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Presiding Judge Samantha P. Jessner's order, with findings on the shortage of court reporters and Government Code section 69957, directing the Clerk to have deputy clerks operate electronic recording equipment in family law, probate and civil departments when the presiding judicial officer finds that the proceeding implicates fundamental rights or liberty interests, a party wishes to be able to obtain a verbatim transcript, no court reporter is reasonably available and the party could not secure a private one, the proceeding involves significant issues, and it should not be further delayed; the court may impose reasonable fees.
California > Second Appellate District > Los Angeles County > Superior Court of California, County of Los Angeles
2024-GEN-011-00 FILED Superior Court of California County of Los Angeles SEPTEMBER 5, 2024 David W. Slayton, Executive Officer/Clerk of Court By: R. Mina, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GENERAL ORDER RE OPERATION OF ELECTRONIC RECORDING EQUIPMENT FOR SPECIFIED PROCEEDINGS INVOLVING FUNDAMENTAL LIBERTY INTERESTS IN THE ABSENCE OF AN AVAILABLE COURT REPORTER GENERAL ORDER INTRODUCTION Just six years ago, our Supreme Court warned that “the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant’s ability to [appeal].” (Jameson v. Desta (2018) 5 Cal.5th 594, 608 (Jameson).) The Supreme Court thereby invalidated a Superior Court’s practice of requiring indigent parties to arrange and pay for a court reporter. (Id. at pp. 611, 623.) The Jameson decision was just one of many instances in which our Supreme Court, Court of Appeal, and Superior Courts have struck down or rejected laws, rules, doctrines, and policies that might “significantly chill [a] litigant’s enjoyment of the fundamental protections of the right to appeal.” (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 797.) “The State of California is not constitutionally required to establish avenues of appellate review, ‘but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.’ [Citation.]” (In re Arthur N. (1974) 36 Cal.App.3d 935, 939.) This General Order, too, reflects the need for procedures that promote equal access to “the fundamental protections of the right to appeal.” The Los Angeles Superior Court (“LASC”) can no longer reliably staff its courtrooms with court-employed certified shorthand reporters (“CSRs”) because of a chronic shortage of CSRs available to be hired. Without a CSR, vast numbers of litigants are left without a verbatim transcript—or even any verbatim record—of what occurred in hearings that may have a profound impact on their rights and lives. In 2023 alone, our Court held more than 332,000 hearings for which there was no verbatim record of proceedings, with the parties’ appellate rights accordingly limited.1 There have been hundreds of thousands more such hearings in 2024 to date. On average, each day, 1,571 hearings occur in our Court where the parties do not have access to a verbatim record. This is an emergency and a crisis. It should not be countenanced by any public official dedicated to securing justice, and access to justice, to the residents of Los Angeles County. The shrinking of the number of CSRs available to be hired has been evident for years, drawing persistent warnings from leaders in the judiciary and legislature, as well as from access-to-justice non-profits and others. Slow growing as this crisis may have been, it nevertheless constitutes a major change from how courts have long operated. Until the CSR shortage of the past two decades, it could have been said that “in modern times there [was] a court reporter, who ma[de] a record of all the proceedings.” (In re Dolgin Eldert Corp. (1972) 31 N.Y.2d 1, 5.) But that is no longer true for tens of thousands of participants in California’s justice system. For those litigants today, even when their fundamental rights are at stake, no one makes a verbatim record of all the proceedings. Under current law, the LASC is obligated to provide CSRs for certain criminal and juvenile proceedings, and for certain proceedings when requested by indigent litigants with an approved fee waiver. That obligation is not changed by the fact that the LASC has 125 CSR vacancies, a number that has not decreased for over a year despite the LASC’s significant efforts to hire and retain CSRs. To provide coverage for criminal and juvenile proceedings, the LASC has been forced to remove CSRs from its family law, probate, and unlimited civil departments. In those departments, per Local Rule 2.21(d), the LASC has tried to provide CSRs on an ad hoc basis—by the hour, by the day, or for a given hearing upon special request by the judicial officer. But this stopgap measure has proven inadequate, and the LASC cannot maintain it going forward. As a last resort to preserve the appellate rights of litigants and to carry out the LASC’s “duty in the name of public policy to expeditiously process civil cases” (Apollo v. Gyaami (2008) 167 1 These and other facts set forth in this order regarding the scope and scale of this crisis are explained in further detail and supported with documentation in the Declaration of Court Executive Officer and Clerk of Court David W. Slayton dated September 5, 2024. Cal.App.4th 1468, 1487 (Apollo)), this General Order permits individual judges of the LASC to authorize the electronic recording (“ER”) of hearings at which fundamental rights are at stake. The LASC cannot achieve these important goals through settled or agreed statements, which rightly are understood to be “cumbersome and seldom used” options (Klatchko & Shatz, 1 Matthew Bender Practice Guide (2024) Cal. Civil Appeals and Writs 7.27), whose “inherent limitations usually make them inferior to a reporter’s transcript.