Existing law establishes the Court Reporters Board of California to license and regulate shorthand reporters. Existing law establishes that a person who holds a valid certificate as a shorthand reporter shall be known as a certified shorthand reporter, and prohibits any other person, except as specified, from using that title or any words or symbols that indicate or tend to indicate that they are a certified shorthand reporter. A violation of the provisions regulating shorthand reporters is a misdemeanor. reporter. Existing law requires an individual to have satisfactorily passed an examination, as prescribed by the board, in order to be certified as a shorthand reporter.

Existing law authorizes a superior court to appoint official reporters and official reporters pro tempore as 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 instead permit a court to electronically record any civil case if approved electronic recording equipment is available. The bill would require a court to provide a certified shorthand reporter, as defined, the right of first refusal to transcribe an electronically reported proceeding. The bill would additionally require that the court make every effort to hire a court reporter before electing to electronically record the action or proceedings pursuant to these provisions.

Existing law appropriated $30,000,000 in both the 202122 and 202223 fiscal years to the Judicial Council to be allocated to courts to increase the number of official court reporters in family and civil law cases, as specified.

The bill would require the Judicial Council to collect information from courts regarding how they are utilizing funds appropriated to recruit and hire court reporters. The bill would require, beginning January 1, 2025, and annually thereafter until all such funds are expended, the Judicial Council to report to the Legislature the efforts courts have taken to hire and retain court reporters and how the funds appropriated for this purpose have been spent.

Existing law requires each city or county to adopt a general plan that includes, among other elements, a housing element, and requires each city or county to periodically revise its general plan. Existing law requires the Office of Planning and Research to notify a city or county with a general plan that has not been revised within 8 years, and to notify the Attorney General if the city or countys general plan is not revised within 10 years.

This bill would instead require the office to notify the Attorney General if the city or county has not updated its housing element within 12 years following that notification.

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 662 (Rubio) - Courts: court reporters

Bill Summary:

SB 662 would require the Court Reporter’s Board (CRB) to conduct a review and submit a report to the Legislature evaluating whether the California-specific examination required for licensure as a shorthand reporter is necessary to establish competency or if it poses a barrier to licensure, as specified. The bill would also permit the court to electronically record any civil case if approved electronic recording equipment is available and the court has made every effort to hire a court reporter before electing to electronically record the action or proceedings.

Fiscal Impact:

• Unknown one-time and ongoing costs, possibly in the millions or tens of millions, for courts to purchase, lease, and otherwise outfit courtrooms with staff and equipment in order to conduct electronic recording of proceedings in all civil cases where there is no court reporter available, as specified. See Staff Comments for additional detail.
  
• The CRB reports no additional fiscal impact, as it is currently doing an occupational analysis in consultation with the Office of Professional Examination Services (OPES) that will cover the requirements of this bill. The cost of the analysis is approximately $66,000 (Court Reporters Fund).

Background:

The Court Reporter’s Board. The CRB is responsible for licensing and disciplining certified shorthand reporters (CSRs). The CRB determines the educational requirements for licensure standards and approves schools. CSRs are highly trained professionals who either through stenograph or through means of voice writing systems preserve the words spoken in a wide variety of official legal settings such as court hearings, trials, and other pretrial litigation-related proceedings, namely depositions. CSRs work in courtrooms as official reporters or in the private sector as freelance reporters who provide deposition services. CSRs are officers of the court and their competence, impartiality, and professionalism must be beyond question. A complete and accurate transcript of the proceedings made by an impartial third party is the cornerstone for all appeal rights. These transcripts, which include testimony given under oath, are relied upon by the consumer as an accurate source of information.

Licenses are renewed annually, and are due on the last day of the licensee’s birth month. The CRB is currently processing all applications and renewals within two to five business days, and notes that it is licensing out of state applicants, on average, within five days.

All applicants for licensure must pass the CSR examination. The vast majority of applicants qualify to take the CSR examination by completing a training program through a recognized California court reporting school. If qualifying through a court reporting school, the applicant must also have passed one speed examination, known as a qualifier. A variety of basic information is required to be submitted by examination applicants, including the nature and length of any work experience that can be used to establish the minimum one year (1,400 hours) of qualifying work experience. The CRB considers work experience from the military as an acceptable form of work experience for the license application. The CRB also requires applicants to submit fingerprints in order to determine prior criminal background. If applicants are, or have been licensed in another state, CRB checks for a history of disciplinary actions by the licensing agency of that state. There are no differences in the requirements for out of state and out-of-country applicants. All applicants must complete the same requirements in order to obtain licensure.

Applicants must pass all parts of a three-part examination, consisting of two written portions and one practical or skills portion. The first written portion is Professional Practice, a 100-item multiple-choice examination that tests knowledge of medical and legal terminology, ethics and code requirements. The second written portion is English, which is another 100-item multiple-choice examination, which tests minimum competency in grammar, spelling and punctuation.

Both written portions are administered via a computer-based testing vendor and available three times each year in California. The skills portion is offered three times as well in March, July and November.

Applicants must qualify to sit for the examination through one of five methods: 1) One year of experience (a minimum of 1,400 hours) in making verbatim records of depositions, arbitrations, hearings or judicial or related proceedings by means of written symbols or abbreviations in shorthand or machine shorthand writing and transcribing these records; 2) A verified certificate of satisfactory completion of a prescribed course of study in a recognized court reporting school or a certificate from the school that evidences an equivalent proficiency and the ability to make a verbatim record of material dictated in accordance with regulations adopted by the CRB contained in regulations; 3) A certificate from the National Court Reporters Association (NCRA) demonstrating proficiency in machine shorthand reporting; 4) A passing grade on the California state hearing reporter's examination; and, 5) A valid certified shorthand reporter’s certificate or license to practice shorthand reporting issued by a state other than California whose requirements and licensing examination are substantially the same as those in California.

Applicants have three years to pass all three parts of the examination before they are required to take the entire examination package again. They may take or retake the failed portions up to three times per year. Out-of-state applicants may qualify for the examination by holding a certificate from the NCRA, which requires passing a national examination, but are still required to take the California examination. There is currently not an endorsement process and the CRB does not have reciprocity with other states. If practicing in another state, there is a pathway that does not require attendance at a California-based school.

Electronic Recording of Civil Cases. As a general rule, the official record of a court proceeding can be made only by a shorthand reporter licensed to practice by the CRB. To obtain a license, a person must pass a three-part exam and, generally, graduate from a state-approved school that takes four years to graduate. Court reporters are vital to the litigation process: “the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have [their] claims of trial court error resolved by the appellate court.” Felony, dependency, and juvenile justice proceedings are automatically reported; in civil trials, any party may request that a court reporter make a record of the proceedings. Additionally, if a party in a civil case has a fee waiver, the court must make a court reporter available for that litigant, even if the court does not otherwise provide court reporters for that case type.

There are exceptions to the rule requiring the record to be made by an official court reporter: in a limited civil, misdemeanor, or infraction case, the court may authorize the proceeding to be electronically recorded and transcribed after the fact by a person designated by the clerk of the court. Other jurisdictions currently use electronic recording in a wide array of cases, including the federal government.

Court Reporter Shortage. Prior to budget cuts made by the state in connection with the Great Recession, California’s courts generally made official court reporters available for civil trials. Many of these court reporters were court employees who “occupy a unique dual status,” because they are “considered court employees when taking notes in a recorded proceeding but operate as independent contractors when producing and selling the certified verbatim transcript.” As a result of budget cuts, however, many courts opted to reduce their number of employee court reporters and adopted policies for providing official court reporters only in narrow categories of civil cases that do not include “ordinary contract, personal injury, or professional negligence cases.” The Superior Court for the County of Los Angeles recently announced that it would no longer provide court reporters in family law and probate matters or for cases in the writs and receiver departments.

If a party in a matter in which the court does not provide a reporter wishes to have a record of the proceeding made, the party has to arrange for a non-employee reporter to attend and make a record of the matter. The per diem cost for an independent reporter can represent a significant expense for litigants, and stakeholders report that independent reporter costs can be prohibitively expensive. Litigants have also reported being unable to find reporters for certain trials and proceedings.

