Existing law authorizes a superior court to appoint official reporters and official reporters pro tempore as are deemed necessary for the performance of the duties of the court and its members. Existing law also authorizes a court to use electronic recording equipment to record an action or proceeding in a limited civil case, or a misdemeanor or infraction case, if an official reporter or an official reporter pro tempore is unavailable.

This bill would additionally allow a court to use electronic recording equipment in a family law case if an official reporter or an official reporter pro tempore is unavailable.

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1834

Author:(Wagner) – As Introduced Ver:February 9, 2016

SUBJECT: ELECTRONIC COURT REPORTING: FAMILY LAW

KEY ISSUE:

1. SHOULD FAMILY LAW PROCEEDINGS BE PERMITTED TO BE ELECTRONICALLY RECORDED IF NO COURT REPORTERS ARE AVAILABLE TO REPORT THE PROCEEDINGS?
2. IN ORDER TO HELP ENSURE THE ACCURACY OF THE RECORD IN THESE IMPORTANT AND POTENTIALLY LIFE-CHANGING CASES, MIGHT IT BE PREFERABLE TO HAVE COURT REPORTERS REPORT ALL FAMILY LAW PROCEEDINGS?

SYNOPSIS

Today, as the result of budget cuts and shifting priorities, most family law courts no longer provide court reporters for their proceedings. If parties want – and can afford – to have a record of their proceedings, they must pay for and bring their own court reporter. Consequently, there is no record in many, and perhaps most, family law proceedings today. Lack of court-provided reporting services can substantially frustrate the goals of California’s system of justice. Without a transcript of court proceedings, litigants are unable to appeal decisions, parties may be unable to draft orders effectively, and those attempting to recount what actually happened during proceedings – including judges, parties and their attorneys – are unable to do so accurately. Additionally, the Commission on Judicial Performance is concerned that lack of court reporters seriously hampers its efforts to investigate and prove judicial misconduct.

This bill, sponsored by the Conference of California Bar Association, attempts to address these concerns by permitting the use of electronic recording equipment to make a record in a family law proceeding if an official court reporter is unavailable. This is a repeat of the author's AB 251 from 2013, which failed in this Committee on a 3-6 vote. While there is universal agreement that family law proceedings (and frankly all proceedings) should have records, there is significant disagreement about how those records should be produced.

The author believes that electronic recording will save the courts money and guarantee a record in family law matters. Many family law practitioners argue that while it is best to have a court reporter present at all court proceedings, the reality of budget cuts mean that court reporters are absent from many civil proceedings. They contend that an electronic record is far better than no record at all.

Court reporters and other labor organizations strongly oppose the bill, however, arguing that the asserted cost savings are not accurate and electronic recordings jeopardize the accuracy of the record because they are prone to flaws and errors, could violate privacy laws, and may violate the court’s compliance with the Americans with Disabilities Act. The analysis suggests an alternative that both supporters and opponents might be willing to support – a requirement that court reporters report all family law proceedings, just as they are required to do in all juvenile proceedings today. A similar bill -- last year's AB 749 (Bloom) -- passed this Committee, but was held on suspense in the Assembly Appropriations Committee.

SUMMARY: Adds family law to the list of court proceedings that can be electronically recorded if no court reporter is available for the proceeding. Specifically, this bill allows a court, if an official court reporter or an official reporter pro tempore is unavailable, to use electronic recording equipment in a family law case.

EXISTING LAW:

1. Requires court reporters in all death penalty proceedings, juvenile court proceedings, hearings on a motion to withdraw consent to a step-parent adoption; or in any felony or civil case when ordered by the court or requested by a party. (Code of Civil Procedure Section 269; Family Code Section 9000 (d); Penal Code Section 190.9; Welfare & Institutions Code Sections 347 and 677.)
2. Permits a judge to have a court reporter in felony, unlimited civil, probate, juvenile and selected family law proceedings. (Code of Civil Procedure Section 274a.)
3. 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 officers, hearing officers and temporary judges. (Government Code Section 69957 (a)-(b).)
4. Requires each court to obtain advance approval from the Judicial Council for purchases or leasing of electronic recording technology. 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. (Government Code Sections 69957 (c), 69958.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Today court reporters are mandated in certain important court proceedings, such as death penalty cases and juvenile court proceedings. On the other end of the spectrum, electronic recording is permitted in cases that used to be heard in the old Municipal Courts – limited civil cases (cases under $25,000), infractions and misdemeanors – if no court reporter is available. This bill would put potentially life-changing family law cases on par with those latter cases, and permit electronic recording in family law proceedings if no court reporter is available.