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 4:45a). As discussed below, these theoretical alternatives are not feasible given the vast number of hearings at issue. Moreover, “the potential availability of a settled or agreed statement does not eliminate the restriction of meaningful access caused by” a party’s inability to secure a verbatim record. (Jameson, supra, 5 Cal.5th at p. 622, fn. 20.) As explained below, the Legislature permits courts to use ER to create a verbatim record of proceedings in misdemeanor, infraction, and limited civil cases but has prohibited ER in any other case type. (Gov. Code, § 69957 (hereafter, “section 69957”).) As a result, the LASC successfully used ER to create verbatim transcripts in those matters, permitting appellate review by the LASC’s Appellate Division more than 500 times in 2023 without incident. At the LASC and across the state, this legislative experiment confirmed that ER is a reliable alternative when a CSR is not reasonably available. In 2023 and early 2024, members of the public, access-to-justice nonprofits, the Judicial Council of California, and lawyers for particularly affected litigants in family law implored the Legislature to amend section 69957 to permit ER in additional types of matters when a CSR is not available to address the shortage of CSRs. Despite widespread public support for this expansion, the Legislature did not act and has entered its final recess for the year before adjournment sine die. Section 69957 may have initially been intended to ensure that litigants in areas other than misdemeanor, infraction, and limited civil cases had CSRs in lieu of ER. But where no CSR is reasonably available due to the CSR shortage, section 69957 does not provide litigants with a more reliable verbatim transcript, but effectively denies them any verbatim transcript at all—a denial that “will frequently be fatal to a litigant’s ability to [appeal].” (Jameson, supra, 5 Cal.5th at p. 608.) In such instances, section 69957 draws an indefensible distinction between misdemeanor, infraction, and limited civil hearings and all other hearings in family law, probate, and unlimited civil cases (at which litigants may not use ER, even when no CSR is reasonably available). Indeed, the Court of Appeal has struck down such a distinction in the past, holding that where verbatim transcription is provided to felony defendants, “statutes, which permit the municipal court to deny defendants of misdemeanor criminal actions the availability of a phonographic reporter, or an electronic recording device, or some equivalent means of reasonably assuring an accurate verbatim account of the courtroom proceedings, fail to comport with constitutional principles of due process and equal protection of the laws.” (See In re Armstrong (1981) 126 Cal.App.3d 565, 572-574 (Armstrong), original italics.) Here, section 69957 permits electronic transcription in many kinds of proceedings but forbids it in other proceedings that implicate constitutionally protected fundamental interests and liberty interests of the litigants. Where such fundamental rights and liberty interests are at stake, the denial of ER to litigants who cannot reasonably secure a CSR violates the constitutions of the United States and the State of California. This legislative discrimination is not narrowly tailored to meet a compelling state interest as required by a constitutionally mandated strict scrutiny analysis. Indeed, the Court seriously doubts that there is any valid justification for depriving litigants of a verbatim transcript when a ready technological means for providing one is available. The appellate courts are “profoundly concerned about the due process implications of a proceeding in which the [trial] court, aware that no record will be made, incorporates within its ruling reasons that are not documented for the litigants or the reviewing court.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 100.) The LASC, too, is profoundly concerned about the possibility of the appellate courts reviewing decisions—or, worse, declining to review decisions—where the record is not adequately “documented for the litigants or the reviewing court.” (Ibid.) Accordingly, to provide the judges of the LASC with the means to protect the ability of litigants to appeal where their fundamental rights are at issue and no CSR is reasonably available, the Court issues this General Order. THE COURT’S EFFORTS TO HIRE AND RETAIN CSRs It is the firm belief and policy of the LASC that the Court should make every effort to hire any qualified and available CSR as an employee of the Court to fill existing vacancies and capture verbatim records. If it could, the LASC would significantly increase the number of CSRs it employs. It has attempted to do so, without success. The LASC’s profound shortage of CSRs exists because there is, and has been, a chronic, growing shortage of available CSRs. The LASC cannot hire enough CSRs, because they do not exist to be hired. As a result, the LASC now has at least 125 CSR vacancies it has tried desperately to fill. This shortage has persisted for well over a year. Our Court is not alone in experiencing this emergency. It is a statewide phenomenon, well-documented by the Judicial Council of California, the Court Executive Officers of virtually every California county, and many of the Presiding Judges of those counties. The LASC has undertaken in the last two fiscal years an unprecedented expenditure of effort and money to try to hire and retain CSRs. This has included extensive promotion of open positions and substantial signing and retention bonuses. But the LASC’s efforts have been unsuccessful. While the LASC has been able to hire some new CSRs, the new hirings have not kept up with retirements. After all its efforts and the expenditure of well over thirteen million dollars in 2023 and 2024 on recruitment and retention of CSRs, the LASC had a net reduction of eleven CSRs and still has 125 CSR vacancies. Given the inability of even an eight-figure investment to increase the CSRs at the LASC, and the overall downward trend in the number of CSRs entering the profession, there is no reason to believe the shortage can be eliminated or sufficiently mitigated by hiring and retention efforts. The LASC, together with the Presiding Judges and Court Executive Officers of many other counties—as well as representatives of the bar whose clients are most affected by the absence of a verbatim transcript—implored the California Legislature to take up legislation that could address this crisis. Leaders in the Legislature did propose such bills. For example, California State Senator Susan Rubio in 2023 introduced SB 662 which, if enacted, would have expanded the permitted use of ER from limited civil, misdemeanor and infraction matters under section 69957 to other