IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA IN RE: CERTIFICATION AND REGULATION OF COURT REPORTERS / CASE NO. REPORT OF THE COURT REPORTER CERTIFICATION PLANNING COMMITTEE AND PETITION TO ADOPT RULES FOR CERTIFICATION AND REGULATION OF COURT REPORTERS AND AMENDMENTS TO RULE OF JUDICIAL ADMINISTRATION Pursuant to the Court's Administrative Order of November 6, 1995, your Court Reporter Certification Planning Committee submits the following report, and petitions the Court to adopt (1) the Committee's proposed Rules for Certification and Regulation of Court Reporters (see Appendix A) and (2) proposed amendments to Rule of Judicial Administration (see Appendix B) approved by The Florida Bar Rules of Judicial Administration Committee and intended, in part, to implement the proposed certification rules. I. Introduction By an Administrative Order dated November 6, 1995 (see Appendix C), the Court created the Court Reporter Certification

2 Planning Committee "to evaluate the feasibility of and alternatives for a certification process for court reporters, as authorized by section , Florida Statutes." The Court designated the Committee's members as follows: The Honorable Peter D. Webster, Chair Judge, First District Court of Appeal The Honorable Susan E. Schaeffer Chief Judge, Sixth Judicial Circuit The Honorable C. McFerrin Smith Judge, Seventh Judicial Circuit The Honorable Robert Diaz Judge, Broward County Mr. John C. Byers Court Administrator, Twelfth Judicial Circuit Mr. David A. Jones Attorney, Orlando Mr. Bruce J. Berman Attorney, Miami Mr. Robert Eppers Stenographer, Dade City Ms. Judy Everman Stenographer, West Palm Beach Ms. Vicki Johnson Stenographer, Gainesville Ms. Charlene Bowman Stenomask Reporter, St. Petersburg Ms. Louan Roe Electronic Reporter, Orlando. The Committee's charge included developing a "provisional certification program" that might be implemented pending 2

3 development and adoption of a permanent program for certification of court reporters; developing "proposed rules and administrative policies pertaining to a permanent certification process" for court reporters; and "[p]etition[ing] the [C]ourt for the adoption of the proposed rules and related attendant policies governing court reporting certification." In carrying out its charge, the Committee was directed to "consider the proposed rules and materials considered by the Court in In Re: Amendments to Florida Rules of Judicial Administration--Rule 2.070(a), (b), (c) and (d)-- Certification and Regulation of Court Reporters, 595 So. 2d 928 (Fla. 1992)." II. Historical Background The history regarding regulation of court reporters in Florida dates to at least 1965, when the legislature passed an "act... designed to encourage proficiency in the practice of shorthand court reporting as a profession; to promote efficiency in court reporting and to extend to the courts and to the public the protection afforded by a standard profession by establishing a standard of competency for those engaged in it." Ch , 1, at , Laws of Fla. This certification program, which was supervised by the Department of Business Regulation, proved to be ineffective in achieving its stated goals, largely because of its 3

4 voluntary nature. Accordingly, it was repealed effective July 1, Ch , 3(1)(hh), at , Laws of Fla. The organization then known as the Florida Shorthand Reporters Association (now the Florida Court Reporters Association) began pressing for the development of a mandatory certification program, which would be subject to the Court's supervision. In the early 1980's, that Association began attempting to draft a set of proposed rules to govern the court reporting profession. Over the course of the next several years, a number of entities, including a study committee created by this Court and the Office of the State Courts Administrator, contributed to the process. In 1989, a proposal was submitted by the Florida Shorthand Reporters Association to The Florida Bar Rules of Judicial Administration Committee, and that Committee began work on a set of proposed rules for the certification and regulation of court reporters. In 1990, again largely due to the efforts of the Florida Shorthand Reporters Association, the legislature passed the following act (to become effective on October 1, 1990): Standards for court reporters; procedures; rules of professional conduct, discipline, and training; fees.--the Supreme Court shall establish minimum standards and procedures for qualifications, certification, discipline, and training for court reporters. The Supreme Court is authorized to set fees to be charged to applicants for certification and renewal of certification. The revenues generated from such fees shall be used to offset the costs of 4

5 administration of the certification process. The Supreme Court may appoint or employ such personnel as are necessary to assist the court in exercising its powers and performing its duties under this section. Ch , 9, at 856, Laws of Fla. (now codified as , Fla. Stat.). Meanwhile, The Florida Bar Rules of Judicial Administration Committee continued its work on a set of proposed rules, receiving input and assistance from the Florida Association of Verbatim Reporters, and the Florida Electronic Reporters Association, as well as from the Florida Shorthand Reporters Association. On November 29, 1990, the Rules of Judicial Administration Committee submitted its proposed rules (see Appendix D) to the Court, urging approval. Comments on those proposed rules were submitted by the Florida Shorthand Reporters Association, the Florida Association of Verbatim Reporters, the Florida Electronic Reporters Association and the Office of the State Courts Administrator. Following careful consideration of the views presented to it, on January 16, 1992, the Court issued its opinion on the petition urging adoption of the proposed rules. In re Amendments to Florida Rules of Judicial Administration--Rule 2.070(a), (b), (c) and (d)-- Certification and Regulation of Court Reporters, 595 So. 2d 928 (Fla. 1992). While the Court approved a substantial portion of the proposed rules "in principle," there were several which it found troubling. Among the proposed rules about which it expressed 5

