RECOUPMENT OF COSTS INCURRED IN PROSECUTION OF CONVICTED CRIMINAL DEFENDANT

COURTS ‑- COSTS ‑- FEES ‑- CRIMES ‑- JURY ‑- RECOUPMENT OF COSTS INCURRED IN PROSECUTION OF CONVICTED CRIMINAL DEFENDANT

Under the provisions of § 1, chapter 96, Laws of 1975-76, 2nd Ex. Sess., costs incurred at public expense for the payment of appointed counsel for the defendant in a criminal case as well as witness fees paid by the state for its own and defendant's witnesses under chapter 2.40 RCW may be recovered pursuant to court order from the defendant if convicted; however, costs incurred in paying the compensation of jurors under RCW 2.36.150 may not be so recovered and the recovery of statutory filing fees from a convicted criminal defendant remains governed, as before, by the provisions of RCW 36.18.020(15).

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                                                                    July 29, 1976

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington 98823

                                                                                                                 Cite as:  AGO 1976 No. 14

Dear Sir:

            By letter previously acknowledged you asked for our opinion regarding the imposition of costs against a convicted criminal defendant under § 1, chapter 96, Laws of 1975-76, 2nd Ex. Sess.  Specifically you have asked us whether, in ordering a convicted criminal defendant to pay costs under this 1976 legislation, a court may include, as cost items for which the defendant will be responsible, any or all of the following:

            (1) The costs of court appointed counsel for the defendant;

            (2) Witness fees paid under chapter 2.40 RCW for witnesses appearing for the prosecution;

            (3) Defendant's witness fees paid by the state;

            (4) Costs incurred by a county in paying the compensation of jurors under RCW 2.36.150;

            (5) Statutory filing fees required to have been paid to the clerk of the superior court in which the trial occurred.

             [[Orig. Op. Page 2]]

            We answer parts (1) through (3) of this question in the affirmative and part (4) in the negative for the reasons set forth in our analysis; part (5) is answered in the manner set forth therein.

                                                                     ANALYSIS

            The statute in question, as recently enacted by § 1, chapter 96, Laws of 1975-76, 2nd Ex. Sess., provides, in material part, as follows:

            "There is added to chapter 10.01 RCW a new section to read as follows:

            "(1) The court may require a convicted defendant to pay costs.

            "(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant.  They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

            "(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them.  In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

            ". . ."

            Subsection (1) thus simply states that the court may require a convicted defendant to pay costs.  Subsection (2), however, then defines "costs," for the purpose of this statute, as meaning only ". . . expenses specially incurred by the state in prosecuting the defendant."  Moreover, it then further limits the scope of the statute by providing that:

            (1) Such costs may not include expenses inherent in providing a constitutionally guaranteed jury trial; and

            (2) such costs may not include expenditures to maintain and operate government agencies which must be made by the public irrespective of specific violations of law.

             [[Orig. Op. Page 3]]

            It is notable at the outset that this new law, which became effective on June 25, 1976 (ninety days after adjournment of the legislative session during which it was enacted), is identical to a 1971 Oregon law.  See, Oregon Laws, 1971, chapter 743, §§ 80-82, now codified as ORS 161.665, 161.675 and 161.185.  Moreover, prior to the time that the Washington counterpart was enacted the Oregon law had been the subject of significant litigation in the case ofState v. Fuller, 12 Or.App. 152, 504 P.2d 1393 (1973).  We deem this fact to be highly significant because of the well-established rule of construction, most recently enunciated by our own supreme court inJackson v. Colagrossi, 50 Wn.2d 572, 575, 313 P.2d 697 (1957),

            ". . . that the adoption of a statute of another state likewise carries with it the construction placed upon such statute by the courts of that state. . . ."

            In theFuller case the defendant, upon being convicted of a certain crime, was ordered, as a condition to being granted probation, to repay attorney's fees and investigator's fees which the county in which he was tried had expended upon his behalf because of his indigency at the time of trial.  In response, the defendant challenged the constitutionality of the Oregon statute and further asserted that, in any event, neither the fees of a court appointed defense attorney nor investigator fees incurred by the county constituted "costs" which could be assessed against a convicted defendant under ORS 161.665.  The court, however, upheld the validity of the statute, distinguishing James v. Strange, 407 U.S. 128, 32 L. ed. [[L.Ed.]]2d 600, 92 S.Ct. 2027 (1972), upon which defendant principally relied, and then turned its attention to his alternative argument.  After quoting ORS 161.665(2), which reads precisely the same as § 1(2), chapter 96,supra, the court ruled on this point as follows:

            "The state submits that the costs 'specially incurred' in prosecuting a defendant include the costs of providing a court-appointed counsel and the payment of investigator's expenses.  These are, in fact, the principal expenses which the state 'specially' incurs in prosecuting an individual defendant.  The statute specifically excludes a jury fee or the costs of summoning jurors.  In addition, most of the costs of the prosecution side of the case are excluded from consideration as  [[Orig. Op. Page 4]] costs.  The 'costs of prosecution' specifically do not include district attorneys' salaries, sheriffs' salaries, jurors' fees, police investigations, etc.  See, Minutes, Criminal Law Revision Commission Meeting, May 14, 1970, pp. 27-30.  Although the services of any attorney and investigator are used by and for a defendant's benefit in the first instance, they are costs which the state or county must pay if an indigent defendant is to be prosecuted.  They are thus costs which are assessable as part of the sentence in a proper case."  (504 P.2d at 1396.)