proceedings, if and when a CSR was unavailable. But on January 18, 2024, the Legislature failed to advance SB 662. The LASC continued to urge the Legislature to take some action along the lines of SB 662, but on August 31, 2024, the Legislature recessed without doing so.2 2 See Joint Rules, Rule 51(b)(3), Senate Concurrent Resolution No. 1 (2023-34 Reg. Sess.) regarding Legislature’s “recess on September 1 until adjournment sine die on November 30.” Pursuant to California Evidence Code section 452, subdivisions (a), (c), and (g), the Court takes judicial notice of Senator Rubio’s introduction of SB 662 in 2023, the Legislature’s failure to advance SB 662 on January 18, 2024, and its recess on August 31, 2024, without having taken further action on the bill. THE CONSTITUTIONAL CRISIS A. The LASC’s Mission The Los Angeles Superior Court is dedicated to serving our community by providing equal access to justice through the fair, timely and efficient resolution of all cases. (See https://www.lacourt.org/generalinfo/aboutthecourt/gi_ac001.aspx.) This mission flows from the rights provided in the constitutions of the United States of America and the State of California, which all judicial officers swear to support and defend. The Presiding Judge and Court Executive Officer of the LASC are aware that our Court’s practical inability to provide CSRs, combined with section 69957’s statutory prohibition against providing ER to many litigants, results in a profound denial of equal access to justice. In 2023 alone, the LASC held more than 332,000 hearings for which no verbatim record could be prepared. An additional 193,000 hearings with no verbatim record were held in the first six months of 2024. Many of those hearings involved the parties’ fundamental rights and liberty interests. For those hoping to appeal an adverse ruling, the “lack of a verbatim record of such proceedings will frequently be fatal.” (Jameson, supra, 5 Cal.5th at p. 608.) Permitting impacted litigants recourse by providing access to ER where a CSR is not reasonably available would “eliminate the restriction o[n] meaningful access” to the appellate process. (Jameson, supra, 5 Cal.5th at p. 622, fn. 20.) As noted, the LASC successfully uses ER to create a verbatim record in infraction, criminal misdemeanors, and limited civil proceedings, thereby permitting appellate review in the LASC’s Appellate Division more than 500 times per year. Unfortunately, outside of those kinds of proceedings, section 69957 denies impacted litigants recourse to ER even in hearings where their fundamental rights and liberty interests are at stake. This General Order confirms that judges in the LASC can—consistent with the mission of the LASC and the judges’ oaths of office—authorize ER where such rights are at stake and no CSR is reasonably available. B. As a Practical Matter, Litigants Disfavored by Section 69957 Must Forgo a Verbatim Transcript When No CSR Is Reasonably Available Litigants in matters where there is no court-provided CSR have two options for seeking a verbatim transcript, neither of which is reasonable in most cases—as the 525,000 hearings with no verbatim transcript in 2023 and the first half of 2024 confirm. First, they may try to retain a private CSR to attend the court proceedings. But the Judicial Council has found that the same shortage of CSRs in the community has resulted in the per diem cost of retaining a private CSR, if one can be found, to be prohibitive to all but the wealthiest of litigants.3 Either because a party cannot afford a private CSR or simply because no private CSR can be secured, this option may not make a CSR reasonably available. Second, one or both parties may ask the Court to continue the hearing to another day in the hope that the Court will be able to supply a CSR on a later date. Even if the judicial officer were willing to continue the proceeding, this option results in a pernicious delay in the administration of justice in cases where prompt court action is usually essential. This includes, for example, whether to impose or vacate a restraining order; whether to hold a litigant in contempt (for which speedy trial rules apply); whether to make orders concerning the custody and parental decision-making for minor children; or whether to impose—or eliminate the imposition of—a conservatorship upon a vulnerable adult. Continuances are not a practical or efficient option for litigants to obtain a verbatim transcript, considering the trial court’s “duty in the name of public policy to expeditiously process civil cases” (Apollo, supra, 167 Cal.App.4th at p. 1487), the harm that could occur to parties from postponing a hearing, and the fact that there are likely to be fewer, not more, CSRs in the future. As a result, litigants have no choice but to proceed without a verbatim transcript in hundreds of thousands of hearings where there is no court-employed CSR, the parties cannot reasonably provide their own privately hired CSR, and ER is not an option. 3 Pursuant to California Evidence Code section 452, subdivision (c), the Court takes judicial notice of the Legislative Analyst’s Office’s March 5, 2024, report to Senator Thomas Umberg, Chair of the Senate Judicial Committee, and the Judicial Council of California’s January 2024 “Fact Sheet: Shortage of Certified Shorthand Reporters in California,” attached to and incorporated in the Declaration of Court Executive Officer and Clerk of Court David W. Slayton as Exhibits 7 and 1, respectively. C. The Consequence of Forgoing a Verbatim Transcript As the leading treatise puts it, a verbatim “[t]ranscript may be essential for appellate review.