The challenge to the electronic-recording ban, in a rare original writ petition in the California Supreme Court, will progress to the merits. The Court has invited the respondent Superior Courts of Contra Costa, Los Angeles, Santa Clara, and San Diego to file a return in April 2025 showing cause why Court should not order them begin electronically recording trials and hearings for low-income litigants despite Government Code section 69957, the court reporter lobby-backed statutory prohibition.
The Court’s unanimous order to show cause in Family Violence Appellate Project v. Superior Court (no. S288176) is the biggest advance for electronic recording of court proceedings since the Judicial Council authorized them in the 1990s, before the court reporter lobby actions resulted in two appellate decisions invalidating those rules as inconsistent with statute. Section 69957 was enacted later as a death knell, removing all doubt that electronic recordings may not be used to create an appellate record.
So how do the petitioners, represented by Covington & Burling and Community Legal Aid SoCal, try to get around section 69957’s death knell to electronic recording? The petition starts on friendly territory with the Supreme Court’s landmark case Jameson v. Desta, which holds that low-income litigants cannot be denied a court reporter. But what happens when no court reporter is available? The petitioners argue that the courts have an inherent duty—and thus an inherent power—to create this record, and any act of the legislature that impairs the court’s inherent power violates the doctrine of separation of powers.
Offering a nuanced solution, the petitioners argue that section 69957 should be interpreted as “directive”—expressing a preference, not a mandate, in favor of court-reported proceedings. And so long as the courts use electronic recordings only when a court reporter is unavailable, the section 69957 “directive” would not be offended.
Besides, when a court reporter is not available, there is no rational basis to deny an electronic recording.
The petition notes a few jarring stats:
Whether the respondent Superior Courts will file a return remains to be seen. The Court invited the Legislature to file a return if it wishes. The Court also invites amicus curiae applications, accommpanied by briefs, to be served by the April 4 deadline.
Comment: The petition seeks relief only for low-income litigants. But if the Court agrees with the premise that denying an electronic recording when no court reporter is available makes no sense, that reasoning applies no matter the financial status of the litigant. Recall that the Los Angeles Superior Court has already issued a local rule permitting electronic recordings when no court reporter is available (discussed here). That rule applies to all litigants. Expect that, if the Supreme Court grants the low-income litigants’ petition here, the LASC local rule will serve as a template for other courts.
