This Is Madness!

Rhue v. Superior Court, No. B283248 (D2d7 Nov. 28, 2107)

In many of California’s counties, the courts no longer provide official reporters. Parties need to bring their own. But if the parties can’t afford that, the only way to create an appellate record is a rather arcane process called a settled statement. Which is a narrative description, approved by the trial judge, of what happened during a proceeding. Very 18th century.

Anyway, there wasn’t a reporter at a hearing where the court vacated the default of a defendant and dismissed the case or at the hearing on Plaintiff’s later motion to reconsider that decision. Both issues were addressed in unreasoned minute orders. Plaintiff moved to obtain a settled statement, which the trial court denied on the grounds that: (1) no oral evidence was received in those proceedings that would make a difference on appeal, and (2) that the court could not faithfully reconstruct what happened during the hearing.

But according to the court here, it wasn’t allowed to do that. Under the recently decided Randall v. Mousseau, 2 Cal. App. 5th 929 (2016) a trial court needs to give a “justifiable excuse” why it is refusing to settle a statement. And the reasons given by the superior court judge, according to the Court of Appeal, don’t cut it under Randall. 

As to the trial court’s first reason, under the Rules of Court, a decision about whether the hearing contained any statements that merit inclusion in an appellate record was for the party (and perhaps the Court of Appeal) to make, not for the trial court. See Cal. R. Ct. 8.120(b); 8.130(a)(4). So the trial court shouldn’t have refused to settle a statement on the grounds that it wouldn’t be needed. Indeed, the Court of Appeal holds that because the decisions before the trial court were discretionary, the record of oral argument could, in fact, have some bearing on whether the court’s discretion was abused, even if no oral evidence was taken during the hearings.

As to the second reason, the trial Court finds that the trial judge’s lack of recollection isn’t a good enough excuse to refuse to settle a statement. It cites Western States Const. Co. v. Municipal Court, 38 Cal. 2d 146, 147–48 (1951) for that proposition. (It also, as a see also, cites Mooney v. Superior Court, 245 Cal. App. 4th 523, 531 (2016), which doesn’t specifically address the failure of judicial recollection). 

But Western States was decided under an old municipal court rule that gave litigants a mandatory right to a settled statement as a less costly option to prepare a record in a limited civil case. (An analogue rule is currently codified as Rule 8.869.) That rule worked from the assumption that denial of a settled statement will result in the more costly preparation of a full-blown reporter’s transcript. (Or in modern limited civil practice, an electronic recording, see Cal. R. Ct. 8.868, Gov’t Code § 69957.) 

Western States thus assumed that the proceeding was reported and, if the motion for a settled statement were denied, a reporter’s transcript would be created. It was in this context that the court explained that lack of memory isn’t a sufficient reason to refuse to settle a statement was because “that difficulty can be obviated by having the reporter read to him the notes taken at the trial, from which the judge may intelligently and properly direct appellant as to the manner and character of the statement which should be prepared and which only he is willing to settle.” 

What happens, however, when there’s no reporters’ notes to fall back on? Those are the facts here and in the countless cases where (often pro se) litigants seek to appeal decisions where no reporter was ever present. In the absence of some agreement between the parties as to what went down in a trial or argument, how can a judge who doesn’t remember certify what happened? Particularly months after the fact? It quickly becomes more of an epistemic problem than a legal one.

In any event, as of last week, this is all moot because, under a brand new amendment to Rule of Court 8.137, when a matter is not reported or the appellant has a fee waiver, she can elect to use a settled statement as a matter of right. (See here.) The new rule—modeled on Rule 8.869—then contains a somewhat complicated potentially multi-round procedure for the proposal of a statement, responses or objections by the respondent, the court’s review, and its ultimate certification. See Cal. R. Ct. 8.137(c)–(h) (2018). The Judicial Council also created a new form to speed the process along for pro ses. 

So to some degree, it looks like the Judicial Council has solved the legal problem. When there’s no reporter, the appellant has a right to a record, and the trial court can no longer stand in the way by denying a motion to settle a statement.

But what about the epistemic one? The Court of Appeal in this case suggests that every appeal of any decision with an element of discretion requires a record of oral proceedings. In busy urban courts (the ones most likely to have done away with official reporters) a judge can hear several of such matters every single day. When an appellant gives notice of her election to use a settled statement—an election that occurs with the designation of an appellate record after a judgment has been entered—what’s to say that the trial judge has any recollection of a hearing on a discretionary matter that might have occurred months or even years in the past? 

There is a solution: electronic recording. It has been used for years in other states, in federal courts, and in California, in limited civil matters. But twenty years ago—in a case brought by the court reporters’ trade association—the Court of Appeal decided that the Legislature had prohibited the use of electronic recording in unlimited civil cases. California Court Reporters Assn. v. Judicial Council of California, 39 Cal. App. 4th 15 (1995). 

The inevitable collision of the CCRA decision, tight superior court budgets, and the right to access the courts left the Judicial Council was left with no better option than to resurrect the settled statement as a last resort mandatory method of record creation. But that is just madness! I mean, this is a procedure that was recognized as completely out of whack with modern technology when radios still had tubes in them and victory in Europe was not ensured. See Comment, Appeal and Error: The Narrative Statement and the Reporter’s Transcript Compared as Methods of Bringing up Evidence on Appeal, 30 Cal. L. Rev. 457, 463 (1942). 

But this new amendment to Rule 8.137 totally cuts court reporters out of the record creation business whenever the appellant is indigent or nobody brings their own reporter to a hearing. The ostensible political imperative that animated the CCRA—full employment of official court reporters—no longer holds sway. So at this point why not permit recording in those cases instead of wasting hours of judicial resources in the creation of a third-rate record based on the imperfect memories of the parties and the court? 

Legislature?

Writ granted.