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 9:172.) The California Court of Appeal observed 20 years ago: “When practicing appellate law, there are at least three immutable rules: first, take great care to create a complete record; second, if it’s not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364, italics added.) Our Supreme Court approvingly quoted this guidance in Jameson as part of its explanation for why that “lack of a verbatim record of such proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court.” (Jameson, supra, 5 Cal.5th at pp. 608-609 & fn. 11.) The Court of Appeal’s decision in In re Christina P. (1985) 175 Cal.App.3d 115, is instructive on the duty to ensure a verbatim transcript when a hearing may be relevant to a subsequent appeal. “When counsel has reason to anticipate that what is said at a hearing may be pertinent to a subsequent appeal he has a duty to insure that a court reporter is present. [Citation.] Failure to attend to this duty can be tantamount to a waiver of the right to appeal.” (Id. at p. 129, italics added.) “Where the matter is as grave as termination of parental rights and where the client is an indigent person entitled to a free transcript and a free lawyer on appeal, there is no conceivable rational tactical purpose for trial counsel's failure to insure the attendance of a court reporter.” (Id. at pp. 129-130, italics added.) The loss of appellate rights “flowing from the absence of a transcript”—there, the “loss of the ability to show there [was] insufficient evidence to support the judgment”—is “the epitome of prejudice.” (Id. at p. 130.) The stern admonitions of Jameson and In re Christina P. are not one-off aberrations, but part of a decades-long chorus from jurists at all levels of the California court system. Trial judges and appellate justices alike have long understood that a verbatim transcript—not a post-hoc summary—is what “a complete record” ordinarily entails. (See Jameson, supra, 5 Cal.5th at p. 608-609 & fn. 11.) “As a general matter … the absence of a court reporter will significantly limit the issues that must be resolved on the merits on appeal.” (Id. at p. 622, fn. 20.) For that reason, the Supreme Court rejected summaries in an order or a settled or agreed statement as a cure-all when a litigant is denied the opportunity to obtain a verbatim transcript. (Jameson, supra, 5 Cal.5th at p. 622, fn. 20.) To be sure, “some issues can be resolved on the clerk’s transcript alone or by way of a settled or agreed statement” (ibid.), and the option of a settled statement “permit[s] parties to appeal without the expense and burden of preparation of a reporter’s transcript” if they so elect (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall)). “There is, however, generally no way to determine in advance what issues may arise or whether such an issue can be raised and decided on appeal absent a verbatim record of the trial court proceedings.” (Jameson, at p. 622, fn. 20.) And even for issues that theoretically could be raised on a summary rather than a verbatim record, “where the parties are not in agreement, and the settled statement must depend upon fading memories or other uncertainties, it will ordinarily not suffice.” (Armstrong, supra, 126 Cal.App.3d at p. 573; see also People v. Cervantes (2007) 150 Cal.App.4th 1117, 1121 (Cervantes).) Indeed, leading commentators have noted that “[i]t is unrealistic to expect litigants and judges to accurately recall what was said and decided days or even months after the relevant oral proceedings.” (Grimes, et al., Navigating the New Settled Statement Procedures (2022) 33(2) Cal. Litig. 24 at p. 28 [“Grimes, Settled Statements”].) Thus, the ability to settle a statement will often depend upon “whether the trial court took ‘detailed notes.’” (Cervantes, at p. 1121 [quoting In re Steven B. (1979) 25 Cal.3d 1, 8–9].) But because section 69957 forbids trial judges to use ER “for purposes of judicial notetaking,” such detailed notes would either be “the notes of a court reporter who had reported the proceedings” (Jameson, at pp. 624-625) or quasi-stenographic notes somehow taken by the trial judge while trying to conduct the hearing. To this longstanding appellate wisdom, trial judges can add further practical facts: trial judges, like trial counsel, generally cannot “determine in advance what issues may arise” (Jameson, supra, 5 Cal.5th at p. 622, fn. 20), so as to know that this is the moment in a hearing at which “detailed notes” should be taken (Cervantes, supra, 150 Cal.App.4th at p. 1121). And in contentious hearings, particularly those involving unrepresented litigants, judges must focus on their roles as referees and decision-makers and cannot serve as de facto CSRs. Unfortunately, such hearings—which constitute many of the 525,000 hearings for which no verbatim record was created in 2023 and the first half of 2024—are the ones in which litigants are least likely to be able to manage the complex process of creating a settled statement. Indeed, some may be restrained from having any communication with one another following the imposition of a domestic violence, workplace violence, elder abuse, or other restraining order. Nor does the LASC’s docket permit its trial courts to undertake the settled statement process or a detailed contemporaneous minute order for all of those hearings. “[T]rial courts have a duty in the name of public policy to expeditiously process civil cases.” (Apollo, supra, 167 Cal.App.4th at p. 1487; Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 468-469.) Even where lawyers are involved, “the settled statement process may take up to three hours each day to complete.” (Grimes, Settled Statements at p. 28 [“To avoid the difficulties of recalling events, some judges require counsel to remain in the courtroom each day until they agree on a settled statement for that day’s proceedings. In such courtrooms, the settled statement process may take up to three hours each day to complete….”].) If a trial court attempted to create contemporaneous settled statements across the board, including with contentious, self-represented parties, the process would take far longer. For that reason, recourse to settled statements is “impractical for courts given the sheer volume of cases on their docket”; “settled statements are not the long-term answer” to the CSR shortage. (Id. at pp. 28-29.) All of this means that even if our colleagues on the appellate bench viewed narrative summaries (in settled statements, agreed statements, or minute orders) as a fully adequate substitute for verbatim transcripts—which they explicitly do not—such summaries would still not solve the CSR shortage. Instead, by attempting to replace CSRs with trial judges, this “solution” would drain another limited resource, the bandwidth of Superior Courts, still without creating a verbatim transcript. D. The Constitutional Rights at Issue and the Court’s Duty to Protect Them The judicial officers of the LASC have an obligation to follow the law. Wherever possible, that means applying the statutory law as enacted. But “it is the obligation of the trial and appellate courts to independently measure legislative enactments against the constitution and, in appropriate cases, to declare such enactments unconstitutional.” (People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407, 411, as modified (May 9, 1997).) Similarly, “[c]ourts, as custodians of the judicial powers of government, are not obliged to enforce a statute which … arbitrarily deprives a litigant of his rights.” (People v. Murguia (1936) 6 Cal.2d 190, 193.) “‘Courts are not powerless to formulate rules of procedure where justice demands it.’ [Citation.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, as modified on denial of reh’g (Oct. 22, 1997).) Indeed, “‘all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority.’ [Citation.]” (Ibid.) In particular, trial courts have “power over the record,” which the Court of Appeal has made clear “must be exercised in a manner that does not interfere with the litigant’s statutory right to appeal.” (Randall, supra, 2 Cal.App.5th at p. 934.) That is so because once the State has established an avenue of appeal, it “‘must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.’ [Citation.]” (In re Arthur N., supra, 36 Cal.App.3d at p. 939.) This General Order reflects those considerations by recognizing that judicial officers may conclude they have the duty, given the particular facts of a case, not to enforce provisions of a statute— here, section 69957—where such enforcement constitutes such a constitutional violation. In our family law courtrooms, proceedings involving judicial determinations of disputes concerning the status of the parties’ marriage, the parentage rights and obligations relative to minor children, and custody determinations of minor children implicate fundamental due process liberty interests under both the California and United States constitutions. So, too, do certain conservatorship proceedings in our probate courtrooms and civil contempt hearings in our civil courtrooms. Judicial officers in our family law courtrooms also preside over all non-criminal restraining order applications which include domestic violence, elder abuse, civil harassment, workplace violence, gun violence, and transitional housing restraining orders. The imposition of such a restraining order may impinge upon a person’s freedoms of expression and speech, free movement, and association, as well as the right to possess firearms and ammunition, all of which also implicate liberty interests under both the California and United States constitutions. Where such fundamental rights and liberty interests are at issue, the need to preserve parties’ appellate rights—and to have a complete record—is even greater. (See, e.g., Armstrong, supra, 126 Cal.App.3d at p. 569 [holding that for statutes governing parties’ access to verbatim transcription, “where one’s ‘personal liberty is at stake,’ a statutory scheme ‘requires application of the strict scrutiny standard of equal protection analysis’”]; People v. Serrano (1973) 33 Cal.App.3d 331, 336 [noting that the Legislature’s “deletion of such provision [for relief from a party’s appellate default] cannot deprive the appellate courts of their inherent duty to protect constitutional rights”]; People v. Tucker (1964) 61 Cal.2d 828, 832 [“Doubts should be resolved in favor of the right to appeal.”].) As the Court of Appeal explained in a case concerning the constitutionality of classifications impacting a statutory right to appeal, “[i]n cases touching upon fundamental interests of the individual, the state bears the burden of establishing not only that it has a compelling interest which justifies the suspect classification, but also that the distinctions drawn by the regulation are necessary to further its purpose. [Citation.]” (In re Arthur N., supra, 36 Cal.App.3d at p. 939, original italics.) Based on these principles, this General Order confirms the discretion of judges of the LASC to authorize ER to preserve parties’ right to appeal when their fundamental rights and liberty interests may be at stake in the hearing. 1. Constitutional Rights Relative to Appeal Under the California Family Code, the California Probate Code and the California Code of Civil Procedure (“CCP”), parties possess statutory rights to appeal adjudication of family law, probate, and civil controversies. (See CCP § 902 [“Any party aggrieved may appeal in the cases prescribed in this title”]; CCP § 904.1, subds. (a)(1), (10), (14) [“An appeal … may be taken … [f]rom a judgment” or “an order made appealable by … the Probate Code or the Family Code” or “a final order or judgment in a bifurcated proceeding regarding child custody or visitation rights”].) Likewise, under CCP section 904.1, parties have a right of appeal from a judgment of contempt. Where a statutory right to appeal is afforded, the parties possess constitutional rights relative thereto. (See In re Arthur N., supra, 36 Cal.App.3d at p. 939.) The state must not structure appellate rules so as to deny, based on unreasoned distinctions, some persons the appellate avenue available to others. (Ibid.) The principle of an equal constitutional right to statutory appellate review is well established. In Lindsey v. Normet (1972) 405 U.S. 56, 77, the U.S. Supreme Court held that a state’s law conditioning appeal in an eviction action upon the tenant posting a bond, with two sureties, in twice the amount of rent expected to accrue pending appeal, was invalid under the equal protection clause when no similar provision is applied to other cases. In Griffin v. Illinois (1956) 351 U.S. 12, the Supreme Court similarly held that criminal defendants’ due process and equal protection rights were violated by an Illinois statute requiring them to pay a fee for a transcript of trial proceedings to permit appellate review. In the family law context, in M.L.B v. S.L.J. (1996) 519 U.S. 102, 124, the Supreme Court held that decrees forever terminating parenting rights are in the category of cases in which a state may not, consistent with the equal protection and due process clauses, “‘bolt the door to equal justice.’ [Citation.]” Accordingly, Mississippi could not withhold from the appellant a “‘record of sufficient completeness’” to permit proper appellate consideration of her claims. (Id. at p. 128.) 