This Hearing May Be Recorded for Your Protection
If you represent clients who have been granted fee waivers, you undoubtedly are aware of Jameson v. Desta (2018) 5 Cal.5th 594, a July 2018 California Supreme Court decision dealing with fee waiver litigants and access to an official verbatim record of proceedings. Although Jameson is a lengthy opinion, its holding is summed up by this passage:
An official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request.
Jameson at p. 599.
Embedded in the Jameson opinion was a call for courts to adopt new policies, and, if necessary, new local rules:
[I]n order to satisfy the principles underlying California’s in forma pauperis doctrine and embodied in the legislative public policy set forth in [Government Code] section 68630, subdivision (a), when a superior court adopts a general policy under which official court reporters are not made available in civil cases but parties who can afford to pay for a court reporter are permitted to do so, the superior court must include in its policy an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings.
Jameson at p. 623.
Due to budget pressures, prior to Jameson, the Contra Costa County Superior Court (“Court”) had precisely the sort of policy the Jameson court alluded to; that is, a blanket policy of not providing court reporters for most civil matters, including many matters on unlimited civil, limited civil, family law, and probate calendars. Perhaps stating the obvious, Jameson presented the Court with a complicated set of challenges. Put succinctly, how could the Court meet its Jameson obligations within the existing constraints of its budget?
This article first identifies two areas of relevant Court operations unchanged by Jameson. Next, it addresses some changes the Court has made, or will soon make, in response to Jameson. As part of that, it will point litigants and practitioners to the relevant local rule or rules that address those changes.
NO CHANGE: Felony Matters and AB 1058 Matters
Before Jameson was decided, the Court already provided court reporters in all proceedings in felony criminal matters. That will not change in response to Jameson.
In addition, the Court already provided court reporters for family law proceedings heard in Department 52, the designated AB 1058 department hearing Department of Child Support Services matters. That will not change in response to Jameson.
Electronic Recording of Proceedings
Effective January 1, 2019, the Court adopted Local Rule 2.50, which provides the Court discretion to utilize electronic recording to create a verbatim record of the proceedings in limited civil, misdemeanor, and infraction matters. Government Code section 69957 already provided authority for the Court to utilize electronic recording in these case types, but Jameson provided an impetus to systematically implement electronic recording. In the near future, many courtrooms across the Court’s locations will be equipped with electronic recording capability that can be utilized to create a verbatim record of the proceedings in limited civil, misdemeanor, and infraction cases.
The Court also adopted Local Rule 3.13(7), which makes explicit that electronic recordings can be used as the record of the oral proceeding in most limited civil, misdemeanor, and infraction cases that are appealed to the Appellate Division of the Court.
Unlimited Civil, Probate and Family Law
Effective January 1, 2019, the Court adopted Local Rule 2.53, which directly addresses Jameson. Local Rule 2.53 provides details on how fee waiver litigants can procure court-provided court reporters to create a verbatim record of various proceedings.
The Court also created a local form, MC-30, to provide a straightforward mechanism for fee waiver litigants to request a court-provided court reporter.
Timing of Requesting a Court-Approved Court Reporter
Litigants and practitioners are urged to consult Local Rule 2.53 directly and familiarize themselves with its full text. This section addresses the timing of making a request for a court-provided court reporter in some common proceedings.
For most proceedings in unlimited civil, probate, and family law, a fee waiver litigant must utilize local form MC-30 to request a court-provided court reporter at least three calendar days in advance of the proceeding to be reported. However, for some proceedings, less lead time is required. The following table identifies the timing requirements applicable to various proceedings.
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Some amount of advance notice is needed so that the Court can be sure to allocate its still limited court reporter resources appropriately. However, for each case type, the local rules provide the Court with the authority to continue a matter if appropriate. Parties should be mindful that mere neglect in failing to timely request a court-provided court reporter will not ordinarily warrant a continuance.
Jameson created new obligations for the Court vis-à-vis fee waiver litigants. Jameson also expressly recognized that trial courts across the state would need to revisit policies concerning court reporter availability. The Court has done so, and has adopted new local rules in response to Jameson, providing for the creation of a verbatim record of the proceedings when required by Jameson. As always, litigants and practitioners are urged to familiarize themselves with those new local rules.