B-156932, JULY 27, 1966, 46 COMP. GEN. 93

B-156932, JULY 27, 1966, 46 COMP. GEN. 93

COURTS - CRMINAL JUSTICE ACT OF 1964 - TRANSCRIPTS. THE CRIMINAL JUSTICE ACT OF 1964 HAVING AUTHORIZED THE PAYMENT BY THE UNITED STATES FOR THE SERVICES THAT ARE NECESSARY TO THE PROPER PRESENTATION OF AN INDIGENT DEFENDANT'S CASE AT ALL STAGES IN A CRIMINAL PROCEEDING, THE COST OF TRANSCRIPTS MAY BE PAID UNDER THE ACT, REGARDLESS OF WHETHER PREPARED IN STATE, MUNICIPAL, OR FEDERAL COURTS, OR BY WHOM, 28 U.S.C. 753/F) RELATING TO TRANSCRIPTS OF PROCEEDINGS IN FEDERAL DISTRICT COURTS AND SECTION 11-935, D.C. CODE WHILE NOT REPEALED MERGING WITH THE GREATER BENEFITS GRANTED BY THE CRIMINAL JUSTICE ACT, AND THE TRIAL TRANSCRIPTS NEEDED BY ALL PERSONS WITHIN THE PURVIEW OF THE 1964 ACT, INCLUDING PERSONS PROSECUTED BY THE UNITED STATES IN THE UNITED STATES BRANCH OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS, MAY BE PAID FROM APPROPRIATIONS MADE TO THE UNITED STATES COURTS PURSUANT TO APPROPRIATE COURT ORDERS. B-153485, MARCH 17, 1964; B-154384, AUGUST 3, 1964; B-154856, AUGUST 18, 1964, OVERRULED.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JULY 27, 1966:

BY LETTER OF JUNE 21, 1966, THE DEPUTY DIRECTOR REQUESTED CLARIFICATION OF OUR OPINIONS RELATING TO PAYMENT FOR TRANSCRIPTS PREPARED BY COURT REPORTERS OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS, IN LIGHT OF OUR DECISION OF JUNE 15, 1966, 45 COMP. GEN. 785, HOLDING THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006A, APPLICABLE TO THAT COURT.

OUR DECISION B-153485, MARCH 17, 1964, PERTAINED TO AN ORDER OF THE FOURTH CIRCUIT COURT OF APPEALS DIRECTING THE REPORTER OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS TO PROVIDE A TRANSCRIPT IN A CRIMINAL CASE AT THE EXPENSE OF THE UNITED STATES TO AN APPELLANT'S COURT APPOINTED COUNSEL. WE POINTED OUT IN THIS CASE THAT THE DISTRICT OF COLUMBIA CODE (SECTION 11-935) "MERELY AUTHORIZES THE GENERAL SESSIONS COURT REPORTER TO CHARGE THE UNITED STATES FOR TRANSCRIPTS FURNISHED; (THAT) IT DOES NOT, LITERALLY OR BY IMPLICATION, ENLARGE THE AUTHORITY OF 28 U.S.C. 753/F) WITH RESPECT TO THE FURNISHING OF TRANSCRIPTS AT FEDERAL EXPENSE;, AND WHILE WE RECOGNIZED THAT THIS CASE, AND OTHERS LIKE IT, MIGHT PRESENT A CONSTITUTIONAL PROBLEM (GRIFFIN V. ILLINOIS, 351 U.S. 12/1956); COPPEDGE V. UNITED STATES, 369 U.S. 438 (1962); DRAPER V. WASHINGTON, 372 U.S. 487 (1963/), WE STATED THAT WE CANNOT OVERLOOK THE FACT THAT THE APPROPRIATION AND USE OF PUBLIC FUNDS ARE CONSTITUTIONAL PREROGATIVES OF THE CONGRESS.

