Request By:
John M. Famularo, Esq.
Assistant Commonwealth Attorney
Courthouse Annex
300 West Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in answer to your letter dated August 24, 1977, in which you inquired whether the Department of Finance is required to pay the expenses of returning a witness from Rhodesia. You indicated in your letter that it is contemplated that the witness would be returned under the provisions of KRS 421.230 - 421.270 which is known as the Uniform Act to Secure the Attendance of Witnesses from Within or Without of State in Criminal Proceedings.
The General Assembly of Kentucky, when it adopted the Uniform Act, adopted only §§ (1), (2), (3), (4), and (6). The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. ULA §§ 1 - 9, pages 1 - 31. The Legislature saw fit to omit §§ (5), (7), (8) and (9) of the Uniform Act.
KRS 421.230(2) or § 1 of the Uniform Act provides:
"'State' shall include any territory of the United States and the District of Columbia."
Section 5 of the Uniform Act which was not adopted by the General Assembly limits the use of the Act to those states within the United States which have adopted it. Section 5 states:
"This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the laws of the states which enact it."
Apparently, our General Assembly had the foresight to realize that if it adopted § 5 of the Uniform Act, the clerk of a court in which charges are pending would be able to provide money for transportation expenses of only those witnesses who were found in those states which had adopted the Uniform Act. Since this provision was not adopted by our Legislature, the term "state" is not restricted to those which have adopted the Act. In other words, KRS 421.250(2) requires payment of transportation expenses of witnesses found in any territory of the United States and District of Columbia. It is true that a witness cannot be required under the terms of the Uniform Act to attend if found in a nonmember state. Nevertheless, the witness must be paid his transportation expenses and per diem if he does attend voluntarily or otherwise as long as he is found within any of the states or territories of the United States. In other words, if a witness appears voluntarily or by virtue of a writ of habeas corpus ad testificadum together with an Executive Agreement he must be paid under KRS 421.250(2). However, such is not the case in the situation you present, because the witness is not within the territory of the United States. Therefore even if he attends to testify in a criminal proceeding, his transportation expenses are not authorized under KRS 421.250(2) or any other provision of the Uniform Act adopted by Kentucky. Nevertheless, this is not to say that the Department for Finance and Administration will not be required to pay the expenses of returning this witness.
Perhaps you should submit a request to the Governor seeking an agreement between the witness and the Department for Finance and Administration whereby the Department will guarantee payment of the witness's expenses in return for his testimony in the criminal trial. In this particular situation, it would be the Director of Purchases who would be directly involved. KRS 45.360(1). It would be up to your office to justify, under existing statutes, the expenses involved.