Retention of costs recovered from litigants for preparing transcripts of court proceedings

COURT REPORTERS-COURT COSTS-COUNTIES-COUNTY TREASURERS- Retention of costs recovered from litigants for preparing transcripts of court proceedings

1.         Official court reporters are entitled to retain any fees earned from transcribing the records of court proceedings, as compensation in addition to the salary provided in RCW 2.32.210.

2.         A county may not lawfully reduce an official reporter's salary by the amount of transcription fees collected by the reporter.

3.         A superior court clerk may not lawfully retain fees collected under RCW 2.32.240 for transcription services; such fees are to be deposited in the county treasury.

4.         Persons employed to electronically record superior court proceedings pursuant to Civil Rule 80(b) may or may not be entitled to retain fees paid for transcription services; this is a term of employment to be determined by the county employing the recorder.

5.         The county, not the state, is responsible for paying necessary transcription or tape copying costs for superior court proceedings involving indigent criminal defendants.

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                                                               December 14, 1994

HonorableWilliam H. Hawkins
Island County Prosecuting Attorney
P.O. Box 5000
Coupeville, WA  98239

                                                                                                            Cite as: AGO 1994 No. 23

Dear Mr. Hawkins:

            By letters previously acknowledged, you requested our opinion on questions concerning payment of court reporter fees.  We paraphrase your questions as follows:

            1.         May the official reporter retain the fee for transcription services he or she provides under RCW 2.32.240, or must the fee be paid over to the county?         

            2.         May the county reduce the official reporter's salary by the amount of transcription fees collected?

            3.         May the superior court clerk retain the fee for transcription services he or she provides under RCW 2.32.240, or must the fee be paid over to the county?   

            4.         May a person employed to electronically record superior court proceedings pursuant to Civil Rule 80(b) retain fees for transcription services or must the fees be paid over to the county in which he or she is employed?

            5.         Is the county, rather than the state, responsible for paying necessary transcription or tape copying fees for superior court proceedings involving indigent criminal defendants?

                                                              BRIEF ANSWERS

            As to the first question, we answer that the official reporter may retain transcription fees as compensation in addition to the reporter's fixed salary.  As to the second question, the county may not reduce the official reporter's salary by the amount of transcription fees collected.  As to the third question, the superior court clerk is barred by statute from retaining transcriptions fees and must pay them into the county treasury.  As to the fourth question, whether the person employed to electronically record proceedings is permitted to retain transcription fees is a term of employment to be determined by the employer.  As to the fifth question, the county is responsible for paying necessary transcription or tape copying fees for superior court proceedings involving indigent criminal defendants.

                                                                    ANALYSIS

            Question 1:

            May the official reporter retain the fee for transcription services he or she provides under RCW 2.32.240 or must the fees be paid over to the county?

            As background, superior court reporters, hereafter referred to as official reporters, are governed by the provisions of chapter 2.32 RCW.  Official reporters are appointed by the superior court judges of counties or judicial districts based on qualifications defined in RCW 2.32.180.  Their duties are to attend court as directed by the presiding judge; take accurate shorthand notes of oral testimony, exceptions taken, and other oral proceedings as directed by the presiding judge; and file such notes in the office of the clerk of the superior court.  RCW 2.32.200.

            Official reporters' salaries are fixed by the legislative authority of the county comprising the judicial district, after recommendation by the judges of the judicial district involved.  RCW 2.32.210.  Their salaries are to be paid from the current expense fund of the county or counties where court is held.  Id.  RCW 2.32.075 requires the clerk of the court to collect $4.00 for each new civil case filed and pay it into the county treasury, which sum "shall be known as stenographer or court reporter costs".

            In addition to the official duties described in RCW 2.32.200, a separate provision, RCW 2.32.240, requires official reporters to make transcripts of proceedings upon request by the court, a party, or a party's attorney.  This statute also provides for transcription fees.

