B-153485, MAR. 17, 1964

B-153485, MAR. 17, 1964

TO DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

WE REFER TO LETTER OF FEBRUARY 10, 1964, AND SUBSEQUENT CORRESPONDENCE FROM THE HONORABLE WILL SHAFROTH, DEPUTY DIRECTOR OF ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ON THE QUESTION OF AUTHORITY TO OBTAIN AT FEDERAL EXPENSE A TRANSCRIPT OF CRIMINAL PROCEEDINGS IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS FOR USE BY AN INDIGENT APPELLANT BEFORE THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

THE APPELLANT, CHARLES W. TAYLOR, IS AN INMATE OF THE DISTRICT OF COLUMBIA REFORMATORY AT LORTON, VIRGINIA. HE WAS CONFINED FOLLOWING CRIMINAL PROCEEDINGS APRIL 5, 1962, IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS, UNITED STATES V. CHARLES W. TAYLOR, CASE NUMBER 1285- 62. THE APPEAL, IN FORMA PAUPERIS, BEFORE THE COURT OF APPEALS IS FROM A DENIAL OF A PETITION FOR HABEAS CORPUS BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.

APPELLANT'S COURT-ASSIGNED COUNSEL MADE APPLICATION TO THE FOURTH CIRCUIT COURT OF APPEALS FOR A TRANSCRIPT OF THE ORIGINAL CRIMINAL HEARING IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS. AND ON DECEMBER 18, 1963, AN ORDER WAS FILED BY UNITED STATES CIRCUIT JUDGE HAYNSWORTH, OF THE FOURTH CIRCUIT, DIRECTING THE REPORTER OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS TO FURNISH THE REQUESTED TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES PURSUANT TO SECTION 753 (F) OF TITLE 28, U.S.C.

ON JANUARY 7, 1964, THE CHIEF JUDGE OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS ADVISED THE CLERK OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT THAT HE WAS INSTRUCTING THE COURT REPORTER NOT TO FURNISH A COPY OF THE TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES, THE COURT OF GENERAL SESSIONS BEING AN INFERIOR COURT OF THE DISTRICT OF COLUMBIA AND NOT A UNITED STATES DISTRICT COURT WITHIN THE CONTEMPLATION OF SECTION 753 (F). IN VIEW OF THE FOREGOING DEVELOPMENT, AND AS THE APPELLANT IS WITHOUT FUNDS AND NEEDS THE TRANSCRIPT TO ESTABLISH HIS ENTITLEMENT TO RELIEF, THERE WAS SUBMITTED FOR OUR CONSIDERATION THE QUESTION OF WHETHER THE EXPENSE OF THE TRANSCRIPT MAY BE INCURRED UNDER D.C. CODE SECTION 11- 935 (FORMERLY SECTION 11-754B).

SECTION 753 OF TITLE 28, U.S. CODE, SUBSECTION (F) OF WHICH IS REFERRED TO IN THE TRANSCRIPT ORDER OF THE COURT OF APPEALS, ORIGINATED AS THE OFFICIAL COURT REPORTER ACT OF 1944 (58 STAT. 5). IT AUTHORIZES THE APPOINTMENT OF COURT REPORTERS IN THE DISTRICT COURTS OF THE UNITED STATES, FIXES THEIR DUTIES AND PROVIDES FOR THEIR COMPENSATION. SUBSECTION (F), DEALING WITH THE CHARGING AND COLLECTING OF FEES BY REPORTERS OF DISTRICT COURTS OF THE UNITED STATES, PROVIDES:

"EACH REPORTER MAY CHARGE AND COLLECT FEES FOR TRANSCRIPTS REQUESTED BY THE PARTIES, INCLUDING THE UNITED STATES, AT RATES PRESCRIBED BY THE COURT SUBJECT TO THE APPROVAL OF THE JUDICIAL CONFERENCE. HE SHALL NOT CHARGE A FEE FOR ANY COPY OF A TRANSCRIPT DELIVERED TO THE CLERK FOR THE RECORDS OF COURT. FEES FOR TRANSCRIPTS FURNISHED IN CRIMINAL OR HABEAS CORPUS PROCEEDINGS TO PERSONS ALLOWED TO SUE, DEFEND, OR APPEAL IN FORMA PAUPERIS SHALL BE PAID BY THE UNITED STATES OUT OF MONEY APPROPRIATED FOR THAT PURPOSE. FEES FOR TRANSCRIPTS FURNISHED IN OTHER PROCEEDINGS TO PERSONS PERMITTED TO APPEAL IN FORMA PAUPERIS SHALL ALSO BE PAID BY THE UNITED STATES IF THE TRIAL JUDGE OR A CIRCUIT JUDGE CERTIFIES THAT THE APPEAL IS NOT FRIVOLOUS BUT PRESENTS A SUBSTANTIAL QUESTION. THE REPORTER MAY REQUIRE ANY PARTY REQUESTING A TRANSCRIPT TO PREPAY THE ESTIMATED FEE IN ADVANCE EXCEPT AS TO TRANSCRIPTS THAT ARE TO BE PAID FOR BY THE UNITED STATES.'

D.C. CODE SECTION 11-935, REFERRED TO IN THE DEPUTY DIRECTOR'S LETTER, IS AS FOLLOWS:

"IN ADDITION TO THEIR ANNUAL SALARIES, OFFICIAL REPORTERS FOR THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS MAY CHARGE AND COLLECT FROM PARTIES, INCLUDING THE UNITED STATES AND THE DISTRICT OF COLUMBIA, WHO REQUEST TRANSCRIPTS OF THE ORIGINAL RECORDS OF PROCEEDINGS, ONLY SUCH FEES AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE COURT. THE OFFICIAL REPORTERS SHALL FURNISH ALL SUPPLIES AT THEIR OWN EXPENSE. THE COURT SHALL PRESCRIBE SUCH RULES, PRACTICE, AND PROCEDURE PERTAINING TO FEES FOR TRANSCRIPTS AS IT DEEMS NECESSARY, CONFORMING AS NEARLY AS PRACTICABLE TO THE RULES, PRACTICE, AND PROCEDURE ESTABLISHED FOR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. A FEE MAY NOT BE CHARGED OR TAXED FOR A COPY OF A TRANSCRIPT DELIVERED TO A JUDGE AT HIS REQUEST OR FOR COPIES OF A TRANSCRIPT DELIVERED TO THE CLERK OF THE COURT FOR THE RECORDS OF THE COURT. EXCEPT AS TO TRANSCRIPTS THAT ARE TO BE PAID FOR BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA, THE REPORTERS MAY REQUIRE A PARTY REQUESTING A TRANSCRIPT TO PREPAY THE ESTIMATED FEE THEREFOR IN ADVANCE OF DELIVERY OF THE TRANSCRIPT.'

WHILE THE POSITION TAKEN BY THE CHIEF JUDGE OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS CREATES A HIATUS BETWEEN HIS COURT AND UNITED STATES COURTS IN THE FURNISHING OF TRANSCRIPTS TO INDIGENTS, WE NEVERTHELESS MUST AGREE THAT SECTION 753 (F), PROVIDING FOR TRANSCRIPTS AT FEDERAL EXPENSE, RELATES TO DISTRICT COURT PROCEEDINGS AND NOT PROCEEDINGS OUTSIDE SUCH COURTS. NOR DO WE FIND D.C. CODE SECTION 11-935 OF ASSISTANCE IN FILLING THE GAP. IT MERELY AUTHORIZES THE GENERAL SESSIONS COURT REPORTER TO CHARGE THE UNITED STATES FOR TRANSCRIPTS FURNISHED. 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, MAY 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 CANNOT OVERLOOK THE FACT THAT THE APPROPRIATION AND USE OF PUBLIC FUNDS ARE CONSTITUTIONAL PREROGATIVES OF THE CONGRESS; AND WE HAVE FOUND NO APPROPRIATION NOR HAVE WE BEEN REFERRED TO ONE WHICH APPEARS TO BE AVAILABLE FOR THIS PURPOSE.

YOU ARE ADVISED IN RESPONSE TO THE INQUIRY SUBMITTED THAT D.C. CODE SECTION 11-935 CANNOT BE CONSIDERED AS AUTHORIZING THE PROCUREMENT AT FEDERAL EXPENSE OF A TRANSCRIPT OF THE PROCEEDINGS IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS FOR THE USE OF THE APPELLANT IN THIS CASE.