6 concern were those which: required some, but not all, applicants to establish that they had satisfactorily completed a prescribed course of study; dealt with procedure in disciplinary actions; addressed how the qualifying examination would be developed, and by whom; and "grandfathered in" certain practicing reporters. The Court also expressed concern about: the perceived lack of sufficient flexibility to encourage technological innovation; the lack of any concrete proposal for independent review of disciplinary decisions; and the lack of sufficient funds in the judicial branch to implement the program. Accordingly, it denied the request to adopt the proposed rules. In November 1995, the Court revisited the subject, creating the Court Reporter Certification Planning Committee, and charging it with the responsibilities previously discussed. III. Summary of the Committee's Work The Committee held its first meeting on February 28, During the course of the following year, it held five additional meetings. (Copies of the minutes of those meetings may be found in Appendix E.) The first meeting was devoted to a recitation of the history of court reporter certification efforts in Florida; the need for a certification program; types of court reporting; and what the Florida Court Reporters Association (previously the 6

7 Florida Shorthand Reporters Association) envisioned such a program might include. The court-reporter members were unanimous in their view that there was a demonstrated need for a certification program in Florida, and that it must be mandatory if it is to work. They asserted that there were a significant number of people working in the profession who were unqualified to do so, and that only a mandatory certification program would ensure that all of those holding themselves out as court reporters possessed the minimum qualifications necessary competently to perform the work entrusted to them. At a relatively early stage, the Committee reached consensus that a certification program is necessary, and that only a mandatory program is likely to achieve the desired goal of ensuring minimum standards of proficiency. The Committee also agreed at an early stage that there was no need to develop two programs, one interim and the other permanent. It was felt that to do so would involve unnecessary duplication. Instead, the Committee agreed that it would devote its efforts solely to a permanent program, with the understanding that if, following implementation it proved not to be effective for some reason, it could simply be abandoned. In general, there was little disagreement among Committee members regarding the proposed rules. One notable exception was with regard to the lack of any true "grandfather clause" which would permit those who have been court reporters for some period of time to obtain certification without taking the required 7

8 examination or establishing that they are entitled to a waiver of the examination requirement based on their previously having taken and passed a substantively similar examination. This issue was debated and voted upon on numerous occasions. Although there was dissent on each occasion, the majority was consistently of the opinion that there should be no grandfather clause. (Greater detail regarding the Committee's thinking as to specific provisions of the proposed rules may be found in the following section, which addresses each rule individually.) The Committee's work has been the subject of considerable discussion among those in the profession during the past year. The Committee chair, together with the stenographic-reporter members, explained the proposed rules, and participated in a lengthy question and answer session, at the 1996 annual meeting of the Florida Court Reporters Association (which is the largest professional organization for court reporters in Florida). The Committee has also received correspondence and comments from an attorney representing the Florida Court Reporters Association, and from individual court reporters. (See Appendix F.) In addition, the Committee has solicited comments from the Supreme Court Committee on Mediation and Arbitration Rules and from the following Florida Bar committees: Family Law Rules and Procedure, Rules of Appellate Procedure, Rules of Juvenile Procedure, Small Claims Rules, Traffic Court Rules, Probate Rules, Rules of Judicial Administration, Rules of Civil Procedure, Rules of Workers' 8

9 Compensation Procedure and Rules of Criminal Procedure. (A representative copy of the letter sent to each committee chair, and copies of the responses received, may be found in Appendix G.) IV. Rule-by-Rule Analysis of Proposed Rules The proposed Rules for Certification and Regulation of Court Reporters (see Appendix A), which the Committee urges the Court to adopt, owe much to the rules proposed in 1990 by The Florida Bar Rules of Judicial Administration Committee. However, they are also the result of an extensive review of rules in effect in other jurisdictions and of creative efforts for which the Committee, alone, is responsible. An overriding goal of the drafting process has been the desire to combine comprehensiveness with brevity and simplicity. The Committee believes that it has been relatively successful in achieving that goal. A rule-by-rule discussion of the proposals follows. The Committee contemplates that (assuming approval by the Court) the rules would be implemented by amendments to Florida Rule of Judicial Administration (see Appendix B), which would become effective three years after the date on which the rules are adopted, to permit the Florida Court Reporter Certification Board to be established and a sufficient number of court reporters to comply with the rules. The proposed amendments to rule are 9