            Because the answer to your question requires analysis of RCW 2.32.240, we set forth the statute in its entirety:

                        (1)        When a record has been taken in any cause as provided in RCW 2.32.180 through 2.32.310, if the court, or either party to the suit or action, or his attorney, request a transcript, the official reporter and clerk of the court shall make, or cause to be made, with reasonable diligence, full and accurate transcript of the testimony and other proceedings, which shall, when certified to as hereinafter provided, be filed with the clerk of the court where such trial is had for the use of the court or parties to the action.  The fees of the reporter and clerk of the court for making such transcript shall be fixed in accordance with costs as allowed in cost bills in civil cases by the supreme court of the state of Washington, and when such transcript is ordered by any party to any suit or action, said fee shall be paid forthwith by the party ordering the same, and in all cases where a transcript is made as provided for under the provisions of RCW 2.32.180 through 2.32.310 the cost thereof shall be taxable as costs in the case, and shall be so taxed as other costs in the case are taxed: PROVIDED, That when, from and after December 20, 1973, a party has been judicially determined to have a constitutional right to a transcript and to be unable by reason of poverty to pay for such transcript, the court may order said transcript to be made by the official reporter, which transcript fee therefor shall be paid by the state upon submission of appropriate vouchers to the clerk of the supreme court.

RCW 2.32.240.          

            In construing a statute, it should be assumed that the Legislature meant what it said.  Geschwind v. Flanagan, 121 Wn.2d 833, 854 P.2d 1061 (1993).  "Statutes should be construed as a whole, all language used should be given effect, and related statutes should be considered in relation to each other and whenever possible harmonized."  State v. Walter, 66 Wn.App. 862, 870, 833 P.2d 440 (1992), review denied, 121 Wn.2d 1033 (1993).

            Applying these rules of statutory construction, we observe that the language of RCW 2.32.240 preceding the proviso refers to transcription fees as the "fees of the reporter".  We infer from this language that the Legislature intended that transcription fees are the property of the official reporter, not the county, and thus may be retained by him or her.  This intention is further evidenced by the Legislature's provision for transcription services separately from the official reporter's duties described in RCW 2.32.200.  It is for the performance of these latter duties that we assume the official reporter is paid a salary by the county under RCW 2.32.210.  Transcription appears to be an additional duty for which the official reporter has responsibility, when requested, but for which he or she is to be separately compensated by the prescribed fee.

             We reach the same conclusion concerning the official reporter's authority to retain the fees referenced in the proviso governing transcripts for indigent criminal defendants.  This conclusion is consistent with that reached in AGO 1945-46, p. 746.  The question then presented was whether the official reporter should charge the county for transcribing notes taken at criminal hearings in the superior court.  Construing section 5, chapter 126, Laws of 1913, as amended by section 4, chapter 69, Laws of 1943 (Rem. Supp. 1943, § 42-5),[1] later codified at RCW 2.32.240, we stated that the official reporter was authorized by the statute "to collect from the county the fees therein provided when the state is the appellant or when defendant is appealing in forma pauperis".  AGO 1945-46, p. 746.  Implicit in our opinion was that the official reporter would retain the fee collected.  We believe it would be illogical to permit the official reporter to collect the transcription fee from the county, but then require him or her to turn around and repay it.

            The statutory provision this office analyzed in 1946 has since been amended six times.  It is a long-standing rule of statutory construction that "where a law is amended and a material change is made in the wording, it is presumed that the legislature intended a change in the law".  Home Indem. Co. v. McClellan Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d 389 (1969).  However, comparing RCW 2.32.240 to its 1943 form (set forth, in part, at n.1), we do not believe that the numerous amendments have resulted in a material change as relates solely to the official reporter's ability to collect and retain the transcription fee.

            Finally, we observe that the Legislature expressly requires funds known as "stenographer or court reporter costs" to be paid from filing fees paid into the county treasury.  See RCW 2.32.075.  The context and the use of the word "stenographer" denotes that these costs were intended to include the costs of taking down notes of a proceeding, and not the occasional, unpredictable additional costs of preparing a transcript.  However, language directing transcription fees be paid into the county treasury is conspicuously absent in RCW 2.32.240 or elsewhere.  Rules of statutory construction weigh against adding to or subtracting from the language of a statute unless imperatively required to make it a rational statute.  State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982).  RCW 2.32.240 is rational without interpreting it to require that transcription fees are to be paid into the county treasury.

            Question 2:

            May the county reduce the official reporter's salary by the amount of transcription fees collected?