IN DECISION B-154856, AUGUST 18, 1964, PERTAINING TO TRANSCRIPTS MADE IN PROCEEDINGS BEFORE STATE COURTS, WE REFERRED TO OUR PRIOR RULING THAT YOUR OFFICE IS NOT AUTHORIZED TO PAY FOR A TRANSCRIPT OF CRIMINAL PROCEEDINGS IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS. WE POINTED OUT THAT THIS PRIOR HOLDING WAS BASED UPON THE CONCLUSION THAT 28 U.S.C. 753/F), PROVIDING AMONG OTHER THINGS FOR OBTAINING TRANSCRIPTS AT THE EXPENSE OF THE UNITED STATES, CONSTITUTES THE SOLE AUTHORITY FOR PAYMENT BY THE UNITED STATES FOR TRANSCRIPTS ON BEHALF OF INDIGENT PARTIES AND RELATES ONLY TO TRANSCRIPTS OF PROCEEDINGS IN THE FEDERAL DISTRICT COURTS. WE CONCLUDED, THEREFORE, THAT THE TRANSCRIPTS ORDERED ON BEHALF OF INDIGENT APPELLANTS IN CASES CONCERNING STATE-COURT PROCEEDINGS MAY NOT BE PAID FOR BY THE UNITED STATES. NOT BE PAID FOR BY THE UNITED STATES.

THE DEPUTY DIRECTOR ADVISES THAT THE JUDICIAL CONFERENCE COMMITTEE TO IMPLEMENT THE CRIMINAL JUSTICE ACT OF 1964 HAS HELD THAT THE ACT CONTAINS NO CLAUSES WHICH REPEAL ANY EXISTING SPECIFIC LEGISLATION AND, WITH PARTICULAR RESPECT TO PAYMENT FOR TRANSCRIPTS, THAT AUTHORIZATION FOR TRANSCRIPTS FEES SHOULD BE MADE UNDER SECTION 753/F) OF TITLE 28, U.S.C; RATHER THAN UNDER THE CRIMINAL JUSTICE ACT. THE REQUEST FOR CLARIFICATION OF OUR POSITION CONCERNING PAYMENT BY THE UNITED STATES FOR TRANSCRIPTS OF COURT OF GENERAL SESSIONS PROCEEDINGS STEMS FROM THE FOLLOWING PARAGRAPH IN OUR DECISION ON THE CRIMINAL JUSTICE ACT:

BECAUSE OF THE ANOMALOUS SITUATIONS DESCRIBED ABOVE, JUDGE GREEN CONCLUDES THAT THERE IS NO RATIONAL BASIS FOR EXCLUDING DEFENDANTS PROSECUTED IN THE UNITED STATES BRANCH OF THE COURT OF GENERAL SESSIONS FROM THE BENEFITS OF THE CRIMINAL JUSTICE ACT OF 1964 AND THAT IF THE LANGUAGE OF THE ACT CAN REASONABLY BE VIEWED AS ENCOMPASSING THE UNITED STATES BRANCH IT SHOULD BE SO CONSTRUED, PARTICULARLY IN THE LIGHT OF CONSTITUTIONAL ISSUES WHICH WOULD OTHERWISE BE RAISED. SEE IN THIS CONNECTION THE RECENT DECISION OF THE UNITED STATES COURT OF APPEALS IN TATE V. UNITED STATES, NO. 19177 (D.C. CIR. MARCH 28, 1966) HOLDING THAT FINANCIALLY DISABLED DEFENDANTS PROSECUTED BY THE UNITED STATES ARE EQUALLY ENTITLED TO TRANSCRIPTS ON APPEAL IN CASES ARISING FROM GENERAL SESSIONS OR DISTRICT COURT.

THE DEPUTY DIRECTOR SUGGESTS THAT IF READ OUT OF CONTEXT WITH OUR 1964 DECISIONS AND SECTION 753/F) OF TITLE 28 OF THE U.S. CODE, THIS LATEST OPINION CAN QUITE CLEARLY BE INTERPRETED AS REQUIRING PAYMENT FOR ALL TRANSCRIPTS ORDERED BY ALL PERSONS UNABLE TO PAY FOR AN ADEQUATE DEFENSE IN A CRIMINAL PROCEEDING, REGARDLESS OF WHETHER THE TRANSCRIPTS WERE PREPARED IN STATE, MUNICIPAL, OR FEDERAL COURTS, OR BY WHOM, SO LONG AS THE INDIVIDUALS WERE ENTITLED TO THE OTHER BENEFITS OF THE CRIMINAL JUSTICE ACT OF 1964. HOWEVER, IN VIEW OF 28 U.S.C. 753/F), SECTION 11- 935, D.C. CODE, AND OUR 1964 DECISIONS, AND SINCE HE IS UNABLE TO FIND ANY INDICATION IN THE CRIMINAL JUSTICE ACT OF 1964 OR ITS LEGISLATIVE HISTORY THAT CONGRESS INTENDED TO REPEAL THE CITED SECTIONS OF THE UNITED STATES AND DISTRICT OF COLUMBIA CODES, AND BECAUSE OUR OPINION DOES NOT INDICATE AN INTENT TO REVERSE OR OTHERWISE MODIFY OUR PREVIOUS DECISIONS, THE DEPUTY DIRECTOR FEELS THAT IT WOULD BE PRESUMPTUOUS ON THE PART OF YOUR OFFICE TO TAKE ANY COURSE OTHER THAN TO ABIDE BY THE EXISTING STATUTES AND OUR DECISIONS, BUT THAT SUCH A COURSE SHOULD NOT BE ADOPTED BLINDLY WITHOUT FURTHER WORD FROM US. HENCE, THE REQUEST FOR CLARIFICATION.

