SUPERIOR COURT OF CALIFORNIA

514c1085b1c31899c74f24418a5dd41be8250f7c

California Superior Local Rules

2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA GENERAL DIRECTIVE 2026-24 RE OPERATION OF ELECTRONIC RECORDfNG EQUIPMENT FOR SPECIFIED PROCEEDfNGS fNVOLVING FUNDAMENTAL LIBERTY INTERESTS fN THE ABSENCE OF AN AVAILABLE COURT REPORTER EXECUTIVE

SUMMARY The Alameda County Superior Court ("the Court") is deeply committed to ensuring access to justice for all. In 2018, the California Supreme Court warned that "the absence of a court repo1ter at trial cou1t 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).) "[I]t is an appellant' s burden to provide an adequate record demonstrating error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.

Without a record, either by transcript or settled statement, a reviewing coll!t must make all presumptions in favor of the validity of the judgment. [Consequently], [an] appe llant is effectively deprived of the right to appeal." (Randall v.

Mousseau (2016) 2 Cal.App.5th 929, 935 (internal citations omitted).) The Jameson Court, invalidating a different Superior Court's practice of requiring indigent parties to retain and pay for a court reporter, is one of many instances in which our Supreme Cou1t, Courts of Appeal, and Superior Cou1ts have reject ed laws, rules, and policies that might "significantly chill [a] litigant's enjoyment of the fundamenta l protections of the right

2 3 4 5 6 7 8 9 10 I I 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 26 27 28 to app eal." (Coleman v. Gu(f 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 cou1ts. ' [Citation.]" (In re Arthur N. ( 1974) 36 Cal.App. 3d 935, 939.) This General Order reflects the Court's intention to promote equal access to "the fundamental protections of the right to appeal." Like many superior coutt s in California, the Court has experienced significant difficulty in hiring employee cowt reporters in recent years due to an ongoing, nationwide decrease in the number of reporters seeking employment and despite extensive recruitment and retention efforts.

Further, at any time, the Colltt may receive a notice of retirement or resignation. Despite the Court' s best efforts, the overall number of court reporter employees is steadily declining rather than increasing. The actual number of reporters available each day is less than the number of reporters employed because of necessary leaves for vacation, illness or injury and preparation of statutorily mandated transcripts.

The decreasing number of court reporters available to be hired has been evident for years, drawing persistent warnings from leaders in the judi ciary and Legislature, as well as from non profit organizations and others concerned about maintaining and improving access to justice. This crisis has steadily grown over the past seve ral decades and constitutes a major change from how courts have operated in the past. A lifetime ago, one coutt observe d: "[I]n modern times there [was] a court reporter, who ma[de] a record of all the proceedings." (ln re Dolgin Eldert Corp. (1972) 3 1 N.

Y.2d I , 5.) But that is no longer true for participants in California's justice system. For many litigants today, even when their fundamental rights are at stake, they do not have access to a verbatim record of the proceedings unless they retain and pay for a private court reporter.

The Cowt works to staff courtrooms with court repotters for felony, juvenile justice, juvenile dependency, and certain other proceedings, including when requested by an indigent party with an approved fee waiver; however, the number of reporters employed by the Court has significantly declined from 60 full-time equivalent ("FTE") court reporters in 2020 to 33 FTE 2

court rep01ters in 2025, despite the Co urt's increasingly aggressive efforts to hire and reta in court 2 reporters. Today , with too few employee court repotters, the Court is not able to assign a cowt 3 reporter to every mandated proceeding. 4 As a last resort to preserve the appellate rights of litigants and carry out the Court's " duty 5 in the name of public policy to exped itious ly process civil cases " (Apollo v.

Gyaami (2008) 6 167 Cal.App.4th 1468 , 1487 (Apollo)) , this Genera l Order permits individual judicial officers of 7 the Court to aut horize the electron ic recording ("ER") of hearings at which fundamental rights 8 are at stake and where no qua lified cotrrt reporter is reasonably avai lable. The Court cannot 9 achieve these important goa ls through sett led or agreed statements, which rightly are understood IO to be " cumber some and seldom used" options (Klatchko & Shatz, I Matthew Bender Practice 11 Guide

(2024) Ca l. Civil Appeals and Writs 7.27), and whose " inherent limit ations usually 12 make them inferi or to a reporter's transcript. " (Eisenberg et al., Cal. Practice G uide: Civil 13 Appeals and Writs (The Rutter Group 2023) ,r 4:45a). These theoretical alternat ives are not 14 feasible g iven the large number of hearings at issue.

As our Supreme Court observed , "the 15 potential availability of a settled or agreed statement does not eliminate the restriction of 16 meaningful access caused by" a patty's inability to secure a verbatim record. (Jameson, supra , 5 17 Ca l.5th at p. 622 , fn. 20.) 18 The Legislature permits cou1ts to use ER to create a verbatim record of proceedings in 19 misdemeanor, infr act ion, and limit ed civil cases. (Gov. Code ,§ 69957 ("

section 69957 ").) As a 20 result , on multiple occa sions in 2024 and 2025 the Court successfully used ER to create verbatim 21 transcript s as the officia l record. At the Cou rt and acros s Californ ia, ER is a reliable alternative 22 when a qualified court reporter is not reasonably avai lab le. " Perhap s the time has come at last for 23 Cal ifornia to enter the 20th century and permit parties to record proceedings electronica lly in lieu 24 of the far less reliable method of human stenography and transcription.

Until that day , however, 25 we believe the right to effective appellate review cannot be permitted to depend ent irely on the 26 means of the patties. " (In re Marriage of Obrecht (2016) 245 Cal.App.4 th 1, 9 fn. 3.) 27 In 2023 and early 2024 , members of the public, acce ss-to-just ice nonprofits , the 28 Judicial Counc il of Californi a, and lawyers for particularly vu lnerab le litigants in family law 3

matter s implored the Legis lature to amend sect ion 699 57 to permit ER in additional type s of 2 matter s w hen a court rep orte r is not avai lable. Desp ite widespread pub lic s uppo1t for this 3 ex pansion, the Legislature did not act. 4 At the time it was enacted ,

section 69957 may have been intended to ensure that 5 proceeding s o ther than misde mean or, infraction , and limited civi l cases were ass igned court 6 reporter s; but when a court reporter is not reasonably available ,

section 69957 effectively denies 7

partie s any verbatim record at all, wh ich "will frequently be fatal to a l itigant 's ability to 8 [appeal].

" (Jameson, supra , 5 Cal.5th at p. 608.) In such instances, sect ion 69957 draws an 9 indefens ible d istinction between misdemeanor, infracti on, and lim ited civil hearin gs and all other IO hearin gs at which the Court may not implem ent ER, even when no coutt repotter is reasonabl y 11 avai lable. 12 The Court of Appe al has struck down such inappropriate distinction s in the past, holding 13 that where verbatim tran scripti on is provid ed to fe lony defendant s, " statutes, which permi t the 14 municipal court to deny defend ants of misdemean or crimina l actions the availability of a 15 phonograph ic reporte r, or an electronic recordin g dev ice, or some eq uivalent means of 16 reasonably ass urin g an accurate verbatim account of the courtro om proceedings , fa il to comport 17 with con stitution al principle s of due process and equal protectio n of the laws." (See In re 18 Armstrong ( 198 1) 126 Cal.App. 3d 565, 572-574 (Armstrong) , original ita lics.) As 19 drafted ,

section 69957 permit s ER in so me proceedin gs but does not permit ER in 20 other proceedings that implic ate constitut ionally protected fundament al interests and liberty 2 1 interes ts of the litigant s. Where such fundamenta l right s and libert y intere sts are at stake, the 22 den ial of ER to litigants who cannot reasonab ly secure a coutt reporter violates the Constituti ons 23 of the U nited States and the State of Califo rnia. Such discriminati on is not nar row ly tailored to 24 meet a compellin g state interest as required by a constitutiona lly mand ated strict scrut iny 25 analys is.