In recent years, the Legislature has taken steps to encourage the courts to hire more court reporters as employees so as to minimize the number of litigants who have to find an outside-contractor reporter. The 2021 Budget Act included a grant of $30 million to increase the number of court reporters in family law and civil law cases. And in 2022, the Legislature authorized the Court Reporters Board to license voice writers as shorthand reporters with the goal of increasing the number of available licensed reporters: the training period for voice writers is generally shorter and less expensive than that for reporters who make a record of the proceedings through shorthand or stenographic means.

At the Senate Judiciary Committee’s informational hearing on March 7, 2023—The Judicial Branch: Protecting Access to Justice as the COVID-19 State of Emergency Expires—the Executive Officer of the CRB stated that there is currently a sufficient number of licensed court reporters to meet the demand for court reporters. According to the Judicial Council (JCC), however, as of July 1, 2022, the courts had a 20 percent vacancy rate statewide for court reporter positions, 10 percent higher than the prior year. Stakeholders disagree on the reason the vacancies continue despite the additional funding. The JCC reports that courts have made extensive efforts to hire court reporters, including generous signing and retention bonuses. Court reporters have reported that, in many cases, the salaries offered by courts are insufficient to draw court reporters away from the freedom of being a freelance court reporter; they have also reported instances wherein courts have failed to extend an offer to a court reporter despite having several qualified applicants.

This bill expands the current law that authorizes a case to be electronically recorded when no court reporter is available, extending the provision to any civil case. The bill also adds two conditions, in addition to the unavailability of a court reporter, for using electronic recording: the court must provide a certified shorthand reporter with the right of first refusal to transcribe the proceedings, and the court “shall make every effort” to hire a court reporter for an action or proceeding before electing to use electronic reporting.

The bill also requires the JCC to collect information from the courts about how they are utilizing funds specifically designated by the Legislature for the hiring and retention of official court reporters. The bill requires JCC, beginning January 1, 2025, report to the Legislature on the efforts taken to spend the funds; the reports must be made annually until the funds are expended.

Proposed Law:

• Requires the CRB, in consultation with the OPES in the Department of Consumer Affairs (DCA), to conduct a review of the examination required for licensure as a CSR and evaluate the necessity of requiring applicants to pass either the NCRA’s or the National Verbatim Reporters Association’s (NVRA) certification examination.
• Requires the CRB to evaluate whether the examination required for licensure as a CSR should be replaced with acceptance of the NCRA’s or the NVRA’s certification examination to establish proficiency in machine shorthand reporting or voice writing.
• Requires the CRB to submit its finding to the appropriate legislative policy committees by June 1, 2024 during its regular Joint Sunset Review Oversight Hearing.
• Authorizes the CRB, if it concludes that the California-specific examination is not necessary to establish competency as a CSR and poses a barrier to licensure, to vote to replace the examination with the NCRA’s or NVRA’s certification examination.
• Expands the provisions allowing an action or proceeding to be recorded, when an official court reporter is unavailable, to permit recording in any civil case, and adds the following requirements relating to electronic recording generally:
  • If a transcript of the recorded proceeding is requested, the court shall provide a certified shorthand reporter the right of first refusal to transcribe the electronically recorded proceeding.
  • The court shall make every effort to hire a court reporter for an action or proceeding before electing to electronically record the proceeding.
• Requires the JCC to adopt rules or standards regarding the use of electronic recordings to ensure recordings are able to be easily transcribed.
• Requires the JCC to collect information from courts regarding how they are utilizing funds appropriated to recruit and hire court reporters. Courts shall include whether the court reporters they have hired are court reporters that are returning to court reporting after having left the profession, coming from another court, coming from the private market, or are new to the profession in California.
• Requires the JCC, beginning January 1, 2025, and annually thereafter until all such funds are expended, to report to the Legislature on its efforts to hire and retain court reporters and how the funds appropriated for the purpose have been spent. The report shall include whether the court reporters that have been hired are court reporters that are returning to court reporting after having left the profession, coming from a different court, coming from the private market, or are new to the profession in California.

Related Legislation:

• AB 1834 (Wagner, 2015) would have allowed a court to use electronic recording in a family law case if an official court reporter is unavailable. AB 1834 died in the Assembly Judiciary Committee.
• AB 251 (Wagner, 2013) would have allowed a court to use electronic recording in a family law case if an official court reporter is unavailable. AB 251 died in the Assembly Judiciary Committee.

Staff Comments:

Current law authorizes the electronic recording of limited civil cases (meaning civil cases in which the amount in controversy is less than $25,000), as well low level criminal cases (misdemeanors and infractions), provided that there is no court reporter available and subject to the availability of approved equipment and equipment monitors. Current law also requires the JCC to report on the electronic recording equipment purchased or leased by Superior Courts. JCC submits the report twice per year. Over the past several years, the courts have spent an average of approximately $500,000 per year to purchase and lease recording equipment. Those costs would likely increase substantially in the short term, due to the reported lack of availability of court reporters and the expansion of electronic recording authority to any civil case. Between unlimited civil cases, and family and juvenile cases, there were more than half a million filings in 2022. Over time, there may be costs savings to the courts as the electronic equipment is permanently purchased and implemented, making live-transcription expenditures unnecessary.

Staff notes that the boards and bureaus within the DCA are special fund agencies whose activities are funded by regulatory and license fees and generally receive no support from the General Fund. New legislative mandates, even those modest in scope, may in totality create new cost pressures and impact the entity’s operating costs, future budget requests, or license fees.

-- END --

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Richard Roth, Chair

2023 - 2024 Regular

Bill No: Hearing Date: April 24, 2023

Subject:

SUMMARY:

Authorizes the Court Reporters Board (CRB) to issue a provisional certificate to perform the duties of a certified shorthand reporter (CSR) if they meet criteria for licensure other than passage of the California examination, and authorizes a court to electronically record any civil case for purpose of creating the official record, provided that no CSR is available, and requires the Judicial Council to comply with specified reporting requirements.

NOTE:

This measure was double-referred to this committee and the Senate Committee on Judiciary. It passed the Senate Committee on Judiciary April 18, 2023 on a 8-0-3 vote.

Existing law:

1. Establishes the CRB, tasked with the licensure and regulations of CSRs and the administration of the Transcript Reimbursement Fund (TRF), as specified. (Business and Professions Code (BPC) §§ 8000 et seq.)
   
2. Defines the practice of shorthand reporting as the making, by means of written symbols or abbreviations in shorthand or machine shorthand writing, of a verbatim record of any oral court proceeding, deposition, court ordered hearing or arbitration, or proceeding before any grand jury, referee, or court commissioner and the accurate transcription thereof. (BPC § 8017)
   
3. Defines voice writer as a CSR that makes a verbatim record or a proceeding using a closed microphone voice dictation silencer, steno, or similar device using oral shorthand and voice notes and defines voice writing to mean a verbatim record or a proceeding using a closed microphone voice dictation silencer, steno mask, or similar device using oral shorthand and voice notes made by a CSR. (BPC § 8017.5)
   
4. States that a person is eligible for licensure as a CRB if they are 18 years of age, have not committed any specified crimes constituting grounds for denial, have a high school education or its equivalent, and pass an examination as prescribed by the CRB. Specifies that an individual is eligible to take the examination of they have either:
5. One year of experience making verbatim records of depositions, arbitrations, hearings, or judicial or related proceedings by means of written symbols or abbreviations in shorthand or machine shorthand writing or voice writing and transcribing these records.
6. A verified certificate completion in a course of study from a recognized court reporting school, or a certificate from the school that evidences an equivalent proficiency and the ability to make a verbatim record of material dictated.
7. A certificate from the National Court Reporters Association (NCRA) or the National Verbatim Reporters Association demonstrating proficiency in machine shorthand reporting or voice writing.
8. A passing grade on the California state hearing reporters examination.
9. A valid CSR certificate or license to practice shorthand reporting issued by a state other than California whose requirements and licensing examination are substantially the same as those in California. (BPC § 8020)
   
10. Prohibits the issuance of a shorthand reporting certificate without passing an examination prescribed by the CRB. (BPC § 8023)
    
11. Establishes the TRF, administered by the CRB, for purposes of providing shorthand reporting services to low-income litigants in civil cases who are otherwise unable to afford those services and sunsets those provisions on January 1, 2020. (BPC § 8030.2(a)(g))
    
12. Provides that no person shall be appointed to the position of official court reporter of any court unless the person has first obtained a license to practice as a CSR from the CRB. (Government Code (GC) § 69942.)
    