BY REFERRING TO THE TATE CASE IN OUR DECISION CONCERNING APPLICABILITY OF THE CRIMINAL JUSTICE ACT TO THE COURT OF GENERAL SESSIONS WE DID NOT INTEND TO IMPLY ANY CONCLUSIONS REGARDING THE QUESTION OF AUTHORITY FOR PAYMENT BY THE UNITED STATES FOR TRANSCRIPTS ON BEHALF OF THOSE UNABLE TO BEAR THE EXPENSE. WE APPRECIATED, OF COURSE, THAT THE TATE CASE CONCLUDES CONTRARY TO OUR PREVIOUS HOLDING THAT THERE IS NO AUTHORITY FOR THE UNITED STATES TO PAY FOR TRANSCRIPTS OF PROCEEDINGS IN THE COURT OF GENERAL SESSIONS, BUT WE DID NOT DEEM IT DESIRABLE TO TREAT THE ISSUE THUS RAISED IN THE CONTEXT OF THE QUESTION THEN BEFORE US. REFERENCE TO TATE WAS FOR THE SOLE PURPOSE OF SHOWING THAT JUDGE GREENE'S RATIONALE FOR CONSTRUING THE LANGUAGE OF THE CRIMINAL JUSTICE ACT TO AVOID CONSTITUTIONAL ISSUES WAS SUPPORTED IN AN ANALOGOUS SITUATION BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. NEVERTHELESS, AFTER FULL CONSIDERATION OF THE ISSUES INVOLVED PURSUANT TO THE DEPUTY DIRECTOR'S REQUEST FOR CLARIFICATION, WE REACH THE CONCLUSION THAT THE RESULT FLOWING FROM THE INTERPRETATION SUGGESTED BY HIM IS INDEED THE CORRECT ONE.

WHILE IT IS TRUE THAT THE CRIMINAL JUSTICE ACT OF 1964 CONTAINS NO CLAUSE WHICH REPEALS ANY EXISTING SPECIFIC LEGISLATION, WE FIND IT DIFFICULT TO EXCLUDE THE SERVICES OF A COURT REPORTER IN TRANSCRIBING HIS NOTES OF A TRIAL PROCEEDING FROM THE BROAD LANGUAGE OF THE ACT UNDER WHICH PAYMENT FOR SERVICES OTHER THAN COUNSEL IS AUTHORIZED. AS STATED BY THE SENATE COMMITTEE ON THE JUDICIARY AT PAGE 3 OF REPORT NO. 346, JULY 10, 1963, ON THE BILL WHICH ULTIMATELY WAS ENACTED AS THE CRIMINAL JUSTICE ACT OF 1964:

* * * (THE BILL-S) * * * PROVISIONS BECOME OPERATIVE WHENEVER THE RESOURCES OF AN ACCUSED ARE INADEQUATE TO PROVIDE FOR HIS DEFENSE.