10 a joint product of the Court Reporter Certification Planning Committee, which drafted the provisions intended to implement the proposed court reporter certification rules, and the Rules of Judicial Administration Committee, which redrafted other parts of the existing rule to make the rule more concise and comprehensible, without intending otherwise to change its substance. A discussion of those parts of the proposed amendments to rule intended to implement the certification rules follows the discussion of the proposed certification rules, themselves. Rule-by-Rule Discussion DEFINITIONS (a) Court Reporting; Reporting. "Court reporting," or "reporting," means the act of making a verbatim record of the spoken word, whether by the use of written symbols, stenomask equipment, or electronic devices, in any proceeding pending in any of the courts of this state, including all discovery proceedings conducted in connection therewith, and all proceedings required by statute to be reported by a certified or official court reporter. It does not mean either the act of taking witness statements not intended for use in court as substantive evidence, or the act of electronic recording and transcription of proceedings as provided for in Florida Rule of Judicial Administration 2.070(g)(3). (b) Certified Court Reporter. A "Certified Court Reporter" is a person who has satisfied the requirements established by the Florida Court Reporter Certification Board and received a certificate attesting to that fact, and is entitled to use the 10

11 designation "CCR" only in connection with the reporting methodology by which those requirements were satisfied (i.e., "CCR- Stenographic," "CCR-Stenomask," "CCR- Electronic"). (c) Board. "Board" means the Florida Court Reporter Certification Board. (d) Court. "Court" means any county, circuit or appellate court of this state. Rule defines the key terms used in the rules--"court reporting," "Certified Court Reporter," "Board" and "court." The definition of "court reporting" is identical to that found in proposed Rule of Judicial Administration 2.070(a)(1) PURPOSE These rules are intended to ensure proficiency in the practice of court reporting, a profession which plays a critical role in the judicial system of this state, by establishing a minimum acceptable level of competence for those engaged in that profession SCOPE These rules apply to all persons engaging in the practice of court reporting. Rules and are self-explanatory FLORIDA COURT REPORTER CERTIFICATION BOARD (a) Board Composition. The Florida Court Reporter Certification Board is hereby created, to supervise the examination, certification, and conduct of persons engaged in court reporting. The board shall be under the supervisory authority of the Florida Supreme Court. It shall be composed of 11 persons, appointed by the chief justice as follows: 11

12 (1) two members of The Florida Bar engaged in the practice of law in the courts of this state; (2) either 1 county or 1 circuit judge; (3) one district court of appeal judge; (4) one trial court administrator; and (5) six court reporters, at least 3 of whom shall be shorthand reporters, at least 1 of whom shall be a stenomask reporter, and at least 1 of whom shall be an electronic reporter. (b) Staff. Such staff as may be necessary to permit the board to carry out its duties shall be provided by the Office of the State Courts Administrator. (c) Officers; Quorum. Annually, the board shall elect 1 of its members to serve as chair, and 1 to serve as vice-chair. A majority of the board shall constitute a quorum. (d) Vacancies. Any vacancy on the board shall be filled according to subdivision (a). A person appointed to fill a vacancy shall serve for the remainder of the term of the member being replaced. (e) Terms. The initial terms of board members shall be as follows: (1) one year: the court-administrator member, and 2 court-reporter members; (2) two years: 1 judicial member, 1 Florida-Bar member, and 2 court-reporter members; (3) three years: 1 judicial member, 1 Florida-Bar member, and 2 court-reporter members. Following the initial terms, all terms shall be 3 years, and all court-reporter members shall be Certified Court Reporters. Board members shall be eligible for reappointment. However, no person shall serve more than 2 consecutive terms. (f) Duties. The duties of the board shall include the following: (1) The board shall be responsible for the testing, certification, regulation, discipline, suspension, and decertification of court reporters. (2) The board shall have the authority 12

13 to adopt rules governing its operating procedures. (3) The board may make recommendations to the Florida Supreme Court regarding the amendment of these rules. (g) Fees. The board shall have authority to recommend to the Florida Supreme Court such fees as the board may deem necessary to permit it to carry out its duties, including, but not limited to, application fees, examination fees, and certification renewal fees. All such fees shall be paid within the time specified by the board, shall be made payable to the State of Florida, and shall be non-refundable. (h) Records. The board shall maintain records and minutes of its meetings and all other official actions. It shall also maintain a record of all continuing education credits earned by Certified Court Reporters, and a registry containing the names, addresses, dates of certification, methods of reporting, and identification numbers of all Certified Court Reporters. (i) Reimbursement for Expenses. Members of the board shall serve without compensation. However, they shall be reimbursed for all reasonable expenses incurred in the performance of their duties, in compliance with all rules and statutes governing such reimbursement. Rule creates the body which will be responsible for administering the certification program. In response to concerns expressed by court reporters, subdivision (a) contemplates that a majority of the Board will be court reporters. Subdivision (b) contemplates that staff will be provided by the Office of the State Courts Administrator. Subdivision (f)(2) provides that the Board will have the authority to adopt its own internal operating rules. Subdivision (f)(3) provides that the Board will have the power to 13

