
    STATE of Minnesota, Respondent, v. Luis Damian CRUZ MONTANEZ, Appellant.
    A19-0170
    Court of Appeals of Minnesota.
    Filed April 8, 2019
    Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and Kristine A. Kolar, Ninth District Public Defender, Scott G. Collins, Assistant Public Defender, Thief River Falls, Minnesota (for appellant)
    Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Rodenberg, Judge.
    CLEARY, Chief Judge In this appeal from an ex parte order denying appellant's application for funds to obtain interpreter services under Minn. Stat. § 611.21 (2018), appellant argues that the chief judge of the district court abused his discretion by denying funding. We affirm.
    FACTS
    Pennington County charged appellant Luis Damian Cruz Montanez with attempted second-degree intentional murder and second-degree assault for allegedly stabbing C.J.R. with a knife. Appellant, who is represented by the public defender, does not speak English and requires the assistance of a Spanish-language interpreter. Appellant has had the assistance of a Spanish-language interpreter at all of his district court appearances.
    Appellant filed an ex parte application under Minn. Stat. § 611.21 requesting $ 2,000 for interpreter services to facilitate attorney-client communication outside of court. In support of the application, appellant included affidavits from his counsel, the chief public defender for the district, and the chief administrator for the state Board of Public Defense. The affidavits state that (1) the fiscal-year 2019 budget allocations for experts, transcripts, interpreters, and conflict attorneys have been made to each district public defender's office and are "otherwise encumbered," and (2) the Ninth District Public Defender's budget no longer has funds available to provide interpreter services.
    The chief judge denied appellant's application for interpreter services. Although the chief judge found that "the Ninth District Public Defender budget for expert services is completely depleted for the remainder of FY 2019," the chief judge denied appellant's request for interpreter services under section 611.21. The chief judge concluded that section 611.21"is to be used for services other than the services of a qualified interpreter," and that Minn. Stat. § 611.33, subd. 3 (2018), requires the state Board of Public Defense to pay for interpreter services for client consultations outside of court.
    This appeal followed. We granted appellant's request for expedited consideration. See Minn. Stat. § 611.21(c) (providing that defendant may appeal immediately and request an expedited hearing). Although not a party, the attorney general has provided responsive briefing to assist this court's analysis.
    ISSUE
    Did the district court abuse its discretion when it denied funds for interpreter services under Minn. Stat. § 611.21 (2018)?
    ANALYSIS
    Appellant argues that the district court abused its discretion by denying his request for funds for interpreter services under Minn. Stat. § 611.21 because those services are necessary for his defense. This court ordinarily reviews an order denying funds for expert services requested under section 611.21 for an abuse of discretion. In re Application of Wilson , 509 N.W.2d 568, 570 (Minn. App. 1993). But when the order denying services relies on statutory interpretation, this court's review is de novo. Id. ; see also State v. Riggs , 865 N.W.2d 679, 682 (Minn. 2015).
    The appellate courts interpret statutory language to "ascertain and effectuate" the legislature's intent. Minn. Stat. § 645.16 (2018). "The plain language of the statute controls when the meaning of the statute is unambiguous." State v. Boecker , 893 N.W.2d 348, 351 (Minn. 2017).
    Counsel appointed for an indigent defendant may file "an ex parte application requesting investigative, expert, or other services necessary to an adequate defense in the case." Minn. Stat. § 611.21(a). Upon finding "that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant." Id. Section 611.21 ensures that the state provides indigent defendants with the "raw materials integral to the building of an effective defense" as required by the state and federal constitutions. State v. Volker , 477 N.W.2d 909, 910 (Minn. App. 1991) (quoting Ake v. Oklahoma , 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985) (holding that an indigent defendant is entitled to assistance of a psychiatrist on issue of his mental illness and future dangerousness)); see generally U.S. Const. amend. XIV, § 1 (insuring a criminal defendant's rights to due process and a fair trial); Minn. Const. art. I, § 7 (same).
    No one disputes that interpreter services are necessary to assist a criminal defendant who does not speak English during legal proceedings. See Minn. Stat. § 611.30 (2018) (declaring state policy "that the constitutional rights of persons disabled in communication cannot be fully protected unless qualified interpreters are available to assist them in legal proceedings"). A "person disabled in communication" includes a person who, "because of difficulty in speaking or comprehending the English language, cannot fully understand the proceedings or any charges made against the person ... or is incapable of presenting or assisting in the presentation of a defense." Minn. Stat. § 611.31 (2018).