2. Fundamental Rights and Liberty Interests in Family Law Proceedings The appellate review provided to parties in family law matters serves to protect fundamental rights and liberty interests protected under the due process clauses of the United States and California constitutions. Marriage and parenting are fundamental rights—rights that cannot be diminished or abrogated without a compelling state interest. At a minimum, parties’ fundamental rights and liberty interests are at stake in judicial determinations concerning: (1) the status of their marriage, including its dissolution; (2) parentage rights and obligations; (3) the legal and physical custody of their children; and (4) civil restraining order proceedings. As the U.S. Supreme Court explained over a century ago, “the individual has certain fundamental rights which must be respected,” including “the right to marry, establish a home, and bring up children.” (Meyer v. Nebraska (1923) 262 U.S. 390, 399, 401.) Five years after that decision, the Court struck down a law that required children to attend public school because it infringed on parents’ custodial rights to educate their children as they please. (Pierce v. Soc’y of Sisters (1925) 268 U.S. 510, 534.) In the 1960s, the Court struck down a law banning interracial marriage because it violated the Constitution by infringing on the fundamental right to marry. (Loving v. Virginia (1967) 388 U.S. 1, 12.) A decade later, it struck down a law prohibiting marriage of individuals not current on child support payments because it, too, infringed upon the fundamental right to marry. (Zablocki v. Redhail (1978) 434 U.S. 374, 386.) More recently, the Supreme Court struck down limitations on same-sex marriages as unconstitutional. (Obergefell v. Hodges (2015) 576 U.S. 644, 666 [“Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.”].) The California Constitution similarly protects marriage and family rights. (See, e.g., In re Marriage Cases (2008) 43 Cal.4th 757, 809, superseded by const. amend. on other grounds as stated in Hollingsworth v. Perry (2013) 570 U.S. 693 [collecting marriage cases]; In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [parenting]; In re B.G. (1974) 11 Cal.3d 679, 693-694 [parenting].) Encompassed within “a parent’s liberty interest in the custody, care and nurture of a child is … the ‘right to determine with whom their children should associate.’ [Citation.]” (Herbst v. Swan (2002) 102 Cal.App.4th 813, 819.) Fundamental rights and liberty interests related to marriage and family have direct bearing on the judicial process, too. For instance, “due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” (Boddie v. Connecticut (1971) 401 U.S. 371, 374.) Similarly, in Little v. Streater (1981) 452 U.S. 1, 13-17, the Court held that a state must pay for blood-grouping tests sought by an indigent defendant to enable him to contest a paternity suit. Again, California precedent is similar—and directly addresses the need to ensure parents’ appellate rights. In In Re Rauch (1951) 103 Cal.App.2d 690, the trial court declared a minor to be a ward of the Court and revoked the guardianship of the father. The father appealed, but his appeal was challenged on the ground he was not affected or aggrieved by the Court’s order. To that, the Court of Appeal explained that “[u]nder the American way of life” a parent so affected is “entitled to be heard upon appeal”: To say that the father of a child is not "affected or aggrieved" by an order declaring such child a ward of the juvenile court is to do violence to the American philosophy and system of government, in which the alien philosophy that the child is the creature of the state finds no countenance. Under the American way of life, the child belongs to the family, and any judicial proceeding which seeks to impair or take away a father's parental authority is certainly litigation, in the subject matter of which such father is interested, and, therefore, brings him within the fundamental rule of appellate jurisdiction that “under our decisions any person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment, is a party aggrieved and entitled to be heard upon appeal.” [Citation.] (Id. at p. 694.) Finally, in the LASC, the judicial officers in the Family Law Division are assigned all non-criminal restraining order (“RO”) proceedings. These include domestic violence ROs, elder abuse ROs, civil harassment ROs, workplace violence ROs, gun violence ROs, and transitional housing ROs. A common feature of all such proceedings is that the orders of protection issued following the successful prosecution of a petition includes material impingements on freedom of speech, freedom of movement, freedom of association, and the right to possess firearms and ammunition. (See, e.g., Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831-833 [striking portion of restraining order as violating appellant’s freedom of speech]; cf. People v. Sanchez (2017) 18 Cal.App.5th 727, 756 [noting, in the anti-gang-injunction context, the importance of due process before a party is “subjected to an injunction with profound consequences for daily life, including family relationships, freedom of movement, and civic participation in the neighborhood in which he lives”].) Such orders clearly bear upon constitutional rights and liberties under the United States and California constitutions. 3. Fundamental Rights and Liberty Interests in Probate Proceedings Fundamental liberty interests akin to those in a criminal context are also implicated in cases involving civil commitment and Lanterman-Petris-Short (“LPS”) conservatorships in probate proceedings. (See, e.g., People v. Dunley (2016) 247 Cal.App.4th 1438, 1451 [“The California Supreme Court has long held that under California law, equal protection challenges to involuntary civil commitment schemes are reviewed under the strict scrutiny test because such schemes affect the committed person’s fundamental interest in liberty.”].) Recognizing that the “due process clause of the California Constitution requires that proof beyond a reasonable doubt and a unanimous jury verdict be applied to conservatorship proceedings under the LPS Act,” the California Supreme Court outlined myriad ways in which gravely disabled conservatees’ fundamental liberty interests could be impinged in Conservatorship of Roulet (1979) 23 Cal.3d 219, 227 (Roulet). 