In support of the bill, the author writes:

Current law does not require that trial courts provide official reporters in family law proceedings, and electronic reporting is not permitted in these proceedings. As a result, in many counties family law hearings and trials are not being recorded and no official record is created. Wealthier parties can hire private reporters. Indigent parties and those without attorneys cannot always do so. When a hearing has no record, there can be no appeal, no clarity about what orders were made, and no accountability for judges. In many respects, without a record, there cannot be due process. We have reached the point when electronic reporting is reliable and needs to begin to be implemented.

Electronic recording is used in some court proceedings today. Today, 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, the extent to which this equipment is used, and the experience of the courts that use it, is not generally known, though opponents provide a recent anecdote from a Sacramento courtroom where the voice of a female judge was not picked up on the electronic record for several months, thus rendering those records unusable.

The California courts of appeal and the Supreme Court rely exclusively on electronic recording of the proceedings, but it is important to note that those proceedings are not part of the record for appeal. Moreover, since these proceedings do not involve trial courts, there is less likelihood that participants may be talking over each other and thus difficult to understand.

Other Jurisdictions: According to the National Center for State Courts, a growing minority of states -- Alaska, Colorado, Connecticut, Delaware, Kentucky, Maine, Indiana, Maryland, Massachusetts, New Hampshire, New Jersey, Oregon, Tennessee and Vermont -- use electronic recording for “all or most of their general-jurisdiction court sessions.” Other states, such as Florida and Minnesota use electronic recording in many of their courts. Still other state and local jurisdictions use electronic recording in some of their courts. (National Center for State Courts, 2015 Trends in State Courts: Leadership and Technology, p.45 (2015).)

Court budget reductions in California during the recession dramatically reduced civil courtrooms with court reporters, but courts have not added court reporters back in as budgets have increased. 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 courts 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.

In this year's January budget, the Governor, while adding millions to cover specific costs and $20 million for ongoing additional expenditures, did not mandate that any funds be used for court reporters. To the contrary, the budget proposed a one-time $30 million innovation fund for the courts for “programs and practices that save money and better serve the public,” with the suggestion that an innovative program could include “the development of electronic recordings in family courts.” (Governor Jerry Brown, Proposed Budget 2016-17 p.116. (Jan. 7, 2016).)

Recent litigation makes clear the critical need for a record in court proceedings. In support of this legislation, the author points to a recent dissolution case in which the appellant was unable to provide an accurate record because there was no court reporter present at the trial court, an all too frequent occurrence in family courts in California. 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.)

State Supreme Court now considering related issue. The need for court reporters 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 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.

The Commission on Judicial Performance believes elimination of court reporters impairs its ability to protect the public. While electronic reporting can be used for monitoring subordinate judicial officers, it specifically cannot be used to monitor judges. The CJP Director-Chief Counsel writes that she is concerned that the significant reduction in court reporters impairs the Commission's "ability to fulfill its mandate to protect the public, and undermines the administration of justice in court proceedings in California." (Letter from Victoria Henley to Governor Brown, Supreme Court Chief Justice Cantil-Sakauye, Speaker Pérez and Senate President Pro Tempore Steinberg (Feb. 29, 2012).) Without a record of court proceedings, CJP states:

[I]t can be difficult, if not impossible, to establish what occurred in the courtroom, where 95% of the complaints to the Commission each year originate. In December 2011, there were transcripts or recordings in only half of the Commission's pending investigations that involve courtroom conduct. . . . The absence of transcripts or recordings thus impedes the commission in determining that misconduct has occurred and in protecting the public from abusive judges. Equally important, the absence of a record of court proceedings prevents the swift and complete exoneration of judges by the commission when appropriate. (Id. (footnote omitted).)

Judicial Council task force highlighted the need for better access to records in family law proceedings. As discussed above, currently it appears that the vast majority of family court proceedings in California do not have a court reporter. As a result, there is no official record of the proceeding and little ability to appeal a ruling, even a grossly unjust one. There is also all too frequent confusion by unrepresented litigants about the basic nature of the court's orders as they attempt to 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, the Judicial Council’s Elkins Family Law Task Force has 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 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.))