    In denying appellant's request for services, the chief judge determined that section 611.21 did not apply, however, because the legislature expressly imposed the burden of paying for interpreter services for client communications outside of court on the public defender. According to Minn. Stat. § 611.33, subd. 3, the district court is responsible for paying fees and expenses for a qualified interpreter for court proceedings. But "[p]ayment for any activities requiring interpreter services on behalf of law enforcement, the Board of Public Defense, prosecutors, or corrections agents other than court appearances is the responsibility of the agency that requested the services." Minn. Stat. § 611.33, subd. 3. This subdivision unambiguously imposes the burden of paying for interpreter services for out-of-court communications between a criminal defendant and the public defender on the Board of Public Defense.
    Appellant contends that section 611.33 does not preclude an application under section 611.21 as a "safety valve" to obtain funding for interpreter services when the district public defender and Board of Public Defense have exhausted available funds to pay for these services. Appellant relies on Wilson to support his argument.
    In Wilson , the district public defender applied for funds under section 611.21 to pay for expert witness and investigator services in a murder case. 509 N.W.2d at 569. Wilson's first two ex parte applications for fees not exceeding $ 1,000 were granted by different district court judges. Id. Wilson's third application for $ 10,000 was submitted to the chief judge, who granted $ 3,000 but denied the remainder of the request, because section 611.27, subdivisions 4 and 7, relieved counties of the responsibility to pay for investigative and expert services for indigent defendants represented by the public defender and imposed that burden on the Board of Public Defense. Id. at 569. This court affirmed in part, reversed in part, and remanded, concluding that section 611.27 "has not superseded or impliedly repealed section 611.21," and that "the district courts are obligated by the plain language of Minn. Stat. § 611.21 to impose these costs upon the counties," provided that the defendant demonstrates that investigative and expert services are necessary to an adequate defense and the compensation is reasonable. Id. at 570-72. In so concluding, this court recognized that "the issue extends beyond budget allocation to a constitutional right," which the Supreme Court has left to the states to implement, and the state can satisfy the Ake requirements by funding services through public defender budgets or by funding them through requests under section 611.21. Id. at 570-71.
    Appellant relies on language in Wilson directing that the state may not require an indigent criminal defendant to proceed "without necessary defense services simply because the state has funded a public defender system, even though that system cannot provide that defendant the necessary services." Id. at 570. Appellant argues that this rationale extends to interpreter services for client communications outside of court when the public defender lacks the funds to pay for those services. Appellant's argument is unpersuasive for several reasons.
    Wilson was decided in 1993. In 1999, the legislature added the language in section 611.33, subdivision 3, expressly imposing the burden of paying for interpreter services for out-of-court activities on the agency requesting the assistance of an interpreter. 1999 Minn. Laws ch. 216, art. 7, § 41, at 1366-67. When Wilson was decided, that subdivision provided that fees and expenses of a qualified interpreter were to be paid out of the county's general revenue fund, without regard to the agency or entity involved. Minn. Stat. § 611.33, subd. 3 (1992). But the statute now expressly requires the public defender to pay for out-of-court interpreter services, and Wilson provides no support for appellant's contention that section 611.21 provides a "safety valve" for interpreter services when the public defender has depleted its budget.
    Wilson is also distinguishable because Wilson sought investigative and expert services, and appellant is seeking interpreter services. Section 611.21 is titled "services other than counsel." Although headings are not part of the statute, they are relevant to legislative intent "where they were present in the bill during the legislative process." Minn. Express, Inc. v. Travelers Ins. Co. , 333 N.W.2d 871, 873 (Minn. 1983). Section 611.21 was enacted in 1965 and the heading "services other than counsel" was present at that time. 1965 Minn. Laws ch. 869, § 8, at 1634. Section 611.21 expressly permits counsel for an indigent defendant to apply for "investigative, expert, or other services necessary to an adequate defense in the case." Investigative and expert services are "services other than counsel." In re Application of Olson , 648 N.W.2d 226, 227 (Minn. 2002). By its plain language, section 611.21 concerns services that counsel would not ordinarily provide. Counsel do not generally provide investigative or expert services, because to do so could make counsel a witness in the case. See State v. Fratzke , 325 N.W.2d 10, 11-12 (Minn. 1982) (discussing the advocate-witness rule in the Code of Professional Responsibility). But consulting and communicating with clients is at the heart of the attorney-client relationship; therefore, it is the responsibility of the public defender to pay for interpreter services integral to client communication.
