California’s top court officials are warning of a growing “constitutional crisis” playing out in the state’s justice system, as hundreds of thousands of hearings are held without an accurate accounting of what is happening. ‘happened.
The problem lies in the lack of public court reporters, stenographers who transcribe proceedings, and state law that prohibits the use of electronic recording devices in certain types of hearings, even when a stenographer does not is not available.
Courts have attempted to solve the problem by reserving their court reporters for the most important cases, such as criminal trials. But other critically important proceedings – such as domestic violence restraining orders and child custody disputes – are generally not recorded.
Every day, litigants are told that they can either hire their own journalists – for hundreds, even thousands of dollars per hearing – or simply do without a file.
The result, officials and advocates say, is that poorer Californians have less access to justice. Without a verbatim record of a proceeding, litigants may struggle to defend their rights – including against attackers – and be unable to appeal decisions against them, they said.
“It’s absolutely an access to justice issue,” said Cory Hernandez, senior attorney with the Family Violence Appellate Project, which regularly addresses this issue in domestic violence cases. “Not having court reporters disproportionately impacts women, and especially women of color. »
Last year, 332,000 hearings were held without court reporters or electronic recording devices in Los Angeles County Superior Court alone. California Chief Justice Patricia Guerrero warned in a speech last month that statewide about 133,000 such hearings were held in a single three-month period.
“We all want and need more licensed court reporters to be trained, certified and hired,” Guerrero said. “But the number of certified court reporters continues to decline and that threatens access to justice, especially for vulnerable Californians.”
Guerrero mentioned offering bonuses and better salaries to recruit and retain staff, but said “the devastating effects are already being felt by far too many court users” and that she looks forward to working with others to find “practical solutions”.
In Sacramento, where the issue has seemed intractable for years, a tense debate over the best path forward has pitted court reporters and their union representatives against court administrators and justice reform advocates, testing the priorities of liberal legislators.
Looming above it all is the rapid advance of artificial intelligence and other modern recording technologies, which some see as a threat to thousands of good jobs and others as a promising solution.
“This is sort of a traditional issue of labor and access to justice,” said Chesa Boudin, executive director of the Criminal Law & Justice Center at Berkeley Law and a former San Francisco prosecutor. “The added element of technology and AI…makes things a little more complicated.”
What is the cause of the problem?
Because of the vital role that transcripts play in the court system, including as a basis for appeals, court reporters – also known as “keepers of the record” – have long been considered essential in public proceedings, even title as judges, clerks and bailiffs.
Hiring standards are strict. Applicants must pass a rigorous licensing exam involving grammar, punctuation and legalese, as well as transcribe 200 words per minute with 97.5% accuracy, among other qualifications. The requirements are stricter than in other states, and many who pursue careers fail.
In 2023, California court systems had the equivalent of 1,164 full-time active court reporters on their payroll, according to a March report from the Legislative Analyst’s Office, about 700 positions short of needed staffing. But that gap isn’t entirely due to a lack of qualified people to do the work, as the same report lists more than 4,700 active licensees in the state.
A May Consumer Affairs report found that only 41% of journalists surveyed worked primarily in the courts – and many of them were freelancers, not full-time employees. The rest worked in the private sector.
Diana Van Dyke, a decades-long public court reporter and board member of the Los Angeles County Court Reporters Assn., blamed mismanagement of the court system for pushing employees into the private sector — starting with mass layoffs of journalists during an economic downturn more than a decade ago. .
The fact that court officials have since ceded reporting services for entire areas of courthouse law — such as family law — to the private sector has only exacerbated the problem, Van Dyke said.
“The court created the very existence of the ‘potential constitutional crisis’ that they complain about,” she said.
David W. Slayton, chief executive officer of the Los Angeles County Superior Court, called the argument “misleading” and said the problem was recruitment and retention. The courts, he said, are doing “everything in their power” to be competitive, including offering annual salaries of $130,000, good benefits, additional fees for transcription services and $50,000 signing bonus.
It just doesn’t work, Slayton said, in part because private-sector journalists can choose when and where they work, sometimes working remotely, choosing which stories they cover, all while earning thousands of dollars a day .
Something has to change, he said — and soon, given that about 70 percent of public reporters in the Los Angeles County Superior Court system are eligible for retirement.
“We need to come together … and find a way to solve this problem,” Slayton said. “We are pleading for a solution.”
What is the solution?
Several measures aimed at reducing the shortage of journalists have been implemented, including the state’s approval in 2022 of so-called voice editors, or court reporters who speak into a device to capture what is said rather than typing stenographic notes.
Other solutions being discussed include allowing court reporters to appear remotely, both to save time and match the flexibility private reporters enjoy, and creating a pool of court reporters for all courts in the state, in order to increase efficiency and minimize competition between systems.
However, what court officials and many legal advocates are calling for most is that electronic recording be permitted in all civil proceedings – as is already the case in other state proceedings, before courts of other states and in some federal courts.
Court officials argue that electronic recording devices should be allowed as a backup when a reporter is unavailable, and that the law banning them is based in part on outdated notions of what recording devices do. are capable of capturing.
Last year, Sen. Susan Rubio (D-Baldwin Park) introduced a bill in Sacramento that would have allowed electronic recording — but it was blocked due to fierce opposition from court reporters and their lobbyists unions. Critics have warned that the bill would give courts a green light to abandon their journalist recruiting efforts and go all-in on electronic records, regardless of promises to the contrary.
Recording devices provide an inferior recording, opponents say, in part because they cannot ask speakers to slow down or speak louder or distinguish those who sound similar, as they often must. the journalists. Some argue that relying on electronic records will produce inaccurate records – so much so that no record is preferable.
Judge Samantha P. Jessner, presiding judge of the Los Angeles County Superior Court, said current recording systems are very sophisticated and use an array of strategically placed microphones.
“I think any assertion that technology won’t capture data accurately and completely ignores where we are as a society in terms of technological sophistication,” Jessner said.
She said there would still be plenty of work for court reporters if the technology was introduced, particularly to transcribe a massive influx of recordings. The courts, she added, would also continue to hire, because they still believe journalists are the best option — they simply cannot be the only option.
Shelley Curran, executive director of the Judicial Council, which sets policy for the state’s courts and supported the bill, said something has to give because the current system is unfair to low- and moderate-income litigants.
Boudin said the digitalization of modern courtrooms may be inevitable, but he cautioned about problems he encountered with electronic records during his career as a San Francisco prosecutor, including in misdemeanor cases where testimony was muffled or inaudible – problems a court reporter would have avoided.
“That’s their job,” Boudin said. “An automated check-in system won’t do that.”
Hernandez, of the Family Violence Appellate Project, said any arguments why electronic recording devices should not be used are “simply political” and “contrary to common sense.”
Many domestic violence cases play out for years, before different judges. Survivors often must prove a “change in circumstances” to obtain a new protective order or modify a child custody agreement. If they find themselves before a new judge and don’t have a transcript of prior proceedings to prove their circumstances have changed, they may not get the relief they deserve, Hernandez said.
Courts are required to provide reporters to many litigants who can prove they are indigent, but this policy is little known, underutilized, and of no assistance to middle-income litigants who do not qualify and cannot afford to hire a reporter, advocates said. .
The overwhelming majority of burdens fall on women, women of color, LGBTQ+ people, the poor and those in rural communities, “so for lawmakers to fail to act” is a dereliction of duty, Hernandez said.
“They tell us over and over again that they are committed to helping survivors and protecting them, but I imagine that commitment only goes so far. »
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