            Moreover, aside from being upheld on constitutional grounds by the Oregon court itself, our research discloses that this aspect of the Fuller case was later reviewed, and sustained, by the United States Supreme Court inState v. Fuller, 417 U.S. 40, 40 L. ed [[L.Ed.]]2d 642, 94 S.Ct. 2116 (1974), in which the court explained:

            "Oregon's system for providing counsel quite clearly does not deprive any defendant of the legal assistance necessary to meet these needs.  As the State Court of Appeals observed in this case, an indigent is entitled to free counsel 'when he needs it' ‑ that is, during every stage of the criminal proceedings against him.  12 Ore App, at 158-159, 504 P.2d, at 1396.  The fact that an indigent who accepts state‑appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel.  The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so.  Those who remain indigent or for whom repayment would work 'manifest hardship' are forever exempt from any obligation to repay."  (417 U.S. at 52-54)1/

             [[Orig. Op. Page 5]]

            With this ruling in mind we turn, now, to your question ‑ beginning with part (1) which pertains to the recoupment of costs for court appointed counsel for an indigent defendant.

            Based upon the rule of construction set forth in Jackson v. Colagrossi, supra, we believe that the decision of the Oregon court inState v. Fuller, supra, is determinative of this initial part of your question.  Costs imposed upon a convicted criminal defendant under § 1, chapter 96,supra, may include the costs of court appointed defense counsel.  Such costsdo come under the heading of "expenses specially incurred by the state in prosecuting the defendant . . ." butdo not constitute either ". . . expenses inherent in providing a constitutionally guaranteed jury trial . . ."2/ or ". . . expenditures to maintain and operate government agencies which must be made by the public irrespective of specific violations of law."

            Next, let us consider the question of witness fees paid under chapter 2.40 RCW for witnesses appearing for the prosecution.  Although this issue was not involved inState v. Fuller, supra, it was more recently before the Oregon Court of Appeals inState v. Hastings,     Or.App.    , 544 P.2d 590 (1976).  There, again interpreting ORS 161.665(2), supra, the Oregon court held that witness fees incurred by the state in prosecuting a defendant are "costs" which are specially incurred so as to come within the scope of the statute.  As explained by the court in rendering that decision:

            "The remaining $33.00 [for state's witness fees] was the type of expense 'specially incurred by the state in prosecuting the defendant,' ORS 161.665(2) [Sec. 1, para (2), ch. 96, Laws of 1975-76, 2nd Ex. Sess.], and is therefore properly assessable to defendant.  This cost was incurred so the state could prove the indictment against the defendant in this particular case.  Payment of witness fees in a particular case is not an expenditure made 'irrespective of specific violations of law.'  ORS 161.665(2)."

            Given the identical language of our own Washington statute, we likewise answer this second part of your question in the affirmative; i.e., fees for prosecution witnesses may be recouped from a convicted defendant pursuant to a court order under § 1, chapter 96, supra.

             [[Orig. Op. Page 6]]

            From this it is but a short step to the question of defendant's witness fees.  In State v. Fuller, supra, as we have seen, the Oregon court held that fees for an investigator hired at public expense for the defendant by his court appointed attorney are recoverable under the Oregon statutory counterpart.  Except for the statute the costs of such investigator's fees would have had to have been absorbed by the state or county in the case of an indigent defendant.  But if prosecution witness fees and defendant's investigator fees in such a case may be said to constitute "costs specially incurred" then so must such defendant's witness fees as are paid by the state so that it may prosecute an indigent defendant.

            Having thus answered the first three parts of your question in the affirmative we must, however, now answer the fourth portion of that question in the negative.  In our opinion the costs incurred by a county in paying the compensation of jurors under RCW 2.36.150 may not be assessed against a convicted defendant because the statute here involved also expressly excludes

            ". . . expenses inherent in providing a constitutionally guaranteed jury trial. . . ."

            This language plainly excludes such costs as compensation of jurors even though specially incurred.  And, as we have above seen, the Oregon court in dicta agreed in interpreting identical language in the Oregon statute.  State v. Fuller,supra, at p. 1396.

            Next you have asked whether statutory filing fees required to be paid to the clerk of the superior court in which the trial occurred may be taxed as "costs" against a convicted defendant.  This part of your question, however, does not appear to us to fall within the purview of the new law which we have heretofore been discussing.  There is no statutory filing fee which must be paid by the state in order to commence a criminal prosecution.  Instead, another statute, RCW 36.18.020, relating to fees of county clerks, has long provided,interalia, that:

            "Clerks of superior courts shall collect the following fees for their official services:

            ". . .

             [[Orig. Op. Page 7]]

            "(15) Upon conviction or plea of guilty or upon failure to prosecute his appeal from a lower court as provided by law, a defendant in a criminal case shall be liable for a fee of thirty-two dollars."

            This statute remains in effect and may continue to be enforced but any recovery obtained thereunder will be based upon RCW 36.18.020 and not the newer provisions of chapter 96, supra.  The latter statute, as we have seen, is strictly a recoupment statute and thus only comes into play where costs have been initially incurred at public expense in prosecuting a criminal defendant and a recovery of those costs is then sought.

            We trust that the foregoing will be of some assistance to you.