14 recommend amendments to the rules to the Court. Subdivision (g) contemplates that the Board will be self-supporting, recommending to the Court such fees as may be necessary to ensure that result APPLICATION FOR CERTIFICATION All applicants seeking certification shall apply on a form approved by the board and pay the fee established by the board. Rule is self-explanatory QUALIFICATIONS All applicants for certification must establish to the board's satisfaction that they are at least 18 years of age; that they have either graduated from high school or earned a general equivalency diploma; that they are of good moral character; and that they have read, and are familiar with, Florida rules of court bearing on the practice of court reporting. In addition, all applicants must either take and pass an examination prescribed by the board, or satisfy the board that they qualify for waiver of the examination requirement pursuant to rule (a) or (b). Rule sets forth the minimum qualifications for those seeking certification. The prerequisites for waiver of the otherwise obligatory examination are addressed in proposed rule , below, and the comments that follow it EXAMINATION The board, or such entity or entities to which it may delegate such authority, shall develop and administer an examination to all applicants seeking Certified Court Reporter certification, to ensure that such applicants 14

15 possess a satisfactory level of proficiency in making a verbatim record of judicial, and related, proceedings. The examination shall be administered not less than twice each year, at such times and places as may be designated. Rule is intended to afford maximum flexibility to the Board in the development and administration of the examination. It contemplates that the Board may either develop and administer the examination itself, or delegate such authority to some other entity or entities (such as, for instance, the national court-reporter associations which already administer skills examinations). Although the rule requires that the examination be administered at least twice each year, it may be given as many more times each year as demand requires. The Committee has confirmed that examinations currently administered by the national court-reporter associations are capable of being offered in Florida as frequently as the Board might wish, to meet such demand WAIVER OF EXAMINATION REQUIREMENT Upon the presentation of proof satisfactory to the board, the examination requirement shall be waived for the following persons: (a) anyone holding a current certificate which, in the opinion of the board, is similar to the Certified Court Reporter certificate and has been conferred by another state or the District of Columbia, provided that the examination requirements are substantially similar to those of this state; (b) anyone holding a current Registered Professional Reporter Certificate issued after testing by the National Court Reporters 15

16 Association, a current Certified Verbatim Reporter Certificate issued after testing by the National Stenomask Verbatim Reporters Association, or a current certificate issued after testing by any organization which, in the opinion of the board, reflects a similar level of proficiency. Rule provides that those who are able to satisfy the Board that they have previously taken and passed a test similar to those contemplated by the rules may have the examination requirement waived. There is no provision in the proposed rules for waiver of the examination requirement based on experience alone. The rules contemplate that nobody will be certified unless they have taken and passed what the Board considers to be an acceptable skills examination. This was the only issue as to which there was significant disagreement among Committee members. A minority of the Committee believes very strongly that there should be some type of grandfather provision which will permit those who have been court reporters for some specified period to be certified without having to pass a skills examination. In support of their position, they assert that many experienced court reporters who specialize in one area of the law would be at a disadvantage if required to pass a generalized skills examination; that other regulated professions in Florida have permitted some type of grandfathering for those engaged in the profession when regulation was instituted; and that most of the other states which have adopted a mandatory certification program for court reporters have 16

17 included some type of grandfather provision. The majority of the Committee is of the opinion that a grandfather provision such as that advocated by the minority (and by the Florida Court Reporters Association) would be irreconcilable with the justification offered to support the need for a mandatory certification program--that there are a significant number of unqualified individuals holding themselves out as court reporters. Such a provision would only serve to enfranchise those unqualified individuals, defeating the legislative intent--to protect the courts and the public--which the appointment of this Committee and the Court's consideration of its proposed certification program seeks to achieve. In the majority's view, if there are, indeed, a significant number of unqualified court reporters, they should be prevented from continuing to hold themselves out as qualified by being denied licensure until their qualifications can be established by satisfaction of the adopted skills-testing requirement. Adoption of a program which certifies unqualified individuals would only further mislead those courts and members of the public who employ them. If, on the other hand, concerns about unqualified court reporters are unfounded, then there should be no need for a mandatory certification program ISSUANCE OF CERTIFICATE Upon satisfactory completion of the specified prerequisites, the board shall issue to an applicant a certificate as a Certified Court Reporter, which shall include an identification number and shall specify the reporting methodology by which 17