13. Provides that, in a limited civil, misdemeanor, or infraction case, if an official court reporter is unavailable to report an action or proceeding in a court, the court may order the action or proceeding to be electronically recorded for purposes of creating the verbatim record, provided that the court has the approved equipment for doing so. (GC § 69957(a).)

This bill:

1. Authorizes the CRB to issue a provisional certificate, valid for only three years, to perform the duties of a CSR in a California court to an individual who meets either of the following:
   
2. Registered Professional Reporter (RPR) examination administered by the NCRA; or,
3. The individual is eligible to take the CRB examination
4. Permits a court to record an action or proceeding, when a CSR is unavailable in any civil case or a misdemeanor infraction case, instead of in limited cases.
   
5. Requires a court to provide a CSR the first right of refusal to transcribe the electronically recorded proceeding, if a transcript of court proceedings is requested.
   
6. Requires the court to make every effort to hire a CSR for an action or proceeding before electing to have the action or proceeding be electronically recorded.
   
7. Requires the Judicial Council to adopt rules and standards regarding the use of electronic recordings to ensure recordings are easily transcribed.
   
8. Requires the Judicial Council to collect information from courts regarding how they are utilizing funds appropriated to recruit and hire court reporters. Courts must include whether the CSRs they have hired are CSRs that are returning to court reporting after leaving the profession, coming from another court, coming from the private market, or are new to the profession in California.
   
9. Requires the Judicial Council, beginning January 1, 2025, and annually thereafter until all such funds are expended, to report to the Legislature on its efforts to hire and retain court reporters and how the funds appropriated for the purpose have been spent. The report must include whether the CSRs that have been hired are court reporters that are returning to court reporting after having left the profession, coming from a different court, coming from the private market, or are new to the profession in California.

FISCAL EFFECT:

Unknown. This bill is keyed fiscal by Legislative Council.

COMMENTS:

1. Purpose. This bill aims to address two issues: 1) the workforce shortage of CSRs in the court system; and 2) expand the courts eligibility to utilize electronic recording in the absence of available CSRs. This bill is sponsored by the Family Violence Appellate Project and the Legal Aid Association of California.

According to the author, “California has a severe shortage of Certified Shorthand Reporters. Over 60% of California courts report they cannot routinely provide court reporters for non-mandated cases, including civil, family law, and probate cases.¹ Currently, 75% of California’s courts are actively recruiting for court reporters.² While the number of cases filed in California courts increases every year, the number of certified shorthand reporters in California has decreased by over 17% in the past decade.”

The Author states that “While court reporting is perhaps the most important role certified shorthand reporters play in the justice system, it is not the most common role or the most lucrative role these highly skilled professionals fulfill. Most shorthand reporting takes place outside the courtroom in depositions, administrative hearings, and other private litigation proceedings. The resulting shortage of court reporters severely impacts family law matters, where 75% of cases involve self-represented litigants.”

According to the Author, “Indigent litigants with fee-waivers have the right to a free court reporter, upon request. They can also have a free transcript made with funds from the transcript reimbursement fund. However, legal services providers report that courts are often unable to fulfill these requests and require litigants to return to court repeatedly in the hope that a court reporter will be available. This comes at a tremendous financial cost for missed work, childcare, transportation, etc. For survivors of abuse the emotional toll is also significant. As a result, people often chose to proceed without a court reporter, even when they are entitled to one. Wealthy litigants can bring their own court reporter to court. However, the vast majority of Californians won’t qualify for a free court reporter and can’t afford one. According to a recent survey, the cost of a private court reporter is $3,300 per day of trial.”

The Author states that “A verbatim record of what happens at hearings is crucial to understanding what the judge has ordered and why. Without a record, a party, especially a self-represented party, is less likely to understand a court's decision or be able to draft the text for a court's orders so they can be enforced. Lack of a verbatim record also makes appealing a wrong or dangerous decision nearly impossible. Likewise, child custody and visitation orders should be modified when there is a change in circumstances impacting a child’s best interest, but a record is necessary to establish what the original circumstances were. Relying on the memory of judges, who hear hundreds of cases, and rotate assignments frequently won’t work.”

1. Background.

CRB and CSRs. The CRB is responsible for licensing and disciplining CSRs. The CRB determines the educational requirements for licensure standards and approves schools. Since 1972, the CRB has permitted the certification of individuals and at one time, the registration of shorthand reporting corporations. In addition to licensing and disciplinary functions, the CRB enforces the professional standards of practice (16 CCR § 2475) for certified shorthand professionals.

CSRs are highly trained professionals who either through stenograph or through means of voice writing systems preserve the words spoken in a wide variety of official legal settings such as court hearings, trials, and other pretrial litigation-related proceedings, namely depositions. CSRs work in courtrooms as official reporters or in the private sector as freelance reporters who provide deposition services. CSRs are officers of the court and their competence, impartiality, and professionalism must be beyond question. A complete and accurate transcript of the proceedings made by an impartial third party is the cornerstone for all appeal rights. These transcripts, which include testimony given under oath, are relied upon by the consumer as an accurate source of information.

Courts of appeal, particularly for criminal cases, rely exclusively upon written briefs and written transcripts of court proceedings to determine whether there were errors in the trial’s procedure or errors in the judge’s interpretation of the law. A conviction can stand or fall based entirely upon what was said by a witness, a lawyer, a juror or a judge—testimony that is solely reflected in the written transcript. In civil cases, millions of dollars, lifelong careers, or the fate of business enterprises can hinge on what was said or not said in a deposition or at trial. Furthermore, the testimony in civil and criminal cases is often filled with technical terminology. No matter how obscure or technical, such jargon must be verbatim in the written transcript and CSRs are charged with ensuring its accuracy. Additionally, the practice of court reporting is dictated by many statutes and regulations in California including, the BPC, Gov Code, Code of Civil Procedure and the Civil Code.

Laws governing CSRs are found in the Shorthand Reporters Act (Act) (BPC § 8000 et seq.) and all licensed CSRs are required to abide by the laws specified in the Act and other applicable statues and regulations. In addition, Codes governing deposition/freelance reporter practices can be found in the Code of Civil Procedure § 2025 et seq. In California, an individual who has obtained a certificate as a CSR from the CRB can work in courts as an official reporter or as a freelance reporter. The certificate to practice is valid in either area practice.

Licensing, Qualifications, and Examinations. The primary objective of licensing CSRs is to ensure that consumers receive accurate and timely service. The CRB provides public protection by ensuring licenses or registrations are issued only to applicants who meet the minimum requirements of current statutes and regulations and who have not committed acts that would be grounds for denial. Licenses are renewed annually, and are due on the last day of the licensee’s birth month. The CRB is currently processing all applications and renewals within two to five business days, and notes that it is licensing out of state applicants, on average, within five days.

All applicants for licensure must pass the CSR examination. The vast majority of applicants qualify to take the CSR examination by completing a training program through a recognized California court reporting school. If qualifying through a court reporting school, the applicant must also have passed one speed examination, known as a qualifier. A variety of basic information is required to be submitted by examination applicants, including the nature and length of any work experience that can be used to establish the minimum one year (1,400 hours) of qualifying work experience. The CRB considers work experience from the military as an acceptable form of work experience for the license application. The CRB also requires applicants to submit fingerprints in order to determine prior criminal background. If applicants are, or have been licensed in another state, CRB checks for a history of disciplinary actions by the licensing agency of that state. There are no differences in the requirements for out of state and out-of-country applicants. All applicants must complete the same requirements in order to obtain licensure.

Applicants must pass all parts of a three-part examination, consisting of two written portions and one practical or skills portion. The first written portion is Professional Practice, a 100-item multiple-choice examination that tests knowledge of medical and legal terminology, ethics and code requirements. The second written portion is English, which is another 100-item multiple-choice examination, which tests minimum competency in grammar, spelling and punctuation.

Both written portions are administered via a computer-based testing vendor and available three times each year in California. The skills portion is offered three times as well in March, July and November.

