Existing law requires an official reporter or official reporter pro tempore of the superior court to take down in shorthand specified information regarding the testimony and proceedings before the court in civil cases, felony cases, and misdemeanor or infraction cases on order of the court, and in only civil cases or felony cases, at the request of a party or counsel.

This bill would extend this requirement to domestic violence cases and child custody proceedings, as specified. require an official reporter or official reporter pro tempore to take down in shorthand all testimony and all of the statements and remarks of the judge and all persons appearing at any hearing at which testimony is received in child custody proceedings and proceedings under the Domestic Violence Prevention Act.

Under existing law, when a verbatim record of a superior court proceeding is not made at public expense, the cost of making that record is required to be paid by the parties in equal proportion, except that either party may, at his or her option, pay the whole.

This bill would make technical, nonsubstantive changes to these provisions.

Date of Hearing: May 6, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 749

Author:(Bloom) – As Amended Ver:April 16, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires that an official court reporter take down in shorthand all testimony and all statements and remarks of judges and all persons appearing at child custody and Domestic Violence Prevention Act proceedings.

FISCAL EFFECT:

The Judicial Council indicates that 26 counties currently are not providing court reporters in family law proceedings. Assuming each of these counties, on average, would have to hire one full-time court reporter at an average annual cost of $100,000 for salary and benefits, statewide costs would be $2.6 million. [Trial Court Trust Fund]

(The Judicial Council notes that family law calendars are not organized to group child custody and domestic violence hearings apart from other family law cases.

COMMENTS:

Background and Purpose. Court reporters take shorthand notes of court proceedings and produce a verbatim record of what transpires in court. Today court reporters are only mandated in some court proceedings, generally criminal and juvenile court proceedings. The lack of mandate for court reporters in civil actions coupled with budget cuts to the courts has resulted in many civil courtrooms across the state operating without court reporters, unless the parties decide to provide and pay for their own reporters. In family law cases, where life-altering decisions are made every day and the vast majority of litigants are unrepresented, court reporters are almost nonexistent. Without a court reporter to take down the proceedings, there is no report of what transpires in court. As a result, parties may be unable to draft orders accurately, and there is effectively no right to appeal. This bill mandates that court reporters take down all proceedings in child custody and domestic violence cases.

In preparing for an informational hearing in February 2013 intended to identify and better understand the impacts of budget reductions on the trial courts, the Assembly Judiciary Committee independently surveyed the 58 trial courts to assess what measures had been taken to address the cuts. The committee discovered that fully 30 courts had ceased providing court reporters for civil, family and probate proceedings.  In those courts, parties who wish to have an official record of proceedings must hire and pay the substantial cost of providing their own private court reporter.

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 749

Author:(Bloom) – As Amended Ver:March 26, 2015

As Proposed to be Amended

SUBJECT: COURT REPORTERS: FAMILY LAW

KEY ISSUE: IN ORDER TO ENSURE THAT PARTIES TO CHILD CUSTODY AND DOMESTIC VIOLENCE PROCEEDINGS, WHICH ARE AMONG THE MOST CRITICAL AND LIFE-ALTERING OF ALL JUDICIAL PROCEEDINGS, ARE PROVIDED WITH APPROPRIATE PROTECTION, SHOULD COURT REPORTERS BE REQUIRED IN THOSE CASES?

SYNOPSIS

Court reporters take shorthand notes of court proceedings and produce a verbatim record of what transpires in court. Today court reporters are only mandated in some court proceedings, generally criminal and juvenile court proceedings. The lack of mandate for court reporters in civil actions, coupled with budget cuts to the courts, has resulted in many civil courtrooms across the state operating without court reporters, unless the parties decide to provide and pay for their own reporters. In family law cases, where life-altering decisions are made every day and the vast majority of litigants are unrepresented, court reporters are almost nonexistent in courtrooms. Without a court reporter to take down the proceeding, there is no report of what transpires in court. As a result, parties may be unable to draft orders accurately, and there is effectively no right to appeal. This bill, sponsored by the California Court Reporters Association, mandates that court reporters take down all proceedings in child custody and domestic violence cases. The author states: "Given the importance of family law proceedings there is no question as to the need for a complete and accurate record for these cases. It is vitally important that California brings court reporters back to family law cases." This bill is supported by the Service Employees International Union, and has no reported opposition.

SUMMARY: Requires court reporters in child custody and domestic violence proceedings under the Family Code. Specifically, this bill requires that an official court reporter or an official court reporter pro tempore take down in shorthand all testimony and all statements and remarks of judges and all persons appearing at child custody and Domestic Violence Prevention Act proceedings.

EXISTING LAW:

1. Requires court reporters in all death penalty proceedings, juvenile court proceedings, and hearings on motions to withdraw consent to step-parent adoptions. (Penal Code Section 190.9; Welfare & Institutions Code Sections 347 and 677; Family Code Section 9005(d).)

