Opinion
Docket No. 97927.
Decided September 8, 1988.
Church, Kritselis, Wyble Robinson, P.C. (by J. Richard Robinson and Neil F. O'Brien), for plaintiffs. Jon Newman, Prosecuting Attorney, and R.L. Koenigsknecht, Chief Assistant Prosecuting Attorney, for defendant.
Plaintiffs, Bath Charter Township and DeWitt Charter Township, brought suit against defendant, Clinton County, seeking a declaratory judgment on the county's obligation to pay witness fees to township police officers appearing as witnesses for the prosecution in criminal matters. As the issue presented was purely a legal question of statutory construction, no hearing was held. In an opinion and order filed on December 30, 1986, the circuit court held that police officers paid by their employer for court appearances are "on duty" for purposes of MCL 775.13(2); MSA 28.1250(2) and are therefore not entitled to witness fees or mileage, unless traveling at their own expense. Plaintiffs appeal as of right.
Pursuant to the collective bargaining agreements in effect between the township police officers and the townships, the townships pay officers overtime when the officers are required to testify at times other than during their regular work shifts. Prior to June 17, 1985, defendant county paid witness fees and mileage to officers called to testify for overtime appearances. Under the Bath Township labor contract, the amount of fees paid by the county was deducted from officers' pay. Under the DeWitt Township labor contract, officers were required to turn over to the township any fees received from the county. On June 11, 1985, the defendant county notified plaintiffs that effective June 17, 1985, the county would cease payment of fees and mileage to officers unless an officer received no compensation from the township. This notification precipitated plaintiffs' action for declaratory judgment.
MCL 775.13; MSA 28.1250 provides:
(1) If a person attends court as a witness in behalf of the prosecution, upon the request of the prosecuting attorney, upon a subpoena, or because of a recognizance for that purpose, the witness shall be entitled to the following fees:
(a) For attending in a court of record, $12.00 for each day and $6.00 for each half day.
(b) For attending in a municipal court or upon an examination, $10.00 for each day and $5.00 for each half day.
(c) For traveling, 10 cents per mile in going to and returning from the place of attendance, estimated from the residence of the witness if within the state and if without the state, from the boundary line of this state which the witness passed in traveling to attend court.
(2) A law enforcement officer shall not receive a fee as a witness in behalf of the people of this state if the law enforcement officer is on duty at the time he or she attends court nor shall the officer receive compensation in going to the place of attendance unless traveling to the court at the officer's own expense.
As the county prosecutor brings criminal actions on behalf of the people of this state, fees and mileage payable under the statute are the responsibility of the county.
Plaintiffs and defendant agree that officers testifying during their regular shift hours are on duty and therefore not entitled to fees under the statute. The parties disagree whether officers called to testify outside of their regular shifts and paid overtime to attend court are on duty.
The primary rule of statutory construction is to discover and give effect to the legislative intent. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich. 184, 187; 253 N.W.2d 646 (1977), reh den 400 Mich. 1029 (1977). Legislative intent is to be derived from the actual language used in the statute. In re Certified Questions, 416 Mich. 558, 567; 331 N.W.2d 456 (1982). No interpretation is necessary where the language used is clear and unambiguous. Id. Where an ambiguity exists, a court must look to the object of the statute, the evil or mischief which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute's purpose. Pittsfield Twp v Saline, 103 Mich. App. 99; 104-105; 302 N.W.2d 608 (1981).
On duty is not defined in the statute. Plaintiffs argue that on duty means during regularly scheduled work hours, while defendant argues that on duty should be construed to mean being paid by the officer's employer. We agree with the circuit court's conclusion that the term is ambiguous and that, accordingly, it is necessary to look to the intent of the statute.
The Michigan Supreme Court has had occasion to define the term "on duty" in the context of an insurance contract, Boesky Bros Twelfth Street Corp v United States Fidelity Guaranty Co, 267 Mich. 628, 630-631; 255 N.W. 307 (1934), and in the context of a federal act addressing the hours of service for employees of common carriers, Brown v Pere Marquette R Co, 237 Mich. 530, 537; 213 N.W. 179; 71 ALR 854 (1927), cert den 275 U.S. 538; 48 S Ct 35; 72 L Ed 413 (1927). Given the statute and issue raised in this case, we do not find those definitions pertinent to construction of the term on duty in MCL 775.13(2); MSA 28.1250(2).
The statute was intended to fix the compensation of prosecution witnesses. Denial of witness fees to law enforcement officers who testify while on duty is based on the following considerations: (1) the duties of law enforcement officers include court appearances; (2) an officer who testifies while on duty is receiving a salary which compensates the officer for the officer's time in court; and (3) the public should not pay an officer both a salary and a witness fee for testifying in court. To pay witness fees to township officers who receive compensation from their employer for time spent testifying would violate the statute's purpose of preventing double compensation to police officers.
In Starmont v Cummins, 120 Mich. 629, 630; 79 399 N.W. 897 (1899), our Supreme Court construed 2 How Stat § 9064, a statutory predecessor to MCL 775.13(2); MSA 28.1250(2), to preclude payment of witness fees to an arresting officer called to testify by the prosecution, even though § 9064 did not contain a subsection expressly precluding payment of fees to an on-duty law enforcement officer. "The evident purpose of this statute is to compensate a witness to some extent for his loss of time." Id. A police officer, unlike a nonpolice witness, is not compelled to leave his employment when subpoenaed to testify.
Plaintiffs argue that the statute, as construed by the circuit court, would prohibit payment of a witness fee to a police officer called to testify during the officer's vacation or other leave. The circuit court persuasively distinguished the situation of an officer on paid vacation or other paid leave from an officer on overtime. An officer on paid leave is not being paid to work, but is, in fact, being paid while not working. The court appearance does not trigger the payment by the employer of vacation pay; on the other hand, in the situation of overtime, it is precisely the court appearance which triggers the overtime pay.
We finally note that there is absolutely no indication that the statute on prosecution witness fees was designed to allocate prosecution costs between police agencies and the county prosecutor. That plaintiff townships have contractually obligated themselves to pay overtime to officers for court appearances, and thereby relieved the county of the burden of doing so by way of fees, is irrelevant to the objective of the statute which is to ensure a single payment to police officers for court appearances.
We affirm the order of the circuit court determining that law enforcement officers who are paid by their employers for court appearances are on duty for purposes of MCL 775.13(2); MSA 28.1250(2), are not entitled witness fees, and are not entitled to mileage compensation unless the officer is traveling at the officer's own expense.
Affirmed.