JAMESON v. DESTA

Amicus Curiae, California Academy of Appellate Lawyers, Beverly Hills Bar Association, Los Angeles Center for Law and Justice, Los Angeles County Bar Association, Public Counsel, Louis S. Rulli, and Western Center on Law and Poverty, Supplemental Brief

Cal.November 14, 2017

President Margaret M.Grignon Grignon Law Firm LLP 5150 E.Pacific Coast Hwy., Ste. 200 Long Beach, CA 90804 First Vice President Susan Brandt-Hawley Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen, CA 95442 SecondVice President JohnA.Taylor, Jr. Horvitz & Levy LLP 3601 W.Olive Avenue Burbank, CA 91505 Secretary-Treasurer Kirk C. Jenkins Sedgwick LLP One N. WackerDrive, #4200 Chicago, IL 60606 Former Presidents Gideon Kanner Edward L. Lascher Cyril Viadro Ellis J. Horvitz Robert A.Seligson PaulP. Selvin M. Reed Hunter Michael M. Berger Jerome|. Braun Edward J. Horowitz Raoul D. Kennedy Arthur E. Schwimmer Gerald Z. Marer WendyC. Lascher Peter W. Davis Robert E. Hinerfeld Marc J. Poster Gerald F. Velmen Irving H. Greines Victoria J. De Goff Dennis A. Fischer JeromeB.Falk, Jr. KentL. Richland Douglas R. Young Barry R. Levy Jay-Allen Eisen Robert S. Gerstein Ephraim Margolin Richard A. Derevan Elliot L. Bien James C. Martin Richard Sherman Robin Meadow Paul D. Fogel CharlesA. Bird Charity Kenyon JonathanB. Steiner Kevin M. Fong David S. Ettinger Jan T. Chilton Robert A. Olson Steven L. Mayer Kathryn E. Karcher Jon B. Eisenberg COP\ CALIFORNIA ACADEMY OF APPELLATE LAWYERS SUPREME COURT FILED Nov 14 2017 Jorge Navarrete Clerk | November10, 2017 Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California Supreme Court 350 McAllister Street San Francisco, California 94102 Re: Jameson v. Desta, Cal. Supreme Court No. $230899 Supplemental Letter Brief of Amici Curiae California AcademyofAppellate Lawyerset al. Deputy Dear Chief Justice Cantil-Sakauye and Associate Justices: Amici curiae California AcademyofAppellate Lawyers and others signing below submit this supplementalletter brief to address the question set forth in the Court’s order of October 11, 2017: Whateffect, if any, does the 2015 amendmentto California Rules of Court, rule 3.55(7) and the accompanying Advisory Committee Comment haveon the resolution of the issue presented by this case? Introduction Ourview is that rule 3.55(7) and the accompanying Advisory Committee Comment address only appearancefees of official court reporters—thatis, reporters provided by thecourt. Rule 3.55(7) mandatesthe inclusion of such fees in an initial fee waiver. Rule 3.55(7) and the accompanying Advisory Committee Comment have noeffect on appearancefees ofprivate court reporters—thatis, reporters provided by the parties. Rule 3.56 of the California Rules of Court makes the inclusion of such fees of private court reporters in an initial fee waiver discretionary with the court. Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California Supreme Court November10, 2017 Page 2 As morefully explained in the brief of amici curiae California Academy of Appellate Lawyerset al., where a litigant has obtained a fee waiver, it is an abuse of discretion for a superior court to categorically refuse either to provide an official court reporter or to extend the fee waiver to a private court reporter’s appearancefee if doing so will preclude meaningful appellate review for want of a reporter’s transcript. Neither rule 3.55(7) nor its Advisory Committee Comment could reasonably be read to approve such a practice. For more thana century, this Court has madeclear that any rule that “has the practical effect of restricting an indigent’s access to the courts becauseofhis poverty... contravenes the fundamentalnotionsof equality and fairness which since the earliest days of the common law have found expression in the right to proceed in forma pauperis.” ([srin v. Superior Court (1965) 63 Cal.2d 153, 165, citing Martin v. Superior Court (1917) 176 Cal. 289, 293-297.) Rule 3.55(7) was not intended to and does not achieve such a perniciousresult. Rule 3.55(7) Rule 3.55(7) states that an initial fee waiver includes “[r]eporter’s fees for attendance at hearings andtrials, if the reporter is provided by the court.” (Cal. Rules of Court, rule 3.55(7), emphasis added.) The Advisory Committee Commentexplains: “The inclusion of court reporter’s fees in the fees waived upon granting an application for an initial fee waiver is not intended to mandate that a court reporter be providedfor all fee waiver recipients. Rather,it is intended to include within a waiverofall fees mandated under the Government Code for the cost of court reporting services provided by a court.” (Advisory Com. com, 23 pt. 1 West’s Ann. Codes, Rules (2017 ed.) foll. rule 3.55, p. 308, emphasis added.) Thus, rule 3.55(7) and the accompanying Advisory Committee Comment address only the waiver of appearance fees chargedbyofficial court reporters— that is, reporters provided by the court. They are silent with regard to appearancefeesofprivate court reporters—thatis, reporters provided by the parties. The Judicial Council’s silence as to waiver of fees charged by private court reporters is not the equivalent of a positive rule