18 certification was accomplished (i.e., stenographic, stenomask, or electronic). Once issued, the certificate shall remain valid unless suspended or revoked by the board. Rule contemplates that the certificate issued upon satisfactory completion of the prerequisites will specify the reporting methodology used to satisfy those prerequisites (i.e., stenographic, stenomask or electronic). The rules contemplate that certified court reporters will be permitted to hold themselves out as certified only in the method (or methods) used to satisfy the prerequisites to certification RENEWAL OF CERTIFICATE (a) Annual Renewal Fee. Each Certified Court Reporter shall pay an annual certificate renewal fee, in an amount set by the board. A certificate shall be suspended automatically upon nonpayment, but shall be reinstated upon application to the board, accompanied by payment, made within 60 days of the date of suspension. Upon expiration of the 60-day grace period, any request for reinstatement must be made pursuant to rule (b) Notification. The board shall notify all Certified Court Reporters in writing of the expiration date of their certificate at least 90 days before such date. Notice shall be by regular United States mail, directed to the last mailing address on file with the board. Rule is self-explanatory CONTINUING EDUCATION (a) Requirement. Each Certified Court 18

19 Reporter shall earn at least 30 continuing education credits every 3 calendar years. Application for approval of the preceding years' continuing education credits shall be made in writing, on a form to be furnished by the board, when the annual certificate renewal fee is paid. (b) Approved Programs. The board shall maintain a list of approved continuing education programs. Approval of any educational program or activity not listed shall be subject to the board's discretion. Rule deals with the requirement that Certified Court Reporters earn continuing education credits on a regular basis. There are currently several entities providing continuing education for court reporters. It is not contemplated that the Court Reporter Certification Board will, itself, offer continuing education courses PROHIBITED CONDUCT GENERALLY The following conduct is prohibited, and may lead to disciplinary action: (a) accepting employment knowing that a conflict of interest exists, or continuing employment after becoming aware of the existence of a conflict of interest; (b) partiality toward, or prejudice against, any participant in any matter which is the subject of employment; (c) giving or receiving gifts in any manner connected with any employment; (d) failing to disclose to the appropriate party any present or past business, financial, professional, family, or social relationship which might reasonably create an appearance of partiality in any matter which is the subject of employment; (e) failing to take steps necessary to ensure the confidentiality of information classified as such, and entrusted to one's 19

20 possession in connection with any employment; (f) accepting, or failing to resign from, employment believed to be beyond one's level of knowledge, skill, or competence; (g) failing timely to deliver transcripts; (h) failing to prepare an accurate transcript; (i) failing promptly to notify all other parties when a party orders one's work product, provided that the work product is of such a nature that it might have been ordered by any party; (j) failing to offer the same services to all parties to the same proceeding; (k) disseminating misleading or deceptive information regarding one's qualifications; (l) violating any duty imposed by statute, rule, or order of court; (m) engaging in conduct proscribed by rule Rule identifies the types of conduct that might (but not necessarily will) subject a Certified Court Reporter to disciplinary action. It includes conduct that will not necessarily subject the Certified Court Reporter to the more severe sanctions of suspension and revocation, addressed in rule which follows. This provision thus grants the Board flexibility in dealing with relatively less serious types of misconduct CONDUCT WARRANTING SUSPENSION OR REVOCATION OF CERTIFICATION A certificate issued pursuant to these rules may be suspended or revoked for any of the following reasons: (a) conviction of a felony, or of a misdemeanor involving moral turpitude, dishonesty, or false statement; (b) fraud, dishonesty, or corruption 20

21 which is related to the functions and duties of a Certified Court Reporter; (c) continued false or deceptive advertising after receipt of a cease and desist notice from the board; (d) alcohol or drug abuse which interferes, or poses a serious threat of interference, with the performance of the duties of a Certified Court Reporter; (e) physical incapacity or mental instability which interferes, or poses a serious threat of interference, with the performance of the duties of a Certified Court Reporter; (f) gross incompetence, or unprofessional or unethical conduct; (g) willful, substantial, or repeated violation of any duty imposed by statute, rule, or order of court; (h) fraud or misrepresentation in obtaining or renewing certification; (i) noncompliance with continuing education requirements; (j) nonpayment of renewal fees. Rule identifies the types of serious misconduct that might result in suspension or revocation of certification DISCIPLINARY PROCEDURES (a) Initiation. Disciplinary proceedings may be initiated either by a sworn complaint asserting a violation of these rules, or by the board, on its own motion. (b) Probable Cause; Notification. If a majority of the board finds probable cause to believe that a violation of these rules has occurred, it shall send written notice thereof, identifying the rule or rules alleged to have been violated, to the Certified Court Reporter by certified United States mail directed to the last mailing address on file with the board. (c) Response. Within 30 days of the issuance of a finding of probable cause, the 21