    The chief judge's conclusion that section 611.33, subdivision 3, requires the public defender to pay for interpreter services to facilitate client communication is also consistent with other statutory provisions that require the public defender to bear the expense of client representation. For example, transcripts are necessary for effective appellate review. Griffin v. Illinois , 351 U.S. 12, 19-20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). And the state public defender must bear the burden of paying for transcripts for indigent defendants. Minn. Stat. §§ 611.18, .25, subd. 1 (2018) (providing the appellate public defender shall represent without charge persons appealing felony, gross misdemeanor, or misdemeanor convictions; persons pursuing first review of a conviction through postconviction proceedings; and children appealing a delinquency adjudication or extended jurisdiction juvenile conviction); Minn. R. Crim. P. 28.02, subd. 5(5), (7). Indeed, the state public defender's obligation to pay for transcripts for indigent defendants extends to indigent defendants who are represented by private counsel. State v. Pederson , 600 N.W.2d 451, 455 (Minn. 1999) (directing the public defender to pay for trial transcripts necessary for effective appellate review where appellant is personally indigent, although represented by private counsel retained by third party). When the state public defender "does not have sufficient funds to pay for transcripts and other necessary expenses because it has spent or committed all of the transcript funds in its annual budget," the legislature has provided that the state public defender "may forward to the commissioner of management and budget all billings for transcripts and other necessary expenses." Minn. Stat. § 611.27, subd. 15 (2018). The commissioner is directed to "pay for these transcripts and other necessary expenses from county program aid retained by the commissioner of revenue for that purpose under section 477A.03, subdivision 2b, paragraph (a)." Id. When the public defender's transcript budget is depleted, the legislature has not authorized indigent defendants to seek transcript funds for appeal under section 611.21.
    In recognition of the public defender's limited resources, and consistent with the obligation to provide the "raw materials" for an effective defense, Volker , 477 N.W.2d at 910 (quoting Ake , 470 U.S. at 77, 105 S.Ct. at 1093 ), the public defender is specifically relieved of financial responsibility for some services. For example, court administrators, prosecuting attorneys, and law enforcement agencies are required to provide copies of documents and video and audio files, including the software necessary to open, view, or play a CD or DVD, at no charge to the public defender. Minn. Stat. § 611.271 (2018). Filing fees are waived when a defendant is represented by the public defender on appeal. Minn. R. Crim. P. 28.02, subd. 5(9). And when the chief district public defender does not believe that the office can provide adequate representation, the chief public defender may request the district court to appoint counsel other than the public defender. See Minn. Stat. § 611.27, subds. 8, 9 (2018).
    Appellant has not provided any persuasive authority to support his contention that a defendant is entitled to seek payment for interpreter services to facilitate out-of-court communication with the public defender under section 611.21. Nor is the assertion that judges in other districts have granted similar requests persuasive. Under the plain language of sections 611.21 and 611.33, subdivision 3, we discern no basis for holding that section 611.21 provides a "safety valve" to fund interpreter services when the public defender has depleted its budget. The legislature expressly imposed the burden of paying for out-of-court interpreter services on the party requesting the service. Because section 611.21 does not apply to interpreter services, the chief judge did not abuse his discretion by denying appellant's application for those services.
    DECISION
    Interpreter services intended to facilitate out-of-court communication between the public defender and a client who is impaired in communication are not "services other than counsel" that may be authorized under section 611.21. The chief judge did not err by denying section 611.21 funds for services not covered by that statute.
    
      
      The application was made to the chief judge because the request was over $ 1,000. Minn. Stat. § 611.21(b).
    
    
      
      According to the affidavits, fiscal-year 2019 commenced July 1, 2018 and continues through June 30, 2019.
    
    
      
      Section 611.27, subdivision 4, was repealed in 1998. 1998 Minn. Laws ch. 367, art. 8, § 26, at 756. Section 611.27, subdivision 7, currently provides that "[t]he state's obligation for the costs of the public defender services is limited to the appropriations made to the Board of Public Defense." Minn. Stat. § 611.27, subd. 7 (2018).
    
    
      
      Section 477A.03, subdivision 2b(a) (2018), provides that counties are to appropriate $ 500,000 for the commissioner of revenue to make reimbursements to defray costs of court-appointed counsel.
    
   Affirmed.  