governing such fees and does not preclude this Court’s common law pronouncement on the issue presented. (Cf. County Sanitation Dist. v. Los Angeles County Employees Ass’n (1985) 38 Cal.3d 564, 584—585[“Legislative silence is not the equivalent of positive Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California Supreme Court November 10, 2017 Page 3 legislation and doesnot preclude judicial reevaluation of common law doctrine”; “it may signify that the Legislature is willing to entrust the further evolution of legal doctrine to judicial development” (internal quotation marks omitted)].) The Intent of Rule 3.55(7) Rule 3.55(7)’s limited reachto fees of official court reporters is evident from its text, which expressly restricts its application to appearance fees when “the reporter is provided by the court.” (Cal. Rules of Court, rule 3.55(7).) In addition, the intent of the rule and accompanying Advisory Committee Commentis explained in the Report to the Judicial Council by the Civil and Small Claims Advisory Committee and the Appellate Advisory Committee. (Judicial Council of Cal., Civil and Small Claims Advisory Com. & App. Advisory Com. Rep., Fee Waivers: Change in Federal Poverty Guidelines, Revisions to Application Form,and Specific Fees Included in Waivers (2015) [as of Nov.3, 2017] (hereafter Report). The Report recommended amendingrule 3.55(7) to reflect recent amendments to Government Code section 68086, which addresses appearancefeesofofficial court reporters—again, reporters provided by the court rather than privately by the parties. Before 2012, Government Code section 68086 imposedofficial court reporter appearancefees only for proceedings lasting more than an hour, making the appearanceof an official court reporter free for the first hour. (See Assem. Com.on Judiciary, Analysis of Assem. Bill No. 648 (2013-2014 Reg. Sess.) as amendedSept. 6, 2013, pp. 2-3.) In 2012, the Legislature amended the statute to prescribe a $30 fee for proceedings lasting an hourorless. (Gov. Code, § 68086, subd.(a)(1)(B).) In 2013, the Legislature further amended the statute to, amongother things, provide that official court reporter appearance fees “shall be waived for a person who hasbeen granted a fee waiver under [Government Code] Section 68631.” (Gov. Code, § 68086, subd.(b).) Government Code section 68631 prescribes an “initial fee waiver” for eligible low incomeapplicants. As of 2013, rule 3.55, which mandates the inclusion of certain court fees and costs in initial fee waivers, required that an initial fee waiver include “IrJeporter’s daily fees for attendance at hearings andtrials held within 60 days of the date of the order granting the application.” (See Reportp. 16, quoting Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California Supreme Court November 10, 2017 Page 4 formerrule 3.55(7).) Rule 3.56, which states that courts “may’—thatis, have discretion to—include certain other court fees and costs in initial fee waivers, gave courts discretion to include in aninitial fee waiver “[rJeporter’s fees for attendance at hearings and trials held more than 60 days after the date of the order granting the application.” (See Report p. 16, quoting former rule 3.56(4).) Thus, formerrule 3.55(7) prescribed a time restriction for mandatory waiverof official court reporter appearancefees: the waiver was mandatory only for hearings andtrials held within 60 daysof the grantof an initial fee waiver. For hearings andtrials held more than 60 dayslater, the fee waiver was discretionary under formerrule 3.56(A4). The Report explains that the purpose of the 2015 amendmentto rule 3.55(7), along with a simultaneous amendmentto rule 3.56, wasto “reflect... the new statutory requirement that court fees for court reporting services be includedin all fee waivers.” (Report p. 2, emphasis added.) The amendments were required “not only so that the $30 fee is covered, but also so that the time distinction in the current rules, giving a court the discretion to waive the reporter fees for a hearing more than 60 days after the grant of the fee waiver, is eliminated. As the rules currently read, they are in conflict with statute.” (Ud. at 5; see also id. at 5-6 [“The Civil and Small Claims Advisory Committee recommends amendingrule 3.55(7), which currently includes on thelist of fees that must be waived only those court reporter fees for hearing held within 60 days of the issuance of the fee waiver order, to eliminate the timerestriction in light of the new mandate in Government Code section 68086(b) that all court reporter’s fees otherwise charged by a court are waivedfor a party who has received a fee waiver’].) Thus, the purpose of the 2015 amendmentsto rules 3.55(7) and 3.56 was simply to make them consistent with amended Government Codesection 68086 by bringingall official court reporters’ appearance fees within the scopeof the mandatory fee waiver andeliminating the provision for a discretionary fee waiver. The Advisory Committee Comment simply makesclear that, after the 2015 amendment, courtsstill are not required to provide official court reporters. (Advisory Com. com., 23 p. 1 West’s Ann. Codes, Rules (2017 ed.) foll. rule 3.55, p. 303 [inclusion of court reporter’s fees in initial fee waiveris intended only to mandate waiver of cost of court reporting services “provided by a court”].) Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California Supreme Court November 10, 2017 Page 5 Noneof this has anything to do with appearance fees charged by private court reporters. On that, the Reportis silent. Rule 3.56(5) Appearance fees of private court reporters are within the scope of discretionary waiverof court fees and costs underrule 3.56 of the California Rules of Court. Specifically, rule 3.56(5) states that the court fees and costs that may be waived upon granting an application for an initial fee waiver include, in addition to thoselisted in the first four subsections of rule 3.56, “[o]ther fees or expenses as itemized in the application.” (Cal. Rules of Court, rule 3.56(5).) Rule 3.56 makesclear that these discretionary “[o]ther fees or expenses”(ibid.) include fees and expensesother than those paid to the court ttself—such as to private court reporters. This appears from the fact that the rule expressly authorizes discretionary waiver of fees paid to noncourt personnel such as court- appointed interpreters (Cal. Rules, of Court, rule 3.56(2)), peace officers (Cal. Rules of Court, rule 3.56(3)), and court-appointed experts (Cal. Rules of Court, rule 3.56(4)). Conclusion Unlike appearancefeesof official court reporters, which are subject to mandatory waiver underrule 3.55(7), appearancefees ofprivate court reporters are subject to discretionary waiver under rule 3.56(5). As more fully explained in the brief of amici curiae California Academy of Appellate Lawyerset al., it is an abuse of discretion for a superior court to adopt a policy that does not allow persons of modest meansto obtain meaningful appellate review by securing the services of a court reporter—if not through the court’s provision of an official court reporter, then through the extension of an initial fee waiver to include the appearancefee of a private court reporter. Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California Supreme Court November10, 2017 Page 6 Respectfully submitted, CALIFORNIA ACADEMY OF APPELLATE LAWYERS By: Jon B. Eisenber Attorneys for Amici Curiae CALIFORNIA ACADEMY OF APPELLATE LAWYERS; BEVERLY HILLS BAR ASSOCIATION; LOS ANGELES CENTER FOR LAW AND JUSTICE; LOS ANGELES COUNTY BAR ASSOCIATION; PUBLIC COUNSEL; WESTERN CENTER ON LAW AND POVERTY; PROF. LOUIS S. RULLI ce: See attached Proof of Service PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County ofLos Angeles, State of California. My business addressis 3601 West Olive Avenue, 8th Floor, Burbank, California 91505-4681. On November 10, 2017, I served true copies of the following document(s) described as SUPPLEMENTAL AMICUS CURIAE LETTER BRIEF on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY E-MAIL OR ELECTRONIC TRANSMISSION:Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission via Court’s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) as indicated on the attached servicelist: I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed on November 10, 2017, at Burbank, California. pike Costes) Millie Cowley/ SERVICE LIST Jameson v. Desta Case No. S230899 Michael J. Shipley Sierra Elizabeth Joseph M. Sanderson Kirkland & Ellis LLP 333 South Hope Street Los Angeles, CA 90071 James J. Wallace,IT Russell M. Mortyn David Ozeran La Follette, Johnson, De Haas, Fesler & Ames 501 West Broadway, Suite 800 San Diego, CA 92101 Kenneth R. Pedroza Joshua C. Traver Cole Pedroza LLP 2670 Mission Street, Suite 200 San Marino, CA 91108 AnnaT. Ferrari Penelope A. Preovolos Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 Erin C. Smith Nancy K. D. Lemon Family Violence Appellate Project 1814 Franklin Street, Suite 805 Oakland, CA 94612 Mary-Christine Sungaila Haynes and Boone LLP 600 Anton Blvd., Suite 700 Costa Mesa, CA 92626 Attorneys for Petitioner Barry S. Jameson Attorneys for Respondents Taddese Desta Attorneys for Respondents Taddese Desta Attorneys for Amicus Curiae Family Violence Appellate Project; 30 Organizations and Individuals Representing Survivors of Family Violence Attorneys for Amicus Curiae Family Violence Appellate Project; 30 Organizations and Individuals Representing Survivors of Family Violence Attorneys for Amicus Curiae American Bar Association Paulette Brown American Bar Association 321 North Clark Street Chicago, IL 60654 Michael J. Levy California Department of Insurance 300 Capitol Mall, Floor 17 Sacramento, CA 95814 Catherine J. Blakemore Attorney at Law 1831 K Street Sacramento, CA 95811 California Court of Appeal Fourth Appellate District, Div. One 750 B Street, Ste. 300 San Diego, CA 92101-8196 Hon. Joel M. Pressman San Diego Superior Court 330 West Broadway, Fourth Floor Dept. 66 San Diego, CA 92101 Attorneys for Amicus Curiae American Bar Association Via U.S. Mail Attorneys for Amicus Curiae Amicus Curiae Committee of the California Commission on Access to Justice Attorneys for Amicus Curiae Amicus Curiae Committee of the California Commission on Access to Justice Case No. D066793 Case No. GIS9465 Via U.S. Mail