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AGLO 1977 No. 36 - August 10, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

COURTS ‑- WITNESSES ‑- FEES ‑- CRIMES ‑- REIMBURSEMENT FOR EXPERT WITNESS FEES IN CRIMINAL PROSECUTIONS

In reimbursing a county for witness fees incurred in connection with a criminal prosecution, the state is liable, under RCW 10.46.220-10.46.230, for the full amount of fees paid to expert witnesses whenever the superior court has, in fact, included expert witness fees in the cost bill in a given case and has ordered those fees to be paid by the state.

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                                                                 August 10, 1977

Honorable Phillip B. Winberry
Administrator for the Courts
Temple of Justice
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1977 No. 36

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question pertaining to state reimbursement for criminal cost bills.  Specifically you asked whether, in reimbursing a county for witness fees incurred by it in connection with a criminal prosecution, the state is liable, under RCW 10.46.220-10.46.230, for the full amount of fees paid to expert witnesses even when such fees are in excess of the statutory witness fees provided for in RCW 2.40.010.

            We answer your question in the affirmative as qualified in our analysis below.

                                                                     ANALYSIS

            As you know, criminal prosecutions in this state are handled on behalf of the state by the various county  [[Orig. Op. Page 2]] prosecuting attorneys in accordance with the provisions of RCW 36.27.020(4).  Because of the fact that this is, basically, a state function, however, RCW 36.17.020 provides that one‑half of the salary of each prosecuting attorney shall be paid by the state.  In addition, for the same reason, the legislature has also provided a mechanism for the payment of criminal cost bills by the state and it is in connection with the latter that your question has arisen.

            First, RCW 10.46.220 provides that:

            "In all convictions for felony, whether capital or punishable by imprisonment in the penitentiary, the clerk of the superior court shall forthwith, after sentence, tax the costs in the case.  The cost bill shall be made out in triplicate, and be examined by the prosecuting attorney of the county in which the trial was had.  After which the judge of the superior court shall allow and approve such bill or so much thereof, as is allowable by law.  The clerk of the superior court shall thereupon, under his hand, and under the seal of the court, certify said triplicate cost bills, and shall file one with the papers of cause,and shall transmit one to the state auditor and one to the county auditor of the county in which said felony was committed."  (Emphasis supplied)

            Then, RCW 10.46.230 goes on to provide that:

            "Upon the receipt of the cost bill, as provided for in the preceding section, the county auditor shall draw warrants for the amounts due each person, as certified in said cost bill, which warrants shall be paid as other county warrants are paid.  On receipt of the certified copy of said cost bill, the state auditor shall examine and audit said bill and allow the same or so much thereof as may be allowable against the state, and shall credit the amount so allowed to the county from whence the bill came as so much state tax paid.  The state auditor shall immediately notify the state  [[Orig. Op. Page 3]] treasurer and county auditor, each of whom shall credit and charge accordingly."  (Emphasis supplied)1/

             Finally, before addressing ourselves to your question, we make note of RCW 2.40.010 which, as recently amended by § 1, Chapter 54, Laws of 1977, Ex. Sess., now provides that:

            "Witnesses shall receive for each day's attendance in all courts of record of this state the same compensation per day and per mile as jurors in superior court.  Witnesses in any other court shall receive for each day's attendance the same compensation per day and per mile as jurors in justice court."2/

             [[Orig. Op. Page 4]]

            As you know, essentially the same question as you have now asked has previously been considered by this office on two occasions ‑ with differing results.  First, in a letter opinion dated October 18, 1938, and written to the state auditor's office, it was concluded that while (in connection with a criminal prosecution) a county might contractually incur, and be liable for, expert witness fees in amounts exceeding the statutory witness fees provided for in RCW 2.40.010,supra, the state was not responsible, under RCW 10.46.230,supra, to reimburse the county for such excess fees.  In so ruling we relied, principally, upon State ex rel. Thurston County v. Grimes, 7 Wash. 445, 35 Pac. 361 (1893), in which the court ruled that the state auditor should allow all items of a criminal cost bill submitted by a county ". . . except such as are by law chargeable to the county alone . . .".  Then, on the basis of that case and its rule, the opinion of this office concluded as follows:

            "Applying the same rule, it is evident that expert witness fees are not proper, and on the cost bills in question, in our opinion, you should disallow the 10 items designated at rates far in excess of the statutory fee at the foot of each cost bill, also the sheriff's fees appearing on the cost bill of State vs. Smith and the clerk's cost docket fees, etc. appearing on both bills."

            Barely four years later, however, on October 19, 1942, we addressed the same question again ‑ once more at the request of the state auditor's office.  And at that time, without citing the earlier opinion, we advised that expert witness fees incurred by a county in connection with a criminal prosecution should, properly, be reimbursed by the state when properly submitted as part of a cost bill under RCW 10.46.220-10.46.230,supra.  In so concluding we made note of the following pertinent distinctions between statutory witness fees for ordinary witnesses called by the state and "expert" witnesses called mainly to provide relevant and admissible opinion evidence:

            "The statutes of the State of Washington provide for witness fees in the sum of two dollars per day and ten cents a mile both  [[Orig. Op. Page 5]] to and from the residence of the witness to the place of attendance.  This applies only as to witnesses to the observation of the fact involved.  By subpoena the court can compel the attendance of such witnesses who have actually observed such facts.  The court, however, cannot compel an expert witness such as a doctor, engineer, mechanic, land appraiser, geologist, neurologist and others to go and make an observation so as to be prepared to testify to the facts which they observed at the rate of two dollars per day.  That is a matter of private employment between the expert witness and the party to the litigation who has enlisted such service."