Applicants must qualify to sit for the examination through one of five methods: 1) One year of experience (a minimum of 1,400 hours) in making verbatim records of depositions, arbitrations, hearings or judicial or related proceedings by means of written symbols or abbreviations in shorthand or machine shorthand writing and transcribing these records; 2) A verified certificate of satisfactory completion of a prescribed course of study in a recognized court reporting school or a certificate from the school that evidences an equivalent proficiency and the ability to make a verbatim record of material dictated in accordance with regulations adopted by the CRB contained in regulations; 3) A certificate from the NCRA demonstrating proficiency in machine shorthand reporting; 4) A passing grade on the California state hearing reporter's examination; and, 5) A valid certified shorthand reporter’s certificate or license to practice shorthand reporting issued by a state other than California whose requirements and licensing examination are substantially the same as those in California.

Applicants have three years to pass all three parts of the examination before they are required to take the entire examination package again. They may take or retake the failed portions up to three times per year. Out-of-state applicants may qualify for the examination by holding a certificate from the NCRA, which requires passing a national examination, but are still required to take the California examination. There is currently not an endorsement process and the CRB does not have reciprocity with other states. If practicing in another state, there is a pathway that does not require attendance at a California-based school.

CSR Shortage. According to annual licensing data, the number of CSRs in California has been declining. In FY 2019-20, the CRB issued 66 new licenses and had a total licensing population of 6,085. In FY 2020-21, the CRB issued 39 certificates and had a total licensing population of 5,703. In FY 2021-22, the CRB issued 35 new licenses and registered a total licensing population of 5,668.

According to information contained in a quick facts document from the Superior Court of Los Angeles, there are approximately 1,200 full-time CSRs employed by the courts but there is a need for an additional 650 full-time reporters.

As part of the workforce concerns raised by a number of stakeholders including the author and sponsor, the low numbers of CSRs may relate to a lack of educational programs and low passage rates on the CRB-examination. For the skills portion of the November 2022 test had an overall pass rate of 56.7% for first time test takers. There were 30 first time applicants and 17 passed. Because there are also individuals who take and fail the examination multiple times, it is important to recognize the differences between the first time passage rate and the overall passage rate, which can be lower. For example, for the skills portion of the examination in November 2022, there were 81 overall applications, with 21 passing for an overall pass rate of 25.9%. Meaning, only four individuals who had likely previously taken the examination passed on a repeat attempt.

The passage rates for the National Court Reporter Certifying Examination, as provided on the NCRA’s website report for the skills test for 2022, there was an average pass rate of 35% and for the written test was 55%. It is unclear if this is overall pass rate or first time test takers.

As specified in BPC § 139, the CRB is required to conduct an occupational analysis for its examination. The last of which was conducted in 2017.

Sunset Review Oversight of CRB. Each year, this committee and the Assembly Committee on Business and Professions conduct joint sunset review oversight hearings to review the boards and bureaus under the DCA. Boards and bureaus are responsible for protecting consumers and the public and regulating the professionals they license. The sunset review process provides an opportunity for the DCA, the Legislature, the boards, interested parties and stakeholders to discuss the performance of the boards, and make recommendations for improvements. The sunset review process is an opportune time for the Legislature to inquire of the regulatory entities whether or not their licensing program is still necessary and if any changes to the practice acts or the administrator’s authority are necessary to ensure public and consume protection. As part of that review, the committees inquire about the whether the education, examination and experience requirements are excessive when compared with other states and if they are they necessary to assure that practitioners are competent in addition to whether there may undue delays in the application processing, including providing the examination or in issuing the license. The CRB was last reviewed by the committees in 2018, and is set to sunset on January 1, 2025.

The CRB will participate in the annual sunset review process next year in 2024, a natural and appropriate time for the Legislature to inquire about CRB operations, as well as requirements like the California examination for CSR licensure or necessary measures to determine CSR efficacy and qualifications.

Courts. Courts are currently required to provide a CSR in felony, dependency, and juvenile justice proceedings and in civil cases where a party has a fee waiver. CSRs are not statutorily required to be provided by the courts in civil, family law, probate, misdemeanor criminal and traffic courtrooms. Under current law, GOV § 69957 prohibits courts from providing electronic recording in civil, family law and probate courtrooms, with the exception of limited civil, misdemeanor and infraction cases. Current law specifies that a CSR with a license issue by the CRB is the only authorized agent to be appointed as official court reporter of any court unless the person obtains a certificate from the CRB, with limited exceptions for electronic recording and transcription in limited civil, misdemeanor, or infraction cases as authorized by a court.

According to a recent release from the Superior Courts of California, “… many California courts do not have enough court reporters to cover mandated criminal felony matters – let alone the wide range of areas in which litigants need a record of court proceedings. Over 50% of the California courts have reported that they are unable to routinely cover non-mandated case types including civil, family law and probate.”

What Happens in Other States? Not every state requires a person to hold a license in order to practice “court reporting” services. Some states accept the NCRA Registered Professional Reporter examination national level certification in lieu of a state-level designation, including Georgia, Hawaii, Louisiana, New Hampshire, New Jersey, New Mexico and Utah to name a few. Some do not accept the Registered Professional Reporter certification, but rather administer their own certification examinations and have a state-level certification, which includes California, Idaho, Illinois, Michigan, Mississippi, Missouri and Nevada to name a few. There are states with voluntary or no licensing or certification requirements for court reporters. Florida, Indiana, Nebraska, New York, and Virginia offer voluntary certification programs while states such as Rhode Island, South Dakota, Vermont, West Virginia, Wisconsin no certification requirements.

Senate Judiciary Committee Action. This bill was recently heard in the Senate Committee on Judiciary on April 18, 2023 and passed with a 8-0-3 vote. That Committee’s jurisdiction and focus is on provisions of this bill that impact the courts and the authority to expand the use of electronic reporting. This Committee retains jurisdiction for provisions of the measure that changes the profession of CSRs or licensure changes that impact CRB. Specifically, this Committee would primarily review the proposed provisional license and its potential impact on those consumers who may rely on or receive services from an individual that is practicing at a level for which an examination is required to demonstrate competence, without demonstrating that competence. Relating to the judicial provisions of this bill, the Judiciary Committee analysis of this bill noted, “This bill would implement a sea change in how civil proceedings are reported in this state and gives the Judicial Council wide latitude in how to implement that change. This bill does not provide direction regarding minimum technological requirements, clarity regarding whether a separate employee is required to monitor the recording or standards for how to ensure the recording is properly started and stopped, or what safeguards are necessary to prevent lost or unintelligible recordings. The bill’s opponents report that the existing recording systems have problems with clarity when there is ambient noise, can have a hard time picking up higher or female voices, and inadvertently pick up privileged discussions between a client and counsel. This bill does not provide any guidance or guardrails to ensure these issues are resolved before the widespread adoption of electronic recording.”

1. Arguments in Support. Supporters note that “Electronic recording of court proceedings is already widely used and is a viable option to address the crisis we currently face. It is used in California-based federal courts, in state criminal courts, and widely throughout the rest of the country. In fact, California is one of only three states in the country that makes minimal use of electronic recording in state courts. There is no better evidence that electronic recording is a workable solution than that, where it is already allowed, it is utilized effectively and without major incident… SB 662 is uniquely positioned to be successful because of its two-pronged approach: it addresses the problem both by increasing the supply of court reporters available AND by providing a solution for the thousands of people not currently getting any record of their case.

The California Defense Counsel, California Judges Association, and Consumer Attorneys of California write that “It is indisputable that the numbers of licensed Certified Shorthand Reporters has been declining for years, with court reporting schools closing, and a very small number of new admittees joining the profession….Because of the supply-demand imbalance, court reporter fees for court proceedings where court reporters are not provided are skyrocketing. Lawyers have reported paying thousands of dollars per day in “appearance fees.” A few years ago, a one day deposition might have cost $600 - $1,000. Now $5,000 a day is not uncommon. This is simply not affordable for all but the wealthiest. Worse, practitioners report that increasingly court proceedings are being postponed due to the lack of Certified Shorthand Reporters…Simply put, it is past time for the Legislature to address the growing unavailability and unaffordability of court reporters. Because due process and access to justice issues are at stake, we would again express support for the balanced approach in SB 662 and respectfully request your “AYE” vote.”

