McCracken County Fiscal Court v. Graves

• Decision Date: 27 October 1994
• Docket Number: 92-SC-826-TG,Nos. 92-SC-762-T,s. 92-SC-762-T
• Citation: 885 S.W.2d 307
• Parties: . GRAVES, J.W., Judge of Division 1 of McCracken Circuit Court, Appellee, and DEPARTMENT FOR PUBLIC ADVOCACY, Commonwealth of Kentucky, et al., Appellant, v. SHADOAN, William L., Circuit Court Judge, et al., Appellee. Supreme Court of Kentucky
• Court: United States State Supreme Court — District of Kentucky

Page 307

885 S.W.2d 307

McCRACKEN COUNTY FISCAL COURT, Appellant, v. GRAVES, J.W., Judge of Division 1 of McCracken Circuit Court, Appellee, and DEPARTMENT FOR PUBLIC ADVOCACY, Commonwealth of Kentucky, et

al., Appellant, v. SHADOAN, William L., Circuit Court Judge, et al., Appellee.

Nos. 92-SC-762-TG, 92-SC-826-TG.

Supreme Court of Kentucky.

Oct. 27, 1994.

Fred H. Grimes, Jr., County Atty., Paducah, William F. Ivers, Jr., County Atty., New Castle, William L. Shadoan, Circuit Judge, Wickliffe, for appellants.

Joseph Vincent Aprile, II, Dept. for Public Advocacy, Frankfort, Charlotte Scott, Cynthia E. Sanderson, Paducah, for appellees.

STEPHENS, Chief Justice.

The present cases are about "who must pay?" In this consolidated appeal, we are asked to reexamine the question of who bears financial responsibility for the payment of expert witness fees incurred on behalf of indigent defendants. Although we believe this question to have been explicitly answered by our opinion in Perry County Fiscal Court v. Commonwealth, Ky., 674 S.W.2d 954 (1984), we have revisited the arguments and with this opinion intend to lay the matter to rest. In connection with this, we shall also address the issue, raised by the latter case only, of a trial court's responsibility in determining what expenses are "reasonable and necessary" so as to give effect to the overall purpose of KRS Chapter 31.

I. BACKGROUND

In the first case appellants, McCracken County and the McCracken County Fiscal Court, take appeal from the ruling of McCracken County Circuit Judge, Honorable J.W. Graves, ordering the fiscal court to pay investigative costs and psychological examination fees totalling $4,155.00 on behalf of an indigent capital defendant, Theodore David Stout. Stout has since pled guilty which, technically, renders this case moot. However, because this appears to be an issue of continuing controversy and is a question of significant public importance, this Court chooses to review it with the following companion case.

The second case, Department for Public Advocacy v. Shadoan, implicates the same issue in reverse. In this action, the Department of Public Advocacy (DPA) appeals from a ruling of the Jefferson Circuit Court which orders DPA to assume financial responsibility for a portion of the fees owed to an expert witness retained on behalf of capital defendant, Parramore Lee Sanborn. The Henry County Fiscal Court did not file a cross-appeal challenging the judge's order that it should pay part of the fees. This case also calls for the resolution of a second issue which provides the Court with an opportunity to offer guidance to trial courts in allocating indigent defendant expense liability under the facts of a particular case.

II. THE PRECEDENT

In Perry County, supra, we considered the proper statutory construction of KRS 31.185, which mandates that the county government must fund court-authorized use of private facilities for the evaluation of evidence on behalf of indigent defendants. KRS 31.185 reads:

Facilities for defending attorney.--Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he considers their use impractical, the court concerned may authorize the use of private facilities to be paid for on court order by the county.

The narrow issue before us was whether the term, "facilities" in the statute should be construed to include individuals who evaluate evidence, as well as buildings, laboratories, and equipment, etc. This Court held, based upon "the public policy already expressed by the General Assembly [in enacting KRS 31.185], that 'facilities' in this statute is intended to embrace ... and include individuals who are trained to evaluate evidence." Perry County at 956.

Although in Perry County, the general issue of "who must pay" was not directly involved in that particular proceeding, the Court permitted both the Office of Public Advocacy and the Perry Fiscal Court to intervene and submit briefs so the question might be more fully developed. Id. at 956. On this issue, a unanimous Court found no ambiguity and stated its conclusion succinctly: "It is clear that the trial court may authorize the payment of fees for necessary expert witnesses by the county, not the Department of Public Advocacy, in all counties unless the circumstances are such that KRS 31.200(3) would require otherwise." Id. at 957. (Emphasis in original).