The Court does not believe there is any valid justific atio n for deprivin g litigants of a 26 verbatim record when a techno logical means for doing so exists. 27 The appe llate coutts are " profoundl y concerned about the due proce ss impli cations of 28 a proceeding in which the [trial] court , aware that no record w ill be mad e, incorpora tes w ith in its 4

5 10 15 20 25 ruling reasons that are not documented for the litigants or the reviewing cou11." (Maxwell v. 2 Dolezal (2014) 23 1 Cal.App.4th 93, I 00.) The Court, too, is profoundly concerned about the 3 possibility of the appellate courts reviewing or declining to review decisions where the record is 4 not adequately "doc umented for the litigants or the reviewing court." (Ibid.) Accordingly, to protect the ability of litigants to appeal where their fundamental rights are at issue and no court 6 reporter is reasonably available, the Court issues this General Order. 7 8 THE COURT'S EFFORTS TO ENSURE THE PRESENCE OF SUFFICIENT COURT 9 REPORTERS For years, the Court has posted a continuous, ongoing recruitment for court reporters, but 11 the ongoing unavailability of court reporters prevents the Court from hiring enough of them to I 2 fill the vacancies of those who have left the Cou1t due to retirement or resignation.

Each day, the 13 Court has approximate ly 45 departments of different case types that require a cou1t repo1ter, yet 14 the Cou1t currently employs the full-time equivalent of on ly 33 reporters, any number of wh ich may not be available on any given day. Our Court is not alone in experiencing this crisis.

The 16 sho1tage of court repo1ters is statewide and well-documented by the Judicial Counci l of 17 California, the Coutt Executive Officers of virtual ly every California county, and many of the 18 Presiding Judges of those counties. 19 For the past several years, the State Budget has included funds allocated exclusively to enable trial cowts to compete with private employers in the labor market and increase the 2 1 number of official cou1t repo1ters in fam ily and civil law cases.

By the end of Fiscal Year 2024- 22 2025, the Cou1t wi ll have spent over $2.SM from the funds earmarked to promote open positions 23 and fund hiring bonuses and retention payments. But the Court's efforts have been unsuccessful. 24 The Cou1t has been able to hire some new court repotters, but the number of new hires does not come close to meeting or exceeding retirements.

The investment in effort and funds has fai led to 26 significantl y increase the number of court reporters employed by the Cou1t, and the 27 overa ll downward trend in the number of court reporters entering the profession leads the Court 28 to believe the shortage cannot be eliminated or suffic iently mitigated by recruitment and retention effotts. 5

5 10 15 20 25 2 3 4 6 7 8 9 1 I 12 13 14 16 17 18 19 21 22 23 24 26 27 28 EFFORTS FOR LEGISLATIVE RELIEF Presiding Judges , Court Executive Officers, and lawyers whose clients are most affected by the absence of a verbatim transcript have implored the California Legislature to take up legislation that could address this crisis. In 2023, California State Senator Susan Rubio introduced SB 662, which wou ld have expanded the use of ER from limited civil, misdemeanor and infraction matters under

section 69957 to other proceedings when a coutt reporter was unavailable. _But on January 18, 2024, the Legislature failed to advance SB 662 0 and on August 31, 2024, the Legislature recessed without taking any action. 1 THE CONSTITUTIONAL CRISIS A.

The Court's Mission The Court serves the public by providing equal justice for all in a fair, accessib le, effective, efficient, and coL11teous manner: by resolving disputes under the law; by applying the law consistently, impartially and independently ; and by instilling public trust and confidence in the Court. (See https://w,, w.ala111ecla.courts.ca.2:ovhzeneral-infor111ation/abo ut-court) 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 Court are aware that our Court's practical inability to provide court reporters, combined with

section 69957's statutory prohibition against ER in many proceedings, results in a denial of equal justice for all in a fair, accessible, effective and efficient manner. In the absence of a court repo1ter, these proceedings either could not occur or they would have to occur without any sort of transcript of the proceedings. Many of these hearings involve the parties' fundamental rights and liberty 1 See Joint Rules, Rule 5 l(b)(3), Senate Concun-ent Resolution No. I (2023-34 Reg. Sess.) regarding Legislature's "recess on September I until adjournment sine die on November 30." Pursuant to Californi a Evidence Code

section 452, subdivisions 28 (a), (c), and (g), the Court takes jud icia l notice of Senator Rubie 's introduction of SB 662 in 2023 , the Legislat ure 's failure to adva nce SB 662 on January 18, 2024 , and its recess on August 3 1, 2024 , without havin g taken further action on the bill. 6

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 26 27 28 interests.

For those hoping to appea l an adverse rulin g, the lack of a verbatim record may be fata l. (Jameson, supra, 5 Ca l.5th at p. 608 .) Permittin g ER where a cou11 reporter is not reasonably available would "elimin ate the restriction o[n] meanin gful access " to the appellate proce ss. (Jameson , supra, 5 Ca l.5th at p. 622, fn. 20.) Aga in, the Cow1 succe ssfull y uses ER to create a verbatim record in infraction , crimina l misdemeanor s, and limited civi l proc eed ings, which permitted appe llate review in the Court ' s Appe llate Division in numero us cases in 2024.

Unfo11unately, outs ide of infraction, misde meanor and limited civil proceed ings,

section 69957 wou ld den y litigants access to ER eve n in hearing s w here their fundame ntal rights a nd libe11y interests are at stake. Thi s General Orde r confi rms that judicial offic ers, consistent with the miss ion of the Cow1 and w ith the judi cial officers' oaths o f office , can author ize ER where fund ame ntal rights a nd libe11y interests are at stake and no court reporter is reaso nabl y avai lab le. B.

Section 69957 Prohibits a Verbatim Record for Some Parties Litigants in matter s w here ther e is no cou11-pro vided cou rt reporter have two options for seekin g a verbat im tran script, neither of which is reasona ble in mos t cases. First, they may try to retain and pay a private court repo11er to report the proceeding.

But the Judi cial Counc il has found that the same sho11age of co urt reporter s in the community has resu lted in the per diem cost of retaining a private court reporter , if o ne can be found , to be pro hibitive to a ll but the wea lthiest of litigants . 2 Second, one or both p arties may ask to continu e the hearing with the hope that the Court wi ll be ab le to ass ign a court reporter on a later date. But this option results in a pernici ous dela y in the admini strat ion of justice in cases where prompt court action is usually esse ntial.

