Request By:
Mr. John Paul Runyon
Commonwealth's Attorney
35th Judicial Circuit
P.O. Box 796
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of this office regarding the applicability of KRS 421.015 to out of state witnesses in felony cases. The problem specifically involves the proper expenses allowable for a nonresident witness who is summoned to attend and testify for the Commonwealth in a felony case, and who actually appears in the Kentucky Circuit Court and gives testimony.
In OAG 74-271, where the nonresident lives in a state which has a uniform witness act, we concluded that under KRS 421.250(2), such a nonresident witness would be entitled to ten cents (10 ) per mile for each mile by the ordinary traveled route to and from court, and five dollars ($5.00) for each day that he is required to travel and attend court as a witness. In addition, under KRS 421.030, such nonresident witness shall be allowed his "necessary expenses" in addition to the per diem. Such "necessary expenses" would include his motel and food bills, tolls, and taxi fares in connection with the trip.
Such a witness must be deemed by the Kentucky judge to be a material witness for the Commonwealth.
Subsequent to the enactment and amendments to KRS 421.250 and 421.030, KRS 421.015 was enacted. It reads:
"A witness who resides in a county other than that to which he is subpoenaed shall be allowed the same amount allowed state employees under KRS 44.060."
KRS 421.015 became effective on January 1, 1978. Any witness who resides outside of the county to which he is subpoenaed shall be allowed the same mileage allowed to state employees under KRS 44.060, which involves travel by privately owned conveyance. The Act (S.B. 153, now KRS 421.015) is labeled "An Act relating to the compensation and mileage allowance for witnesses in the circuit and district courts." (Emphasis added). The Act repeals KRS 421.010 and 421.020, which related to fees and mileage. Thus KRS 421.015 was finally stripped down to involve mileage only, since KRS 44.060, to which it refers, involves only mileage as a part of travel expenses. See 200 KAR 2:006, Section 6, for specific provisions relating to state employees' reimbursement for travel by way of mileage of 18 per mile where privately owned conveyance is used.
You immediately raise the question of whether KRS 421.015 is broad enough to encompass nonresident witnesses for the Commonwealth in felony cases.
In many felony cases a conviction may very well hang around the testimony of a nonresident witness. A material non-resident witness in a felony case becomes a critical factor in the broad scheme of justice. In addition, the psychological frame of mind of the witness can be of the utmost importance. If a nonresident witness is to receive the old ten cents (10 ) per mile for his privately owned vehicle (and many of such witnesses travel by privately owned conveyance) , as contrasted with the eighteen cents (18 ) per mile afforded under KRS 421.015, the witness may be in a noncooperative mood (where, of course, truth is sought) when time comes for the examination of the witness. He knows the trip is going to cost him. There is an old saying arising out of years of experience on the farm: "You can lead a horse to water, but you cannot make him drink."
From a constitutional viewpoint, if KRS 421.015 were to be construed as affecting residents of Kentucky only, it would be unconstitutional, since, as you say, it would involve reimbursement for expenses of Kentucky witnesses on a much higher rate. We are speaking of the mileage factor of eighteen cents (18 ) per mile, under KRS 421.015, as contrasted with the ten cents (10 ) per mile afforded by KRS 421.250(2). On that basis, it would be purely arbitrary in nature and a violation of § 2, Kentucky Constitution. Section 2 of the Constitution was declared, in
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964), to be "broad enough to embrace both due process and equal protection of the laws, both fundamental fairness and impartiality."
CONCLUSION
We conclude that KRS 421.015 is broad enough to encompass nonresident as well as resident witnesses in felony cases, as to the mileage factor where privately owned conveyance is used.
Our reasons for the conclusion are as follows: (1) The term "resides in a county" does not narrowly or expressly refer to a Kentucky county. It could mean any county in the United States. (2) The construction is a practical interpretation designed to effectuate the manifest purpose of the statute. See
Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544, 169 S.W.2d 621 (1943). (3) Where a statute is susceptible of one or more reasonable interpretations, that interpretation which will render the statute valid and operative should be adopted.