III. WHO MUST PAY?

There is abundant authority, both statutory and in our cases, for the result reached in Perry County, a holding which we now reaffirm. Unless the law expressly directs otherwise, it is the county government, not the state Department of Public Advocacy, which bears liability for court-authorized expenses incurred in the representation of an indigent defendant.

A. The Statutes

We begin with postulates found early in Chapter 31 which describe who are the needy and to what they are entitled, for this ultimately sheds light on the legislature's policy of who must pay. Within the scheme set up by our General Assembly, a "needy" or an "indigent" defendant is "a person who at the time his need is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation." KRS 31.100(3). An indigent defendant having been formally charged of a serious crime is entitled: "(a) [t]o be represented by an attorney to the same extent as a person having his own counsel is so entitled; and (b) [t]o be provided with the necessary services and facilities of representation including investigation and other preparation." KRS 31.110(1). Now, who must pay? For the answer, we look back to the statutes.

The language of KRS 31.185, supra, is directly on point and cannot be ignored. "When the words of the statute are clear and unambiguous and express the legislative intent, there is no room for construction or interpretation and the statute must be given its effect as written." Lincoln County Fiscal Court v. Department of Public Advocacy, Ky., 794 S.W.2d 162, 163 (1990), citing with approval Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970). Once again, the statute reads:

Facilities for defending attorney.--Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he considers their use impractical, the court concerned may authorize the use of private facilities to be paid for on court order by the county.

The statute is clear on its face, and we believe, susceptible of no other interpretation. It expressly states that once authorized, "the use of private facilities [is] to be paid for on court order by the county." (Emphasis added). The statute and its meaning are uncluttered by further words of limitation or alternatives for liability. It says what it means and means what it says.

A second statute also provides persuasive authority for the proposition we now maintain. KRS 31.200 is entitled, "Expenses chargeable to county and to public advocate.--" In its entirety, it states:

(1) Subject to KRS 31.190, any direct expense, including the cost of a transcript or bystander's bill of exceptions or other substitute for a transcript that is necessarily incurred in representing a needy person under this chapter, is a charge against the county on behalf of which the service is performed.

(2) If two (2) or more counties jointly establish an office for public advocacy, the expenses not otherwise allocable among the participating counties under subsection (1) shall be allocated, unless the counties otherwise agree, on the basis of population according to the most recent decennial census.

(3) Expenses incurred in the representation of needy persons confined in a state correctional institution shall be borne by the state Department of Public Advocacy.

In Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985), the Court had occasion to address KRS 31.200. In that case, we upheld the trial court's decision not to compel the fiscal court to pay a defense psychiatrist's fees until his official report had been filed. The key to the result, however, was that the report had not been filed. That the expense was properly chargeable to the county was not a matter open to question. "The trial court had undoubted authority to order the fiscal court to pay the fees ordered." Id. at 386. More recently we confirmed that conclusion. "The payment of the expenses by the local fiscal court would be in furtherance of its duty to provide legal representation to indigents, as is their constitutional right." ¹ Kenton-Gallatin-Boone Public Defender, Inc. v. Stephens, Ky., 819 S.W.2d 37, 38 (1991).

In the face of this decisional precedent, McCracken County contends that the general rule of liability found in Perry County is just plain wrong. The rule derives, it suggests, from an erroneous reading, on the part of this Court, of KRS 31.185 and KRS 31.200 in which the Court has ignored the impact which Chapter 31's "elective county plan" scheme has on who must pay.

KRS 31.160 provides that any county, city or district has the option of adopting a local plan for the representation of needy defendants. A county may elect to provide representation by private contract, by establishing a local office for public advocacy or a combination of these alternatives. KRS 31.160(1)(a); 31.160(1)(b); 31.160(1)(c). A county may also join with a city located within the county or with one or more counties within its judicial district to provide such a plan. KRS 31.160(2). If a county so elects, the procedures by which such an office is set up, operates and is maintained are set forth in KRS 31.165 through KRS 31.200. In KRS 31.190(1), the legislature explicitly mandates that those units which...