Co ntinu ances are not a pract ical or effic ient option for litigants to obtain a verbatim record , cons iderin g the trial co urt's "dut y in the name of public po licy to expedit ious ly process civ il cases" (Apollo , supra, 167 Ca l.App.4th at p. 1487) , the harm that could occ ur to pa11ies from postponing a hearin g, and the fact that there are likely to be fewe r, not more, court 2 Pursuant to California Evidence Code

section 452, subdivision (c), the Court take s judi cial not ice of the Jud icial Council of Californ ia's January 2024 " Fact Sheet: Shortage of Cert ified Shorthand Reporte rs in Cal ifornia ," and the Legislative Ana lyst's Offi ce's Marc h 5, 2024, report to Senator Thom as Umb erg, Chair of the Senate Judicial Committee , attached to and incorporated in the Declaration of Court Executive Officer and Clerk of Court Chad Finke as Exhibi ts 2 and 6, respectively . 7

5 10 15 20 25 2 3 4 6 7 8 9 I I 12 13 14 16 17 18 19 21 22 23 24 26 27 28 repo1ters in the future. As a result, litigants have no choice but to proceed without a verbatim record where there is no court-employed cou1t reporter if the patties cannot reasonably retain or pay a private court reporter and ER is not an option. C. The Consequence of Proceeding Without a Verbatim Record As the lead ing 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) ,r 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.) Our Supreme Cowt approv ingly 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 cou,t. " (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, i_s instructive on the duty to ensure a verbat im 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 pe,t inent to a subsequent appeal he has a duty to insure that a cou,t repo1ter is present. [Citation.] Failure to attend to this duty can be tantamount to a waiver of the right to appeal." (Id. at p. 129.) "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 rationa l tactical purpose for trial counsel's failure to insure the attendance of a cou1t repo1ter." (Id. at pp. 129-1 30.) The " loss of the ability to show there [was] insufficient ev idence to support the j udgment" is "the epitome of prejudice." (Id. at p. 130.) The admonitions of Jameson and In re Christina P. are not aberrations, but conclusions from jurists at all levels of the California cou1t system.

Trial j udges and appellate justices alike have long understood that a verbatim transcript, rather than a post-hoc

summary, is what "a complete record" ordinarily entails. (See Jameson , supra , 5 Cal.5th at p. 608-609 & fn. 8

2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 26 27 28 11.) 26 ''As a genera l matter ... the abse nce of a court reporter will signifi cant ly limit the issues that must b e reso lved on the merits on appea l." (Id at p. 622, fn. 20.) For that reaso n, the Supreme Coutt has r ejected summari es in an order or a sett led or agreed sta teme nt as the cure when a litigant is denied the opport unity to obtain a verbat im transcript. (Jameson, supra, 5 Ca l.5th at p. 622 , fn. 20.) While "some issues can be reso lved on the clerk 's transcript alone o r by way of a settled or agreed statement" (ibid), and the opt ion of a sett led state ment "per mit[ s] parti es to appeal without the expense and burden of preparation of a reporter ' s transcript " if they so elect (Randall v.

Mousseau (20 16) 2 Cal.App.5th 929, 935 (Randall)) , " [t]h ere is, howeve r, generall y no way to determine in adva nce what iss ues may arise or whether such an i ssue can be raised and decided on appeal absent a ve rba tim record of the trial court proceedings. " (Jameson, at p. 622, fn. 20.) Even fo r issues that theoretically could be raised on a summ ary rather than a verbatim record, "where the paitie s are not in agreeme nt, and the sett led state ment must depend upon fading memorie s or other unce1tainties, it will ord inaril y not suffice.

" (Armstrong , supra, 126 Cal.App.3d at p. 573; see also People v. Cervantes (2007) 150 Cal.App .4th 11 17, 112 1 (Cervantes) .) Leading commentators have note d that "[i]t is unreal istic to expect litigants and judges to accurately reca ll what was said and decided days or even months after the relevant ora l proceedings. " (Grimes, et al., Navigating the New Settled Statement Procedures (2022) 33(2) Cal. Litig. 24 at p. 28 ["Gr imes, Settled Statement s"].) The abil ity to sett le a s tatement w ill often depend upon " whe ther the trial court took 'detailed notes.

"' (Cervantes, at p. 1121 [quoting In re Steven B. ( 1979) 25 Cal.3d I , 8- 9].) But because sectio n 69957 prohibi ts trial jud ges to use ER "for purpose s of judicial notetak ing," such detailed note s wo uld either be " the notes of a court repo rter who had reported the proc eedings " (Jameson, at pp. 624-625) or the notes of the trial judge captu red whi le a lso condu ct ing the hearing.

To this longs tandin g appe llate wisdom, trial judges can add fwther practical facts: trial jud ges, like trial counsel, genera lly cannot "determine in adva nce what issues may arise" (Jameson, supra, 5 Ca l.5th at p. 622, fn. 20), so as to know that this is the moment in a hearing at which "deta iled notes" shou ld be taken (Cervantes, supra, 150 Cal.App.4t h at p. 11 2 1 ). I n a 9

5 10 15 20 25 large number of hearings , patiicular ly content ious ones that may involve unrepresented litigants , 2 judges must focus on the ir roles as decision-makers and cannot serve as a de facto court repo1ier. 3 Unfotiunate ly, such hearings are often those in which litigants are least likely to be able to 4 manage the comp lex process of creating a sett led statement.

Indeed , some may be restrained from having any comm uni cation with the other following imposition of a domestic violence , 6 workplace vio lence, elder abuse, or othe r restraining order. 7 The process of creating a "sett led statement" to replace a verbatim record of the trial is no 8 solution to the problem. The Cou1i' s judicial officers can not undertake the settled statement 9 process or a detailed contemporaneous minute order for all the hearings that are currently unrepo1ied.

" [T]ri al courts have a duty in the name of pub lic policy to expeditiously process 11 civ il cases." (Apollo , supra , 167 Ca l.App.4th at p. 1487; Smith v. Ogbuehi (2019) 38 Cal.App.5th 12 453 , 468-469.) Even where lawyers are invo lved, "the sett led statement process may take up to 13 three hours each day to complete ." (Gr imes, Settled Statements at p. 28 ["To avoid the 14 difficulties of recalling events , some judges require counsel to remain in the courtroom each day until they agree on a sett led statement for that day ' s proceedings.

In such courtrooms , the settled 16 stateme nt process may take up to three hours eac h day to comp lete .... "].) And preparing 17 contemporaneous settled statements with self-represented patties in contentious disputes likely 18 wou ld take even longer than three hour s, if not prove nearly impossible. For that reason , 19 recourse to sett led statements is " impract ical for cou1is given the sheer vo lume of cases on the ir docket " ; "settled statement s are not the long-term answer " to the court reporter shortage . (Id. at 2 1 pp. 28 -29.) 22 D.

The Constitutiona l Rights at Issue 23 The Court ' s judicial officers are obligated to fol low the law, including app lying statutory 24 law as enac ted. But " it is the ob ligat ion of the trial and appe llate courts to inde pendent ly measure legis lative enactments against the constitut ion and, in appropriate cases , to declare such 26 enactme nts unconstitutional." (People v. Superior Court (Mudge) ( I 997) 54 Cal.App.4th 407 , 27 411 , as modified (May 9, 1997).) Sim ilarly, " [ c ]ourt s, as custodians of the judicial power s of 28 10

government , are not obi iged to enforce a statute w hich ... arbitrarily deprives a I itigant of his 2 rights." (People v. Murguia ( 1936) 6 Ca l.2d 190, 193.) 3 "'Co urts a re not powe rless to formulate rules of procedure w here justice demands 4 it.' [Citation.]" (Ruthe,ford v.

