82 Hawai'i 329, Herrick, Application of

• Decision Date: 31 July 1996
• Docket Number: No. 18534,18534
• Citation: 922 P.2d 942
• Parties: 82 Hawai'i 329 In re the Applications of Kelly HERRICK and Catherine T. Irish.
• Court: Hawaii Supreme Court

Page 942

922 P.2d 942

82 Hawai'i 329

In re the Applications of Kelly HERRICK and Catherine T. Irish.

No. 18534.

Supreme Court of Hawai'i.

July 31, 1996.

John P. Manaut of Carlsmith Ball Wichman Murray Case & Ichiki, on the briefs, Honolulu, for petitioners-appellants.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

NAKAYAMA, Justice.

Appellants Kelly Herrick and Catherine Irish appeal from decisions of the Hawai'i Board of Certified Shorthand Reporters that denied their requests "for a special exemption or temporary certification until they pass ... the Board's examination requirements."

For the reasons set forth below, we reject Appellants' arguments and affirm the decision of the Hawai'i Board of Certified Shorthand Reporters.

I. BACKGROUND

A. The Development of the Rules Governing Court Reporting in the State of Hawai'i ("RGCR")

On February 28, 1984, this court promulgated the RGCR. Under RGCR 2:

No person shall engage in the verbatim reporting of trials or judicial proceedings in any of the courts of the State of Hawai'i, nor shall any person engage in the taking of oral depositions, for use in the courts of this state, unless such person shall possess a certificate as a Hawai'i certified shorthand reporter issued by the supreme court through the Hawai'i Board of Certified Shorthand Reporters.

RGCR 2 essentially provides that a court reporter's verbatim transcripts cannot be used in any court in Hawai'i unless that reporter is certified in accordance with the RGCR. ¹

This court has the authority under Article VI, § 7 of the Hawai'i Constitution and Hawai'i Revised Statutes (HRS) § 602-11 "to promulgate rules in all civil and criminal cases for all courts relating to process, practices, procedure and appeals[.]" Because we have the constitutional and statutory authority to supervise and control court proceedings, we prescribe minimum standards for shorthand reporters whose transcripts are to be used in the state courts. See RGCR 1; cf. Kudlich v. Ciciarelli, 48 Haw. 290, 300, 401 P.2d 449, 455 (1965) (holding that a First Circuit Court rule was "related to practice in the circuit court and accordingly was within the scope of this court's constitutional power"). Put another way, to ensure minimum standards in court reporting in Hawai'i courts, RGCR 2 states that transcripts must be prepared by certified shorthand reporters:

Rule 2. CERTIFICATION OF COURT REPORTERS.

No person shall engage in the verbatim reporting of trials or judicial proceedings in any of the courts of the State of Hawai'i, nor shall any person engage in the taking of oral depositions, for use in the courts of this state, unless such person shall possess a certificate as a Hawai'i certified shorthand reporter issued by the supreme court through the Hawai'i Board of Certified Shorthand Reporters.

Unless specifically exempted by order of the supreme court, no verbatim transcripts or recording of any trial or judicial proceeding in any of the courts of the State of Hawai'i, nor any transcripts or recordings of any oral depositions taken in the State of Hawai'i, for use in the courts of this state, shall be accepted for filing unless signed and certified by a Hawai'i certified shorthand reporter.

Unless specifically exempted by order of the supreme court, no transcripts of depositions upon written interrogatories shall be accepted for filing unless signed and certified by a Hawai'i certified shorthand reporter certifying that same were taken under his or her direction and control.

Unless specifically exempted by order of the supreme court, or by the Temporary Rules for Appeals Where Experimental Use is Made of Videotape Equipment to Record Trial Court Proceedings, no videotape depositions shall be accepted for filing unless accompanied by a written transcript of the proceedings prepared by, and signed and certified by, a Hawai'i certified shorthand reporter.

The form of certification required shall be established by the Hawai'i Board of Certified Shorthand Reporters. This rule shall not apply to depositions taken and transcribed outside of the State of Hawai'i.

Any person to whom a certificate is issued shall use the title "Certified Shorthand Reporter" or the abbreviation therefor, "C.S.R." with their identification number upon the certification of any transcript. The use of such title or abbreviation and number by a person who does not hold such a certificate in the State of Hawai'i shall be regarded as contempt of court and may be punished accordingly.

An uncertified court reporter, however, is not prohibited from transcribing federal cases, private arbitrations, out-of-state depositions, or any proceeding for which the transcript will not be introduced in Hawai'i state court proceedings.

