QUESTIONS PRESENTED

Utah law permits an individual convicted of a crime and who has completed probation to file a motion with the court to have his conviction reduced. Similarly, following the reclassification of certain crimes from felonies to misdemeanors, a recently enacted California law permits an individual who was convicted of those crimes and has completed his sentence to apply to the trial court to reduce his conviction from a felony to a misdemeanor. The California law also permits an individual who was convicted of those crimes and is currently serving a sentence for those crimes to petition for reduction of his sentence.

1. Does 45 C.F.R. Part 1613 prohibit an LSC recipient in Utah from using LSC funds to provide legal assistance to an individual who has completed probation and seeks reduction of his conviction?
2. Does 45 C.F.R. Part 1613 prohibit an LSC recipient in California from using LSC funds to provide legal assistance to an individual who has completed his or her sentence and seeks reduction of his conviction?
3. Does § 504(a)(15) of LSC’s 1996 appropriations legislation (incorporated by reference in subsequent years) prohibit an LSC recipient in California from using LSC funds to provide legal assistance to prisoners seeking resentencing?

BRIEF ANSWERS

1. No, Part 1613 does not prohibit legal assistance under the pertinent Utah law.

   Part 1613 prohibits recipients from using LSC funds to provide legal assistance with respect to “criminal proceedings.” Part 1613 defines “criminal proceeding” as “the adversary judicial process prosecuted by a public officer and initiated by a formal complaint, information, or indictment charging a person with an offense denominated ‘criminal’ by applicable law and punishable by death, imprisonment, or a jail sentence.” The drafting history of the regulation states that this definition was not intended to cover post-conviction proceedings, such as proceedings for revocation of parole or probation. Such proceedings share two key characteristics: they (1) do not challenge the merits of the underlying conviction, and (2) occur after completion of the “adversary judicial process prosecuted by a public officer.” Likewise, this Office has previously clarified that a “criminal proceeding” is “the adversary proceeding to determine the client’s guilt or innocence of the offense charged in the complaint, information or indictment.”

   Under Utah Code § 76-3-402, an individual who has completed his or her probation may seek reclassification of his conviction to a reduced offense. This reduction proceeding occurs after the “adversary judicial process prosecuted by a public officer” has been completed and does not challenge the merits of the conviction. Accordingly, a reduction proceeding is not a “criminal proceeding,” as that term is used in Part 1613, and Part 1613 does not prohibit use of LSC funds to provide assistance in actions brought under this section of the Utah law.

2. No. For the reasons stated with regard to Utah reduction procedures, representation of petitioners in California reduction proceedings pursuant to California Penal Code § 1170.18 is not prohibited by Part 1613.
    
3. Yes, § 504(a)(15) of LSC’s 1996 appropriations legislation prohibits recipients from providing resentencing assistance for prisoners under the pertinent California law.

   Section 504(a)(15) prohibits recipients from participating in “any litigation on behalf of a person incarcerated in a Federal, State, or local prison[.]” LSC has interpreted “litigation” to mean matters in a court of law. Accordingly, where prisoner representation involves a matter in a court of law, recipients are prohibited from providing assistance.

   Under California Penal Code § 1170.18(b), a prisoner must file a petition with the court, the court must review the petition, and the prisoner may appear in court. Resentencing under § 1170.18(b) thus constitutes a matter in a court of law and “litigation” as that term is used in § 504(a)(15). Accordingly, recipients are prohibited from providing assistance to prisoners in these cases.

FACTUAL BACKGROUND

The Office of Compliance and Enforcement has requested an opinion addressing whether funding recipients in Utah and California may provide services to clients seeking to reduce their convictions to lower-level offenses that may then be expunged from their records, under the applicable laws in those two states.

In Utah, an individual who has successfully completed probation may seek a reduction of his or her conviction by filing a motion with the trial court and serving a copy on the prosecutor.[fn]An individual may reduce his conviction by only one degree unless the prosecutor agrees that the offense may be reduced by two degrees. Utah Code § 76-3-402(3).[/fn] Utah Code § 76-3-402(2), (3). The prosecutor must attempt to provide notice of the motion to any victims, and the court must conduct a hearing if requested by either party. Id. § 76-3-402(2)(b)-(d). The court may grant the reduction if it “is in the interest of justice.” Id. § 76-3-402(2)(e).

In 2014, California passed Proposition 47, which (1) reclassified certain felonies as misdemeanors, and (2) reclassified certain offenses that could have been prosecuted as either felonies or misdemeanors as misdemeanors. Proposition 47 was codified at California Penal Code § 1170.18. Section 1170.18(f) allows an individual who has completed his or her sentence after conviction for a felony that has since been reclassified as a misdemeanor to file an application before the trial court to have the felony reduced to a misdemeanor. Calif. Pen. Code § 1170.18(f). If the individual is eligible for a reduction, the court must grant it. Id. § 1170.18(g).