2. Requires that a court reporter take down all testimony, objections made, rulings of the court, exceptions taken, arraignments, pleas, sentences, arguments of the attorneys to the jury, and statements and remarks made and oral instructions given by the judge or other judicial officer, in the following cases:

   1. In a civil case, on the order of the court or at the request of a party;

   2. In a felony case, on the order of the court or at the request of the prosecution, the defendant, or the attorney for the defendant; and

   3. In a misdemeanor or infraction case, on the order of the court. (Code of Civil Procedure Section 269.)

3. Permits a judge to have a court reporter in felony, unlimited civil, probate, juvenile and selected family law proceedings, including child custody and child support proceedings, take down any opinion, judgment or testimony, as provided, in short hand and transcribed, as the court deems necessary. (Code of Civil Procedure Section 274a.)

4. Provides that the court may direct the making of a verbatim record and that payment be from the county treasury on order of the court for: (a) Criminal matters; (b) juvenile proceedings; (c) proceedings to declare a minor free from custody; (d) proceedings under the Lanterman-Petris-Short Act; and (e) as otherwise provided by law. (Government Code Section 69952.)

5. 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).)

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

COMMENTS: Court reporters take shorthand notes of court proceedings and produce a verbatim record of what transpires in court. Today court reporters are only mandated in some court proceedings, generally criminal and juvenile court proceedings. The lack of mandate for court reporters in civil actions coupled with budget cuts to the courts has resulted in many civil courtrooms across the state operating without court reporters, unless the parties decide to provide and pay for their own reporters. In family law cases, where life-altering decisions are made every day and the vast majority of litigants are unrepresented, court reporters are almost nonexistent. Without a court reporter to take down the proceedings, there is no report of what transpires in court. As a result, parties may be unable to draft orders accurately, and there is effectively no right to appeal. This bill mandates that court reporters take down all proceedings in child custody and domestic violence cases.

In support of the bill, the author writes: "Given the importance of family law proceedings there is no question as to the need for a complete and accurate record for these cases. It is vitally important that California brings court reporters back to family law cases."

Basics on Court Reporters: According to the California Court Reporters Association, 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.

While Court Reporters are Permitted in Court Proceedings, They are Only Mandated in Certain Cases: California law specifically mandates that court reporters take down in shorthand all court proceedings and provide transcripts of those proceedings to certain cases, including all death penalty cases and dependency and delinquency proceedings in juvenile court. Additionally, both the United States Supreme Court and the California Supreme Court have held that an indigent criminal defendant has a right to a free transcript. (Britt v. North Carolina (1971) 404 U.S. 226, 230; People v. Hosner (1975) 15 Cal.3d 60, 65.) The right to a transcript – and hence the right to a court reporter – in felony cases is also codified in Code of Civil Procedure Section 269 and California Rule of Court, Rule 8.336.

More generally, Code of Civil Procedure Section 269 provides that an official court reporter shall transcribe civil, felony, and misdemeanor proceedings if ordered by the court or, in civil or felony cases, if requested by the parties. However this provision does not require that, in civil cases, a court reporter be provided free of charge, nor does it require that transcripts be provided for free. Parties have a right to hire a court reporter for their civil matters, but unless specifically required otherwise, the court is currently not required to provide a court reporter for them. In particular Rule of Court 2.956(c) states:

If the services of an official court reporter are not available for a hearing or trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. It is that party's responsibility to pay the reporter's fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law.

Except as provided for indigent parties under the Transcript Reimbursement Fund (a limited fund that helps indigent parties in civil actions obtain transcripts for free, see Business & Professions Code Section 8030.2 et seq.), courts are only authorized to provide free transcripts in limited instances: criminal matters, juvenile proceedings, Lanterman-Petris-Short Act proceedings, or other proceedings provided by law. (Government Code Section 69952.) In fact, state law provides that: “Except as provided in [Government Code] Section 69952, no reporter shall perform any service in a civil action other than transcriptions until his fee for it has been deposited with the clerk of the court or with the reporter.” (Government Code Section 69953.)

Court Budget Reductions in California Have Dramatically Reduced Civil Courtrooms with Court Reporters: As a result of the recession and the state budget crisis, the trial courts' budget has been reduced significantly (although the courts' budget has increased each of the last two years and is scheduled for another increase this year, but still below pre-recession levels). On February 12, 2013, this Committee held an informational hearing titled “The Access to Justice Crisis Facing California’s Families” in order to identify and better understand the impacts of budget reductions on the trial courts.  In preparing for that hearing, this Committee independently surveyed the 58 trial courts to assess what measures the courts have taken to address the cuts and discovered that fully 30 courts had ceased providing court reporters for civil, family and probate proceedings.  In those courts, parties who wish to have an official record of proceedings must hire and pay the substantial cost of providing their own private court reporter. 

