JAMESON v. DESTARespondent’s Response to Amicus Curiae BriefCal.October 18, 2016HON.MARKA. JUHAS, Chair Los Angeles County Superior Court Los Angeles CATHERINEJ. BLAKEMORE, Vice Chair Disability Rights California Sacramento JOHN W. ADKINS San Diego Law Library San Diego A. BEVERLY COLE Cole Renwick, LLC Palm Desert DAVID R. DANIELS Public Counsel Los Angeles ERIKA C. FRANK California Chamber of Commerce Sacramento JUAN J. GUTIERREZ One Stop Immigration and Educational Center Los Angeles AMOSE. HARTSTON California DepartmentofJustice Los Angeles HON. JAMES E. HERMAN Superior Court of Santa Barbara County Santa Barbara JANIS R. HIROHAMA League of Women Voters of California Manhattan Beach HON.LISA R. JASKOL Los Angeles Superior Court Los Angeles HON.MARTIN J. JENKINS Court ofAppeal, First Appellate District San Francisco VENUS D. JOHNSON City of Oakland Oakiand HON.VICTORIA S. KOLAKOWSKI Alameda County Superior Court Oakland MICHAELJ. LEVY California Department ofinsurance Sacramento HON. GOODWINH.LIU California Supreme Court San Francisco DEBORAH D. MOSS-WEST Santa Clara University School of Law Santa Clara ANNE MARIE MURPHY Cotchett, Pitre & McCarthy Burlingame LISA R. PRUITT University of California, Davis, School of Law Davis HON. MARIA P. RIVERA Court ofAppeal, First Appellate District San Francisco PANIDA M. RZONCA Thai Community Development Center Los Angeles LORENAE. SLOMANSON LegalAid Society of San Diego San Diego JOHANNA VALLE SOBALVARRO San Francisco SHUMIKA T. R. SOOKDEO Robinson Sookdeo Law Riverside HON.ERICA R. YEW Santa Clara County Superior Court San Jose RODNEYO. FONG Director, Office of Legal Services State Bar of California SUPREME Wuun UUPY CALIFORNIA COMMISSION ON ACCESS TO JUSTICE c/o State Bar of California . 180 Howard Street - San Francisco, CA 94105 - (415) 538-2352 - (415) 538-2524/fax Replyto: Michael J. Levy, Chair Amicus Curiae Committee California Commission on Accessto Justice 300 Capitol Mall, 17Floor Sacramento, CA 95814 SUPREME COURT FILED Chief Justice Tani G. Cantil-Sakauye and Associate Justices of they 13 2017 California Supreme Court 350 McAllister Street San Francisco, California 94102 November 13, 2017 Jorge Navarrete Clerk Re: Jameson vy. Desta, Cal. Supreme Court No. 230899 Deputy Supplemental Letter Brief of the Amicus Curiae Committee of the California Commission on Access to Justice, Amicus Curiae Dear Chief Justice Cantil-Sakauye and Associate Justices: The Amicus Curiae Committee of the California Commission on Access to Justice! (Access Commission), amicuscuriae, submits this supplementalletter brief in response to the Court’s order of October 11, 2017, authorizing amici curiae to address the following question: Whateffect, if any, does the 2015 amendmentto California Rules of Court!?/, rule 3.55(7) and the accompanying Advisory Committee Comment have on the resolution of the issue presented by this case? The Access Commission believes rule 3.55 is inapplicable to the question before the Court because the rule merely implements a Legislative minimum fee-waiver mandate; it does not (and cannot) prohibit the Supreme Court from determining that due process requires greater protection than the Legislature prescribed. To the extent the rule could be construedto allow a superior court to create a policy that effectively creates a blanket denial of the right of indigent litigants to an appeal, such a construction would violate legislative intent behind the fee-waiver program, and would be unconstitutional. ' This brief is submitted on behalf of the Amicus Curiae Committee of the California Commission on Access to Justice. The views expressed shall not be imputed to or be deemed to represent any of the Access Commission’s appointing authorities, including but not limited to the State Bar of California. 2 All references herein to “rule” or “rules” are to those specified in the California Rules of Court. Chief Justice Cantil-Sakauye and Associate Justices November 13, 2017 Page| 2 1. Rule 3.55 only ensures Legislatively-mandated fee waivers are granted; it does not proscribe additional fee waivers this Court may determine are necessary to ensure due processor the fair administration of justice. Rule 3.55 is expressed in mandatory terms: Court fees and costs that must be waived include... [§][rJeporter's fees for attendanceat hearingsandtrials, if the reporter is provided by the court. (Rule 3.55 (emphasis added).) The appended Advisory Committee comment confirms that rule 3.55(7) was only intended to implement the affirmative fee-waiver mandates of the Government Code: 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 