Part of me is glad that Justice Nares decided to publish this opinion. Because that may make slightly more likely a grant of review by the California Supreme Court. Which should reverse.
At issue is a pro se complaint filed by an incarcerated inmate who claims that a hospital doctor improperly treated his hepatitis. The events at issue transpired in 2002. The case is still ongoing.
Three times the trial court previously entered judgment in favor of the defendant. Three times the Court of Appeal reversed and remanded; in 2007, again in 2009, and again in 2013.
I won't recount the facts of the case, which are adequately discussed in the prior opinions. The most troubling portion of the present appeal is the trial court's grant of a nonsuit. Which the trial court did immediately after the plaintiff's opening argument.
Plaintiff says that the nonsuit was improper. Justice Nares, however, says that this contention requires a transcript of the trial, which doesn't exist, so it's not cognizable. That part of the opinion may well be right.
But plaintiff says that he was impoverished, had been granted a fee waiver, and couldn't afford a court reporter, so one should have been provided for him. But Justice Nares says simply that's not what the underlying rules require: those rules (and the San Diego Superior Court rules) say that even those people with a fee waiver have to pay for their own court reporter if they want one.
Okay. I follow that. That's indeed what the rules may well say.
But Justice Nares thinks that's the end of the matter. The statute says you don't get a court reporter, without a court reporter you can't prove the trial court erred, so you lose. Sucks to be you.
Whereas, in my view, that's unconstitutional.
Poor people have a right under the Due Process Clause to seek redress in court. Despite the fact they may be poor and can't afford the filing fees. That's why (in part) we have fee waivers. Because poor people are entitled to due process even if they can't afford to pay the relevant fees.
That Due Process right, in my view, is not satisfied by merely letting poor people in the door, only to slam it shut in their face once they're actually in court. Poor people have the right to actual justice. A right that, for example, includes the right to file an appeal. Again: Even if they can't pay for it. That is why (again, in part) we allow fee waivers on appeal. Because even poor people have the right to obtain justice in the trial court and, if the trial court errs, on appeal.
That right is meaningless, however, under the Court of Appeal's rule. Which says that poor people can file an appeal, but have no right to a transcript, which means -- as here -- they automatically lose their appeal.
Yes, the relevant local rules expressly provide the poor people have to pay (incredibly high) fees for a court reporter, which they can't afford. Yes, the appellate rules say that without a transcript, you're barred from raising any evidentiary errors on appeal, including the grant of a nonsuit.
Which is why the underlying transcript rules are unconstitutional. Poor people have a right to have those fees paid as well if they make an adequate showing. Which plaintiff undeniably made here in order to get the fee waiver (both in the trial court and on appeal) in the first place.
It may perhaps be that plaintiff here didn't make that argument. (Though I imagine he may well have indeed made it.) If so, Justice Nares should say so, rather than simply concluding -- as he does in the opinion -- that there's no right to a transcript, even where (as here) that dooms your appeal. But if the argument was made (and, in truth, perhaps even if it wasn't), I think that the correct rule is that people in plaintiff's position are indeed entitled to a fee waiver for the transcript. For precisely the reasons identified by the present case.
The Court of Appeal says at the outset of its opinion: "While this court is sympathetic to the
plight of litigants like Jameson whose incarceration and/or financial circumstances
present  challenges, the rules of appellate procedure and substantive law mandate
that we affirm the judgment in this case." With respect, I don't think the Court of Appeal's holding properly reflects that sympathy. There's a way we can allow impoverished individuals to obtain justice: through fee waivers. Those could, and should, apply to the provision of court reporters. The Due Process Clause, in my view, affirmatively requires such a rule. Whereas the Court of Appeal says that what transpired here was perfectly okay.
But it wasn't. Which I hope that some other court at some point recognizes.