Request By:
J. Gail Guiling
Commonwealth's Attorney
7th Judicial Circuit
Opinion
Opinion By: Jack Conway, Attorney General; Tad Thomas, Assistant Deputy Attorney General
Opinion of the Attorney General
The Commonwealth's Attorney for the 7th Judicial Circuit, J. Gail Guiling, has requested the opinion of this office regarding whether former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and the Kentucky State Police Laboratory, may charge the Office of the Commonwealth's Attorney or any other state agency for hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth of Kentucky. The facts presented by Ms. Guiling relate specifically Commonwealth v. Norman Graham, Case No. 07-CR-00001, a criminal case prosecuted by her office before the Todd Circuit Court.
RELEVANT FACTS
In Commonwealth v. Graham, numerous witnesses were subpoenaed for the re-trial, including expert witnesses to testify regarding the testing of DNA evidence and medical examinations. Specifically, Dr. George Nichols, a former employee of the Office of the State Medical Examiner, Justice and Public Safety Cabinet, and Sandra Hill, a former DNA forensic analyst for the Kentucky State Police Laboratory. While the Todd Circuit Court permitted the Commonwealth to take and use the deposition of Dr. Nichols, Ms. Hill was subpoenaed to appear.
Prior to her appearance, Ms. Hill advised the Commonwealth's Attorney that she required reimbursement for her mileage from out-of-the county, her necessary lodging expenses and for her hourly rate of $ 50.00 per hour for approximately ten (10) hours of travel and testimony. The Commonwealth's Attorney applied to the Prosecutors Advisory Council for payment of these sums.
On October 9, 2008, the Prosecutors Advisory Council considered the request. Since both witnesses, Ms. Hill and Dr. George Nichols were retired from state government and were originally assigned this case in the course of their state employment duties, the Council denied the requested expenditure and directed the Commonwealth's Attorney to petition the Todd Circuit Court pursuant to KRS 421.015 et seq for the payment of the expenses of both material witnesses.
On November 12, 2008, the Commonwealth's Attorney petitioned the Court for the payment of the appearance fees and necessary expenses for Ms. Hill. Special Todd Circuit Court Judge William R. Harris considered the request, and, on January 13, 2009, ordered that the mileage and hotel expenses for Ms. Hill should be paid, but denied the request of $ 50.00 per hour for an appearance fee. Subsequent to Judge Harris' Order, Ms. Guiling requested an Opinion of this office.
Ms. Guiling endorses the conclusion made by Judge Harris. However, she disputes any presumption that her office should be held responsible by the witness for the hourly rate as invoiced. Further, in response to an invitation to provide input on this opinion, the Justice and Public Safety Cabinet states that it will reimburse "travel-related expenses (lodging, meals and mileage) to any retired personnel subpoenaed to testify in a case involving his/her duties while working as a KSP laboratory employee. However, no compensation, hourly rate or fee is paid."
RELEVANT LAW & OPINIONS
Kentucky law regarding the payment of witnesses is addressed in KRS Chapter 421. Under KRS 421.015, Kentucky law permits witnesses residing in a county other than the county to which he/she is subpoenaed the same mileage allowance as that of state employees under KRS 44.060. Regarding other expenses, KRS 421.030 provides as follows:
A Commonwealth's witness in a felony case who resides in another state shall be allowed his necessary expenses in addition to the per diem, but no such allowance shall be made unless the judge of the court has made an order based upon the personal knowledge of the Circuit Judge or upon information showing that the testimony of the witness is material to the state, requiring the attendance of the witness. The expense and per diem shall be allowed by the Circuit Court and certified to the circuit clerk for payment.
In OAG 82-620, the Attorney General summarized the requirements of KRS 421.015 et seq as it related to resident and non-resident witnesses, concluding that KRS §§ 421.015, 421.030 and 421.250(2) must be read together under the doctrine of pari material as they pertain to non-resident witnesses. The Attorney General further opined that KRS 421.030 was broad enough to entitle material witnesses to necessary expense reimbursement for reasonable lodging, food, tolls, and taxi fares. Id. However, the opinion was clear that this reimbursement supported "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. " Id.
In OAG 04-008, the Attorney General opined that KRS 421.015 et seq distinguished individual witnesses from non-party entities, such as banks and hospitals, which are entitled to no reimbursement whatsoever for fulfilling their public duty of producing records in response to a subpoena in a criminal proceeding. "There is no statute that provides for or requires payment by the Commonwealth, by and through the Office of the Commonwealth's Attorney, for expenses associated with compliance with a subpoena to produce records." Id.
Neither of these opinions reached directly the question considered herein as to whether a witness is entitled to compensation of their hourly rate. Although there is no Kentucky case law directly addressing this issue, an analysis of existing case law related to expense reimbursement offers some guidance.
Courts have held that witnesses are not subpoenaed by parties, but by the Circuit Court Clerk. RCr 7.02,
Anderson v. Commonwealth, 63 S.W.3d 135 at 142 (Ky. 2002). Once subpoenaed to testify, witnesses have a continuing obligation to be available and are answerable to the Court. Id. Recently, the Kentucky Supreme Court has clarified that courts may reimburse both witnesses for the Commonwealth and for the defense for their mileage at the state rate and for their expenses.
Hodge v. Coleman, 244 S.W.3d 102, 109 at n. 24 (Ky. 2008). However, while holding that a witness may meet the statutory threshold to receive reimbursement, the Court affirmed that "the trial courts in the Commonwealth have the inherent authority to control the proceedings before them to eliminate unjustifiable expense and delay." Id. at 108. The Court did not specifically reach the question of expert witness fees. Id. at 108, n. 23.
Kentucky case law does provide that an executive officer of the Commonwealth may not authorize expenditures not otherwise permitted by the legislature.
Fletcher v. Commonwealth, 163 S.W.3d 852, 871 (Ky. 2005) citing
Dishman v. Coleman, 244 Ky. 239, 50 S.W.2d 504, 508 (Ky. 1932) (State Treasurer held personally liable for expenditure of unappropriated funds "even though the officer thought he was doing what was best for the Commonwealth, and had the concurrence of the Attorney General at the time.") The witness in this case was not a discretionary expert witness called by the Commonwealth, but rather a material witness in the chain of custody and testing, who was under an ongoing duty relating to her prior employment with the Commonwealth. Therefore, the Commonwealth Attorney is not authorized by the legislature to commit unappropriated funds for this witness's compensation, no matter how beneficial her testimony may be to the Commonwealth. The policy of the Justice and Public Safety Commission is consistent with this finding.
Therefore, it is the opinion of the Attorney General that based on the Kentucky statutory authority, the relevant case law and the policy considerations discussed herein, witnesses previously employed by the Justice and Public Safety Cabinet and subsequently subpoenaed for the Commonwealth to testify in a case to which they were assigned during their employment are not entitled to compensation at their hourly rate or otherwise when subpoenaed to testify in a criminal case.