The California Lawyers Association, in expressing support for the measure, notes that “the number of court reporters is not keeping pace with the need, and parties are often left with no verbatim record at all. This threatens access to justice, particularly for those who cannot afford to pay for their own private court reporter when the court does not have enough court reporters for civil cases. SB 662 will increase access to justice by addressing the critical shortage of court reporters.”

Superior Court of Los Angeles County writes that “In 2018, the California Supreme Court found that the lack of a verbatim record will “frequently be fatal” to a litigant’s ability to have an appeal decided on the merits. This falls heaviest on our communities’ most vulnerable litigants in family law, probate, and unlimited civil cases, where the Government Code now prohibits the Court from using electronic recording to capture a verbatim record. Many of these litigants are self-represented and unable to afford the exorbitant cost of hiring a private CSR, which can cost up to $3,300 a day. This places a verbatim record out of the reach of those without significant means, resulting in unequal access to justice for the vast majority of litigants in our Court.” The Superior Court notes “Very often self-represented litigants find themselves baffled or overwhelmed by their court proceedings and eventually obtain counsel, pro bono or otherwise, to aid them. A verbatim record enables the litigant to review what occurred during the proceeding and enables them to show it to a lawyer… The shortage of CSRs impacts all 58 counties in California. In Los Angeles County alone, in January and February of 2023, more than 52,000 court proceedings took place without a CSR or electronic recording to capture what occurred during the proceedings. At the current rate, our court projects more than 300,000 cases will be heard in 2023 without any official transcript.”

1. Arguments in Opposition. Opponents are primarily concerned with provisions in the bill related to electronic recording. Opponents state that “Since 1976, there have been statutory limits on ER because it offers litigants a substandard and unreliable product. Additionally, after a multi-year pilot project, the Legislature opted not to expand the use of ER because it confirmed how flawed and inappropriate recordings are in a court setting. Instead, the Legislature has repeatedly invested in the use of court reporters, which have always been considered and remain the gold standard in capturing the verbatim court record. Electronically recorded proceedings create two standards for those who have and those who do not. Those with means will be able to hire a private reporter to create an accurate transcript for appeals. Those without will be given a recording or automatically generated transcript riddled with “inaudibles.” The availability of an electronic recording does not advantage litigants who cannot afford a court reporter. It advantages those with the means to afford the premium product, a verbatim transcript. It’s been less than seven months since the $30 million provided to courts has been allocated to courts and less than seven months since the new voice writing licensure law was enacted. More can still be done, such as expanding the number of community college programs that train future reporters. Instead, SB 662 jumps to giving up on the court reporting profession. And, certainly, legislation that proposes to replace reporters with flawed and inferior technology is not the best way to entice more people to consider entering this profession. Again, using an official court reporter is extremely valuable to the legal process, and the benefits far outweigh those provided by electronic recordings. SB 662 would further diminish access to justice for those who are already disenfranchised and would undermine the democratic principle of equal justice.”

According to the California Court Reporters Association, “this bill sends a clear and unwarranted signal to court administrators throughout the state that they should NOT hire court reporters to cover civil cases, even for the most vulnerable case types - mental health calendars, domestic violence proceedings, and family law custody cases. Not only is this bill detrimental to the record keeping protections now afforded civil proceedings, it is absolutely contrary to the commitment the Governor and Legislature have made to provide live court reporters in these exact case types…The limited use of electronic recordings permitted by law in California’s courtrooms have catalogued numerous problems. For example, often the equipment does not pick up the voices of every individual in the courtroom. In Sacramento, for instance, a recording of a hearing was requested and the judge’s voice was not audible and missing from the majority of the recording, rendering the recording useless for any purpose…When recording equipment is utilized by the courts to capture the record, a transcript of the recording must still be produced to become the official record of the proceedings. There are ZERO mechanisms in place to certify the accuracy of this transcript produced from the recording. Whomever or whatever is hired to transcribe the recording was not present in the courtroom at the time of the recording and cannot independently clarify or determine what was said during the proceedings. A live court reporter, on the other hand, certifies what was said according to their stenographic notes of the proceedings and as a witness to the proceedings.”

1. Policy Issues for Consideration and Suggested Amendments.

Court hiring requirements may already impact the ability for CSR employment in California courts and challenges with the provisional license. A quick internet search for court reporter jobs yields a number of job listings in counties throughout the state hiring for the position of court reporter, a number of which specify qualifications a court reporter must satisfy to be eligible for the position. The majority require the individual to be licensed as a CSR by CRB, while some require a CSR to take and pass an examination specific to that county’s requirements. While these listings identify the need for an applicant to meet different thresholds of examination passage rates, one noted that an applicant for the position would have to meet a 200 words per minute threshold with a 97.5% accuracy, while another sought a 2-voice, 180 word per minute threshold with 95% accuracy. This bill attempts to deal with barriers that may exist at the CRB level by making it easier for individuals who do not pass a CRB examination to become licensed, potentially adding to the existing CSR workforce, however the pool of available CSRs to fill positions in California courts is likely impacted by individual employer requirements as well, given the high standards that CSRs have to meet for these jobs. The provisional license effort contained in this bill allows for licensure without having met the existing standards in place, standards that in this case, all current CSR licensees have met. If concerns exist about barriers to entry that the California examination causes, for example, rather than create a workaround, the appropriateness of the examination or other measures necessary for licensure should be evaluated and the Legislature should determine the necessity of those in place of an entirely new license pathway that creates disparity among CSRs – those who passed a California exam and those who did not but are still eligible for the same jobs and opportunities.

The author and sponsor have noted the importance of having official court reporters (CSRs) accessible to accurately transcribe and preserve the written record in a court proceeding. While simultaneously expressing concerns about the lack of available reporters who are either employed, willing to be employed, or are available to be employed by the courts. To address a potential workforce deficit, this bill would create a provisional license as new pathway to for individuals to obtain a license to practice in courts. As currently drafted, this bill provides that the provisional license is limited to three years, meaning and individual could be providing transcript in a court of law without taking and passing any portions of California’s licensure examination. The question arises as to what happens if after those three years, the individual continues to not successfully pass the examination-would they be able to apply for and obtain a new provisional license, as they remain eligible to take the examination, which is the only requirement needed to obtain a provisional license. As currently drafted, this bill does not limit it to a one-time provisional license.

In addition, this bill does not provide the CRB with any tools to review an applicant’s licensing, education or other history-especially for those who have passed the RPR examination. What if a license was revoked in another state-the CRB would not be able to review the applicants history. In addition, this bill does not provide the CRB with any fee authority for the issuance of a provisional license. Also, it is unclear if they will be able to hold themselves out as a CSR.

According to the author, “The bill expands the pool of CSRs who are eligible to work in California courts by creating a provisional certification program which will allow nationally certified CSRs or people who have graduated from a California CSR program and have one year experience to work in the court for up to 3 years or until they can pass the California CSR exam.” However, the individual will not have met all of the same level of requirements that a current CSR must obtain in order to practice, thereby establishing a two-tiered system of practitioners. Those who have taken and passed California’s examinations and those who have not. As currently drafted, the bill states that the provisional license holder would be authorized to work in the courts, but it does not expressly prohibit a provisional license holder from working in the freelance market. Additionally, it is unclear how the CRB would be knowledgeable of a provisional license holder’s employment status as they are not required to provide it to the CRB, nor are the courts. Additionally, it is unclear what enforcement authority the CRB would have for provisional license holders.

In order to address the issues created by Section 2 of the bill, the bill should be amended to strike the current language establishing a provisional license and should instead require CRB to evaluate the appropriateness and necessity of the existing examination and should provide information to the Legislature during the CRB’s upcoming sunset review oversight about whether the examination should remain in place, as well as what incentives and other efforts could be undertaken to increase CSR workforce capacity.

Regulatory board role in recruitment and retention. This bill makes a finding that the CRB should allocate funding toward recruitment and retention by publicizing the profession to high schools, vocational schools, and higher education institutions. It is unclear how a regulatory board would engage in recruitment and retention efforts, presumably for employers of that program’s licensees. Given that the CRB’s role is not to promote the profession, but rather licensing and enforcement, the bill should be amended to strike (p) from Section 1 of the bill that directs CRB to utilize its resources for recruitment and retention.