Under California Penal Code § 1170.18(a), a person who was convicted of a felony that has since been reclassified as a misdemeanor and who is currently serving the sentence may petition the court to be “resentenced to a misdemeanor[.]” Id. § 1170.18(a), (b). The person must file a petition for a recall of sentence before the trial court, and the court must determine whether the petitioner is eligible for resentencing. Id. § 1170.18(a), (b). If eligible, the court must resentence the petitioner unless the court, in its discretion, determines that resentencing would pose “an unreasonable risk of danger to public safety.” Id. § 1170.18(b). If the court grants the petition, the conviction is considered a misdemeanor “for all purposes,” i.e., the individual is resentenced to a misdemeanor and the conviction may qualify for expungement as a misdemeanor. Id. § 1170.18(k).

In both jurisdictions, the reduced convictions may be expunged. California Courts, Cleaning Your Record, http://www.courts.ca.gov/1070.htm (last visited Sept. 21, 2016); Utah Courts, Expunging Adult Criminal Records, https://www.utcourts.gov/howto/expunge (last visited Sept. 21, 2016).

APPLICABLE AUTHORITY

I. 45 C.F.R. Part 1613: Use of funds to provide legal assistance in criminal proceedings

Section 1007(b) of the LSC Act prohibits Corporation funds from being used “to provide legal assistance with respect to any criminal proceeding[.]” 42 U.S.C. § 2996(f)(b)(2). LSC implemented § 1007(b) by promulgating 45 C.F.R. Part 1613, which provides that “Corporation funds shall not be used to provide legal assistance with respect to a criminal proceeding[.]” 45 C.F.R. § 1613.3. Part 1613 defines “criminal proceeding” as “the adversary judicial process prosecuted by a public officer and initiated by a formal complaint, information, or indictment charging a person with an offense denominated ‘criminal’ by applicable law and punishable by death, imprisonment, or a jail sentence.” Id. § 1613.2. This regulation has remained substantively unchanged since issued in 1976.

The drafting history of Part 1613 and a subsequent opinion of this Office make clear that assistance may be rendered in proceedings (1) not challenging the merits of a conviction and (2) occurring after completion of the adversary judicial process prosecuted by a public officer. In the Preamble to Part 1613, LSC explained that, “This Part does not prohibit legal assistance with respect to any matters that are not part of a criminal prosecution, such as probation revocation after a sentence has been imposed[] or parole revocation[.]” 41 Fed. Reg. 38506 (Sept. 10, 1976) (preamble to Part 1613) (citations omitted). As support, LSC cited Supreme Court cases addressing post-conviction matters, including Morrissey v. Brewer, which recognized that “revocation of parole is not part of a criminal prosecution[.]” 408 U.S. 471, 480 (1972).

This Office further clarified the meaning of “criminal proceeding” in an opinion issued on June 2, 1981. In this Opinion, we considered whether a recipient could enter an appearance on behalf of a client to modify the sentence he received – a fine and two days in jail – after pleading guilty or being convicted of driving under the influence of alcohol. LSC Opinion (June 2, 1981). This Office explained that Part 1613 defined a “criminal proceeding” as an “adversary proceeding to determine the client’s guilt or innocence of the offense charged in the complaint, information or indictment.” Id. This Office also explained that “since [the recipient] d[id] not intend to collaterally attack the conviction [of the client] but merely . . . seek[s] modification of the sentence[,]” the post-conviction representation was not prohibited by Part 1613. Id.

II. Pub. L. 104-134, § 504(a)(15): Prohibition on participation in any litigation on behalf of prisoners

LSC's 1996 appropriations legislation (incorporated by reference in subsequent years) prohibits grantees from “participating in any litigation on behalf of a person incarcerated in a Federal, State, or local prison[.]” Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-134, Tit. V, § 504(a)(15), 110 Stat. 1321, 1321-56. Although the text and related legislative history do not define “litigation,” LSC has consistently interpreted the term to mean matters that occur in a court of law. For example, to implement § 504(a)(15)’s prohibition on prisoner “litigation,” LSC promulgated Part 1637 that prohibits prisoner representation in civil litigation.[fn]The Part 1637 proscription does not cover criminal litigation, because the restrictions on criminal litigation are covered by other regulations, principally Part 1613. See 62 Fed. Reg. 19421 (Apr. 21, 1997) (preamble to Part 1637).[/fn] Part 1637 only restricts representation of prisoners in administrative proceedings challenging the conditions of incarceration, reflecting LSC’s interpretation that “litigation” as used in § 504(a)(15) refers to matters in a court of law, but not generally in administrative tribunals. 45 C.F.R. § 1637.3; see also LSC Program Letter 15-1(2) (Nov. 19, 2015) (representing prisoners in “administrative proceedings” not challenging conditions of incarceration not prohibited by either § 504(a)(15) or Part 1637); LSC Operations & Regulations Committee Meeting, 79 (July 8, 1996) (LSC understands “litigation” to be “a term of art which means a matter in a court of law”).