To be certified under the RGCR, an applicant must pass a proficiency examination. The Hawai'i Board of Certified Shorthand Reporters administers the National Court Reporters Association's standardized examination in May and November of each year. The exam consists of two parts: (1) a written examination covering grammar, spelling, technology, and medical and legal terminology; and (2) a "speed and accuracy" test. The "speed and accuracy" portion of the examination consists of fifteen minutes of dictation that must be completed at the following speeds: literacy material at 180 words per minute (wpm); jury charge material at 200 wpm; and testimony material at 225 wpm. A passing score requires 70% for the written test and a 95% accuracy rate at the required speeds for the "speed and accuracy" test. See RGCR 10(a) and 10(c)(3); RGCR Exhibit A, Rule 1(a); and RGCR Exhibit A, Form 1.

An applicant who successfully completes the examination receives the "CSR" designation and is certified as a Certified Shorthand Reporter under the RGCR. In the past, if the applicant did not pass the examination, original RGCR 11(b) allowed the applicant to apply for up to two temporary certificates provided the applicant continued to take the examinations. See RGCR 11(b). ² Because the examinations are given twice a year, the original RGCR 11 allowed an unsuccessful applicant to be temporarily certified for up to one year while the applicant tried to pass the examination.

On March 7, 1990, this court ³ amended RGCR 11(b) to allow a temporarily certified shorthand reporter ("T-CSR") to renew a temporary court reporter certificate indefinitely as long as the T-CSR continued to sign up for and take the certification examination. RGCR 11(b) (1990) read as follows:

(b) The temporary certificate shall be valid up through and including the sixtieth day following the date upon which the board gives its next examination for certification as a certified shorthand reporter following the date the temporary certificate is issued. No additional temporary certificates shall be issued to any applicant who fails to take the next scheduled examination for certification as a Hawaii certified shorthand reporter. In the event the applicant fails to pass the examination for certification as a Hawaii certified shorthand reporter, and desires to obtain another temporary certificate, the applicant must, within sixty days following the date of the examination for certification as a Hawaii certified shorthand reporter, apply for a new temporary certificate and meet the requirements of the rule. [No more than two temporary certificates shall be issued by the board to any one individual.]

(The 1990 amendment deleted the bracketed sentence from the original RGCR 11(b)). The 1990 amended version of RGCR 11(b) (hereinafter "1990 RGCR 11(b)") was further amended because there was some "difficulty [in] hiring certified shorthand reporters [for] the courthouse." The 1990 RGCR 11(b) created a small body of uncertified shorthand reporters whose transcripts were still admissible in Hawai'i court proceedings. Pursuant to 1990 RGCR 11(b), the Hawai'i Board of Certified Shorthand Reporters ⁴ adopted a policy that all unsuccessful applicants would receive automatic temporary certificates as long as they continued to sign up for and take the certification examination.

The 1990 RGCR 11(b) came under immediate criticism. Many felt 1990 RGCR 11(b) was far too lenient and degraded the certification process. In response to these criticisms, the Board of Certified Shorthand Reporters notified all certified shorthand reporters ("CSRs") and T-CSRs that it would "hold a public forum meeting to solicit comments on changes related to T-CSR certificates pursuant to Rule 11 of the Rules Governing Court Reporting" on July 10, 1992. On May 20, 1992, the Board sent a letter to all CSRs and T-CSRs in Hawai'i. The letter stated in its entirety:

NOTICE OF PUBLIC FORUM TO COMMENT ON RULE 11, RULES GOVERNING COURT REPORTING

At the CSR Board meeting of May 8, 1992, a motion was carried to hold a public forum meeting to solicit comments on changes related to T-CSR certificates pursuant to Rule 11 of the Rules Governing Court Reporting.

The Board's desire is to maintain and certify competent professionals and to provide an incentive for T-CSR certificate holders to obtain their CSR certificate. Since this issue effects [sic] all court reporters, the Board desires comment from all interested parties.

The meeting will be held on July 10, 1992 at 12:00 noon in the First Circuit Court (777 Punchbowl Street) Multi-purpose Room, 3rd floor, Ewa end.

Anyone wishing to make comments in person should contact Alice Kamahele, Secretary to the Board, to reserve a time slot. Holders or others, unable to attend may submit their comments in writing to the Board not later than July 5, 1992.

Since this issue is important to our profession, I urge all reporters to express their thoughts and concerns at this meeting.

At the July 10, 1992 meeting, a number of individuals, including Appellant Herrick, offered written and/or oral testimony regarding the proposed amendment to 1990 RGCR 11(b). The Board decided at its ...