Can the California Supreme Court press record?

At a child custody hearing in Los Angeles County Superior Court, a mother sought permission to move with her child back to her hometown. She had sole custody because the father had abused the child. Even so, the trial judge invoked the policy favoring "frequent and continuing contact" to deny the move.

That was reversible error, but the mother had no way to appeal because there was no record of the hearing. The court, facing a critical shortage of certified court reporters, could not supply one, and the mother could not afford to hire one.

A third option existed: Los Angeles County courtrooms are equipped for electronic recording. But a state law bars litigants from using electronic recording in most civil proceedings when a court reporter is unavailable.

As a result, more than a million court hearings take place with no record each year in California. That makes appeals, subsequent trial court proceedings and meaningful judicial oversight practically impossible.

"There is an access to justice crisis in the California courts," said Sonya D. Winner, a Covington & Burling LLP partner who is leading, pro bono, a challenge by legal aid groups to the electronic recording ban.

Winner said, "Every day, thousands of litigants turn to the courts to resolve civil disputes involving matters of fundamental importance, including the custody of their children, the financial resources available to support themselves and their families, and their physical safety. The judicial system is failing them."

Winner and her clients have placed the crisis before the California Supreme Court, which heard oral argument June 3 on the legal aid groups' writ petition to eliminate the ban on electronic recordings.

The ban disproportionately affects California's most vulnerable litigants -- those with limited means and urgent family law disputes -- as their cases collide with a shortage of certified court reporters and Government Code section 69957(a), which forbids substituting electronic recordings for human reporters in most family law proceedings.

As the oral argument session began, Chief Justice Patricia Guerrero asked the key question: What should the court do about section 69957?

Winner's answer suggested the statute is unconstitutional because wealthy parties can afford to hire private court reporters while low-income litigants are forced to do without. "This creates widespread infringement of the due process and equal protection rights of the low-income litigants while substantially impairing the courts' ability to comply with their duty to dispense justice," she said.

Opposing any change are unions representing the state's certified court reporters, who contend that human reporters are necessary to ensure reliable verbatim transcripts.

"It is not obvious that low-income civil litigants have a constitutional right to a verbatim record at public expense," wrote the unions' lawyer, Scott A. Kronland of Altshuler Berzon LLP, in opposing the petition and noting that the high court has never ruled on that constitutional question. "The public does not pay for attorneys for civil cases."

The petition was filed by the Family Violence Appellate Project and Bay Area Legal Aid against the superior courts in Contra Costa, Los Angeles, Santa Clara and San Diego counties.

The respondent courts filed briefing that essentially agreed a crisis exists, that they have done their best amid a severe court reporter shortage and that guidance from the Supreme Court would be welcome.

"By deciding the Petition, the Court will make clear the rights, powers, and duties of individuals and entities caught up in this statewide crisis," wrote Mark R. Yohalem of Wilson Sonsini Goodrich & Rosati PC, representing the superior courts.

Though not technically respondents, the court reporter unions received permission from the Supreme Court to participate in oral argument. Kronland said he agreed with the petitioners about the importance of a verbatim record but argued that disregarding section 69957 "would unjustifiably intrude on the core authority of the Legislature."

Kronland disputed claims of a court reporter shortage, asserting there has been a ninefold increase in new licenses since the petition was filed in 2024.

Justice Kelli M. Evans asked whether an electronic record would not be better than having no record at all.

"I concede that something is better than nothing," Kronland replied, but contended that hiring more court reporters is the better solution.

The case presents an opportunity for the high court to extend meaningful access to appellate review for a large population of indigent litigants who are effectively barred from appealing because no record exists.

Brian A. Sutherland, a veteran appellate lawyer at Complex Appellate Litigation Group LLP who is not involved in the case, has studied and written about the issue.

"The Supreme Court is likely to rule that the Legislature cannot prohibit courts from making an electronic recording of proceedings for low-income litigants when no court reporter is available," Sutherland wrote in an email.

"The petitioners framed their request for relief narrowly, so the Court doesn't need to go any further. Although the Court is likely to issue a narrow ruling, it will be highly significant because the anticipated ruling would enable thousands of litigants to obtain a record and use it to vindicate their appellate rights."

He faulted lawmakers for allowing the problem to persist.

"The Legislature could resolve this crisis tomorrow by lifting the existing ban on electronic recording. It is deliberately prohibiting courts from deploying a low-cost solution, with devastating consequences. With each passing month, this choice becomes less defensible, as improvements in voice recognition software make translating audio into text more reliable and cost-effective."

