In Family Violence Appellate Project v. Superior Court, the Supreme Court today holds that electronic recording of trial court proceedings may be necessary to protect indigent litigants’ access-to-justice rights, even though a statute generally bars such recordings. The court doesn’t rely on any state or federal constitutional principles as a basis for its ruling, instead invoking its powers under the common law, but it issues a not-too-subtle warning to the Legislature not to try to overturn today’s decision.
The court’s unanimous opinion by Chief Justice Guerrero follows up on the Jameson v. Desta (2018) 5 Cal.5th 594 decision, in which the court held that superior courts must make court reporters available to indigent litigants. (See here.) Noting that the Jameson “guarantee has proven illusory” because there aren’t enough court-employed court reporters, the opinion concludes that, despite Government Code section 69957(a)’s prohibition of electronic recording in most cases, “Where a litigant requests the creation of an official verbatim record and establishes an inability to pay for a private court reporter, a superior court has a duty to provide some way for the litigant to obtain an official verbatim record, including by electronic recording if an official reporter is unavailable.”
The court doesn’t hold section 69957’s broad ban of electronic recording to be unconstitutional when it deprives indigent litigants of a transcript. Rather, the court uses its authority under the common law in forma pauperis doctrine to overcome the ban: “Even where a mandatory statute contains no exception for indigent litigants, courts have the inherent power to imply one.” And it strongly suggests that any legislative attempt to expressly eliminate the implied exception would be met with disfavor. The court says that it “would have serious doubts that such an effort would be permissible under the California Constitution,” that the implied exception “avoids ‘the “serious constitutional questions” that would otherwise arise under the separation of powers doctrine,’ ” and that “it is not hard to imagine a due process or equal protection dimension to this dispute.”
Today’s opinion appears to leave a gap. Requiring a court reporter or an electronic recording still leaves an indigent litigant one step away from having a transcript in hand. In Jameson, the court said that it had “not yet addressed the question under what circumstances an in forma pauperis civil litigant may be entitled to obtain a free reporter’s transcript when such a transcript is essential to the resolution of the litigant’s appeal on the merits.” The court today does impose on superior courts the “duty to provide some way for the litigant to obtain an official verbatim record” (emphasis added), but that seems to be dictum since the right to a free transcript is not in issue.
The FVAP case is the rare one that the Supreme Court decides without any Court of Appeal opinion or lower court ruling. The court explains it will, as today, ” ‘exercise [its original mandamus] jurisdiction . . . only in cases in which “the issues presented are of great public importance and must be resolved promptly.” ’ ”
Related:
In her State of the Judiciary address two years ago, the Chief Justice asked the Legislature to work with her to address what she called the “pressing issue” of “provid[ing] [litigants] with a verbatim record of their trial court proceedings.” (See here.)