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, as modified on 5 denial of reh 'g (Oct. 22, 1997).) Indeed, '"all COllltS have inherent supervisory or adm inistrati ve 6 powers w hich enable them to carry o ut their duties, and which exist apart from any statutory 7 authority.' [Citat ion.]" (Ibid.) Tri al colllts have " powe r ove r the reco rd," which the Cou1t of 8 Appeal has made c lear " must be exercised in a manner that does not interfere w ith the litigant' s 9 s tatutory right to appea l." (Randall, supra, 2 Cal.App. 5th at p. 934.) Once the State has IO establi shed an avenue of appeal, it '" must be kept free of unreaso ned dis tinctions that can only 11 impede open and equal access to the courts.' [Citation.]" (In re Arthur N, supra, 36 Cal.App.3d 12 a t p. 939 .) T his General Order recognizes that judi cial officers may conclude they have the dut y, 13 g iven the pa1ticular facts of a case, not to e nfo rce the prov isions of

section 69957 where s uch 14 e nforcement co nstitu tes a constitu tio nal violation. 15 Fund ament al due process liberty interests under both the Califo rnia a nd United States 16 Co nstitu tions a re impli cated in judi cial determin ations of felony charges, disputes concerning the 17 status of the parties' marriage, the parentage rig hts a nd obli gations related t o minor childr en, 18 custody determin ations of minor childr en, certa in co nservatorship proceedin gs and civil 19 contempt hearings.

Simil arly, impos ition of a non-crimin al restrain ing o rder, including domest ic 20 violence, elder abuse, civil harassment, workplace violence, schoo l violence, gun violence, 2 1 and transitional housing restra ining o rders, may impin ge upon a person's freedoms of express ion 22 and speech, free movement, and assoc iation, as we ll as the right to possess firearms a nd 23 a mmuniti on.

T hese proceedin gs all impli cate liberty interests under both the California and 24 United States constituti ons. 25 When such fund amental rights and liberty interests are at issue, the need to preserve 26 patti es' appe llate rights is eve n grea ter. (See, e.g., Armstrong , supra , 126 Cal.App.3d at p. 569 27 [holding that for statutes governin g

part ies ' access to verbatim transcripti on, "where one ' s 28 'pe rsonal liberty is at stake,' a s tatutory scheme ' requires applicat ion of the strict 11

scrutin y sta ndard of equal protection analysis' "]; People v. Serrano ( 1973) 33 Cal.App. 3d 331 , 2 336 [noting that the Legis lature 's "deletion of such provision [for relief from a patty's appe llate 3 default] cannot deprive the appellate cou 1ts of their inherent duty to protect constitutional 4 rights"]; People v. Tucker ( 1964) 61 Ca l.2d 828 , 832 [" Doubts sho uld be resolved in favor of the 5 right to appeal.

"].) As the Court of Appeal explained in a case concerning the constitutionality 6 of classifications impa cti ng a stat utory right to appeal , "[i]n cases touc hin g upon fundamental 7 intere sts of the individual , the state bears the burd en of estab lishing not only that it has a 8 compelling interest which justifies the suspec t classification , but also that the distinctions drawn 9 by the regulation are necessa ry to further its purpo se. [Citation.]" (In re Arthur N. , supra , 36 IO Ca l.App. 3d at p. 939, original italic s.) 11 Based on these principles, this General Order confirms the discretion of the Court' s 12 judi cial officers to authorize ER to prese rve

partie s' right to appea l when their fundamental 13 rights and libe1ty intere sts may be at stake in the hear ing. 14 1. Co nstitutional Rights to Appeal 15 Under the Ca lifornia Pen al Code (" PC"), California Family Code, California Probate 16 Code and Ca lifornia Code of Civ il Procedure ("CCP "), parties possess stat utory rights to appeal 17 adjudic ation offe lony charges and fam ily law, probate , and civil co ntrove rsies. (See PC §§ 1237 18 and 1238; CCP § 902; CCP § 904.1 , s ubds. (a)( I), (lO) , (14).) Like wise, und er CCP 19

section 904.1, parties have a right of appeal from a jud gment of contempt. Where a stat utor y 20 right to appeal is affo rded , parties possess con stitutional rights related to that right of appea l. 21 (See In re Arthur N. , supra , 36 Ca l.App.3d at p. 939 .) The state must not structure 22 appe llate rule s to deny , based on unre asone d distinction s, some person s the appellate avenue 23 avai lab le to others. (Ibid.) 24 The principle of an equal constitutional right to statutory appe llate review is well 25 establi shed. In Lindsey v. Normet ( 1972) 405 U.S. 56, 77, the U.S.

Supreme Court held that a 26 state ' s law cond itionin g appeal in an ev iction act ion upon the tenant post ing a bond , with two 27 sureties, in twice the amo unt of rent expected to accrue pending appea l, was invalid under the 28 eq ual protection clause when no s imilar provision is applied to other cases. In Griffin v. Illinois 12

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 2 1 22 23 24 26 27 28 ( 1956) 35 1 U.S. 12, the S upreme Court held that crimin al defendants' due process and equal protection rights were v iolated by a state statute requiring them to pay a fee for a tra nscript of trial proceed ings to permit appe llate review. In the family law conte xt, in ML.B v.

S.L.J (1996) 5 19 U.S. 102, 124, the Supreme Court held that decree s forever terminating parenting rights are in the catego ry of cases in which a state may not , co nsistent with the equa l protection and due process clauses, '"bo lt the door to equal justice. ' [Citation.]" Accord ingly, the state cou ld not withh old from the appe llant a "' record of suffic ient com pleteness "' to permit proper appella te considerat ion of her claims. (Id. at p. 128.) 2.

Fundamental R ights a nd Liberty Interests in Felo ny Proceedings The right to libert y is not only protected by the United States and California constitutions but is regarded as a fundamental human right.

"Every person has a fundamental right to liberty in the sense that the Governme nt may not punish him unless and until it proves his guilt beyond a reaso nable doubt at a criminal trial conducted in acco rdance with the relevant con stitutional guara ntees. [C itat ion.] But a person who has been so convicted is eligible for, and the cou11 may impose , whateve r punishment is authorized by statute for his offense, so long as that penalty is not crue l and unusua l, [citations] and so long as the penalty is not based on an arb itrary distinction that wou ld violate the Due Process C lause of the Fifth Amendme nt." (Chapman v.

United States ( 199 1) 500 U.S . 453 , 465.) There are a number of fundamental rights at stake in any fe lony case, including the rig ht to a fa ir, public trial (People v. Covarrubias (20 16) I Cal.5th 838, 917); the right to an impartial jury (People v. Thomas (20 11 ) 5 1 Cal.4th 449 , 462); the rig ht to competent and conflict-free counse l (Strickland v. Washington ( 1984) 466 U.S . 668 , 686; People v. Doolin (2009) 45 Cal.4th 390, 4 19); the right again st se lf- incrimination (People v. Low (20 I 0) 49 Ca l.4th 372, 389 -390); the right to be informed of charges (People v.

Stone (2009) 46 Cal.4th 13 I , 141 ); the right to confront and cross -examine w itnesses (People v. Sanchez(2 016) 63 Cal.4th 665, 679-680); the right to compu lsory proces s (People v. Jacinto (20 I 0) 49 Cal.4th 263, 268-269); the right to a speed y tria l (People v. Wilson (2024) 16 Cal.5th 874, 939); the right agai nst double jeopar dy (People v. Seel (2004) 34 Ca l.4th 535 , 54 1-542); the right against excess ive bail (People v. 13

Seumanu (2015) 61 Cal.4th 1293, 1368-1 369); and the right against cruel and unusual 2 puni shment (In re Kirchner (20 17) 2 Ca l.5th I 040, I 046). 3 3. Fundamental Rights and Libe1ty Interests in Family Law Proceedings 4 The appellate review provided to parties in fam ily law matters serves to protect 5 fundamental ri ghts and liberty interests protected under the due process clauses of the United 6 States and California constitutions. Marriage and parenting are fundamental rights which cannot 7 be diminished or abrogated without a compelling state interest. At a minimum, parties' 8 fundamental rights and liberty interests are at stake in jud icial determinations concerning: (

I) the 9 status of their marriage, including its dissolution; (2) parentage rights and obligations; (3) the IO legal and physical custody of their children; and (4) civil restraining order proceedings. 11 As the U.S. Supreme Cowt explained over a century ago, "the individual has 12 ce1tain fundamental rights which must be respected," including "the right to marry, establi sh a 13 home, and bring up children." (Meyer v.