Judicial Council Task Force Has Highlighted the Need For Better Access To Records In Family Law Proceedings Generally: As a result of the dearth of court reporters in family law proceedings, there is all too often 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 – who make up the vast majority of family law litigants – about the basic nature of the court's orders, and there is no recording or reporting of any kind for them to review after the hearing, often making it impossible to draft accurate orders. Yet family law matters generally, and the specific matters covered by this bill – child custody and domestic violence – arguably include some of the most important matters facing children and families. 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.))

Family Law Judges and Practitioners Strongly Support the Need For a Record in Family Law Proceedings: Judges and family law practitioners alike support having court reporters in family law proceedings. Judge Kimberly Nystrom-Geist, testifying at the Senate Judiciary Committee's March 11, 2014 informational hearing entitled "Family Law Courts: Budget Cutbacks and Access to Justice," stated: "Without a court reporter, there is no record. Everyone suffers. The public doesn’t know if the judge did the job right. The litigants can't have an appeal. Without appeals, we have no case law, and it stifles the development of family law."

Family law practitioners strongly concur in the need for a record in important family law proceedings. Wrote one practitioner in support of AB 251 (Wagner), 2013, which would have permitted electronic recording in family law cases, but failed in this Committee:

Due to budgetary restraints, many family law hearings and trials are taking place without any record at all. Without a record there can be no meaningful appellate review, nor oversight of the family law judiciary. This situation also complicates preparation of written orders. This situation has a special impact in family law because these cases routinely involve fundamental constitutional rights; the vast majority of family law litigants represent themselves without counsel; and a large proportion of family law litigants are indigent. The courts are making orders regarding child custody and visitation, child support, spousal support and the division of assets and debts and there is often no written record. Access to justice should not be based on one’s ability to pay for a court reporter.

The Commission on Judicial Performance Believes Elimination of Court Reporters in Civil Proceedings Impairs Its Ability to Protect the Public: Without court reporters in the courtroom, there is very limited review of judges' actions, as well as their behavior. The Director-Chief Counsel of the Commission on Judicial Performance (CJP) wrote, in a letter to the Governor, the Chief Justice and legislative leaders, 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).)

This Bill May Not Go As Far As Necessary to Ensure That All Parties' Rights Are Protected: While this bill mandates that court reporters take testimony in all child custody and domestic violence proceedings, it does not require that court reporters are present in other family law proceedings or in civil proceedings generally. Moreover, while this bill directs that court reporters make a record of the proceedings, it does not require that parties be provided with a transcript. In order to obtain a transcript, the parties would first have to pay the court reporter for the transcript, which may make it nearly impossible for some parties to get a copy of the court record (other than through the limited Transcript Reimbursement Fund). Thus, while this bill is a good first step to helping ensure all parties have a right to a record in their court proceedings, it does not fully accomplish this important goal.

ARGUMENTS IN SUPPORT: The Service Employees International Union, writing about the need for the bill, states that family law "affects the most critical aspects of a person's life including child custody, personal safety, child support to be paid and received, and how assets will be divided between separating parties. These decisions have lasting impacts on individuals and families."

The sponsor adds:

As certified shorthand reporters, we know how important it is to have a complete and accurate record of court proceedings. Without a transcript, litigants are unable to appeal, parties struggle to draft orders effectively and it is nearly impossible to recount what happened during the trail with accuracy.

Under current law, court reporters are required to be made available in all criminal and juvenile proceedings because of the trial’s significant importance and impact on the litigants and individuals involved. However, in family law, California now has a two-tied justice system, where only parties who could afford to hire a private court reporter receive the benefits of a complete and accurate transcript. Given the importance of family law proceedings, there is no question as to the need for a complete and accurate record in these cases.

Related Pending Legislation: AB 804 (Hernández) would require the Court Reporters Board of California to establish minimum continuing education requirements for court reporters. That bill is now in the Assembly Appropriations Committee.

SB 270 (Mendoza) would allow the Court Reporters Board to bring a civil action to enjoin any person or entity from rendering court reporter services without being licensed. That bill is now in the Senate Business, Professions and Economic Development Committee.

Related Recent Legislation: ACR 20 (Stone), Res. Chap. 12, 2015, proclaims February 15, 2015, through February 21, 2015, as California Court Reporting and Captioning Week.

AB 251 (Wagner), 2013, would have allowed use of electronic recording in family law if a court reporter is unavailable. AB 803 (Wagner), 2011, would have allowed electronic recording in a specific percentage of courtrooms each year. Neither bill passed this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Court Reporters Association (sponsor)

Service Employees International Union

Opposition

None on file

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