The California Supreme Court allows the use of electronic recording equipment to make an official record of courtroom proceedings

The Court’s unanimous decision is good policy

If you lose in court, you might want to appeal. You can’t win on appeal without a record of the trial proceedings. Until today, in California, most civil litigants could not get that record without a court reporter. The court reporter makes a written transcript for the appellate court.

Except in felony criminal cases, California does not provide court reporters. As a result, in most cases, only those litigants who could afford to pay for a private court reporter could obtain one. And if a court makes a decision after a hearing and no record of that hearing exists, winning an appeal is often impossible. No transcript, no appeal.

In the absence of court reporters, an electronic recording of trial proceedings could serve to preserve the record for later transcription or listening. Electronic recordings are inexpensive and reliable. But a California statute prohibits courts from making electronic recordings of most courtroom proceedings (Government Code section 69957). Well, actually, as it turns out, the statute does not bar electronic recording. The California Supreme Court held today that “if a court reporter is unavailable, courts must imply an exception to the statute under the in forma pauperis doctrine and use electronic recording instead.” (Opinion, at page 33.)

I have previously predicted that the California Supreme Court would rule that the statute prohibiting electronic recording of proceedings is unconstitutional, at least in part, as applied to some proceedings involving low-income litigants. I suggested in a prior iteration of this article that statute improperly limits the judiciary’s constitutional powers, deprives low-income litigants of due process, and treats low-income litigants unequally under the law. The legislature has declined to defend it. The statute was indefensible. The legislature could have solved the access-to-justice crisis that it created by repealing the prohibition on electronic recordings. Instead, the legislature opted to let the Court solve the problem. This put the Court in a difficult position, unnecessarily, while leaving thousands of Californians without access to appellate review.

Instead of striking down the statute as unconstitutional, the Court interpreted the law to contain an exception for persons who cannot afford private court reporters. It reasoned that the legislature surely wants everyone to have equal access to justice and would not enact a statute that deprives low-income litigants of judicial review. Thus, even though the statute seems to say that courts shall not use electronic recording equipment to make an official record of proceedings in most cases, that broad rule contains an exception for everyone who cannot afford a private court reporter. The exception might well include “most” individual litigants and trial courts “should be flexible in assessing a litigant’s ability to pay.” (Opinion, at pages 2 & 29 n.3.)

Although I would have preferred a constitutional ruling instead of a statutory interpretation, the Court’s decision gets to the same place and is good for California. There was no good reason to maintain the state-created monopoly on the transcription of trial court proceedings. The legislature’s committee reports have said that a court reporter is the “gold standard” in producing accurate transcripts. But insisting on the gold standard in all cases is like offering first class seats or nothing, which is no way to run an airline, or a court system. Even if electronic recording is coach class, it will still get you there, and for a lot less money.

There is little risk that the legislature will attempt to amend the statute to reinstate its ban on electronic recording. For one thing, the legislature’s original choice in enacting the statute had become even less defensible over time, as technology improves. For another, the California Supreme Court left little doubt that if had not interpreted the statute to allow electronic recording, then it would have struck it down as unconstitutional anyway. (See Opinion, at pages 31-32 & n.4.) Although the Supreme Court has done much of the work, the legislature should take the final step of repealing the statute once and for all. For now, the Court’s decision is the right step toward better and more equal access to appellate courts.