Nebraska (I 923) 262 U.S. 390, 399, 40 I.) Five years 14 after that decis ion, the Coutt struck down a law that required ch ildren to attend public school 15 because it infringed on parents' custodial rights to educate their children as they please. (Pierce 16 v. Soc '.Y of Sisters ( 1925) 268 U.S. 5 10, 534.) In the 1960s, the Court struck down a law banning 17 interracial marriage because it violated the Constitution by infringing on the fundamental right to 18 marry. (Lovingv .

Virginia (I 967) 388 U.S. l , 12.) A decade later, it struck down a law 19 prohibiting marriage of individuals not current on child support payments because it, too, 20 infringed upon the fundamenta l right to marry. (Zablocki v. Redhail (1978) 434 U.S. 374, 386.) 2 1 More recently, the Supreme Coutt struck down limitations on same-sex marriages as 22 unconstitutional. (Obergefell v.

Hodges (2015) 576 U.S. 644, 666 ["Like choices concerning 23 contracept ion, fami ly relationships, procreation, and childreari ng, all of which are protected by 24 the Constitution , decisions concerning marriage are among the most intimate that an individual 25 can make."].) 26 The California Constitution similarly protects marriage and fami ly rights. (See, e.g., In 27 re Marriage Cases (2008) 43 Cal.4th 757, 809, superseded by canst. amend. on other grounds as 28 stated in Hollingsworth v. Perry (20 13) 570 U.S . 693; In re Carma le ta B. ( 1978) 2 1 Cal.3d 482, 14

2 3 4 5 6 7 8 9 ! 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 489 [parenting]; In re E.G. (1974) 11 Cal.3d 679, 693-694 [parenting].) Encompa ssed w ithin "a parent ' s liberty interest in the custody , care and nurture of a child is ... the ' right to determine with whom their ch ildren should associate. ' [Citation.] " (Herbst v. Swan (2002 ) I 02 Cal.App.4th 813 , 819.) Fundamental right s and libe1ty interests related to marria ge and family have direct bearing on the judicial process , too.

For instance , "due process does prohibit a State from denying, so lely becau se of inability to pay , access to its colllts to individuals who seek judicial dissolution of their marriages. " (Boddie v. Connecticut (1971) 40 I U.S. 37 1, 374.) Similarly , in Little v. Streater (1981) 452 U.S. I, 13-17, the Court held that a state must pay for blood- grouping tests soug ht by an indigent defendant to enable him to contest a paternit y suit. Again, California precedent is similar and directl y addresses the need to ensure parents ' appellate right s. In In Re Rauch

(1951) I 03 Cal.App.2d 690, the trial court declared a minor to be a ward of the Court and revoked the guardian ship of the father. The father appealed , but his appeal was challenged on the ground he was not affected or aggrieved by the Cou1t' s order.

To that , the Cowt of Appeal explained that"[ u]nder 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 cettainly I itigation , in the subject matt er of which such father is interested , and , therefore, brings him within the fundamental rule of appellate juri sdiction that " under our decisions any person having an intere st recogni zed by law in the subject matter of the judgment , which interest is injuriou sly affected by the judgment , is a party aggrieved and entitled to be heard upon appeal. [Citation.] " (Id. at p. 694.) Finally, ce1tainjudicial officers are ass igned non-cr iminal restraining order (" RO") proceedings.

These include domestic violence ROs , elder abuse ROs, civil harassment ROs, workplace violence ROs, school violence ROs, gun vio lence ROs , and tran sitional housing ROs. A common feature of all such proceed ings is that the orders of protec tion issued following the succe ssfu l prosecution of a petition include material impin ge ments on freedom of speec h, freedom of movement, freedom of association, and the right to possess firearms and ammunition. (See , e.g., Molinaro v. Molinaro (20 19) 33 Ca l.App.5th 824 , 831 -833 [striking pottion of 15

2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 restraining order as violating appellant's freedom of speech]; cf. People v. Sanchez (20 17) 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 patticipation in the neighborhood in which he lives"].) Such orders bear upon constitutional rights and libe1ties under the United States and California Constitutions. 4.

Fundamenta l Rights and Liberty Interests in Probate Proceedings Fundamental liberty interests akin to those in a criminal context are also implicated in cases involving civil comm itment and Lanterman-Petris-Shott ("LPS") conservatorsh ips in probate proceedings. (See, e.g., People v.

Dunley (20 16) 24 7 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 Constitut ion requires that proof beyond a reasonable doubt and a unanimous jury verdict be applied to conservatorsh ip proceedings under the LPS Act," the California Supreme Court outlined the ways in which gravely disabled conservatees ' fundamental liberty interests could be impinged in Conservatorship of Roulet (1979) 23 Cal.3d 219, 227 (Roulet). 3 Matters in other conservatorsh ip 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 Coutt recognized the conservatee's 3 "The gravely disabl ed person for whom a conservatorsh ip has been established faces the loss of many other libertie s in additio n to the loss of his or her freedom from phys ical restra int. For examp le, the conservator is also given the powers granted to the guardian of an incompete nt in chap ters 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,§ 150 I); management of the conservatee's esta te, including sale or encumbrance of the conserva tee 's property (Prob. Code,§§ 1502, 1530); commence ment, prosec ution, and defense of act ions for partition of the con servatee's property interests (Prob. Code,§§ 1506- 1508); dispos ition of the conserva tee ' s money or other property for court -approved compro mises or judgme nts (Prob. Code , §§ 15 10, 1530a); depos it of the conservatee's money in a bank , savings and loan institut ion, or credit union (Prob .

Code, § 151 3); the giving of proxies to vote shares of the conservatee 's corporate stocks (Prob. Code, § 5 17); and the borrowing of money when it will benefit the conservatee (Prob . Code, § 1533) . In addit ion, the Court may gran t the conservator any or all of the powers specifi ed in Probate Code

section 1853.5 (See§ 5357.). " (Roule/, supra, 23 Cal.3d at p. 227, footnote omitted.)) 16

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 "fundamental rights to privacy and life" in a case involving a conservator's request to withdraw nutrition from a conscious conservatee. Additionally, 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 libe1ty 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 fact-specific inquiry requiring a case-by-case determination.

When such a determination is made, it weighs in favor of ensuring a verbatim record of proceedings. 5. Fundamental Rights and Liberty Interests in Civil Contempt Proceedings Finally, judicial officers in the Family Law, Probate and Civil Divisions hear 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 per count. (See CCP § 1218.) Penalties for subsequent convictions are increased. (See Ibid.) Such orders likewise implicate const itutional rights and liberties. Failure to follow the procedures for adjudicating contempt may also expose a judicial officer to professional discipline.