provided for all fee waiver recipients. Rather, it is intended to include within a waiver all fees mandated under the Government Code for the cost of court reporting services provided by a court. (Advisory Com. com, Cal. Rules of Court, rule 3.55, emphasis added.) The Advisory Committee’s assessment of the pertinent statutory provision, Government Code}section 68086, is correct—that statute does not require courtsto includein theinitial fee waiver the cost of court reporters that are not provided by the court. But the statute does not prohibit a waiver of such reporters’ fees either. It merely sets forth the Legislature’s minimum requirements. As Amici California Academy of Appellate Lawyers et al, correctly note, rule 3.56(5) reflects the Judicial Council’s agreement that the waivers articulated in rule 3.55 are not exclusive, and under rule 3.56, the superior courts retain discretion to include additional fees and costs requested in the application. Rule 3.55 is therefore not instructive on the question before the Court. Whether the San Diego Superior Court’s policy violates principles of due process, equal protection, or this Court’s assessment of whether the equal and fair administration of justice requires additional protection of indigentlitigants beyond those mandated by the Legislature are not addressed in the rules. The Court’s inquiry in its order for supplemental briefing may therefore end here. Nevertheless, several additional points warrant consideration. 3 Unless otherwise specified, all statutory references are to the California Government Code. Chief Justice Cantil-Sakauye and Associate Justices November 13, 2017 Page | 3 2. Rule 3.55 cannot be construed to authorize a superior court to negate indigentlitigants’ right to fee waivers by instituting a blanket policy of not providing court reporters, because that construction would render the rule inconsistent with the intent of sections 68086 and 68630, and could not be squared with Constitutional due process and equal protection. The Judicial Council is not unconstrained in promulgating rules for the administration of justice. Specifically, rules of court may not be inconsistent with Legislative enactments. To improve the administration ofjustice the council shall ... adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute. The rules adopted shall not be inconsistent with statute. (Cal. Const., art. VI, § 6.) Unquestionably, neither may court rules be inconsistent with the Constitution. (See U.S. Constitution, Article VI, “The Constitution, ... shall be the supremelaw ofthe land; and judges in every state shall be bound thereby....”) Section 68086 and rule 3.55(7) draw a practical distinction between fees for services the court has procured and fees for services the parties themselves have procured. Asto court reporters, the statute and the rule waive an indigent party’s obligation to reimburse the court for its outlay, but they do not require a court to reimburse an indigent party’s expense in procuring a court reporter when the court has not. The statute (and therefore the rule) recognizes a modicum of administrative flexibility, and perhaps the desire allow courts to avoid wasting resources by retaining reporters to sit idly when not reasonably needed. However, that limited exception cannotfairly be interpreted to allow a blanket end-run of the section 68086’s clear intent that persons entitled to fee waivers should be provided court reporters’ services free of charge. The superior court is a “court of record.” (Cal. Const., art. VI, § 1.) A "court of record"is “a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceedings according to the course of the common law.” (See Ex parte Thistleton (1877) 52 Cal. 220, 224-225 (emphasis omitted).) “The foregoing implies a written record....” Ibid.) Such courts acts and judicial proceedings are recorded and have the powerto fine or imprison. (/bid.) Without doubt one of the customary essential services the superior courts provide, as a court of record,is a meansof generating a record of proceedings, typically by providing court reporters to renderthe services. Like the bailiff who ensures security and order in the courtroom, and the clerk who managesthefiles for the court, the court reporter (orat least the record he or she generates) serves a judicial function just as essential to the integrity of the judicial Chief Justice Cantil-Sakauye and Associate Justices November 13, 2017 Page | 4 process. Therecord protectsall parties’ right to appellate review. The recordfacilitates the trial judge’s, jury’s, and counsels’ recollection ofprior testimony. The recordprotects judicial officers from unfoundedallegations of misconduct.