Covington & Burling LLP is among the counsel for groups petitioning the California Supreme Court to address the state's court reporter shortage by mandating the use of electronic recording when court reporters are unavailable.

The state's court reporter shortage is creating "an access to justice crisis," particularly for low-income litigants who can't afford to hire private court reporters, a situation exacerbated by a state law that bars the electronic recording of certain court proceedings, according to the petition filed Wednesday on behalf of the Family Violence Appellate Project and Bay Area Legal Aid.

So the state's high court should declare that that law violates the California Constitution, the petitioners said.

"The genesis of the court reporter crisis is multi-faceted, and this petition does not ask this court to solve it or to assign fault. It simply asks this court to confirm that the rights of low-income litigants must be protected when a court — for whatever reason — is unable to provide a court reporter to create the verbatim recordings to which those litigants are entitled," the petitioners insisted.

While courts across the country are suffering from a shortage of court reporters, California's courts have been "particularly hard-hit," according to the petition, which pointed out that Golden State courts had 650 fewer reporters than needed in fiscal year 2022-23, making verbatim transcripts increasingly unavailable in civil cases.

The judiciary has attempted to "triage" this 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.

And while wealthy litigants can afford to hire private court reporters when the court can't provide them, low-income litigants don't have that option, creating a two-tiered justice system, the petition said.

"By depriving low-income litigants of verbatim recording of their evidentiary hearings and other proceedings, the current situation effectively deprives them of the ability to enjoy full access to the courts, including the ability to appeal erroneous rulings," said Jennafer Wagner, the Family Violence Appellate Project's director of programs. "Full access to justice in California cannot be limited to those who can afford to pay for a private court reporter when the court is unable to provide one."

The problem could easily be fixed by using electronic recording to replace unavailable court reporters, the petitioners said. Many other state and federal courts use electronic recording, and most of the courtrooms in the Superior Courts of Contra Costa, Los Angeles, Santa Clara and San Diego counties are already equipped to use it as well, they said.

But Section 69957 of California's Government Code bars those courts from using electronic recording in many civil, family law and probate proceedings. That means the application of Section 69957 violates the California Constitution's due process and equal protection guarantees, according to the petitioners.

"When the court does not provide a court reporter, Section 69957 creates two classes of litigants in unlimited civil, family, and probate matters: litigants who can afford a private court reporter to provide the verbatim recording necessary for full access to justice, and those who cannot," the petition said.

The ban on electronic recording also violates the California Constitution's separation of powers clause by allowing the state Legislature to enact a law that impairs the courts' ability to exercise their constitutionally protected powers, according to the petition.

"[Nothing] in the statute indicates a legislative intent to bar low-income litigants' access to justice by depriving them of any verbatim recording, and it should not be interpreted as overriding the courts' inherent duty to create verbatim recordings through other means where necessary," the petitioners said.

They want the state Supreme Court to mandate electronic recording in civil proceedings for low-income litigants when a court reporter is not available and to declare that Section 69957 can't be used to bar the electronic recording of court proceedings when low-income litigants can't afford private court reporters.

"Without this relief, thousands of low-income litigants will continue to be deprived every day of the necessary recording of their proceedings to which they are constitutionally entitled," said Sonya Winner, senior counsel at Covington.

The California Judicial Council declined to comment on pending litigation Thursday.

Family Violence Appellate Project and Bay Area Legal Aid are represented by Sonya D. Winner, Ellen Y. Choi, Bryanna Walker, Jacob Pagano and Eva Dorrough of Covington & Burling LLP and Sarah Reisman, Katelyn Rowe and Erica Embree Ettinger of Community Legal Aid SoCal.

Counsel information for the California superior courts was not available Thursday.

The case is Family Violence Appellate Project et al. v. Superior Courts of California, Counties of Contra Costa, Los Angeles, Santa Clara and San Diego, case number unavailable, in the Supreme Court of the State of California.

--Editing by Dave Trumbore.