In sum, the United States and California Constitutions protect the fundamental rights and liberty interests at stake in felony charges; marriage, dissolution of marriage, parentage rights and determination s, custody determ inations, 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 pa1ties in such proceedings believe those constitutiona l rights have been violated, the California Legislature provides 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 Cou1t, teaches that the procedures for seeking that appellate review cannot draw impermissible distinctions between different classes of potential appellants. Where underlying 17

5 10 15 20 25 fundam ental rights are at stake, proc edures that limit appe llate rights face strict scrutiny. A lim it 2 on the abilit y to sec ure a verbatim record of a trial cou 1t proceedin g that results in a limit on the 3 ab ility to appea l for some litigants a nd not other s must further a compe lling gove rnm ental 4 interest and must be narrowly tailored to ach ieve that interest. 6. Fundame ntal Right s and Libe1ty Interests in Juvenile Dependency Proceeding s 6 D ependency proceedin gs co ncern fundamental rights and liberty interests of both parents 7 and ch ildren.

The United States Supreme Court has held that the liberty interest in the due 8 proce ss clause of the Fourteenth Amendme nt prot ects the "fundamental right of parents to make 9 deci sions concerning the care, custody , and control of their chi ldren." (Troxel v. Granv ille (2000) 530 U.S. 57, 66.) Ca lifornia court s have furth er elaborated on this , holding that our 11 soc iety " recogni ze[s] an ' esse ntial ' and ' basic' presumptive right to retain the care, custody , 12 management , and companion ship of one's own ch ild, free of intervention by the government.

" 13 (In re Kieshia E. (199 3) 6 Cal.4th 68 , 76; In re Marilyn J-1. ( 1993) 5 Cal.4th 295, 306.) 14 Juven iles in dependency proceeding s also have fundam ental rights at stake. The United State s Supreme Cou rt has held that childr en in dep enden cy proceedin gs possess a "fundamental 16 indep endent right" to be part ofa fami ly. (In re. Kristin J-1. ( 1996) 46 Cal. App. 4th 1635, 1642 ; 17 Quillan v.

Walcott (1977) 434 U.S. 246, 255.) Thi s right to family integrity has been de'rived 18 from the First Amendm ent's broad right of association and the Fo urteent h Amendment 's 19 substanti ve due proce ss protections. (Roberts v. United States Jaycees (1984) 468 U.S. 609 , 617 -20; Santosky v. Kramer ( 1982) 455 U.S. 745; Stanley v.

Illinois ( 1972) 405 U .S. 645 , 65 1.) 2 1 The liberty intere sts and Consti tutiona l cons iderations in dependenc y proceed ings are 22 such that , in Ca lifornia, both parents and chi ldren are entitl ed to a full complement of situatio n- 23 specific right s and service s, includin g, but not limited to, sta nding, appointment of cou nsel, a nd 24 reunification service s. (In re Zacharia D. ( 1993) 6 Cal.4th 435, 448 ; In re Sarah C. ( 1992) 8 Cal.App.4th 964, 97 1-972; R.H. v.

Super ior Court (20 12) 209 Cal.App.4th 364, 37 1, as 26 modified (Aug. 30, 20 12).) Many of th ese rights and services exte nd to appellate procee din gs , 27 includi ng an indigen t parent ' s possible right to appointed counse l " in an appeal from a state- 28 obta ined decision adversely affecting chi ld custody or parenta l statu s, on a case by case bas is, 18

5 10 15 20 25 under the due process clause of the Fou1teenth Amendment to the United States Constitution 2 and/or that of

article I,

section 7, subdivision (a), of the California Constitution." (In re Jay R. 3 ( 1983) 150 Cal. App. 3d 25 1, 262-65; In re Sade C. ( 1996) 13 Cal. 4th 952, 984.) 4 7. Fundamental Rights and Liberty Interests in Juvenile Delinquency Proceedings The United States Supreme Court has recognized that, even though delinquency cases are 6 civil proceedings, the interests at stake parallel those in a criminal prosecution. (Breed v. Jones , 7 (1975), 421 U.S. 519, 529; McKeiver v. Pennsylvania (1971 ), 403 U.S. 528, 540; In re Gault, 8 ( 1967)] 387 U.S.

I, 17- 25.) In delinquency proceedings, juveniles may be subject to a loss of 9 libe1ty for an extended period of time, making such proceedings comparable in seriousness to a felony prosecution. (In re Winship, ( 1970) 397 U.S. 358, 365-366; Gault, 387 U.S. 1, 36.) 11 In addition to the potential for loss of libe1ty, a delinquency finding carries with it a 12 stigma that may follow the minor throughout their life. (Addington v.

Texas ( 1979) 441 U.S. 13 418, 427; Kevin S., supra, 11 3 Cal.App.4th at p. 118.) Given the libe1ty interests at issue, and 14 the potential for lifelong harm, delinquency proceedings are subject to the "fundamental fairness" guarantees embodied in the due process clauses of the United States and California 16 constitutions. (Application of Gault (1967) 387 U.S. 1, 31; In re Armando A., 3 Cal. App. 4th 17 1185; In re Winship, (1970) 397 U.S. 358, 358-359; Breedv . Jones (1975) 421 U.S. 519; In re 18 John Z., 223 Cal. App. 4th 1046; In re Kevin S., 11 3 Cal.

App. 4th 97 .) 19 FINDINGS OF FACT AND CONCLUSIONS OF LAW I. California provides a statutory right of appeal in felony, family law, probate, and 21 civil proceedings. 22 2. Felony and j uvenile justice defendants and fam ily law, probate, civil, and juvenile 23 dependency litigants have fundamental interests protected by the due process clauses in court 24 proceedings involving their fe lony charge, marriage, the parentage and custody of their ch ildren, ce1tain conservatorship and guardianship matters, their rights under restraining orders, and civil 26 contempt proceedings.

Indigent litigants in civil cases cannot be required to pay for a record of 27 substantive proceedings. (Jameson, supra, 5 Cal. 5th at p. 608.) 28 19

5 10 15 20 25 3. The absence of a verbatim record wil l frequent ly be fatal to litigants' ability to 2 appea l from adverse decisions in such proceedings. 3 4. Due to the Court's ongo ing sho11age of court-emp loyed reporters and insufficient 4 funding to hire costly reporte rs from a cou11 reporter agency, the Court is unable at time s to ass ign a court -emp loyed court repo11er to even mandated proceeding s g iven the Cou11's shortage 6 of cou11-emp loyed repo11ers and insuffic ient funding to hire cost ly reporters from a cou 11 reporte 7 agency. 8 5.

The Court has attempted to reta in and hire more court reporters , but those 9 attempts have been unsuccessful and are likel y to remain unsucce ssful for the foreseeab le future. 6. California law, under

section 69957 of the Governmen t Code, permits electronic 11 recording of infra ction , criminal misdemeanor , and limit ed civil matters for the purpo se of 12 creating a verbat im reco rd of proceedings . Pursuant to

section 69957, the Cou11 has a reasonable 13 alternative method of permitting the creation of a verbatim record of proceedings via electronic 14 recording technology in the absence of an available cow1 repo11er. 7. The judges in the Cou 11's Appellate Division successfu lly reviewed and decided 16 num erous appeals in 2024 and 2025 when ER was used to create a record of infraction , 17 criminal misdemeanor, and limited civi l matters for the purpose of creating a verbat im 18 transc ript. 19 8.