22 Certified Court Reporter shall file a written response with the board. If the Certified Court Reporter does not respond, the violations identified in the finding of probable cause shall be deemed admitted. (d) Board Review. Within 60 days after the filing of the written response to the finding of probable cause or within 60 days following the expiration of the time within which to file a response if none is filed, the board shall review the complaint, the finding of probable cause, the response (if any), and any other pertinent materials, and decide whether to (i) dismiss the proceeding; (ii) issue a proposed disposition; or (iii) set a hearing. The board shall promptly send written notice of its decision to the Certified Court Reporter, by certified United States mail. (e) No Hearing Demanded. A proposed disposition issued pursuant to subdivision (d)(ii) shall become final unless the Certified Court Reporter demands a hearing within 30 days of the date on which it was issued. (f) Timing of Hearing. Absent good cause, no hearing shall take place less than 30 days, or more than 90 days, from the date of notice pursuant to subdivision (d)(iii) or of the Certified Court Reporter's demand pursuant to subdivision (e). (g) Identity of Complainant. Upon written request filed with the board after a hearing has been set, the board shall promptly reveal to the Certified Court Reporter the identity of the complaining party. (h) Legal Representation. The Certified Court Reporter may be represented by an attorney at any stage of the proceeding. The Certified Court Reporter shall be responsible for all of his or her costs and expenses, including attorney fees. Rule addresses general disciplinary procedures, which do not necessarily require a hearing. Procedures specifically 22

23 applicable to disciplinary hearings are addressed in rule , which follows DISCIPLINARY HEARINGS (a) Pre-hearing Discovery. Pre-hearing discovery shall not be permitted unless expressly authorized by the board, in response to a written request. (b) Rules of Evidence. Strict rules of evidence shall not apply. The board may, in its discretion, consider any evidence presented, including affidavits, giving such evidence the weight it deems appropriate. (c) Hearings to be Reported. The board shall ensure that all hearings are reported. (d) Hearing Procedure. At the hearing, both the board and the Certified Court Reporter shall be afforded the opportunity to introduce documents and other relevant evidence, and to elicit sworn testimony. (e) Board Deliberations. Following the presentation of evidence, the board shall deliberate regarding its decision. Such deliberations shall take place in private. (f) Finality of Decision; Rehearing. Unless the Certified Court Reporter files a request for rehearing within 30 days of the date of the decision, the decision shall become final without further action. If a timely request for rehearing is filed, the decision shall not become final until the request has been disposed of by written decision, a copy of which shall be sent to the Certified Court Reporter by certified United States mail. Rule is self-explanatory DISCIPLINARY DISPOSITIONS (a) Burden of Proof. If the board finds that there is clear and convincing evidence that the Certified Court Reporter has violated one or more of these rules, it shall impose such discipline as it may deem 23

24 appropriate, consistent with these rules. (b) Vote Required; Notification. All decisions of the board shall be by majority vote, in writing and, if adverse to the Certified Court Reporter, shall contain factual findings supporting the decision. A copy of the decision shall be sent to the Certified Court Reporter by certified United States mail. (c) Sanctions. Discipline may consist of one or more of the following: (1) a private reprimand; (2) a public reprimand; (3) the imposition of costs and expenses incurred by the board in connection with the proceeding, including investigative costs; (4) restitution; (5) requiring that specified continuing education courses be taken; (6) requiring that one or more parts of the Certified Court Reporter certification examination be successfully taken, or retaken; (7) limiting the scope of practice; (8) requiring that work be supervised; (9) suspension of certification for a period not to exceed 1 year; (10) revocation of certification. Rule identifies the types of discipline that may be imposed. The intent of subdivision (c) is to afford the Board as wide a range of disciplinary alternatives as reasonably possible CONFIDENTIALITY OF DISCIPLINARY PROCEEDINGS When a disciplinary proceeding is either dismissed or results in a private reprimand, all records of the proceeding shall remain confidential; otherwise, all such records shall become public when the board's decision becomes final. Rule is self-explanatory. 24

25 REVIEW OF ADVERSE DISCIPLINARY DISPOSITIONS Within 30 days of a final adverse disciplinary disposition after a hearing, the Certified Court Reporter may seek review by filing a written request, addressing the merits, with the clerk of the Supreme Court of Florida. Review shall be by the chief justice, or by such other person or persons as may be designated by the chief justice, who may take such action as is deemed appropriate, which action shall not be subject to further review. Review is provided only for disposition following a hearing because, pursuant to proposed rule (d) and (e), there could be a disposition adverse to a Certified Court Reporter without a hearing only when the Board has issued a proposed disposition that becomes final without a demand for a hearing. In such a case, the Certified Court Reporter, having accepted the proposed disposition, would have waived any right to review REINSTATEMENT A Certified Court Reporter whose certificate has been suspended or revoked may apply in writing for reinstatement. Such request shall explain why the applicant believes that he or she should be reinstated, and shall be accompanied by a renewal fee in an amount set by the board. Whether to grant or to deny such a request shall rest in the sole and absolute discretion of the board. The board may impose such conditions upon reinstatement as it deems appropriate. Rule is self-explanatory. 25