            During the years which have intervened since the issuance of those opinions, however, we understand that actual practice has not been entirely consistent with either view.  During the years in which the state auditor was responsible of those opinions, however, we understand that actual practice has not been entirely consistent with either view.  During the years in which the state auditor was responsible for administration of the statutory scheme, his practice apparently was to pay those witness fees, including those for expert witnesses, which were specifically included in a cost bill established by superior court order but to refuse to pay any expert witness fees not so included in such a cost bill.  You, as the court administrator, have since followed essentially the same practice but have become concerned as to its correctness and thus have now asked for our opinion.

            Finally, as if the above described history is not, itself, sufficiently confusing, we must make note of one further event of some significance.  During its recently adjourned session our state legislature actually had before it a bill, House Bill No. 58, which was designed to clarify the law in two respects.  First, this bill proposed to amend both RCW 10.46.220 and RCW 10.46.230, supra, to the extent of expressly substituting the phrase "administrator for the courts" for the words "state auditor" ‑ thus placing in substantive legislation the administrative change heretofore accomplished by means of appropriations bills beginning with Chapter 269, Laws of 1975, 1st Ex.Sess.,supra3/ .  Then, secondly, House Bill  [[Orig. Op. Page 6]] No. 58 further proposed to amend RCW 10.46.230,supra, by providing that upon receipt of the certified copy of a cost bill,

            ". . . the ((state auditor)) administrator for the courts shall examine and audit said bill and allow the ((same or so much thereof as may be allowable against the state, and shall credit the amount so allowed to the county from whence the bill came as so much state tax paid.  The state auditor shall immediately notify the state treasurer and county auditor, each of whom shall credit and charge accordingly)) payment by the state of statutorily required witness fees in cases where confiction of a felony is obtained and the defendant is sentenced to pay a fine or is given a prison sentence even if the sentence is deferred or suspended.  Payment shall be allowed by the administrator for the courts in such cases even when the conviction is subsequently reversed or if a new trial is granted."

            This bill was passed by the house of representatives on March 28, 1977, but it died in the rules committee of the senate upon adjournment.  Quite obviously, however, the bill was premised upon an assumption that the existing language of the law required payments by the state, at least under certain circumstances, for witness fees in excess of those required by statute;i.e., RCW 2.40.010,supra,4/ and most probably, it was premised upon an assumption that existing practice was basically correct.

             [[Orig. Op. Page 7]]

            By existing practice, of course, we mean the payment of expert witness fees by the state, even though in excess of the statutory fees prescribed in RCW 2.40.010,supra, in those instances in which such fees have been determined by the trial court to be allowable as costs against the state.  See, again, the discussion at page 5 above.  Moreover, although that practice actually falls somewhere in between the conclusions stated in our two previous letter opinions to the state auditor, supra, it is our considered judgment, at the present time, that it is truly the correct one under the law as it now reads.  Under RCW 10.46.220, supra, it is the function of the superior court judge involved to review the cost bill and to determine which portions thereof are to be approved as being ". . . allowable by law . . .".  And, in turn, it is those items which are allowable by law which are to be paid by the state under RCW 10.46.230, supra.  Therefore, if the superior court judge has, in fact, included expert witness fees in the cost bill in a given case, and has ordered those fees to be paid by the state, it must be deemed to have been adjudged by the court that those particular fees are allowable, as costs, under the circumstances of the given case.  Accordingly, our direct answer to your question, as set forth at the outset of this opinion, is in the qualified affirmative.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

EDWARD B. MACKIE
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Although both of these statutes make reference to the state auditor, however, you have informed us that, in fact, the auditor's function has actually been performed by you, as the court administrator, in accordance with appropriation provisions contained in Chapter 269, Laws of 1975, 1st Ex.Sess., and subsequent, similarly worded appropriation acts including § 11 of the 1977-79 act; hence, your current interest in the question which you have presented to us.

2/The compensation of jurors is provided for in RCW 2.36.150 as follows:

            "Jurors shall receive for each day's attendance, besides mileage at thirteen cents per mile each way, the following compensation:

            "(1) Grand jurors shall receive ten dollars; "(2) Petit jurors shall receive ten dollars; "(3) Coroner's jurors shall receive ten dollars; "(4) Justice of the peace jurors shall recieve ten dollars; PROVIDED, That a person excused from jury service at his own request shall be allowed not more than a per diem and such mileage, if any, as to the court shall seem just and equitable under all circumstances."

3/See, again, footnote 1, supra.

4/Accord, Home Indemnity Company v. McClellan Motors, 77 Wn.2d 1, 459 P.2d 389 (1969), and cases cited therein for the proposition that where a law is amended and material changes are made in its wording, it is presumed that the legislature intended to change the law.

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