SUPPORT AND OPPOSITION:

Support:

A Window Between Worlds
Advocates for Child Empowerment and Safety
Asian Americans for Community Involvement
Asian Women's Shelter
Bet Tzedek
California Advocates for Nursing Home Reform
California Defense Counsel
California Judges Association
California Lawyers Association
California Partnership to End Domestic Violence
California Protective Parents Association
California Women's Law Center
Central California Family Crisis Center, INC.
Centro Legal de la Raza

Community Legal Aid Socal
Consumer Attorneys of California
Disability Rights California
Disability Rights Education and Defense Fund
Elder Law and Disability Rights Center
Empower Yolo
Family Violence Appellate Project
Family Violence Law Center
Healthy Alternatives to Violent Environments
Impact Fund

Inner City Law Center
Judicial Council of California
Legal Aid Association of California
Legal Aid Foundation of Los Angeles
Legal Aid of Marin
Legal Aid Society of San Diego
Legal Assistance to the Elderly
Legal Services for Prisoners With Children
Legislative Coalition to Prevent Child Abuse
Los Angeles Center for Law and Justice
Lumina Alliance
McGeorge School of Law Community Legal Services
National Health Law Program
Neighborhood Legal Services of Los Angeles County
Next Door Solutions to Domestic Violence
OneJustice
Solano County Superior Court
Superior Court of Los Angeles County
The People Concern
Western Center on Law & Poverty

Opposition:

AFSCME California

California Court Reporters Association
California Court Reporters Association Deposition Freelance Action Committee
California Labor Federation

California Public Defenders Association
County of Riverside Official Court Reporters Association
Deposition Reporters Association of California

International Union of Operating Engineers
National Court Reporters Association
Official Court Reporter for Orange County Superior Court
Official Court Reporters in Santa Clara County Superior Court

Orange County Employees Association
Professional and Technical Engineers, Local 21, AFL-CIO
Protect Your Record Project

SEIU California
United Public Employees

A number of individuals

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 662 (Author:Rubio)

Version: March 20, 2023

Hearing Date: April 18, 2023

Fiscal: Yes

Urgency: No

Consultant: AWM

SUBJECT

Courts: court reporters

DIGEST

This bill authorizes a court to electronically record any civil case, for the purpose of creating the official record, provided that no official reporter is available, as specified; and allows the Court Reporters Board of California (CRB) to issue provisional certificates to shorthand reporters who meet certain criteria.

EXECUTIVE SUMMARY

Generally speaking, only a certified shorthand court reporter may take down the verbatim record of a court proceeding for the creation of the official transcript. A court reporter may be certified to take down the proceedings through typographic or shorthand means or through voicewriting. The exception to the rule is that a court may electronically record a proceeding to create the verbatim record in limited civil, misdemeanor, and infraction cases if there is no official court reporter available.

Courts are currently required to provide a court reporter in felony, dependency, and juvenile justice proceedings, and in civil cases where a party has a fee waiver. (Jameson v. Desta (2018) 5 Cal.5th 594, 623.) In all other cases, the court may opt to provide a reporter or may leave it to the parties to provide their own court reporter.

This bill would allow a court to use electronic recording in lieu of a court reporter in all civil cases, provided (1) that the court has made “every effort” to hire a court reporter for an action or proceeding before authorizing electronic recording, and (2) that the court gives right of first refusal to transcribe the recording to a certified shorthand reporter. The bill also authorizes CRB to issue three-year provisional court reporter certifications to persons who have passed the Registered Professional Reporter examination administered by the National Court Reporters Association or are eligible to take the CRB’s court reporter examination. Finally, the bill requires the Judicial Council of California to annually report, beginning January 1, 2025, and until the funds are expended, on its efforts to spend funds granted by the Legislature specifically to assist in the hiring and retention of court reporters.

This bill is sponsored by the Family Violence Appellate Project and the Legal Aid Association of California, and is supported by the Judicial Council of California, over 40 organizations including California Defense Counsel, Consumer Attorneys of California, and organizations dedicated to representing low-income litigants and litigants in family law and domestic violence matters, and 212 individuals. This bill is opposed by AFSCME California, the California Court Reporters Association, the California Court Reporters Association Deposition Freelance Action Committee, the Deposition Reporters Association, the International Union of Operating Engineers, the Orange County Employees Association, the Protect Your Record Project, SEIU California, and 10 individuals. If this bill is passed by this Committee, it will next be heard by the Senate Business, Professions and Economic Development Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides that an official court reporter or official court reporter pro tempore^[1] of the superior court shall take down in shorthand 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.
   3. In a misdemeanor or infraction case, on the order of the court. (Code Civ. Proc., § 269(a).)
2. Requires the court to provide an official court reporter in felony, dependency, and juvenile justice proceedings. (Pen. Code, §§ 190.9, 869; Welf. & Inst. Code, §§ 347, 677.)
3. Requires the official court reporter, if a transcript is ordered by the court or requested by a party or nonparty entitled to receive the transcript, to, within a reasonable time, transcribe the proceedings, certify that the transcripts were correctly reported and transcribed, and, when directed by the court, file the transcripts with the clerk of the court. (Code Civ. Proc., § 269(b).)
   1. A transcript may be delivered in electronic form, as specified. (Code Civ. Proc., § 271.)
   2. The report of the official court reporter, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case, is prima facie evidence of that testimony and proceedings. (Code Civ. Proc., § 273.)
4. Provides that no person shall be appointed to the position of official court reporter of any court unless the person has first obtained a license to practice as a certified shorthand reporter from the CRB. (Gov. Code, § 69942.)
5. Defines the practice of shorthand reporting, for purposes of becoming a certified shorthand reporter under 4), as the making, by means of written symbols or abbreviations in shorthand or machine shorthand writing, or by voice writing, of a verbatim record of any oral court proceeding, deposition, court ordered hearing or arbitration, or proceeding before any grand jury, referee, or court commissioner and the accurate transcription thereof. (Bus. & Prof. Code, § 8017.)
6. Provides that, in a limited civil, misdemeanor, or infraction case, if an official court reporter is unavailable to report an action or proceeding in a court, the court may order the action or proceeding to be electronically recorded for purposes of creating the verbatim record, provided that the court has the approved equipment for doing so. (Gov. Code, § 69957(a).)

This bill:

1. Makes findings and declarations regarding the importance of a verbatim record and the availability of official court reporters.
2. Authorizes the CRB to issue a provisional certificate to perform the duties of a certified shorthand reporter in a court in this state to a person who either:
   1. Has passed the Registered Professional Reporter examination administered by the National Court Reporters Association; or
   2. Is eligible to take the CRB-approved shorthand reporter examination.
3. Provides that a provisional certificate issued under 2) terminates three years from the date of issuance and may not be renewed.
4. Expands the provisions allowing an action or proceeding to be recorded, when an official court reporter is unavailable, to permit recording in any civil case, and adds the following requirements relating to electronic recording generally:
   1. If a transcript of the recorded proceeding is requested, the court shall provide a certified shorthand reporter the right of first refusal to transcribe the electronically recorded proceeding.
   2. The court shall make every effort to hire a court reporter for an action or proceeding before electing to electronically record the proceeding.
5. Requires the Judicial Council of California to adopt rules or standards regarding the use of electronic recordings to ensure recordings are able to be easily transcribed.
6. Requires the Judicial Council of California to collect information from courts regarding how they are utilizing funds appropriated to recruit and hire court reporters. Courts shall include whether the court reporters they have hired are court reporters that are returning to court reporting after having left the profession, coming from another court, coming from the private market, or are new to the profession in California.
7. Requires the Judicial Council of California, beginning January 1, 2025, and annually thereafter until all such funds are expended, to report to the Legislature on its efforts to hire and retain court reporters and how the funds appropriated for the purpose have been spent. The report shall include whether the court reporters that have been hired are court reporters that are returning to court reporting after having left the profession, coming from a different court, coming from the private market, or are new to the profession in California.