* The record ensuresthat the law being applied by individual judges in their respective courtrooms continues to develop and does so under the supervision of the appellate courts. The legislature recognized the importance of having a record and codified a right to one in superior courts by mandating that a reporter “shall take downin shorthandall testimony, objections made,rulings ofthe court, ... in a civil case, on the order of the court or at the request of a party.” (Code Civ. Proc., § 269, subd. (a)(1)). So important is the function ofa recordin the administration ofjustice that the Government Code requires that where a reporter is not available for a particular proceeding, any party is entitled to hire a court reporter for the proceeding. But in those circumstances, the court reporter is not a private reporter. Rather, the reporter becomes theofficial pro tem reporter of the court: [I]f an official court reporter is not available, a party may arrange for the presenceofa certified shorthand reporterto serve as an official pro tempore reporter... (§ 68086, subd. (d)(2).°) Irrespective of whether the court or either of the parties procures the reporter, the reporter nevertheless remains the court’s reporter. 4 The concerns weraise from the absenceofa record are not novel. Werespectfully refer the Court to the Report to the Chief Justice, by the Commission on the Future of California’s Court System (2017), Chapter 5, Recommendation 7 and the associated rationale, pp. 238-251, (http://www.courts.ca.gov/documents/futures-commission-final- report.pdf), which contains a comprehensive analysis of the history and trends of court- reporting services, the budgetary constraints to which the decision to forego hiring court reporters has been attributed, reference to the due-process and equal-protection implicationsofthe inability ofthe indigent to obtain a record (including a specific reference to among others this very case (Jameson v. Desta, cited at fn. 142), and Legislative enactments that prohibit the judiciary from pursuing less expensive and moreefficient meansof generating a record (such as the prohibition on broad use of electronic records). The report concludes a pilot project ought to be initiated to use comprehensive digital recording to create the official record for all case types that do not currently require a record prepared by a stenographic court reporter. > The final clause of subdivision (d)(2), replaced above with ellipses, renders “the costs [for the official pro tempore reporter] recoverable as provided in subdivision (c),” i.e., “recoverable as taxable costs by the prevailing party” in like manner as a court-procured reporter. (§ 68086, subd. (c).) As both the official reporter and official pro tempore Chief Justice Cantil-Sakauye and Associate Justices November 13, 2017 Page | 5 Werecognize the budgetary constraints placed upon the Judiciary overthe last decade. But the effect of the San Diego Superior Court’s policy has an unjustifiable impact prejudicing only thoselitigants whom the Legislature decided should be entitled to fee waivers. The statute’s intent was to promote access, yet the policy in question denies access, and defeats the right to meaningful appellate review, but only for those who cannot afford the counsel to advise them ofthe significance of a record, and those without the means of paying for a reporter to generate a record. If the Equal Protection Clause means anything it must mean that superior courts’ budgetary decisions mustaffectall litigants equally, and not prejudice only those without the meansto pay. (See U.S. Const., 14th Amend.) The Legislature created the fee-waiver program as a meansto provide some mitigation of the effects that the disparity in the parties’ wealth has upon the judicial process by conferring upon qualified litigants a right to a fee waiver. The Legislature finds and declares[... { t]hat our legal system cannotprovide “equal justice under law”unlessall persons have accessto the courts without regard to their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic meansto pay thosefees. (§ 68630, subd.