A lawyer for the petitioners, Family Violence Appellate Project and Bay Area Legal Aid, argued that a state law banning the electronic recording of certain proceedings violates the California Constitution in instances where an official court reporter is unavailable for a proceeding and a litigant cannot afford to pay for a private court reporter.
"The California judicial system is in crisis, and our most vulnerable civil litigants are paying an intolerable price for it," said Sonya Winner of Covington & Burling LLP.
The petition cites a California statute, Government Code Section 69957, which generally prohibits courts from using electronic recordings in civil, family law and probate proceedings. But Winner told the state's high court on Wednesday that when a court is unable to provide a court reporter, it has to ensure that a verbatim recording is created.
The "severe" shortage of court reporters has left California's superior courts unable to provide the word-for-word accounts needed to ensure the ability to appeal, Winner said. Presently, "thousands of hearings every day in civil, family, and probate cases," have no record, she said.
Meanwhile, a wealthy litigant can hire a private court reporter, Winner said.
"This creates widespread infringement of the due process and equal protection rights of low-income litigants," the lawyer for the legal nonprofits told the court.
Justice Kelli M. Evans noted that court reporter organizations such as the Service Employees International Union have argued that the courts should just hire freelance reporters if there's a shortage.
Winner said her clients have no control over the court's hiring and management practices.
"The number of unrecorded hearings in our courts is growing every day," she later told the justices.
Chief Justice Patricia Guerrero asked if the petitioners' "equal access to justice" argument had limits, such as whether a court would have to provide access to counsel.
"How far does the underlying right to equal access go?" the judge asked
Winner said that in this situation, California's high court had already recognized in its 2018 decision in Jameson v. Desta that access to justice requires a verbatim recording of what is said in court.
A litigant without counsel is "obviously unfortunate" if they can't afford it, but a person can still pursue an appeal without a lawyer, Winner said. However, the judicial system "rests on the premise that there is going to be a verbatim recording of what happens in the courtroom," Winner said. ""An appeal is the most obvious example of that."
Justice Guerrero asked how a recording would work when there's an appeal, as appellants need a transcript as well.
Winner said getting a transcript is a separate issue, and there are a number of ways a person can get a transcript if they need it, noting that there's a transcript reimbursement fund available to low-income litigants that's managed by the Court Reporters Board. In addition, in certain the rules allow circumstances for oral recordings to be submitted on appeal, she said.
Justice Joshua P. Groban asked if the petitioners' requested order would require the court system to spend more money.
"Answering yes to this is not fatal to your argument," the judge said. "They either have to have the court reporter there on a fee waiver basis or make sure they have courtrooms that have the electronic technology."
Winner said electronic reporting is actually cheaper than hiring more court reporters.
"The relief we seek in this case is simply [for the court] to say that if you don't have a court reporter available, you cannot cite Section 69957 as a reason why no verbatim recording will be provided," Winner said.
While the nonprofits filed their lawsuit against the Superior Courts of four California counties — Contra Costa, Los Angeles, Santa Clara and San Diego — the courts' lawyer agreed that low-income litigations should have access to recordings of their proceedings.
Mark Yohalem of Wilson Sonsini Goodrich & Rosati PC, representing the courts, said electronic recordings can be used with success.
"The court reporter shortage is a crisis," Yohalem said. "It is a constitutional crisis, and one that can be ameliorated by electronic recording."
The courts have been put in "an extremely difficult position" by Section 69957, Yohalem said
Justice Groban noted that the superior courts expressed concern in their written brief about the justices mandating electronic recording in situations where there's no electronic recording ability set up in a courtroom.
"How do we write an order ensuring equal access to verbatim recordings without essentially mandating electronic recording?" Judge Groban said.
Yohalem said the courts would prefer an order that says if a court reporter is unavailable and the litigant cannot secure a court reporter privately, then 69957 "shall not operate as a bar to the use of electronic reporting."
The lawyer later said that the court would provide electronic recording, if feasible.
But Justice Carol A. Corrigan suggested that Yohalem's "if feasible" wording could be used "as a gigantic loophole for people who simply want to avoid the rule."
Yohalem said he didn't believe there was evidence in the record to show that the lower courts would be looking for loopholes to avoid implementing what the high court asks.
A lawyer for SEIU California State Council and other organizations representing court reporters, said that while they agree the court should provide verbatim records to low-income civil litigants, the remedy sought would "undermine the legislature's successful effort to rejuvenate the court reporting profession" through 69957.
Justice Evans asked the lawyer, Scott Kronland of Altshuler Berzon LLP, if he agreed that an electronic record was better than no record at all.
He agreed, but said it's "equally true that insofar as it's feasible, that the trial courts should provide court reporters.
Kronland suggested that if the high court said electronic reporters are permissible when a court reporter is unavailable, then the courts will just not arrange for court reporters.
There's been a surge of court reporter licenses granted and students enrolled in court reporter schools, Kronland said. That's "going to be killed if the takeaway is the court says Superior Courts can substitute electronic recording for court reporters," he added.
In their petition filed in December 2024, the legal nonprofits said that while courts across the country are suffering from a shortage of court reporters, California's courts have been "particularly hard-hit," and the judiciary has attempted to "triage" the shortage by prioritizing the assignment of reporters to proceedings like felony trials, where the law requires their presence.
As a result, court reporters often are unavailable in cases involving child custody and support, conservatorship, guardianship and debt collection, among others, according to the petition.
Supreme Court of California Justices Patricia Guerrero, Kelli M. Evans, Leondra Kruger, Carol Corrigan, Joshua P. Groban, Goodwin Liu sat on the bench for Wednesday's hearing, along with Judge Cynthia C. Lie of the Sixth Appellate District.
Family Violence Appellate Project and Bay Area Legal Aid were represented by Sonya D. Winner of Covington & Burling LLP.
The California Superior Courts were represented by Mark R. Yohalem of Wilson Sonsini Goodrich & Rosati PC
The Office of the Attorney General of California was represented by Ian Fein, Deputy Solicitor General.
The case is Family Violence Appellate Project et al. v. Superior Courts of California et al., case number S288176, in the Supreme Court of the State of California.
--Editing by Alanna Weissman.
For a reprint of this article, please contact reprints@law360.com.
