Request By:
Mr. James R. Allen
Commonwealth Attorney
Thirty-first Judicial District
P.O. Box 386
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A Commonwealth criminal case is set for trial on April 4, 1983, in Greenup County. The case was transferred from your county by way of change of venue.
You have numerous witnesses who will testify. You anticipate, since a death penalty might be involved, that the trial will be rather lengthy.
You request our opinion as to whether the state can provide funds for lodging of witnesses, and as to the source of the fund. We assume your witnesses will have to travel from Floyd County to the Circuit Court in Greenup County.
Under KRS 421.015, 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. This pertains to a mileage allowance. Under KRS 44.020, the clerk of any court at certain intervals must make out and certify a list of claims payable out of the state treasury that have been allowed by the court, and transmit the list to the state Department of Finance and Administration for payment. KRS 44.020 applies to the witness mileage allowance of KRS 421.015.
State employees are reimbursed for traveling expenses under KRS 44.060. Under current regulations, state employees engaging in necessary travel are entitled to eighteen cents (18 ) per mile traveled; and in addition they are reimbursed for other necessary travel expenses, including the cost of food and lodging. Oates v. Simpson, 295 Ky. 433, 174 S.W.2d 505 (1943) 507. See KRS 44.060, 45.180, 45.101 and 200 KAR 2:006 (employees' reimbursement for travel) .
While KRS 421.015 refers narrowly to a mileage allowance for witnesses in court, under the doctrine of in pari materia, i.e., reading the related statutes together, we come to the conclusion that such witnesses who must travel to another county for appearance in circuit court would be entitled to the mileage allowance given state employees, and would be entitled to reimbursement for their necessary food and lodging costs. See Dieruf v. Louisville & Jefferson Bd. of Health, 304 Ky. 207, 200 S.W.2d 300 (1947), holding that statutes in pari materia must be as a unified, connected system, and not as isolated fragments of law. While witnesses may be imprisoned for refusal to testify (see KRS 421.140), there is no way to measure the mental outlook of a witness as relates to cooperating with the prosecuting official in telling the truth. There is an old saying that you can take a horse to water, but you can't make him drink. Imagine the reaction of a witness who might be told that the state would pay for his mileage for his car, but that he would have to pay for his lodging and food in Greenup County. We believe the circuit court has the authority under the broad legislative policy outlined in KRS 421.015, 44.060, 45.180, and 45.101, as applied under the doctrine of in pari materia, to approve claims for mileage, food, and lodging for Commonwealth witnesses in this situation.
Thus the court may allow such mileage, food and lodging claims of the commonwealth's witnesses, which should then, upon approval, be certified to the Department for Finance and Administration for payment out of the appropriately budgeted fund. You could contact Mr. Bill Stephens, County Fee Systems, Department of Finance, for specific information relating to the appropriate state budgeted fund covering these expenditures.