4 Matters in other conservatorship contexts under the Probate Code, not involving confinement, may also implicate fundamental rights. For example, in Conservatorship in Wendland (2001) 26 Cal.4th 519, 554, the Supreme Court recognized the conservatee’s “fundamental rights to privacy and life” in a case involving a conservator’s request to withdraw nutrition from a conscious conservatee. In addition, some guardianship proceedings are likely to implicate fundamental liberty interests when they involve custodial parental rights. (See Santosky v. Kramer (1982) 455 U.S. 745, 753 [“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.”].) Whether fundamental rights are implicated in a probate conservatorship or guardianship proceedings may be a fairly fact-specific inquiry requiring a case-by-case determination, but where such a determination is made, it weighs in favor of ensuring a verbatim record of proceedings. 4. Fundamental Rights and Liberty Interests in Civil Contempt Proceedings Finally, judicial officers in the Family Law, Probate and Civil Divisions hear, from time to time, orders to show cause why a person should not be found in civil contempt for their willful failure to follow a lawful court order. A person’s first conviction for such contempt exposes that person to criminal penalties, including fines of up to $1,000 and incarceration of up to five days. (See CCP § 1218.) Penalties for subsequent convictions are increased. (See ibid.) Such orders likewise implicate constitutional rights and liberties. 4 “The gravely disabled person for whom a conservatorship has been established faces the loss of many other liberties in addition to the loss of his or her freedom from physical restraint. For example, the conservator is also given the powers granted to the guardian of an incompetent in chapters 7, 8 and 9 of division 4 of the Probate Code. (§ 5357; Prob. Code, § 1852.) These include: payment of the conservatee’s debts and collection or discharge of debts owed the conservatee (Prob. Code, § 1501); management of the conservatee’s estate, including sale or encumbrance of the conservatee’s property (Prob. Code, §§ 1502, 1530); commencement, prosecution, and defense of actions for partition of the conservatee’s property interests (Prob. Code, §§ 1506-1508); disposition of the conservatee’s money or other property for court-approved compromises or judgments (Prob. Code, §§ 1510, 1530a); deposit of the conservatee’s money in a bank, savings and loan institution, or credit union (Prob. Code, § 1513); the giving of proxies to vote shares of the conservatee’s corporate stocks (Prob. Code, § 517); and the borrowing of money when it will benefit the conservatee (Prob. Code, § 1533). In addition, the Court may grant the conservator any or all of the powers specified in Probate Code section 1853.5 (See § 5357.).” (Roulet, supra, 23 Cal.3d at p. 227, footnote omitted.) # # # # # # The United States and California constitutions protect the fundamental rights and liberty interests at stake in marriage, dissolution of marriage, parentage rights and determinations, custody determinations, and restraining orders in the family court; specified conservatorship and guardianship proceedings in probate court; and civil contempt proceedings in family, probate, and civil court. When parties in such proceedings feel those constitutional rights have been violated, the California Legislature wisely gave them the ability to seek appellate review. The precedent of the California Supreme Court and Court of Appeal, as well as of the United States Supreme Court, teaches that the procedures for seeking that appellate review cannot draw impermissible distinctions between different classes of would-be appellants. Where underlying fundamental rights are at stake, procedures that limit appellate rights face strict scrutiny. Put otherwise, a procedural limit on the ability to appeal for some litigants and not others—such as a limit on the ability to secure a verbatim record of a trial proceeding to make an appeal meaningfully possible—must further a compelling governmental interest and must be narrowly tailored to achieve that interest. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. California provides a statutory right of appeal in family law, probate, and civil proceedings. 2. Family law, probate, and civil litigants have fundamental interests protected by the due process clauses in court proceedings involving the status of their marriage, the parentage and custody of their children, certain conservatorship and guardianship matters, their rights under restraining orders, and civil contempt proceedings. 3. The absence of a verbatim record will frequently be fatal to litigants’ ability to appeal from adverse decisions in such proceedings. 4. The LASC is unable to reliably supply a court-employed CSR to its family law, probate, or civil departments given the Court’s shortage of court-employed CSRs and its legal obligation to provide court-employed CSRs in other matters. 5. The LASC has undertaken reasonable steps to attempt to retain and hire more CSRs, but those attempts have been unsuccessful and are likely to remain unsuccessful. The LASC has 125 CSR vacancies. There is no reason to believe that in the short or long run, the LASC will be able to hire sufficient CSRs to reliably staff its family law, probate, and civil departments. At present, they do not exist to be hired. 6. California law, under section 69957, permits electronic recording of infraction, criminal misdemeanor, and limited civil matters for the purpose of creating a verbatim record of proceedings. 7. Pursuant to that statutory authorization, the LASC has a reasonable alternative method of permitting the creation of a verbatim record of proceedings via electronic recording technology in the absence of an available CSR. 8. More than 500 times in 2023, the judges in the LASC’s Appellate Division successfully reviewed and decided appeals when ER was used to create a record of infraction, criminal misdemeanor, and limited civil matters for the purpose of creating a verbatim transcript. 