SAN FRANCISCO (CN) – Needy civil litigants who cannot afford to hire a private court reporter are still entitled to have one provided for them, the California Supreme Court ruled Thursday.

The unanimous decision found San Diego County Superior Court’s cost-cutting policy of eliminating court reporters in civil cases, even for litigants with fee waivers, incompatible with legislative policy on access to justice and the general principles of case law including Martin v. Superior Court, a 1917 decision giving the courts the power to waive fees for indigent civil litigants.

“By precluding an indigent litigant from obtaining the attendance of an official court reporter (to which the litigant would be entitled without payment of a fee), while at the same time preserving the right of financially able litigants to obtain an officially recognized pro tempore court reporter, the challenged court policy creates the type of restriction of meaningful access to the civil judicial process that the relevant California in forma pauperis precedents and legislative policy render impermissible,” Chief Justice Tani Cantil-Sakauye wrote. “Accordingly, we conclude that the court policy in question is invalid as applied to plaintiff and other fee waiver recipients, and that an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request.”

Michael Shipley, who argued before the California Supreme Court on behalf of prison inmate Barry Jameson who brought the underlying lawsuit in 2002, said, “I practice in state court all the time for nonindigent litigants and we’re all sensitive to the fact that the courts don’t have unlimited amounts of money. But the court was clear that the solution to that problem cannot exist to deny access to justice for poor litigants.”

Jameson had sued Dr. Taddese Desta in San Diego Superior Court for allegedly failing to properly treat his hepatitis while he was incarcerated at the Richard Donovan Correctional Facility.

Over the next decade, the trial court dismissed Jameson’s medical malpractice action three times, and each time the appellate court reversed and remanded for further proceedings. When it came time to go to trial in 2014, Jameson – then without an attorney – was not provided with a court reporter despite having a fee waiver.

Shipley said he saw Jameson’s case as a civil rights issue. “Access to justice is a huge civil rights issue and we had 40 different organizations that either filed or joined amicus briefs because this issue was affecting in a negative way all kinds of people’s rights to petition the government for redress of their grievances. It affects prisoners filing civil rights cases and it has a huge impact on family law cases,” he said. “A large percentage of people filing family law cases are not represented by attorneys. That’s one place where the effects of these policies were really harming people.”

Legal Aid Association of California executive director Salena Copeland, whose organization filed an amicus brief in the case, said there’s really no adequate substitute for a full and accurate transcript in an appeal.

“Sometimes it really does come down to what was said when it comes up on appeal,” she said. “I know appellate justices who have said, ‘It’s hard for me to rule when all I have is a settled statement and no verbatim record.’”

A “settled statement” is a court-approved summary of proceedings used in the absence of a court reporter’s transcript or official recording.

Erin Smith, executive director of the Family Violence Appellate Project, said compared to a transcript, a settled statement is a woefully inadequate alternative, especially in domestic violence cases. Her organization also filed an amicus brief.

“In domestic violence cases it’s a joke because what you’re supposed to do is agree with the other side on what happened. And it’s impossible to agree with someone who has been abusing you. It’s not a level playing field,” Smith said. “So you turn in your competing versions of what you think happened to the judge, who you’re appealing, to decide what the judge thinks happened. For low-income people and abuse survivors in a state of trauma, it’s not realistic to think they can remember everything that happened or even understand what’s happening.”

She added, “The Supreme Court here dismisses that as being an inadequate substitute that doesn’t excuse the trial courts for setting up this system where poor people don’t have court reporters but rich people do.”

The high court agreed, and Cantil-Sakauye wrote that verbatim transcripts of court proceedings are crucial for litigants appealing a trial court judgment against them.

“As we have seen, the absence of a verbatim record of trial court proceedings will often have a devastating effect on a litigant’s ability to have an appeal of a trial court judgment decided on the merits,” she wrote.

Still reeling from years of budget cuts in 2012, the San Diego Superior Court adopted a policy of not providing court reporters in most civil trials, including those with fee waivers. Jameson learned of the policy at a hearing 10 days before trial.

A 2013 report by the San Diego Bar Association highlights just how dire the situation was at that time, noting, “Court reporters have been altogether eliminated in civil, family, and probate court matters in over 30 counties statewide, including San Diego, with those same services drastically reduced (along with interpreter services in civil matters) in as many as 36 county trial court systems.”

The San Diego trial court did not preclude parties from paying for a private court reporter, which Jameson could not afford. The Supreme Court’s ruling noted that the per diem rate for private court reporters in large metro areas like San Francisco and Los Angeles was $735 between $764. An official court reporter for San Diego costs $431 for half-day proceedings and $862 for a full day.

“Unfortunately, the court had to make a decision strictly for budgetary reasons without understanding what that means for low income people who have to use their courts,” Copeland of Legal Aid Association said.

The trial court granted Dr. Desta’s motion for nonsuit after Jameson’s opening statement. Jameson appealed the judgment, which the Court of Appeal rejected on the basis of having no verbatim transcript available. The California Supreme Court granted review of the case to determine the validity of the San Diego trial court’s policy on court reporters.

While the high court sympathized with San Diego’s financial situation, Cantil-Sakauye said it should have made an exception for Jameson and litigants like him.

“We recognize and acknowledge the good faith of the superior court in attempting to deal with an extraordinarily difficult budgetary situation. The superior court could understandably conclude that its reduced resources required it to discontinue its policy of making official court reporters generally available in civil cases,” she wrote.

“However, the new policy failed to provide an exception for cases involving a fee waiver recipient who desires a verbatim record of the trial court proceedings but cannot afford to pay for a private reporter. Although such a limited exception would concededly impose some additional financial burden on the superior court, our past decisions caution that a court’s legitimate financial considerations must be carefully weighed against the potential impairment of a needy litigant’s right to equal access to justice.”

San Diego Superior Court Presiding Judge Peter Deddeh said in a statement: “We are currently reviewing the Supreme Court’s decision and will take all steps to implement it. Due to severe budget cuts over the past several years, our court was forced to make the difficult decision to remove court reporters from cases where their services were not legally mandated. In light of this decision, we will begin the process of reinstituting court reporting services as directed.”

The court most recently cut family law court reporters in September 2017, according to a local news report.

Desta’s attorney Kenneth Pedroza did not return a phone call seeking comment.