California Professional Firefighters;
California State Sheriffs' Association; Los Angeles Police
Protective League
Opposition : None Known
HISTORY
Source : California Highway Patrol
Related Pending Legislation : None Known
Prior Legislation :
AB 3138 (Eaves, Ch. 747, Stats. 1986) See Comment 2.
AB 2294 (Roos, Ch. 472, Stats. 1980) raised the rate from $75 to
$125.
AB 1897 (Holoman, Ch. 1290, Stats. 1974) raised the rate from
$45 to $75.
SB 466 (Lagomarsino, Ch. 342, Stats. 1969) raised the rate from
$25 to $45.
SB 1257 (Grunsky, Ch. 1485, Stats. 1963) enacted Government Code
Section 68097.2, the subject of this bill, and set a rate of $25
for each day the public employee's attendance of was required.
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Prior Vote :
Assembly Floor (Ayes 74, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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