The limitat ions of sec tion 69957, whic h does not permit electron ic recording of felony , fam ily law, probate , and civ il matt ers, esse ntially prevents litigants from protecting their 21 appe llate rights in eve n those matters invo lving constitutionall y protected fundamental rights and 22 I iberty interests. 23 9. Many in the judicial branch , along w ith others, have unsucce ssfu lly attempted to 24 persuade the California Legislature to amend the law to ame liorate thi s crisis. I 0. When the Cou 11's j ud icia l officers ad here to the limitations of

section 69957, no 26 tran script is available to vast numb ers of litigants in matter s implicating const itutionally 27 prot ected rights and liberty interests even though electronic recording technolog y is in place 28 wh ich could create a verbatim record. 20

2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I I. The distinction drawn by

section 69957 among classes of litigants has resulted, and will continue to result, in some 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.

The Court cannot see any legitimate - let alone compelling - r easo n 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 defendant facing a felony charge, a petitioner seeking a restraining order against an abusive partner, a parent facing the loss of custody over their child, a person with grave disabilities facing the imposition of a conservatorship, or a contemnor looking at jail time.

Section 69957 could be more narrowly tailored so that it does not deny those litigants a verbatim record when no comi repo1ier is reasonably available. Instead, judicial officers at the Court have conducted hearings in which

section 69957 has failed strict scrutiny and might indeed fail even lower levels of scrutiny. 12. Rather than restrict the appellate rights of litigants in matters touching upon fundamental constitutional rights and libe1iy interests, the Couti has a reasonable alternative method of permitting the creation of a verbatim transcript of proceedin gs via electronic recording technology.

In the absence of a reasonably available cou1i reporter which will ameliorate or eliminate the constitutional violations , the judi cial officers of the Cou1i 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 courtroom staff to operate the electronic recording equipment in any depaiiment as directed by the judicial office r presiding in such departme nt when that judi cial officer finds that: (

I) the proceeding concerns matters that implicate fundamental rights or libe1iy rights as described herein; (2) one or more parties wishes to have the possib ility of creating a verbatim transcript of the proceedings; (3) no offic ial court-employed court re po1ier is reasonably available to repoti 2 1

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 the proceeding; (4) the party requesting a verbatim record has been unable to secure the presence of a private cou1t repo1ter to repo1t the proceeding because such reporter was not reasonably available or, in a non-criminal case, because that party has a reasonable inability to pay for a private reporter; (5) the proceed ing 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, taking into account the ability to pay, when such order is made. THIS ORDER IS EFFECTIVE IMMEDIATELY AND WILL REMAIN IN EFFECT UNTIL OTHERWISE ORDERED BY THE PRESIDING .TTJDGE. Dated: January 1, 2026 Hon. Michael M. Markman Presiding Judge of the Super ior Court 22

2 3 4 5 6 7 8 9 IO I I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF COURT EXECUTIVE OFFICER AND CLERK OF COURT CHAD FINKE I, Chad Finke, declare: BACKGROUND I. I am the Court Executive Officer, Clerk of Court, and Jury Commissioner for the Alameda County Superior Cou1i ("Court"), offices I have held since October 2015. I have personal knowledge of the facts contained in this declaration and would testify to them if called upon to do so. 2. I have worked in California State Court administration and operations for nearly 24 years.

From 2001-2005 I served as a Legal Research Attorney and later a Supervising Legal Research Attorney at the Court. From 2005-2013 I worked for the Judicial Council of California in various managerial roles, culminating in a position as a Division Director. In 2013 I became the Court's General Counsel, and I held that position until I promoted into my current role in late 2015. I have also served on numerous Judicial Council statewide committees since 2015. I hold a Bachelor of Arts and I received my Juris Doctorate from Berkeley School of Law in 1997. 3.

The Cou1i is the 5th largest trial court in California, with 83 authorized judicial positions and approximately 600 employees who work in 9 different courthouses across the county.

The Court's judicial officers decide every case type under State law - criminal, juvenile justice , juvenile dependency, civil, family, probate, and traffic - and the range of cases includes murders, removals of abused or neglected children, complicated divorce and custody proceedings, restraining orders, multi-million-dollar lawsuits, involuntary commitments , child support enforcement , guardianships, landlord/tenant disputes and traffic infractions. THE VERBATIM RECORD CRISIS IN OUR COURT The Court has a Limited Number of Court Reporters 4.

As of the date of this declaration, Alameda employs 33 full-time equivalent (FTE) court reporters. The Court has additional vacant positions equivalent to 15 additional FTEs,

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 which we have been unable to fill despite spending approx imately $2.SM on various recru itment and retention incentives over and during the last three fiscal years. 5. Alameda's experience is shared by cou1ts everywhere. For many years, court executive officers and judici al branch leaders throughout California and the nation have studied and discussed the decreasing number of court reporters available for employment. 1 Electro nic Recording is Not Permitted in Unlimited Civil, Family and Probate 6. Although cowt reporters are not mandated for unlim ited civil, family, and probate matters, California Government Code

section 69957 does not permit cou1ts to use electronic recording ("ER ") to create a verbatim record of proceedings; ER is only permissible in misdemeanor , infraction , and limited civil cases and for the purpose of monitoring the performance of "subordinate judicial office rs" such as court commissioners. 7. As a public officer dedicated to securing justice and access to justice for the residents of Alameda County and other users of our Cowt, Government Code sec tion 69957's prohibition against using ER in unlimited civil, family and probate cases is intolerable.

The Court Is Unable to Assign Employee Court Reporters to Mandated Courtrooms 8. Under current law, the Court is mandated to staff courtrooms with court reporte rs for certain criminal , juvenile justice , juvenile dependency, and other proceedings, including when requested by an indigent party with an approved fee waiver pursuant to Jameson v. Des ta (2018) 5 Cal.5th 594 (Jameson) .

However, due to the local and state-wide court reporter shortage, the Court will be unable to assign employee court repo1ters to the depa1tments that hea felony criminal, juvenile , LPS (involuntary commitment s), contempt and fee waiver matter s.

Section 69957's prohibition against using ER in these cases - when the Court has made every attempt within its means to find a repo1ter - is also intolerable. 9. Each court day, the Court conducts approximate ly 45 calendar that statutorily require the presence of a cowt repo1ter. As of the date of this declaration, the Court staffs only 1 See Exhibit I, Judicial Council Press Release dated November 2, 2022, entitled "There is a Court Reporter Shortage Crisis in California," and Exhibit 2, Judicial Council Fact Sheet: Shortage of Certified Shorthand Reporters in California, dated January 2024.

These exhibits, as well as all those attached to and incorporated herein are true and correct copies of the original documents maintained by the Court. 2

5 10 15 20 25 the eq uivalent of 33 full-tim e court reporters, and the numb er of repo11ers actua lly avai lab le on 2 any given day is often lower due to illness, vacat ion, leave, training , or the preparation of 3 statutorily mandated transcripts. As a result , the Cou 11 expe riences a continuous sho11fall in 4 ava ilable court repo11ers.

Despite the Cou rt's best efforts to allocate resources and prioritize mandated proceedings , the Cou11 is increasing ly unab le to provide a cou11 reporter or other 6 recorder to eve ry cou11room in which one is required. 7 THE PLEA TO THE LEGISLATURE TO ADDRESS THE CRISIS 8 10.