9. In contrast to how it permits litigants to protect their appellate rights in infraction, criminal misdemeanor, and limited civil matters, section 69957 prohibits electronic recording of family law, probate, and civil matters, even those involving constitutionally protected fundamental rights and liberty interests. 10. As a consequence of the shortage of court-employed CSRs and the prohibition of section 69957, hundreds of thousands of family law, probate, and civil hearings occurred in the LASC in 2023 and 2024 for which no verbatim record of proceedings could be made. Hundreds of thousands more such hearings will likewise occur each year. As a result, the court reporter shortage has become an emergency and a crisis in appellate and, ultimately, constitutional rights. 11. The LASC, along with others, has unsuccessfully attempted to persuade the California Legislature to amend the law to ameliorate this crisis. The Legislature has now entered its final recess for the year prior to adjournment sine die without any steps to address the crisis. 12. As matters stand, when judges in the LASC enforce section 69957—such that there is no transcript available to vast numbers of family law, probate, and civil litigants when a court-employed CSR is not available for assignment to a family law, probate, and civil departments in matters implicating constitutionally protected rights and liberty interests—they do so even though electronic recording technology is in place which could create a verbatim record. 13. The distinction section 69957 draws among classes of litigants can result in family law, probate, and civil litigants suffering actual and serious constitutional harms on account of this legislative discrimination. The discrimination in the law between circumstances in which electronic recording is permitted and prohibited does not pass constitutional muster under the applicable strict scrutiny standard. Indeed, the Court cannot see any legitimate reason—let alone a compelling reason—why the option of electronic recording is given to a party in a limited civil matter involving a small economic loss but denied to a woman seeking a restraining order against an abusive husband, a father facing the loss of custody over his child, a person with grave disabilities facing the imposition of a conservatorship, or a contemnor looking at jail time. If the reason is that it would be better to have CSRs prepare the transcripts of such hearings, section 69957 could be more narrowly tailored so that it does not deny those litigants a verbatim record when no CSR is reasonably available. It is apparent that there will be hearings in which enforcement of section 69957 will fail both aspects of strict scrutiny and might indeed fail even lower levels of scrutiny. 14. Instead of needlessly restricting the appellate rights of litigants in matters touching upon fundamental constitutional rights and liberty interests, the LASC has a reasonable alternative method of permitting the creation of a verbatim transcript of proceedings via electronic recording technology. In the absence of a reasonably available CSR which will ameliorate or eliminate the constitutional violations, the judges of the LASC should have the option to preserve and protect constitutional rights rather than limit and impinge upon them. GENERAL ORDER Accordingly, the Presiding Judge hereby ORDERS the Clerk of Court to direct Deputy Clerks to operate the electronic recording equipment in family law, probate and civil departments as directed by the judicial officer presiding in such department when that judicial officer finds that: (1) the proceeding concerns matters that implicate fundamental rights or liberty rights as described herein; (2) one or more parties wishes to have the possibility of creating a verbatim transcript of the proceedings; (3) no official court-employed CSR is reasonably available to report the proceeding; (4) the party so requesting has been unable to secure the presence of a private CSR to report the proceeding because such CSR was not reasonably available or on account of that party’s reasonable inability to pay; (5) the proceeding involves significant legal and/or factual issues such that a verbatim record is likely necessary to create a record of sufficient completeness; and (6) the proceeding should not, in the interests of justice, be further delayed. The Court may impose reasonable fees when such order is made. THIS ORDER IS EFFECTIVE IMMEDIATELY AND WILL REMAIN IN EFFECT UNTIL OTHERWISE ORDERED BY THE PRESIDING JUDGE. Dated: September 5, 2024 SAMANTHA P. JESSNER Presiding Judge PRESIDING JUDGE’S GENERAL ORDER RE OPERATION OF ELECTRONIC RECORDING EQUIPMENT [Pages 21 to 29 of the file, the supporting Declaration of Court Executive Officer and Clerk of Court David W. Slayton, and pages 30 to 231, Exhibits 1 to 8, are not transcribed.]
2024-GEN-011-00 FILED Superior Court of California County of Los Angeles SEPTEMBER 5, 2024 David W. Slayton, Executive Officer/Clerk of Court By: R. Mina, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GENERAL ORDER RE OPERATION OF ELECTRONIC RECORDING EQUIPMENT FOR SPECIFIED PROCEEDINGS INVOLVING FUNDAMENTAL LIBERTY INTERESTS IN THE ABSENCE OF AN AVAILABLE COURT RE
Reviewer note: Composed 2026-09-29 (California T3 Los Angeles build 2026-09-29) from BenchPath custody ca/t3/ca-los-angeles/general-orders/LIBSVCExecutiveSupport-388-2024-GEN-011-00GeneralOrderreOperationofElectronicRecordingEquipment090524.pdf (27666476 bytes, sha256 476c2ae8e98becd4e4b24e27f94f64413bb9d84ed919ee9a644fe4d913cc8e67; 231 pages) with the shared verbatim composer (v2 reflow), reading the glyphs drawn on the page: page numbers, pleading line numbers, the order number and running footer titles removed as chrome; the two-column pleading caption set left cell, then right cell (the “)” column and the box's rule left out); lines reflowed into the order's paragraphs; proof 1 (whitespace-only), proof 2 (same character multiset as the text layer minus chrome) and proof 3 (same characters as the glyphs drawn on the page) all pass. Pages 21 to 29 of the file, the supporting Declaration of Court Executive Officer and Clerk of Court David W. Slayton, and pages 30 to 231, Exhibits 1 to 8, are not transcribed.
9 verbatim requirements from 4th Circuit Administrative Order 1997-10.
6 verbatim requirements from 4th Circuit Administrative Order 1997-13.