Futures Commission considers electronic recording as a possible way to increase access to justice. The Commission on the Future of California’s Court System was created by the Chief Justice of the California Supreme Court in 2014 to, according to the Chief Justice, “take a fresh look at legal and structural challenges to long-term efficiency and stability for the judicial branch and develop practical, achievable recommendations that may be implemented by the Judicial Council, the Legislature, or the Governor.” To that end, the Futures Commission is looking at the need for court record in all cases:

A verbatim record of court proceedings is a fundamental component of access to justice. Verbatim court records show what the parties said and what the court did throughout a proceeding. Without a verbatim court record of a proceeding, the parties and the public know only the final determination of the proceeding; they do not have a complete or accurate account of court or party actions. A party, especially a self-represented party, is less likely to understand or finalize a court’s orders or pursue an effective appeal without a verbatim court record. Further, a verbatim court record memorializes a judge’s disclosures to the parties made during the proceedings. Yet despite the importance of verbatim court records, current law and the decrease in court funding over the years impede the right of all parties, including the court, to have a verbatim record of court proceedings. (Commission on the Future of California’s Court System, Agenda Concept 5 (Feb.8-9, 2016).)

Options that the Futures Commission will consider are: “1) the costs and benefits of the various methods for creating a record (e.g., in-court court reporting, remote court reporting, and electronic recording); 2) the costs and benefits of expanding the case types in which a court record is required; 3) the costs and benefits associated with the current ownership of the court record; and 4) possible statutory changes." (Id.) While it is not clear when the Futures Commission will be making recommendations, it is clear that it will take a legislative change to expand the use of electronic recording, but it would not require a legislative change to provide court reporters in all family law and civil actions. Courts can do that today and, indeed, as discussed above, some do.

Family law practitioners strongly support the need for a record in family law proceedings. Many 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. They argue that equal access to justice necessitates an official record in all family law proceedings. Writes the Bar Association of San Francisco:

While it would be ideal if court reporters could be present at all court proceedings, the unfortunate reality today is that due to budget constraints courts have largely removed reporters from civil courtrooms, including family law courtrooms. . . . The creation of a recording in family law proceedings is critically important. Family law cases routinely involve fundamental constitutional rights, such as the right to parent a child. Family law matters often involve victims seeking protection from domestic violence. The majority of family law litigants proceed without counsel. Many are unable to afford a private reporter, or even know that they might need one. The lack of a record means that there can be no meaningful appellate review, a lack of clarity about the orders made, and less accountability for judges.

The Family Violence Project (along with 20 public interest organizations), while neither supporting nor opposing this bill, has written to the Futures Commission of the need to provide all parties, but particularly survivors of domestic violence, with a record of their court proceedings: "Denying indigent family violence litigants a meaningful right to litigate their cases in the trial and appellate courts because they cannot afford a reporter's transcript imposes impermissibly discriminatory economic barriers to access to justice and raises severe die process concerns."

Adds the Association of Certified Family Law Specialists: "Family law has a very high percentage of self-represented litigants and most of them do not understand the need to request or bring with them a court reporter to ensure that their record is not only protected, but that they have a transcript that they can review with other parties to understand what may or may not have happened during their hearing and to assist them in the preparation of the Order After Hearing where there is a dispute."

The Association of Family and Conciliation Courts writes that court reporters are best, but without adequate funding, some other record must be provided:

Ideally California courts court should have the ability and funding (without funding this cannot happen) to have actual court reporters in each courtroom for all Family Law proceedings. That is not occurring and until the Legislature and Governor make this a priority it will not. The situation has created in effect a two-tier system that leaves the least financially able litigants (the overwhelming majority) unable to obtain a record of vital proceedings, let alone exercise their constitutional right to appeal a decision. This is a truly unacceptable and shameful state of affairs that even Appellate Courts are now commenting on and justifiably condemning.

While a record is critical, opponents argue that a court reporter provides a far superior record than an electronic recording. Opponents agree that court reporters are lacking in many family law proceedings and that, as a result, there is currently no official record in these proceedings. They also agree that family law matters are important, and deal with serious and complex issues. Indeed, the importance and complexity of these cases, opponents contend, is a strong argument against electronic reporting in these cases because a verbatim record is regularly needed for clarification and resolution of issues. Moreover, a court reporter can ensure appropriate protection of confidential information. Furthermore, they argue that a court reporter produces a vastly superior record to an electronic recording, and that a court reporter's transcript does not, unlike an electronic record, have missing or inaudible testimony.