26 Proposed Amendments to Florida Rule of Judicial Administration As previously discussed, the proposed amendments to Florida Rule of Judicial Administration (see Appendix B) are a joint product of the Court Reporter Certification Planning Committee and the Rules of Judicial Administration Committee. Although the existing rule is substantially rewritten, the principal substantive changes are those intended to implement the proposed certification rules. Other changes are intended by the Rules of Judicial Administration Committee to make the rule more concise and comprehensible, without significantly altering its substance. The changes intended to implement the proposed certification rules are indicated by underlining. RULE COURT REPORTING (a) Definitions. (1) "Court reporting" means the act of making a verbatim record of the spoken word, whether by the use of written symbols, stenomask equipment, or electronic devices, in any proceeding pending in any of the courts of this state, including all discovery proceedings conducted in connection therewith, and all proceedings required by statute to be reported by a certified or official court reporter. It does not mean either the act of taking witness statements not intended for use in court as substantive evidence, or the act of electronic recording and transcription of proceedings as provided for in subdivision (g)(3). (2) "Certified Court Reporter" means a person certified as such by the Florida Court Reporter Certification Board in accordance 26

27 with the Florida Rules for Certification and Regulation of Court Reporters. (b) When Court Reporting Required. Any proceeding shall be reported by a Certified Court Reporter on the request of any party. The party so requesting shall pay the reporting fees, but this requirement shall not preclude the taxation of costs as authorized by law. (c) Certified Court Reporter Requirement. All court reporting must be performed by a Certified Court Reporter, except: (1) for depositions taken outside the state before a duly appointed commissioner or before an out-of-state court reporter agreed to by all parties; (2) as otherwise provided herein with respect to court reporting services provided in mental health proceedings or at public expense, and (3) any proceeding reported prior to the effective date of this rule. No verbatim record of any proceedings created in violation of this rule may be filed or used in any court proceeding. Any violation of this rule is punishable as contempt of court. (d) Record. When trial proceedings are being reported, no part of the proceedings shall be omitted unless all of the parties agree to do so and the court approves the agreement. When a deposition is being reported, no part of the proceedings shall be omitted unless all of the parties and the witness so agree. When a party or a witness seeks to terminate or suspend the taking of a deposition for the time necessary to seek a court order, the Certified Court Reporter shall discontinue reporting the testimony of the witness. (e) Transcripts. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form size, spacing, and method of typing transcripts are as follows: (1) All proceedings shall be typed or printed on paper 8-1/2 inches by 11 inches in size, prepared for binding at the top or on the left margin. 27

28 (2) All margins, measured from the edge of the paper, shall be no more than 1 inch from the top, no more than 1-1/8 inches at the left side and 3/8 inch at the right side for type or print of 9 characters to the inch, and no more than 1-3/4 inches at the left side and 1/2 inch at the right side for type or print of 10 characters to the inch. (3) There shall be no fewer than 25 typed or printed lines per page and all typing or printing shall be double spaced, with all lines numbered 1 through 25, respectively, and with no more than a double space between paragraphs. (4) Type size or print shall be pica or comparable type or print of no fewer than 9 or 10 characters to the inch. (5) Colloquy material shall begin on the same line following the identification of the speaker, with no more than 2 spaces between the identification of the speaker and the commencement of the colloquy. The identification of the speaker in colloquy shall begin no more than 10 spaces from the left margin, and carry-over colloquy shall be indented no more than 5 spaces from the left margin. (6) Each question and answer shall begin on a separate line no more than 5 spaces from the left margin with no more than 5 spaces from the "Q" or "A" to the text. Carry-over question and answer lines shall be brought to the left margin. (7) Quoted material shall begin no more than 10 spaces from the left margin with carry-over lines beginning no more than 10 spaces from the left margin. (8) Indentations of no more than 10 spaces may be used for paragraphs, and all spaces on a line as herein provided shall be used unless the testimony of the speaker ends short of marginal requirements. (9) One-line parentheticals may begin at any indentation. Parentheticals exceeding 1 line shall begin no more than 10 spaces from the left margin, with carry-over lines being returned to the left margin. (10) Individual volumes of a transcript, including depositions, shall be no more than 28

