The History of California Code of Civil Procedure Section 1094.5

The history of the Legislature's 1982 amendment to Code of Civil Procedure section 1094.5: In Civil Service Commission v. Superior Court (1976) 63 Cal.App.3d 627, decided six years before the 1982 amendments to Code of Civil Procedure section 1094.5, a trial court ordered an administrative agency to provide an administrative hearing transcript " 'free of charge' " to an indigent petitioner. (Id. at p. 630.) In the administrative agency's appeal from that order, the issue was whether an indigent petitioner seeking judicial review of an administrative decision was entitled to a transcript of the administrative record at public expense when the trial court needed the transcript to review evidence from the administrative hearing. (Id. at p. 629.) Before 1982, section 1094.5 read in pertinent part: "Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, such expense shall be taxable as costs." (See Price, supra, 63 Cal.App.3d at pp. 631-632 quoting same statutory language.) Interpreting Code of Civil Procedure section 1094.5 as it existed before 1982, the Price court found controlling Supreme Court authority recognized no right for an indigent to receive a free copy of the transcript even though the Price court recognized "very good reasons" existed for an indigent to receive a copy at public expense. (Price, supra, 63 Cal.App.3d at p. 629.) Citing the dictate of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 20 Cal. Rptr. 321, 369 P.2d 937 that lower courts must follow binding Supreme Court precedent, the Price court concluded it had no choice but to reverse the trial court's order directing the administrative agency to provide a free copy of the administrative hearing transcript to the indigent petitioner. (Price, supra, at pp. 630-631.) Highlighting its conclusion that its reversal of the trial court was by compulsion, not by choice, the Price court cited and distinguished Crespo v. Superior Court (1974) 41 Cal.App.3d 115 115 Cal. Rptr. 681 as a situation where a trial court could lawfully order a free transcript for an indigent. (Price, supra, 63 Cal.App.3d at p. 631.) In Crespo, a juvenile dependency statute provided for court-appointed counsel to represent indigent parents facing loss of custody of their children. The parents in Crespo argued their statutory right to court-appointed counsel implied they also had the right to a free transcript for their counsel's use on appeal--and the Crespo court agreed. But Price distinguished Crespo because no analogous statute for appointment of counsel existed in Price from which one could infer a right to a transcript. Price explained that no right to order a free transcript existed because "there is no statute upon which we can rely to reach a result contrary to the principle adopted by our Supreme Court" forbidding a free transcript. (Price, at p. 631.) Six years after Price, the 1982 amendment to Code of Civil Procedure section 1094.5 effected a sea change. The 1982 amendment, which we italicize, stated: "Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court. Except when otherwise prescribed by statute, the cost of preparing the record shall be borne by the petitioner. Where the petitioner has proceeded pursuant to statutes and court rules governing waiver of court costs and fees and where the transcript is necessary to a proper review of the administrative proceedings, the cost of preparing the transcript shall be borne by the respondent. ..." Since 1982, the cross-reference to statutes and court rules has changed to reflect renumbering of the cross-referenced statutes. (Compare Historical and Statutory Notes, 18B West's Ann. Code Civ. Proc. (2007 ed.) foll. 1094.5, p. 290 with Historical and Statutory Notes, 18B West's Ann. Code Civ. Proc. (2012 supp.) foll. 1094.5, p. 40.)