            We believe this practice would be inconsistent with our interpretation of the provisions of chapter 2.32 RCW for two reasons.  First, in our judgment, the county must fix the official reporter's salary to compensate the performance of his or her duties described in RCW 2.32.200.  Referring to the salary, RCW 2.32.210 states, "[s]aid compensation shall be paid out of the current expense fund of the county or counties where court is held".  The county is not authorized to use revenue derived from the performance of other activities, such as transcription, and other revenue sources, such as the state or private litigants, to subsidize the expense of compensating reporters under RCW 2.32.210.  Second, subtracting the transcription fees from the official reporter's compensation would nullify the apparent intent of RCW 2.32.240 that such fees result in additional compensation.

            Question 3:

            May the superior court clerk retain the fee for transcription services he or she provides under RCW 2.32.240 or must the fee be paid over to the county?

            As you noted in your letter, RCW 2.32.240 requires the clerk of the court as well as the court reporter to make a transcript when requested and indicates that fees are fixed for both.  Transcript preparation is also listed in RCW 36.18.020 as a service for which superior court clerks must collect fees.  However, superior court clerks are prohibited in two statutes from retaining these fees as personal compensation.  First, RCW 42.16.030 requires the officers enumerated in section 1, chapter 56, Laws of 1907, who are paid a salary in lieu of fees, to collect the prescribed fees and pay them into the state or county treasury, as the case may be.  Superior court clerks are among the officers enumerated; official reporters are not.  See Laws of 1907, ch. 56, § 1, p. 95.  Second, RCW 36.17.010 mandates that the salaries of county officers are their full compensation for all services rendered.  We do not believe that official reporters are "county officers" within the intendment of this law, for they are not elective county officers for whom the schedule of salaries is set forth in the immediately succeeding provision, RCW 36.17.020.

            Question 4:

            May a person employed to electronically record superior court proceedings pursuant to Civil Rule 80(b) retain fees for transcription of proceedings or are the fees to be paid over to the county in which he or she is employed?

            Electronic recording of civil and criminal proceedings is available in lieu of or supplementary to causing shorthand notes of oral proceedings under Civil Rule 80(b).  The use of such devices rests within the sole discretion of the court.  CR 80(b).

            There has been no legislation which governs the employment or compensation of persons who perform electronic recording, unlike the situation as to official reporters.  As a result, we believe the terms of employment for such a position, including compensation for transcription, may be determined by the employer.[2]

            Question 5:

            Is the county, rather than the state, responsible for paying necessary transcription or tape copying fees for superior court proceedings involving indigent criminal defendants?

            Under Criminal Rule 3.1(d)(1) and (f)(1), an indigent criminal defendant may be assigned counsel and provided other services necessary to an adequate defense upon motion to the court.  We presume that transcription and tape copying fall within the ambit of services that a court may find necessary to an adequate defense.  The rule provides for reasonable compensation for such services (CrR 3.1(f)(3)), but does not indicate the source of funds for this compensation.

            RCW 2.32.240 and 4.88.330 provide for the submission of vouchers to the Clerk of the Supreme Court for costs incident to review where the defendant is an indigent.  It is settled that these statutes are designed to provide reimbursement by the state only for expenses incident to appellate review.  State v. Durham, 87 Wn.2d 206, 210, 550 P.2d 685 (1976).  TheDurham court held that claims for costs incident to an evidentiary hearing on the merits of a post-conviction relief petition were reimbursable from the county where the petitioner is indigent.  Id. at 211.

            In light ofDurham, we think it is inescapable that the county bears the burden of paying for the services made available under Criminal Rule 3.1 which are not incident to appellate review.  We are not dissuaded by the fact that Criminal Rule 3.1 had not been adopted at the time of theDurham decision.  RCW 10.01.110 was then in effect and expressly required the county to reimburse the expenses incurred by counsel for an indigent criminal defendant.  CrR 3.1 later superseded RCW 10.01.110, but did not expand the state's responsibility beyond funding indigent appeals as required in RCW 2.34.240 and 4.88.330.[3]

            We hope this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                       Attorney General

                                                                        ADRIENNE E. SMITH
                                                                        Assistant Attorney General

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