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Lee v. State (07/29/2005) ap-1997
Lee v. State (07/29/2005) ap-1997
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JASON LEE,
)
) Court of
Appeals No. A-8819
Appellant,
)
Trial Court No. 2KB-03-102 Civ
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 1997 July 29, 2005]
)
Appeal from the Superior Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Eugene B. Cyrus, Eagle River,
for the Appellant. Douglas H. Kossler,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
A mid-appeal issue has arisen regarding the
transcription of the trial court proceedings in this case. The
appellants attorney has filed pleadings in which he declares his
intention to prepare the initial transcript in his office.
According to the attorney, his plan is to forward this transcript
and the underlying electronic recording of the trial court
proceedings to a professional transcriber. The professional
transcriber would then (1) compare the attorneys transcription to
the electronic recording, (2) make any needed corrections in the
transcript, and finally (3) certify the transcript as having been
prepared by the professional transcriber. We conclude that this
proposed method of transcript preparation violates Alaska law.
Until a few years ago, Alaska law was silent on the
issue of whether attorneys or their employees could prepare an
appellate transcript. But in 2002, prompted by complaints about
the content and accuracy of attorney-prepared transcripts, our
supreme court amended Alaska Appellate Rule 210(b)(3) by adding
the following language:
Unless the parties agree otherwise by
stipulation, or unless otherwise ordered by
the appellate court, the person designated to
prepare the transcript shall not be a
relative, employee, or attorney of any of the
parties, or a relative or employee of that
attorney, or be financially interested in the
action. Apart from contracting for the
preparation of the transcript within a given
period of time and at a given price, neither
the party nor the partys attorney may
exercise control over the preparation of the
transcript.
(Enacted by Supreme Court Order No. 1472, as
amended by Supreme Court Order No. 1482, both
of which became effective on October 15,
2002.)
This amendment to Appellate Rule
210(b)(3) in particular, the second sentence
of the amendment appears to preclude an
attorney from pursuing the course of action
proposed by Lees attorney in this case.
Nevertheless, Lees attorney
contends that his proposal is lawful. The
attorney asserts that he intends to have the
professional transcriber conduct a word-for-
word review of the transcript prepared by his
office. The attorney argues that, at the end
of this process, because the attorney and his
employees have relinquished control over the
final wording of the transcript, the
transcript will actually be the work-product
of the professional transcriber.
As we noted above, Appellate Rule
210(b)(3) forbids an attorney from
exercis[ing] control over the preparation of
the transcript apart from contracting for the
preparation of the transcript within a given
period of time and at a given price. While
the word control may sometimes mean ultimate
authority, it is clear to us that the supreme
court was using the word control in a broader
sense in Appellate Rule 210(b)(3).
If control were being used only in
the narrow sense of final authority over the
wording of the transcript, then there would
be no need for the supreme court to modify
control over the preparation of the
transcript by adding the clause apart from
contracting for the preparation of the
transcript within a given period of time and
at a given price. This additional clause is
needed only if control over the preparation
of the transcript was intended to encompass a
broader range of conduct. We conclude that
this phrase refers to any act that provides
input into, or that potentially influences,
the content of the transcript.
This interpretation of Appellate
Rule 210(b)(3) is borne out by Alaskas other
court rules governing transcript preparation
and certification.
Alaska Administrative Rule 36(a)
declares that each transcript filed with the
Alaska Court System must be certified, and
the rule further states that this
certification must be done only by the person
who prepared [the transcript].
In addition, Administrative Rule
36(a) declares that all transcripts filed
with the Alaska Court System shall be
prepared according to the standards and
procedures prescribed by the administrative
director. Pursuant to this directive, the
administrative director has promulgated
Administrative Bulletin 31, which adopts the
Manual of Transcript Procedures as the
official rules governing transcripts filed in
the Alaska Court System. And Chapter V of
the Manual of Transcript Procedures again
specifies that a transcript must be certified
by the person who personally prepared the
transcript from the electronic record.
Echoing Administrative Rule 36(a),
Chapter V of the Manual declares that [e]ach
transcript prepared for the Alaska Court
System must be certified in the form
prescribed by Appendices G and H. The Manual
then expressly states: The transcript must
be certified by the person who transcribed
it[.]
This requirement that the person
who certifies the transcript must be the same
person who transcribed it from the electronic
record is set forth more specifically in
Appendix G to the Manual, which prescribes
the following format for the Transcribers
Certificate:
Transcribers Certificate
I, _________, hereby certify that the
foregoing [pages] are a true, accurate, and
complete transcript of [the requested]
proceedings in Case No. ________, ...
transcribed by me from a copy of the
electronic sound recording to the best of my
knowledge and ability.
(Emphasis added)
These provisions of Administrative
Rule 36(a) and the Manual of Transcript
Procedures confirm our conclusion that
Appellate Rule 210(b)(3) was intended to bar
attorneys and their employees from providing
draft input into the content of a transcript.
Alaska law requires that a transcript be
certified by the person or persons who
actually transcribed the electronic record
not someone who verified another persons
draft transcription by comparing it to the
electronic record.
There may be some minimal acts of
input for example, an attorneys answering a
transcribers question regarding the proper
spelling of a name that would not violate
Rule 210(b)(3). But the rule strictly
forbids the course of action proposed by Lees
attorney in this case. It is a violation of
Appellate Rule 210(b)(3) and Administrative
Rule 36(a) for an attorney or an attorneys
employee to prepare a draft transcript for a
professional transcriber.
