The suit, brought by the Family Violence Appellate Project and Bay Area Legal Aid, seeks an order from the court mandating that a litigant who cannot afford to pay for a private court reporter is entitled to have an official recording created at no charge, including by electronic recording if a court reporter is not available.
"The Supreme Court only accepts a small percentage of the cases, so its acceptance of this case signals its recognition of the important constitutional issues and the breadth of the impact caused by the shortage," the advocates said in a press announcement about the decision.
Brenda Star Adams, the director of litigation for Bay Area Legal Aid, said the plaintiffs are thankful that the Supreme Court has agreed to consider the case.
"Our attorneys see firsthand that access to justice in California too often comes at the cost of a private court reporter," Star Adams said. "Wealth must not be the deciding factor in determining access to justice."
The state's court reporter shortage is exacerbated by a state law that bars the electronic recording of certain court proceedings, according to the petition, which was filed in December.
A news release from the California Supreme Court announcing newly accepted cases summarized the issue as follows: "Does the prohibition on electronic recording of certain proceedings … violate the California Constitution when an official court reporter is unavailable and a litigant cannot afford to pay a private court reporter?,"
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.
The current situation also makes it difficult for litigants to challenge court decisions, according to the advocates.
"Our judicial system fundamentally depends on verbatim recordings of court proceedings," the petition states. " Without such recordings, it can be impossible for litigants to appeal erroneous trial court rulings.
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, the advocates said.
Section 69957 of California's Government Code bars those courts from using electronic recording in many civil, family law and probate proceedings. As a result, 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 states.
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.
The California Judicial Council did not immediately respond to a request for comment Friday.
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 Friday.
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.
--Additional reporting by Jack Karp. Editing by Bruce Goldman.
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