In years past , and aga in in 2023 and throughout 2024 , multiple presiding judges 9 and cou11 execut ive officers of the Superio r Courts, the Judicial Counci l of California, bar groups repre se ntin g lawyers for the partic ularly vulnerable litigants in fam ily law proceeding s, 11 and members of the public implored the Legislature to amend

section 69957 to permit ER in 12 add itional cow1 proceedings to add ress this crisis. 2 Those joining the Superior Courts and 13 Judicial Council of Californ ia in urging the Legis lature to amend the law to permit ER to address 14 the crisis through written or ora l testim ony include: 16 17 18 19 21 22 23 24 26 27 • Disabi lity Right s Educat ion and Defense Fund • Elder Law and Disability Right s Cente r • Empower Yolo • Famil y Violence Appel late Project • Fam ily Violence Law Center • Healthy Alternatives to Vio lent Environment s • Impact Fund • Inner City Law Center • Lega l Aid Association of Califo rnia • Legal Aid of Marin • Lega l Aid Society of San Diego • Lega l Ass istance to the E lderly • Lega l Serv ices for Prisoners with Children • Legisla tive Coa lition to Preven t C hild Abuse • Lumin a Alliance • McGeorge Schoo l of Law Community Legal Serv ices • Mothers of Lost Children • Natio nal Hea lth Law Program • Ne ighborhood Legal Services of Los Ange les Co unty • Next Door Sol utions to Dome stic Violence 28 2 See Exhibit 3, Letter s of Support for SB 662, attached to the Declaration of David W.

Slayton, Los Angeles County Superio r Court Executive Officer and Clerk ofCou ri. 3

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 • One Justice • The People Concern • Western Center of Law & Pove1ty • Los Angeles County Bar Association • California Lawyers Association • Legal Aid Foundation of Los Angeles • Public Counsel • Bet Tzedek Legal Services • Community Legal Aid SoCal • Harriett Buhai Center for Family Law • Levitt Quinn Family Law Center • Los Angeles Center for Law and Justice • Los Angeles Dependency Lawyers, Inc. • Dependency Legal Services of San Diego • Asian Americans Advancing Justice Southern California • Consumer Attorneys Association of Los Angeles • Association of Southern California Defense Counsel • Mexican American Bar Association • Women Lawyers Association of Los Angeles • Asian Pacific American Bar Association of Los Angeles County • Beverly Hills Bar Association • Southern California Chinese Lawyers Association • Korean American Bar Association of Southern California • Japanese American Bar Association • Arab American Lawyers Association of Southern California • Irish American Bar Association - Los Angeles • Philippine American Bar Association • Italian American Bar Association • Black Women Lawyers Association of Los Angeles • South Bay Bar Association • Asian Pacific American Women Lawyers Association • Latina Lawyers Bar Association • A Window Between Worlds • Advocates for Child Empowerment and Safety • Asian Americans for Community Involvement • Asian Women' s Shelter • Boucher LLP • California Advocates for Nursing Home Reform • California Defense Counsel • California Judges Association • California Partnership to End Domestic Violence • California Protective Parents Association • California Women's Law Center • Central California Family Crisis Center, Inc. • Centro Legal de la Raza • Disability Rights California 4

11. In 2023, California State Senator Susan Rubio introduced SB 662 which, if 2 3 enacted, would have expanded the use of ER from limited civil, misdemeanor and infraction 4 matters to other proceedings for the purpose of creating a verbatim record if and when a court s employed court reporter was unavailable. 3 But on January 18, 2024, the California Legislature 6 fai led to advance SB 662. 4 12.

On March 5, 2024, the California Legislative Analyst's Office produced a 23-7 8 page report to Senator Thomas Umberg, Chair of the Senate Judiciary Committee, examining 9 "the current and future availability of court reporters in the trial courts." Among the LAO's Io conclusions are: "records of cowt proceedings are important for Due Process"; the number of 11 licensed cowt reporters has steadily declined since at least 2009; "many existing court reporters l 2 could be approaching retirement"; the "actual number of court reporters [is] less than [the] need 13 identified by the Judicial Branch"; in a survey of trial courts, "nearly all trial courts ... reported 14 a marked increase in the number of court reporter FTE vacancies they are experiencing"; 15 "departures [are] not offset despite increased hiring"; court reporter licensees have a "perception 16 of higher compensation in [the] private sector" and a "perception of better working conditions in 17 [the] private sector"; that 37% of the full-time equivalent court reporter positions needed l 8 statewide where electronic recording is not authorized, as estimated by the Judicial Branch, is no 19 filled; and that "the Legislature will need to decide what methods of making an official record 20 should be permissible.

This includes whether a record can be made by electronic recording ... "5 21 13. In its last session. the California Legislature entered its final recess before 22 adjournment on August 31, 2024, without passing a bill that would permit the use of ER to 23 24 25 3 See Exhibit 4, text of SB 662. 26 4 See Exhibit 5, a news

article dated January 19, 2024, entitled "Bill to Allow Electronic Recording in Civil Cases 27 Dies in California Legislature." I reviewed this

article and caused a true and correct copy of it to be created as an exhibit on or around the date of this declaration. 28 5 See Exhibit 6, California Legislative Analyst's Office Report to Senator Thomas J. Umberg regarding the current and future availability of court reporters, dated March 5, 2024. 5

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 capture the verbatim record when a court reporter is not available. 6 Thus at this time there is no legislative solution to address this crisis for the foreseeab le future. CONFRONTING THE CONSTITUTIONAL CRISIS 14.

Each day, the Court's judicial officers and staff strive to meet the goals of the Court' s mission statement: The Court shall fairly and efficiently resolve disputes arising under the law and shall apply the law consistently , impartially, and independently to protect the rights and liberties guaranteed by the Constitutions of California and the United States. The employees of the Court shall strive for service excellence and, through their dedication and profes sionalism, implement the policies and procedures established by the judiciary and legislature.

The judges and employees are committed to ensuring equal access to court services and enhancing public confidence in the court system. Our judicial officers' commitment to equal access to justice is encompassed within the oaths each has taken to suppo1t and defend the Constitut ions of the United States of America and the State of California. I have an obligation to provide resources to permit judges in the Cou1t to carry out their constitutiona l obligations; however, I am unable provide court reporters to ensure that a verbatim record is captured in all court proceedings.

Our judicial officers and I recognize that the Cowt's inability to assign cou1t reporters and use ER due to the limitations of

section 69957 represent a profound denial of equal access to justice. 15. While many hearings per year in our Court are now conducted with no verbatim record of proceedings ,

section 69957 currently permits ER in proceedings to create a verbatim record in infraction, criminal misdemeanors and limited civil proceedings, The Cou1t successf ully used transcripts derived from ER as the appe llate record in numerous proceedings in 2024 in the Court's Appe llate Division.

Based on the number of appea ls successfully handled by the Court's Appellate Division and the experience of the Court in utilizing ER for that purpo se, it is my opinion that ER-created transcr ipts allow for appe llate review of a verbatim record. 6 Pursuant to Rule 5l (b)(3) of the Joint Rule s of the Senate and Assemb ly for the 2023-24 Regular Sess ion, "[t]he Legislature shall be in recess on September I until adjournment sine die on Novembe r 30." (Joint Rules, Rule 51 (b)(3) , Senate Concu1Tent Resolution No. I (2023 -34 Reg. Sess.).) 6

5 10 15 20 25 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 26 27 28 I declare under penalty of pe1jury that the forego ing is true and correct, and that this declaration is executed this 31st day of December, 2025, at Oakland, California. CHAD FINKE Court Executive Officer/ Clerk of Court 7

Document details

Collection	California Superior Local Rules
Citation	514c1085b1c31899c74f24418a5dd41be8250f7c
Type	court_rule
Language	en
Format	pdf
Source	CA_LOCAL
Identifier	514c1085b1c31899c74f24418a5dd41be8250f7c

Source file is stored in the law ingest library (pdf).