(a).) Like all vestedrights, this right cannot be taken without due process of law. (See Town of Rock Castle, Colo. v. Gonzales (2005) 545 U.S. 748, 756 (explaining that a benefit provided by statute is property interest protected by the due process clause if the party asserting it has a claim of entitlement to it.) In that respect, we note that section 68086’s above-quoted exception speaks in terms of the “availability” of a court reporter. It does not confer upon a superior court the power to decide to render court reporters “not available” by choosing not to fund them in certain departments, and thereby denyeligible indigentlitigants the benefits of the fee-waiver program that the Legislature intended they should receive. The Legislature finds and declares [... { t]hat fiscal responsibility should be tempered with concern forlitigants’ rights to access the justice system. The procedurefor allowing the poorto use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not reporters’ costs are equally taxable, the clause omitted from (d)(2) is not relevant to the fee-waiverissue in this proceeding. Chief Justice Cantil-Sakauye and Associate Justices November 13, 2017 Page | 6 delay access to court services. The procedure for determiningif a litigant mayfile a lawsuit without paying a fee must not interfere with court access for those without the financial meansto do so. (§ 68630, subd. (b).) Weintend no disrespect to the superior court, and we do not here suggest the superior court’s budgetary choicesare arbitrary. The Access Commission knowsbetter than most which Californians have suffered the greatest harm from the budget cuts to the Judiciary precipitated by the recession. We do however believe that the budgetary choices of individual superior courts presentan arbitrary basis to determine whichlitigants shall have the right of appeal and which shall not. And, those budgetary determinations were undeniably made in the absenceofany consideration of any particularlitigant’s position— this Legislative entitlement was taken from eligible litigants without due process oflaw, and it has been taken unequally across California. Furthermore, no compelling governmental interest exists for a county superior court to balance its budget through budget choices that deny only the indigent due process oflaw by denyingaccessto a record of court proceedings which effectively takes away anindigent party’s right of appeal. No compelling governmentalinterest exists to create disparate due-process rights for indigent litigants depending upon the county in which they reside or where their action is properly venued. And, no compelling governmental interest exists to create incentives across California for parties to use their opponent’s inability to obtain a record as a litigation strategy in actions where venueis discretionary. While we fully endorse the Futures Commission’s recommendation to institute a pilot program for creation of an electronic record in courts lacking reporters (see footnote 4, supra), such a project is far too remote for Mr. Jameson and the countless others denied due process by the status quo in the interim. At root, access to justice is about more than fundamental fairness—it is about ensuring our government maintains the basic respect of its citizens that enables them to yield their personal liberties to the Rule of Law. That respect cannot exist without a fair opportunity to be heard throughout a party’s litigation. Amici California Academy of Appellate Lawyers,et al, note that rule 3.56(5) provides a basis to excuseindigent litigants of fees for reporters not procured by the court. The Access Commission would emphasize that the discretion afforded by rule 3.56 should not be construed to create a basis for superior courts to deny such requests when granting them is necessary to ensuring dueprocess, by affording indigent parties a record for appeal. Chief Justice Cantil-Sakauye and Associate Justices November 13, 2017 Page | 7 2K OK The fair and equal administration of justice requires that litigants in all parts ofthe state, irrespective of financial means,all have equal right to appellate review. To the extent rules 3.55 or 3.56 could be interpreted to allow a superior court to adopt a policy that operates to the contrary, or denies vested rights based upon the county where an indigentparty is in civil litigation, the rules would be unconstitutional. For the reasons aboveandasset forth in the California Academy of Appellate Lawyers’ amicus brief dated July 28, 2017, this Court should reverse the decision of the court of appeal, and grant to Mr. Jameson such furtherrelief as is just. Respectfully submitted, AMICUS CURIAE COMMITTEE OF THE CALIFORNIA COMMISSION ON ACCESS TO JUSTICE 7 4 fo - —>pe ENA Michael J. Levy, Chair (SBN 154290) (530) 220-5526; mikelevy@pacbell.net Keith Wurster, Member (SBN 198918) (650) 380-0368; klwurster@gmail.com Salena Copeland, Member (SBN 252222) (510) 893-3000; scopeland@laaconline.org Attorneys for Amicus Curiae (PROOF OF SERVICE ATTACHED)