The Alliance of California Judges, which has not submitted a letter either in support or opposition to this legislation, states:

We firmly believe that a certified shorthand reporter preparing a paper transcript provides the most accurate record for the parties and the strongest bulwark against false complaints of judicial misconduct. Anyone who has listened to an electronic recording of a court proceeding knows that it is no substitute for a reporter’s transcript. Moreover, further steps to reduce compensation to reporters will leave California struggling to find certified reporters, already a huge problem in states like Illinois and Pennsylvania, leaving courts with no option but to compromise due process by using unreliable and undecipherable electronic recordings.

LAO forecasts cost savings by using electronic recording of court proceedings in place of court reporters. A 2011 Legislative Analyst's Office (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), a transition could lead to savings the very first year. According to the LAO (though challenged by opponents), upon implementation of electronic reporting in all trial courts in California, annual savings could exceed $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:

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, 3 (Jan. 24, 2011).) In 2011, the author attempted to do just that with AB 803 (Wagner), which failed passage in this Committee on a vote of 2-7.

Alternatively, the LAO suggests that the Legislature could simply give courts the authority to permit electronic recording when the judge determined that was appropriate. (LAO, The 2013-14 Budget: Governor's Criminal Justice Proposals, 16 (Feb 15, 2013.) This bill would do just that for family law proceedings if no court reporter is available.

Opponents vehemently dispute the accuracy of the LAO’s reported savings, and contend that use of electronic recording will not be cost-effective and will in fact result in inaccurate records of court proceedings. The California Court Reporters Association (CCRA) analyzed the LAO 2011 report and stated, in response to the author's 2013 legislation, that implementation of electronic recording would not be cost-effective since the cost to purchase the equipment and hardwire the courtrooms would outweigh any personnel cost savings. 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 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. (Chris Crawford, A Cost Study of the Legislative Analyst’s Office Proposal To Expand Use of Digital Recording in California Courts, Justice Served (2009).)

Adds the Service Employees International Union:

A recording of a proceeding is NOT a verbatim record and it is NOT a transcript. It is simply a recording with unfortunate flaws. An accurate and complete record verbatim record is critical in a legal proceeding and ER [electronic recording] simply does not provide this. It has been repeatedly demonstrated that the use of audio recordings have jeopardized the accuracy and completeness of the verbatim record. Further, these electronic recordings have real and serious problems with inaudibles and inaccuracies, a sound such as ruffling of papers or a cough could muffle several words.

A Brief History of Electronic Recording in California Courts: 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 by using audio reporting and $42,000 per courtroom per year by using video, compared to using a court reporter. The 2011 LAO estimates of saving, presented above, are based on those Judicial Council findings.

The CCRA, however, strongly contended, in response to 2013 legislation, that 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 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, argued CCRA, included in the LAO’s cost projections. Today, the CCRA cites a recent comparison of court reporting and audio recording in California courts, which "demonstrated that when all costs [of switching to audio recording] are taken into account, 'the budgetary impact is an increase to the trial courts as a result of a shifting of costs from the court reporters to the courts.'" (Citation omitted.)

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. 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 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.)

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.

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.

AB 803 (Wagner), 2011, would have required the Judicial Council to implement electronic court reporting in all trial courts. That bill failed passage in this Committee.

AB 251 (Wagner), 2013, is identical to this bill and would have permitted use of electronic recording in family law proceedings. That bill failed passage in this Committee.

AB 749 (Bloom), 2015, would have required court reporters in domestic violence and contested child custody cases. That bill passed this Committee, but was held on the suspense file in the Assembly Appropriations Committee.

ARGUMENTS IN SUPPORT: The bill's sponsor, the Conference of California Bar Associations, writes that a record is necessary in family law cases to preserve the right to appeal, especially for unrepresented litigants, hold parties accountable for any threats or lies that are made on the record, help non-English speaking litigants, and protect the judicial disciplinary system. The bill does not seek to replace court reporters with electronic recording, writes the Conference of California Bar Associations. Rather, it has "the rights of family law litigants and their families take precedence even over the employment rights of court reporters. The arguments that electronic recording of court proceedings are not sufficiently accurate to be relied on certainly were valid in the 1990’s when first proffered, and may even have been valid in the past decade. They are no longer true today.”

