No court reporter? Record the hearing, California Supreme Court rules

In a blow to court reporter unions, the California Supreme Court ruled Monday that courts must allow electronic recordings of hearings when a certified professional reporter is not available.

The justices found that a California law forbidding electronic recordings in most cases unfairly trampled on the rights of residents who could not afford to hire a certified reporter.

Reporters unions have been battling for years to ban or severely restrict recording in all but a few types of court cases. They argue that having certified professionals in a courtroom ensures accurate court transcripts that are vital to how the justice system functions.

But, as CalMatters reported last year, a massive shortage of reporters has resulted in millions of hearings without a written record of the proceedings. A transcript is usually needed to appeal a case. Recordings give parties in a legal dispute the option of later having a hearing transcribed by a certified professional.

In its unanimous ruling, the high court sided with advocacy groups representing domestic violence victims who called it a “two-tiered” system of justice because it can cost thousands of dollars to hire a private court reporter.

“The continued failure of the superior courts to provide indigent litigants with a means of obtaining an official verbatim record deprives them of ‘meaningful access to the judicial process,’” wrote Chief Justice Patricia Guerrero, citing previous rulings. “Indigent” is a legal term for someone who is unable to afford a private lawyer or court costs. 

Court reporters’ unions argued in legal briefs filed with the Supreme Court that electronic recordings can be of poor quality and are not a replacement for a certified professional. Plus, the unions argued that court managers aren’t moving fast enough to hire more reporters.

The decision “should increase job opportunities for court reporters,” attorney Scott Kronland, who represented the court reporter organizations, said in a written statement. “Superior courts that have de facto hiring freezes for court reporters must lift those hiring freezes. … Court reporter schools are full and have waiting lists. Superior courts must hire those court reporters.”

But Guerrero wrote that whatever was causing the problem, “a verbatim record created by electronic recording is better than no record at all.” 

Since 2023, the court reporter shortage has led to more than 3 million proceedings taking place with no written transcriptions, according to the Judicial Branch of California.

Guerrero noted the cases without reporters transcribing them include domestic violence and civil harassment restraining orders, child custody and support, marital relations, debt collection, employment and housing discrimination, official misconduct and probate conservatorship and guardianship.

In California, the most serious cases, such as felony criminal proceedings, get priority for a court reporter, leaving other hearings without a written record on busy days. 

Almost all of California’s major civil cases go without one; more than half of all family law and probate cases have no reporter present, according to the judicial branch.

Guerrero wrote that the court reporter shortage forces those in the legal system to make difficult choices.

They can either pay for a private court reporter to transcribe their hearing for them, which can cost more than $3,000 per hearing, or delay their case for months, hoping for a court reporter to be available. Many more just opt to have their cases proceed without one. 

Without a written record, the parties involved usually can’t appeal their cases if they believe a court erred. 

Guerrero wrote that other states, federal courts and other types of cases in California allow for electronic recording. She wrote this “shows that electronic recording can be a useful alternative to court reporting.” 

California allows recording in misdemeanor, infraction and civil cases where the plaintiff is seeking less than $35,000 in damages. 

Several legal organizations and California constitutional law professors filed amicus briefs urging the court to allow electronic recordings. They noted potential cost savings for courts and stressed that effectively denying transcripts for lower-income Californians inhibited their civil liberties.

“The overriding principle should be to protect the people’s access to justice, which is a fundamental element of individual liberty,” wrote David Carrillo of the UC Berkeley School of Law and Stephen Duvernay of Benbrook Law Group.

Union fights to keep recording ban

Unions representing court reporters that persuaded the Legislature to ban court recording years ago have since fought legislative efforts to expand use of the technology. 

In 2023, the unions succeeded in killing a bill which would have allowed recording in all civil proceedings.

Last year, a union-sponsored bill from Democratic San Mateo Assemblymember Diane Papan would have allowed courts to switch on the devices for three years. But the Judicial Council of California complained the unions put so many “overly burdensome restrictions” into the bill that judges wouldn’t have authority to record very much. Papan’s bill died without a vote in the Senate last year. Her measure returned briefly this summer, but Papan pulled it before a vote.

Service Employees International Union, which represents many of the state’s court reporters, is one of the most powerful unions in California. SEIU and its affiliate unions have donated at least $16.6 million to politicians’ campaigns since 2016, according to the CalMatters Digital Democracy database.

Papan’s campaigns have received at least $70,500 from the union and its affiliates during that time. She didn’t return an interview request in response to the ruling.

Courts have boosted pay and hiring incentives to try to lure in more court reporters. 

The median pay with benefits for a court reporter in California is more than $200,000, according to the judicial branch. Plus, by law, transcripts of hearings must be purchased from court reporters who get to keep the money.

But even with the job’s financial perks, courts are struggling to hire. For instance, Los Angeles Superior Court offers a $50,000 signing bonus and $25,000 finder’s fee for court employees who refer a court reporter.

The county reported it had 92 vacant court reporter positions, according to an online dashboard the superior court created to highlight the problem. That’s down from 106 vacancies last summer.