Backed by 22 amici, including the California Lawyers Association, numerous law professors and the California Academy of Appellate Lawyers, the plaintiffs propose a simple solution: The justices should require courts to ensure that low-income litigants have access to electronically generated verbatim recordings whenever a court reporter is unavailable. Family Violence Appellate Project et al. v. Superior Court, S288176 (Cal. S. Ct., filed Dec. 5, 2024).

Court staff summarized the issue: "Does the prohibition on electronic recording of certain proceedings in Government Code section 69957, subdivision (a) violate the California Constitution when an official court reporter is unavailable and a litigant cannot afford to pay a private court reporter?"

"This is the rare circumstance when a serious problem can be solved by the push of a button," wrote E. Stephen Temko, a family law specialist and member of the American Academy of Matrimonial Lawyers, in an amicus brief.

"The first thing every appellate lawyer learns is that 'if it is not in the record, it did not happen,'" he added, quoting a 2003 appellate opinion. Temko's brief, filed on behalf of the Association of Certified Family Law Specialists, the Southern California Chapter of the AAML and the San Diego Family Law Bar Association, urged that all family law litigants receive electronic transcription of proceedings whenever a court reporter is unavailable.

But pushing the button has not been easy. Getting approval from the California Supreme Court to activate existing recording equipment for family law proceedings has been an uphill battle.

The result has been manifestly unfair to litigants who cannot afford private court reporters, whose services can cost more than $1,000 a day.

Over one 18-month period, Family Violence Appellate Project, an Oakland-based nonprofit law firm, declined appellate representation in dozens of cases -- 10% to 12% of those it reviewed -- because there was no verbatim record of the trial court proceedings, according to Jennafer Dorfman Wagner, the organization's director of programs.

In a declaration filed with the Supreme Court, Wagner described one woman who alleged her husband pulled her from a car and shoved her into a concrete wall. A trial judge denied her request for a domestic violence restraining order despite photographic evidence of bruises. FVAP could not appeal because there was no verbatim record of the hearing.

"Based on our experience, the assumption on appeal would be that the lower court either (1) found the abuse did not occur, or (2) found that it was not inflicted by the husband, and that inferred finding of fact would in turn be presumed correct in the absence of a record showing otherwise," Wagner wrote.

Court reporters, however, have the law on their side. After the Judicial Council authorized electronic recording of superior court proceedings in 1994, the California Court Reporters Association successfully challenged the policy. An appellate court ruled that the Judicial Council had exceeded its authority because state statutes have long required official court records to be made by certified court reporters. California Court Reporters Association v. Judicial Council of California, 39 Cal.App.4th 15 (1995).

Yet another appellate court later suggested the controversy was driven as much by politics as technology. "In fact, the battle over use of certified shorthand reporters versus electronic recording appears to be more political than factual," Justice J. Gary Hastings wrote in People v. Taylor, 67 Cal.App.4th 1258 (1998), citing an ABA Journal article in which a federal judge predicted electronic recording would eventually make court reporters obsolete.

In 2011, court reporter proponents successfully lobbied for legislation banning electronic recording in most courtrooms.

In the current case, the California Court Reporters Association and organizations representing court reporters in Los Angeles, Santa Clara and San Diego counties, backed by the Service Employees International Union, argued in an amicus brief that human reporters remain indispensable.

"Electronic recording may work in a controlled environment like an appellate argument, but trial court proceedings involve multiple participants who do not stay in front of microphones, who interrupt each other and mumble, and who do not identify themselves before speaking," Kronland wrote.

He added: "The recording machine does not know what it is not hearing, and trial courts assign the task of monitoring the recording to clerks who have other duties. In the real world of trial court proceedings, electronic recording is not an adequate substitute for the skilled, human court reporters who have a professional obligation to serve as guardians of the record."

Kronland's claim that more court reporters are becoming available did not persuade Brenda Star Adams, litigation director for Bay Area Legal Aid.

"Having more court reporters in the courtroom would be ideal, but so far we have not seen the sea change that the SEIU's counsel referenced, and I'm afraid we may never," Adams wrote in an email.

"But the beauty of the relief we seek in this case is that it only applies when a court reporter is not available, so if the court reporter shortage does improve, it doesn't impact this case at all. As their attorney noted at oral argument, an electronic record is better than no record at all, and that's the reality our low-income clients are facing every day. They deserve equal access to justice."