ALTHOUGH THE QUOTED STATEMENT WAS MADE IN THE CONTEXT OF RELATING PROVISIONS IN THE BILL FOR SERVICES OTHER THAN COUNSEL TO FACT- FINDING, INVESTIGATING, AND EXPERT SERVICES NECESSARY TO ADEQUATE PREPARATION FOR TRIAL, WE FIND NOTHING IN THE STATUTORY LANGUAGE EMPLOYED TO SO LIMIT ITS APPLICATION. THE STATUTE STATES SIMPLY THAT "COUNSEL FOR A DEFENDANT WHO IS FINANCIALLY UNABLE TO OBTAIN INVESTIGATIVE, EXPERT, OR OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE IN HIS CASE MAY REQUEST THEM IN AN EX PARTE APPLICATION;, THE DETERMINATION OF A DEFENDANT'S RIGHTS ON APPEAL IS AS MUCH RELATED TO HIS DEFENSE SO FAR AS CONCERNS ENTITLEMENT UNDER THIS PROVISION AS IS THE DETERMINATION OF HIS RIGHTS AT THE INITIAL TRIAL. AND THERE WOULD NOT APPEAR TO BE ANY MORE REASON FOR DENYING HIM A TRANSCRIPT OF THE TRIAL PROCEEDINGS IF DEEMED NECESSARY FOR APPEAL PURPOSES THAN TO DENY HIM OTHER SERVICES NECESSARY TO HIS DEFENSE AT EITHER THE APPELLATE OR THE TRIAL STAGE. THE ACT SPECIFICALLY ASSURES ITS BENEFITS AT ALL STAGES OF PROCEEDINGS FROM "* * * INITIAL APPEARANCE BEFORE THE UNITED STATES COMMISSIONER OR COURT THROUGH APPEAL;,

CERTAINLY, IF THE PROVISIONS OF 28 U.S.C. 753/F) RELATING TO PAYMENT BY THE UNITED STATES FOR TRANSCRIPTS ON BEHALF OF INDIGENT APPELLANTS DID NOT EXIST, THERE COULD BE NO QUESTION BUT THAT THE NEED FOR A TRANSCRIPT BY AN APPELLANT UNABLE TO AFFORD THE EXPENSE WOULD BE COVERED BY THE CRIMINAL JUSTICE ACT PROVISIONS AUTHORIZING PAYMENT BY THE UNITED STATES FOR SERVICES NECESSARY TO A PROPER PRESENTATION OF A DEFENDENT'S CASE. THAT SECTION 753/F) WAS NOT SPECIFICALLY REPEALED IS UNIMPORTANT, IN OUR OPINION, AND SHOULD NOT BE CONSTRUED AS LIMITING IN ANY WAY THE REACH AND PURPOSE OF THE CRIMINAL JUSTICE ACT. IT MUST BE RECOGNIZED THAT THE CRIMINAL JUSTICE ACT WAS CONSIDERED BY THE CONGRESS AS A COMPREHENSIVE PIECE OF LEGISLATION CONSTITUTING A GREAT STEP FORWARD IN EQUALIZING CRIMINAL JUSTICE AS BETWEEN THOSE ABLE AND THOSE UNABLE TO AFFORD THE EXPENSES ASSOCIATED WITH DEFENDING THEMSELVES AGAINST CRIMINAL CHARGES BROUGHT AGAINST THEM BY THE UNITED STATES. TO THE EXTENT THAT ITS PROVISIONS OVERLAP PRIOR LEGISLATION OF A PIECEMEAL NATURE WITHIN ITS AMBIT, SUCH PRIOR LEGISLATION MUST BE VIEWED AS MERGED WITH THE LATER COMPREHENSIVE STATUTE RATHER THAN AS A BASIS FOR LIMITING THE GREATER BENEFITS GRANTED. OTHERWISE THE OVERALL INTENT OF THE CONGRESS WOULD BE THWARTED.

IT IS, THEREFORE, OUR OPINION THAT PAYMENT BY THE UNITED STATES UPON THE BASIS OF APPROPRIATE COURT ORDERS MAY PROPERLY BE MADE FROM APPROPRIATIONS TO YOUR OFFICE FOR TRIAL TRANSCRIPTS ON BEHALF OF ALL PERSONS WITHIN THE PURVIEW OF THE CRIMINAL JUSTICE ACT OF 1964. AND FOR THE REASONS STATED IN OUR DECISION OF JUNE 15, 1966, 45 COMP. GEN. 785, SUCH PERSONS WOULD INCLUDE THOSE PROSECUTED BY THE UNITED STATES IN THE UNITED STATES BRANCH OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS. IN LIGHT OF THIS CONCLUSION THERE DOES NOT APPEAR TO BE ANY NEED FOR COMMENT ON THE TATE CASE WITH RESPECT TO ITS EFFECT ON OUR PREVIOUS DECISIONS, AND THERE IS NO REASON FOR THIS OFFICE TO TAKE ISSUE WITH THE TATE CASE.