COMMENTS

1. Author’s comment

According to the author:

Senate Bill 662 will ensure due process to low-and moderate-income litigants disproportionately affected due to the lack of certified shorthand court reporters (CSRs) within each court. Absent a court reporter and a record of a hearing, it can be incredibly difficult for self-represented litigants to pursue and prepare for an appeal. In Jameson v. Desta, the California Supreme Court held that low-income litigants with a court fee waiver are entitled to a free court reporter provided by the court. Unfortunately, it has been reported that in some cases, these litigants are experiencing delays in their court hearings due to court reporters not being available to cover these hearings. Rescheduling hearing dates, after a litigant has already come to court, becomes a tremendous burden and financial cost due to missing work, childcare, transportation/gas prices, etc. For survivors of domestic violence abuse, the emotional toll is also significant. This bill was carefully crafted to ensure all courts prioritize court reporters by requiring courts to make every effort to hire a court reporter and providing certified shorthand court reporters the first right of refusal to transcribe an electronic recording. In addition, in an effort to build the pipeline of court reporter professionals, the bill establishes a provisional certificate and pathway for individuals pursuing a career in court reporting within 3 years.

Furthermore, according to the Bar Association of San Francisco’s Justice and Diversity Center, “research shows that abusers are able to afford attorneys, while 98% of the safe parents are self-represented when they lose custody of their children and do not have the resources to pay for court reporters and transcripts.” We cannot afford to deny vulnerable individuals and families full access to justice under the law.

2. Background on official court reporters in California

As a general rule, the official record of a court proceeding can be made only by a shorthand reporter licensed to practice by the CRB.^[2] To obtain a license, a person must pass a three-part exam and, generally, graduate from a state-approved school that takes four years to graduate.^[3] Court reporters are vital to the litigation process: “the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to have [their] claims of trial court error resolved by the appellate court.”^[4] Felony, dependency, and juvenile justice proceedings are automatically reported;^[5] in civil trials, any party may request that a court reporter make a record of the proceedings.^[6] Additionally, if a party in a civil case has a fee waiver, the court must make a court reporter available for that litigant, even if the court does not otherwise provide court reporters for that case type.^[7]

There are exceptions to the rule requiring the record to be made by an official court reporter: in a limited civil, misdemeanor, or infraction case, the court may authorize the proceeding to be electronically recorded and transcribed after the fact by a person designated by the clerk of the court.^[8] Other jurisdictions currently use electronic recording in a wide array of cases, including the federal government.^[9]

Prior to budget cuts made by the state in connection with the Great Recession, California’s courts generally made official court reporters available for civil trials.^[10] Many of these court reporters were court employees who “occupy a unique dual status,” because they are “considered court employees when taking notes in a recorded proceeding but operate as independent contractors when producing and selling the certified verbatim transcript.”^[11] As a result of budget cuts, however, many courts opted to reduce their number of employee court reporters and adopted policies for providing official court reporters only in narrow categories of civil cases that do not include “ordinary contract, personal injury, or professional negligence cases.”^[12] The Superior Court for the County of Los Angeles recently announced that it would no longer provide court reporters in family law and probate matters or for cases in the writs and receiver departments.^[13]

If a party in a matter in which the court does not provide a reporter wishes to have a record of the proceeding made, the party has to arrange for a non-employee reporter to attend and make a record of the matter. The per diem cost for an independent reporter can represent a significant expense for litigants, and stakeholders report that independent reporter costs can be prohibitively expensive. Litigants have also reported being unable to find reporters for certain trials and proceedings.

In recent years, the Legislature has taken steps to encourage the courts to hire more court reporters as employees so as to minimize the number of litigants who have to find an outside-contractor reporter. The 2021 Budget Act included a grant of $30 million to increase the number of court reporters in family law and civil law cases.^[14] And in 2022, the Legislature authorized the Court Reporters Board to license voice writers as shorthand reporters^[15] with the goal of increasing the number of available licensed reporters: the training period for voice writers is generally shorter and less expensive than that for reporters who make a record of the proceedings through shorthand or stenographic means.

At this Committee’s informational hearing on March 7, 2023—The Judicial Branch: Protecting Access to Justice as the COVID-19 State of Emergency Expires—the Executive Officer of the CRB stated that there is currently a sufficient number of licensed court reporters to meet the demand for court reporters. According to the Judicial Council, however, as of July 1, 2022, the courts had a 20 percent vacancy rate statewide for court reporter positions, 10 percent higher than the prior year.^[16] Stakeholders disagree on the reason the vacancies continue despite the additional funding. The Judicial Council reports that courts have made extensive efforts to hire court reporters, including generous signing and retention bonuses. Court reporters have reported that, in many cases, the salaries offered by courts are insufficient to draw court reporters away from the freedom of being a freelance court reporter; they have also reported instances wherein courts have failed to extend an offer to a court reporter despite having several qualified applicants.

3. This bill creates a provisional shorthand reporter certification and authorizes a transcript to be created through the use of electronic recording in lieu of requiring an official court reporter

This bill implements two measures the author and sponsors intend to ensure all parties in civil cases will have a record of their proceedings.

First, the bill authorizes the CRB to issue a provisional certificate that would allow persons who (1) have passed a specified national court reporter examination or (2) are eligible to take the CRB’s court reporter examination to serve as a court reporter for three years; the provisional certificate may not be renewed. While these provisions are primarily within the purview of the Senate Business, Professions and Economic Development Committee, which will hear this bill if it is passed by this Committee, it is worth noting that it appears the provisional certificate could be issued to a person who attempted to pass the CRB’s court reporter examination and failed. This raises concerns about the quality of the reporting by provisionally certified individuals.

Second, this bill expands the current law that authorizes a case to be electronically recorded when no court reporter is available, extending the provision to any civil case. The bill also adds two conditions, in addition to the unavailability of a court reporter, for using electronic recording: the court must provide a certified shorthand reporter with the right of first refusal to transcribe the proceedings, and the court “shall make every effort” to hire a court reporter for an action or proceeding before electing to use electronic reporting.

The bill also requires the Judicial Council to collect information from the courts about how they are utilizing funds specifically designated by the Legislature for the hiring and retention of official court reporters. The bill requires Judicial Council, beginning January 1, 2025, report to the Legislature on the efforts taken to spend the funds; the reports must be made annually until the funds are expended.

This bill would implement a sea change in how civil proceedings are reported in this state and gives the Judicial Council wide latitude in how to implement that change. This bill does not provide direction regarding minimum technological requirements, clarity regarding whether a separate employee is required to monitor the recording or standards for how to ensure the recording is properly started and stopped, or what safeguards are necessary to prevent lost or unintelligible recordings. The bill’s opponents report that the existing recording systems have problems with clarity when there is ambient noise, can have a hard time picking up higher or female voices, and inadvertently pick up privileged discussions between a client and counsel. This bill does not provide any guidance or guardrails to ensure these issues are resolved before the widespread adoption of electronic recording.

It is also unclear how the bill’s provision requiring a court to “make every effort” to hire an official court reporter before resorting to electronic recording would function. Who determines whether a court made “every effort” to offer the job to a court reporter? And if the court’s efforts fall short, could a proceeding be invalidated if it was recorded electronically anyway? Moreover, it is unclear what constitutes “every effort”; taken literally, the term would seem to require the courts to offer significantly more generous salary and benefits terms to court reporters than they are doing now, and potentially attempt to offer a job to every court reporter in the state, before moving to electronic recording.

More likely, however, is that this term would be interpreted by the courts to mean less-than-every effort, so that they could move to electronic reporting more readily. The bill’s opponents argue that allowing courts to adopt electronic reporting in this manner will result in the end, or near-end, of the court reporting profession—a profession which has provided well-paying jobs, particularly for women. The bill does not provide any support for court reporters who lose their job as a result of the transition to remote, nor does it provide any new career options in the form of requiring a person to monitor the recording. While the policy of expanding access to court transcripts is laudable, this abrupt shift toward electronic record appears to merely shift the pain to another segment of the courts rather than finding a solution that works for all involved.