29 200 pages in length, inclusive of the index. (11) Deviation from these standards shall not constitute grounds for limiting use of transcripts in the trial or appellate courts. (f) Reporter as Officer of Court. A Certified Court Reporter is an officer of the court for all purposes while acting as a reporter in a judicial proceeding or discovery proceeding. The Certified Court Reporter shall comply with all rules and statutes governing the proceedings that are applicable to court reporters. (g) Court Reporting Services Provided in Mental Health Proceedings or at Public Expense. (1) When Reporting Required. All criminal and juvenile proceedings, and any other judicial proceedings required by law or court rule to be reported at public expense, shall be reported. (2) Circuit Plan. The chief judge, after consultation with the circuit court and county court judges in the circuit, shall enter an administrative order developing and implementing a circuit-wide plan of the court reporting of all proceedings required to be reported at public expense using either full or part time court employees or independent contractors. The plan shall ensure that all court reporting services are provided by qualified persons. This plan may provide for multiple service delivery strategies if they are necessary to ensure the efficient provision of court reporting services. Each circuit's plan for court reporting services shall be developed after consideration of guidelines issued by the Office of the State Courts Administrator. (3) Electronic Recording and Transcription of Proceedings Without Certified Court Reporters. A chief judge may enter a circuit-wide administrative order, which shall be recorded, authorizing the electronic recording and subsequent transcription by persons other than Certified Court Reporters, of certain judicial proceedings, including depositions, that are 29

30 otherwise required to be reported by a Certified Court Reporter. Appropriate procedures shall be prescribed in the order which shall: (A) set forth responsibilities for the court's support personnel to ensure a reliable record of the proceedings; (B) provide a means to have the recording transcribed, either in whole or in part, when necessary for an appeal or for further use in the trial court; and (C) provide for the safekeeping of such recordings. The presiding judge in a specific case, however, may require a Certified Court Reporter, if available, or either party may provide and pay for the cost of a Certified Court Reporter. Such Certified Court Reporter shall be subject to the orders of the court and directions to transcribe the record from all parties. (4) Grand Jury Proceedings. Testimony in grand jury proceedings shall be reported by a Certified Court Reporter, but shall not be transcribed unless required by order of court. Other parts of grand jury proceedings, including deliberations and voting, shall not be reported. The Certified Court Reporter's work product, including stenographic notes, electronic recordings, and transcripts, shall be filed with the clerk of the court under seal. These proposed amendments to Rule of Judicial Administration have been unanimously approved by The Florida Bar Rules of Judicial Administration Committee, which has requested that they be presented to the Court for adoption together with the proposed Rules for Certification and Regulation of Court Reporters. (See the letter of September 15, 1997, from Judge Marguerite H. Davis to Judge Peter D. Webster, in Appendix G.) Subdivision (a)(1) contains the same definition of "court reporting" as does 30

31 certification rule (a). Subdivision (a)(2) defines "Certified Court Reporter" by reference to the Rules for Certification and Regulation of Court Reporters. Subdivision (c) mandates that, but for the listed exceptions, after the effective date of the amendments to rule 2.070, "[a]ll court reporting must be performed by a Certified Court Reporter." A "verbatim record" not taken in compliance with the rule may not "be filed or used in any court proceeding." Violations of the rule may be punished by contempt. Subdivision (g)(3) permits the chief judge of any judicial circuit, by circuit-wide administrative order, to authorize "electronic recording and subsequent transcription by persons other than Certified Court Reporters, of certain judicial proceedings, including depositions, that are otherwise required to be reported by a Certified Court Reporter," provided that the requirements of the rule are met. The intent of this subdivision is to permit technological innovation, and to provide an alternative to the requirement for reporting only by Certified Court Reporters when, for some reason, a circuit's reporting needs cannot be met entirely by Certified Court Reporters. The Committee recommends that, assuming the Court adopts the proposed Rules for Certification and Regulation of Court Reporters, it also adopt the amendments to Rule of Judicial Administration 2.070, but that it provide that the amendments to that rule (at least to the extent that they require the use of Certified Court Reporters) shall not become effective until three years after the date on which the 31

32 certification rules are adopted. This would afford what the Committee believes to be a reasonable period for the Court Reporter Certification Board to be selected and begin carrying out its duties, and for court reporters in the state to satisfy the certification requirements. Should a longer period prove necessary, the effective date of the rule could be delayed, presumably in response to a petition by the Board for such action. V. Conclusion On behalf of your Committee, the undersigned, as chair, requests approval of the proposed Rules for Certification and Regulation of Court Reporters, and of the proposed amendments to Rule of Judicial Administration Should the Court conclude that oral argument would be of assistance, the undersigned would be pleased to appear for that purpose. Respectfully submitted, Peter D. Webster Chair, Supreme Court Court Reporter Certification Planning Committee First District Court of Appeal 301 Martin Luther King Boulevard Tallahassee, FL (850) ext. 167 Florida Bar No

33 Certificate of Service I certify that a copy hereof has been furnished to The Honorable Marguerite H. Davis, Chair, Florida Bar Rules of Judicial Administration Committee, First District Court of Appeal, 301 Martin Luther King Boulevard, Tallahassee, Florida, , by hand delivery, this day of February, Attorney 33