Folks v. Barren County, 313 Ky. 515, 232 S.W.2d 1010 (1950). (4) This construction promotes the policy and purpose of the statute, i.e., to provide for an equitable reimbursement of travel expenses of court witnesses, foreign and domestic residents.
Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974) 491.
It is also our opinion that KRS 421.250(2), 421.030, and 421.015 must be read together under the doctrine of part materia.
Sumpter v. Burchett, 304 Ky. 858, 202 S.W.2d 735 (1947). Under that doctrine any apparent conflict between them must be reconciled, if possible, so as to give effect to both.
Thus, when reading the three statutes together, we conclude that a nonresident witness, residing in a state which has adopted the Uniform Witness Act, and who is certified as a material witness for the Kentucky Court felony case, is entitled to the mileage of eighteen cents (18 ) per mile where a privately owned vehicle is used, or where the witness elects to travel by some other means, including air, except that the eighteen cents (18 ) per mile payment cannot exceed airplane coach fare. See 200 KAR 2:006, Section 6. In addition, under KRS 421.250(2), such witness is entitled to the $5 per diem. Under KRS 421.030, such witness is entitled to reimbursement for reasonable lodging, food, tolls, and taxi fares. OAG 81-336 is modified accordingly (as relates to stating that KRS 421.015 related only to domestic witnesses). In KRS 421.015 we find an implied repeal of KRS 421.250(2) as relates to the mileage factor.
Dreldel v. City of Louisville, 268 Ky. 659, 105 S.W.2d 807 (1937); and
Hallahan v. Sawyer, Ky., 390 S.W.2d 664 (1965).
However, notwithstanding the above ordinary level of reimbursement of travel expenses to be afforded nonresident material witnesses in felony cases, it is our view that the Commonwealth must pay, as part of the necessary expenses of a witness, that amount required by the law of another state (one adopting the Uniform Witness Act) to be tendered in advance to a nonresident witness, as a prerequisite to issuance of its subpoena requiring a witness to travel to and give testimony in this state. To do otherwise would effectively render null and void our laws for obtaining witnesses from other states, and seriously impede, or even preclude enforcement of our criminal laws in cases involving nonresident witnesses. In many situations, the witness simply does not have the money to make the trip. Thus if he is not tendered the amounts of reimbursement as prescribed by the foreign jurisdiction, such witness cannot be obtained. The usual mode of transportation where substantial distance is involved is air flight. Where the distance is not too great, privately owned conveyance may be used.
As we said earlier, KRS 421.030 is broad enough to cover actual, reasonable, necessary lodging, food, tolls and taxi fares. In addition, it is sufficient to cover, in using the phrase "allowed his necessary expenses" , any of the reimbursement expenses required by the foreign jurisdiction, even where the coverage exceeds either KRS 421.250(2) or 421.015 (mileage) . Where a witness elects air travel over surface travel, the excess cost, if any (over the 18 per mile provided by KRS 421.015) of air travel at regularly scheduled commercial coach rates, together with the actual cost of reasonable surface travel (e.g. taxi) at either end of the flight, would also fall within the phrase "necessary expenses" of a witness under KRS 421.030.
Thus, when all of the above statutes are read together, we conclude that a witness in another state, which has adopted the Uniform Witness Act, must be tendered in advance (actually paid) that amount of money required by the foreign jurisdiction as a prerequisite to issuance of a subpoena requiring the witness to travel to a Kentucky circuit court to give testimony.
Accordingly, upon an order of the circuit court approximately detailing the "necessary expenses" (see KRS 421.250(2), 421.015 and 421.030) to be allowed a witness from another state, and explaining any variance from KRS 421.250(2), 421.030, and 421.015 as analyzed and synthesized above, in order to satisfy the prerequisites of the Uniform Witness Act of the foreign jurisdiction, the Kentucky circuit clerk must, in connection with KRS 30A.110, issue the payments required by such court order; and the County Fee Systems Section, Division of County and Municipal Accounts, Department for Administration, Finance and Administration Cabinet, shall authorize advancement of funds to, or a reimbursement of, a circuit clerk for payments consistent with such court order, as a lawful disbursement of state funds pursuant to KRS 421.250, 421.030, 421.015 and 30A.110 (imprest funds, including payment of Commonwealth witnesses).