Practitioners and advocates most familiar with the family courts strongly concur in the need for a record in family law proceedings. Writes the California Protective Parents Association:

There are numerous due process issues in California family courts currently. The most pressing issue is the absence of a court record made by a court reporter or electronic means in most courts. We wish to publically applaud the integrity of small Solano County and huge Los Angeles County for electing to employ court reporters in all family law hearings. The lack of a court record in other counties creates a huge problem for litigants, including a barrier to appeal. Litigants may get their day in court, but they do not have proof they did. These hearings impact the lives of California citizens every day, and must have due process. All courts need to ensure a record of hearing in family courts, whether by a court reporter or electronic means.

Adds the Association of Family and Conciliation Courts:

Many practitioners have had experience with the electronic recording of hearings that was fairly prevalent years ago. Although the quality of that recording raised concern, and a real obstacle ultimately to appeals, it did give both unrepresented and represented litigants needed facts and information to prepare adequate Findings and Orders After Hearing documents so enforceable orders existed to protect the parties and frequently their children. It was a workable and acceptable system in light of the decreasing availability of court reporters.

Since then the technology has vastly improved and costs are not anywhere near as great as the use of court reporters. To be clear, the [Association of Family and Conciliation Courts] supports the availability of court reporters to all litigants in Family Law. Given the harsh reality that the State will not allow this by providing sufficient funding, AB 1834 is viewed as a step in the right direction and absolutely necessary at this point in time.

ARGUMENTS IN OPPOSITION: In opposition, LIUNA Locals 777 & 792 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 proceedings.

The Orange County Superior Court Reporters Association writes that this bill would actually take court technology "five steps backward":

The Court Reporter's instantaneous real-time record of the oral proceedings is available to everyone in the courtroom within a nanosecond of the spoken word and is available for the judicial officer to read, and assist him/her in ruling on objections, motions, and case decisions. The real-time written record is available to litigants, their counsel, the jury and judicial officers for assistance and access to each ruling in a case's judicial life. It is written record of the justice occurring to the participants as it is happening, and it provides access to the judicial process for others to access, and is available immediately.

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.”

Moreover, they argue that electronic recording is “simply not as reliable [as court reporters]. 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 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. They also express frustration that while the state has begun reinvesting in the courts, courts have not prioritized accurate court records and court reporters: “Now that California has begun to reinvest in the trial courts, we unfortunately have not experienced the rehiring of court reporters in any meaningful way. The lack of prioritizing the use of court reporters to create a verbatim record for the public is in itself a great injustice to the public.”

Regardless of one's position on electronic recording, all stakeholders appear to agree that court reporters, when available, are superior to electronic recording and that this measure raises cost and critical access to justice issues. In light of the competing concerns raised by this bill, the Committee, as was suggested in the analysis of the author's 2013 AB 251, may wish to consider exploring with all stakeholders:

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 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. A court reporter's transcript is presumptively admissible. Would an electronic recording be presumptively admissible or would it need to be transcribed into a written record in order to be presumptively admissible in court? If so, given the not insubstantial costs of transcribing electronic recordings into a written transcripts, might electronic recording actually result in addition costs for the courts and for the parties?
5. How if at all can electronic recordings be made compliant with federal and state disability access laws?
6. Will family law litigants, especially those who must represent themselves, be helped or potentially harmed if electronic recording is made available to them in those courts where court reporters are not?

Despite the passage of three years since these questions were first asked with respect to AB 251, these questions still remain unanswered today. These questions should be explored more fully. Particularly in light of the fact that the situation remains unchanged from three years ago -- no more court reporters have been added and no greater access to justice has been achieved. In the interim, this Committee may wish to discuss with the author the possibility that, given the importance of family law proceedings, the need for a complete and accurate record in these cases, and the agreement by both supporters and opponents that court reporters are highly desirable in family law proceedings, the bill be amended to require court reporters in all family law proceedings, just as they are required today in, among other matters, all juvenile court proceedings.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

Association of Certified Family Law Specialists

Association of Family and Conciliation Courts

Bar Association of San Francisco

California Protective Parents Association

One individual

Opposition

Alameda County Official Court Reporters Association

American Federation of State, County and Municipal Employees, AFL-CIO

California Labor Federation

California Court Reporters Association

California Official Court Reporters Association

LIUNA Locals 777 & 792

Los Angeles County Court Reporters Association

Orange County Employees Association

Orange County Superior Court Reporters Association

Organization of SMUD Employees

Northern California Court Reporters Association

Professional and Technical Engineers, IFPTE Local 21

Sacramento Official Court Reporters Association

San Diego County Court Employees Association

San Diego Superior Court Reporters Association

San Luis Obispo County Employees Association

Service Employees International Union

We Never Sleep Proofreading

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334