There is also a question over the scope of this bill. While many of the bill’s sponsors and supporters represent individuals in family law, domestic violence, and other areas of law where individuals often cannot afford a court reporter, the bill allows courts to use electronic reporting in all case types. The rationale for allowing recording in a case where an individual has a fee waiver or has to choose between counsel and a reporter does not appear to extend to allowing recordings in, for example, complex civil cases and large corporate disputes. Many of the supporters insist that a certified reporter remains the gold standard, but by allowing electronic cases in all case types, it seems likely that this bill will hasten the loss of court reporting jobs while providing savings to well-off litigants.

As an alternative method for ensuring a court reporter in every civil case, the Legislature could consider requiring the courts to provide court reporters in civil cases (or a subset of civil cases, such as custody and protective order proceedings), just as the courts are currently required to provide court reporters in felony, dependency, and juvenile justice cases. This would appear to be consistent with the bill’s current “make every effort” requirement and would circumvent the concerns about the integrity of electronic recording.

4. Arguments in support

According to the Judicial Council of California:

In expanding electronic reporting to all civil case types, SB 662 is consistent with the Council’s adopted 2023 Legislative Priorities that include “Contribut[ing] to promote the availability of verbatim records of court proceedings by working collaboratively to address court reporter shortages and exploring innovations in technology.” Due to the well-documented court reporter shortage, the prohibitive cost of hiring a private court reporter, and existing statutory restrictions on the use of electronic reporting, many parties today totally lack access to a verbatim record. The California Supreme Court, in a 2018 opinion, stated that “the absence of a verbatim record has a devastating effect” on a litigant’s ability to have an appeal decided on the merits. Without an accurate and complete transcript, these parties are for all practical purposes unable to meaningfully exercise their right to appeal. Removing the statutory case type restrictions and expanding use of electronic reporting, which increases access to a verbatim record, promotes access to justice.

Next, this bill demonstrates a clear policy preference for court reporters by explicitly requiring that courts make every effort to hire a court reporter before permitting electronic recording. The bill also provides a right of first refusal to certified shorthand reporters if a transcript of an electronic recording is requested. Notably, under SB 662, these requirements would apply to both the civil cases added by the bill as well as existing case types in which electronic recording is already currently authorized.

5. Arguments in opposition

According to AFSCME California, the California Court Reporters Association, the Deposition Reporters Association, the International Union of Operating Engineers, the Orange County Employees Association, and SEIU California:

Electronically recorded proceedings create two standards for those who have and those who do not. Those with means will be able to hire a private reporter to create an accurate transcript for appeals. Those without will be given a recording or automatically generated transcript riddled with “inaudibles.” The availability of an electronic recording does not advantage litigants who cannot afford a court reporter. It advantages those with the means to afford the premium product, a verbatim transcript.

Additionally, who or what would create and own the transcript is unclear. Would a certificated court reporter, a private company, or artificial intelligence (AI) create a transcript from a recording? The cost of creating a transcript from a recording is significantly higher than even the hourly rate of a private court reporter. If AI is used to produce a transcript, the time it takes to clean up an automatically generated document is around the same as creating a transcription from a recording. There is no guarantee of even minimal cost savings to litigants. Who would own and profit from ER transcripts? Would the court or a private company profit from charging parties for transcriptions? The expansion of ER is more likely to benefit private companies and wealthy litigants than it is to provide any benefit to average court users.

Finally, there are serious privacy issues with ER – a disc sold to a party in a family law case is often not just their proceeding but instead includes whole parts of a calendar containing all cases heard during that court session. The purchaser can take the disc to a private transcriber which will substantially increase potential for violation of privacy, (a critical factor in family, dependency, juvenile and mental health proceedings) illegal disclosure of protected information (allegations of child abuse, names of accused abusers, etc) and identity theft. Additionally, the recordings with confidential or personal information can get into the hands of parties who should not have them.

SUPPORT

Family Violence Appellate Project (co-sponsor)

Legal Aid Association of California (co-sponsor)

A Window Between Worlds

Advocates for Child Empowerment and Safety

ADZ Law LLC

Asian Americans for Community Involvement

Asian Women’s Shelter

Bet Tzedek

California Advocates for Nursing Home Reform

California Defense Council

California Judges Association

California Partnership to End Domestic Violence

California Protective Parents Association

California Trial Court Consortium (54 members)

California Women’s Law Center

Central California Family Crisis Center, Inc.

Centro Legal de la Raza

Community Legal Aid SoCal

Community Legal Services

Consumer Attorneys of California

Disability Rights California

Disability Rights Education and Defense Fund

Elder Law and Disability Rights Center

Empower Yolo

Family Violence Law Center

Healthy Alternatives to Violent Environments

Impact Fund

Inner City Law Center

Judicial Council of California

Legal Aid Foundation of Los Angeles

Legal Aid of Marin

Legal Aid Society of San Diego

Legal Assistance to the Elderly

Legal Services for Prisoners with Children

Legislative Coalition to Prevent Child Abuse

Los Angeles Center for Law and Justice

Lumina Alliance

National Health Law Program

Neighborhood Legal Services of Los Angeles County

Next Door Solutions to Domestic Violence

OneJustice

Superior Court for the County of Los Angeles

The California Women’s Law Center

The People Concern

Western Center on Law and Poverty

212 individuals

OPPOSITION

AFSCME California

California Court Reporters Association

California Court Reporters Association Deposition Freelance Action Committee

Deposition Reporters Association

International Union of Operating Engineers

Orange County Employees Association

Protect Your Record Project

SEIU California

10 individuals

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 1834 (Wagner, 2015) would have allowed a court to use electronic recording in a family law case if an official court reporter is unavailable. AB 1834 died in the Assembly Judiciary Committee.

AB 251 (Wagner, 2013) would have allowed a court to use electronic recording in a family law case if an official court reporter is unavailable. AB 251 died in the Assembly Judiciary Committee.

AB 2657 (Calderon, Ch. 170, Stats. 2012) required transcripts derived from electronic recordings to include a designation of “inaudible” or “unintelligible” for the portions of a recording that contain no audible sound or are not discernable.

AB 803 (Wagner, 2011) would have required the Judicial Council, by 2012, to implement electronic court reporting in at least 20 percent of its courtrooms and in 20 percent of its courtrooms per year annually thereafter. AB 803 failed passage in the Assembly Judiciary Committee.

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1. Going forward, this analysis uses “official court reporter” to include “official court reporter pro tempore.” ↑

2. Code Civ. Proc., § 269; Gov. Code, §§ 69941, 69942, 69957. ↑

3. Commission on the Future of California’s Court System, Report to the Chief Justice (2017), Appendix 5.1C, p. 262. ↑

4. Jameson v. Desta (2018) 5 Cal.5th 594, 608. ↑

5. Pen. Code, §§ 190.9, 869; Welf. & Inst. Code, §§ 347, 677.) ↑

6. Code Civ. Proc., § 369(a).) ↑

7. Jameson, supra, 5 Cal.5th at p. 623. ↑

8. Gov. Code, § 69975(a); Cal. Rules of Ct., r. 2.952(g).) ↑

9. E.g., 28 U.S.C. § 753(b). The federal courts’ Guide to Judiciary Policy sets forth extensive requirements for audio recordings, including for recording speeds, emergency backup measures, disaster recovery, and data security for digital recordings. (Guide to Judiciary Policy, Vol. 6: Court Reporting, Ch. 3 & Appx. 3B & 3C.) ↑

10. Id. at p. 610. ↑

11. Commission on the Future of California’s Court System, Report to the Chief Justice, supra, Appendix 5.1C, pp. 260-261. ↑

12. Ibid. ↑

13. Superior Court of California, County of Los Angeles, News Release, Effective November 14, The Court Will Prioritize Official Court Reporters for Criminal Felony, Juvenile Cases As Severe Staffing Shortages Persist Despite New State Funding (Aug. 25 , 2022) available at https://www.lacourt.org/newsmedia/uploads/14202282512465522NRCOURTREPORTERS.pdf (link current as of April 13, 2023). ↑

14. SB 170 (Skinner, Ch. 240, Stats. 2021). ↑

15. See AB 1056 (Assembly Committee on Budget, Ch. 569, Stats. 2022); Bus. & Prof. Code, §§ 8017, 8017.5, 8024. ↑

16. Judicial Council of California, Trial Court Operational Metrics: Year One Report, supra, at p. 12. ↑