ANALYSIS

I. Utah Law

Utah Code § 76-3-402 permits an individual who has successfully completed probation to seek reduction of his conviction. The prosecutor must attempt to provide notice of the motion to any victims, and the court must conduct a hearing if requested by either party process described above. As described above, Part 1613 was not intended to cover proceedings that do not challenge the merits of a conviction and that occur after completion of the “adversary judicial process prosecuted by a public officer.” Because only individuals who have been convicted and completed their probation may apply for a reduction under § 76-3-402, a reduction under this provision is not part of the “adversary proceeding to determine the client’s guilt or innocence of the offense charged in the complaint, information or indictment” and does not challenge the merits of the underlying criminal conviction. Accordingly, use of LSC funds for representation in a proceeding pursuant to § 76-3-402 is not prohibited by Part 1613.

II. California Law

A. California Penal Code § 1170.18(g)

Pursuant to a change in the law reclassifying certain crimes, California Penal Code § 1170.18(g) authorizes conviction reduction for an individual who has completed his or her sentence. For the same reasons described above regarding criminal reductions under Utah Code § 76-3-402, a proceeding to reduce a conviction in California under California Penal Code § 1170.18 is not part of a “criminal proceeding,” as that term is used in 45 C.F.R. Part 1613, because the process does not challenge the merits of a conviction and is not part of “the adversary proceeding to determine the client’s guilt or innocence of the offense charged[.]” LSC Opinion (June 2, 1981). As a result, California’s reduction procedure is not a “criminal proceeding” restricted by Part 1613.

B. California Penal Code § 1170.18(b)

California Penal Code § 1170.18(b) authorizes an individual currently serving his or her sentence to seek resentencing for the individual’s conviction. To be resentenced pursuant to this law, an individual must file a petition before the court, the court must determine if the individual is eligible for resentencing, and the individual may appear before the court. Calif. Pen. Code § 1170.18(a), (b). Based on these procedures, resentencing is a matter in a court of law, and therefore constitutes litigation.

Section 504(a)(15) of LSC’s 1996 appropriations legislation prohibits a recipient from participating in litigation involving a prisoner. Because resentencing pursuant to § 1170.18(b) both constitutes litigation and involves an incarcerated person, § 504(a)(15) prohibits a recipient from participating in the matter. Pub. L. 104-134, § 504(a)(15).

In stating this conclusion, we note several limitations to its application in different circumstances not presented here. First, where an individual seeking resentencing is not incarcerated, § 504(a)(15) and implementing regulations do not prohibit recipients from providing legal assistance. See LSC Program Letter 15-5(2) (representation of individual subject to parole or probationary house arrest or confined to a mental health facility not subject to restriction).

Second, where the legal assistance does not “rise to the level of, or include, litigation[,]” for example, where assistance constitutes “brief services” and “advice and counsel,” legal assistance is not prohibited. LSC External Opinion 2002-1006 (June 14, 2002).

Finally, administrative litigation is not prohibited unless it involves a challenge to a prisoner’s conditions of confinement. In implementing § 504(a)(15), LSC prohibited recipients from participating on behalf of prisoners in any administrative proceeding challenging the conditions of incarceration. 45 C.F.R. § 1637.3. This Opinion does not restrict recipients’ ability to represent prisoners in matters that do not involve litigation and are not administrative proceedings challenging the conditions of incarceration. For example, a recipient may provide representation for the following activities unless doing so involves litigation: correcting inaccurate criminal records, reinstating revoked or suspended driver’s licenses, modifying child support orders, or securing health insurance for individuals soon to be released from prison. LSC Program Letter 15-5(2). Similarly, “though related to a criminal matter, in many jurisdictions, expungement proceedings are essentially administrative in character[,] [and therefore] not . . . prohibited[.]” LSC External Opinion 1984-06-08 (June 8, 1984).

CONCLUSION

Part 1613 does not restrict recipients from using LSC funds to provide assistance to individuals who seek reduction of their convictions pursuant to California Penal Code § 1170.18(g) or Utah Code § 76-3-402, because both statutes involve proceedings initiated after completion of the “adversary judicial process prosecuted by a public officer” and in which the merits of the original conviction are not challenged. Section 504(a)(15) of LSC’s 1996 appropriations statute and LSC’s implementing regulations prohibit recipients from representing currently incarcerated individuals in litigation. Thus, where a currently incarcerated individual seeks resentencing pursuant to California Penal Code § 1170.18(g), a recipient is prohibited from providing legal assistance beyond “brief services” or “advice and counsel.”

RONALD S. FLAGG
General Counsel and Vice President for Legal Affairs

STEFANIE K. DAVIS
Assistant General Counsel