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2014 Op. Iowa Att'y Gen. [i] (2014)

handle is hein.sag/sagia2014 and id is 1 raw text is: Mr. Dave Patton Office of the Attorney General September 5, 2014 2014 WL 7777172 (Iowa A.G.) Office of the Attorney General State of Iowa *1 Opinion No. 14-9-1 *1 September 5, 2014 *1 COURTS: Sheriff's service of process fees in dismissed state criminal cases. Iowa Code §§ 331.424(1)(a)(6), 602.1302, 602.1303, 602.11101 and 815.1 ( 2014). There is no statutory provision for state payment of sheriff's fees for service of subpoenas and other process in state criminal cases where a dismissal is entered or defendant is acquitted; however, Iowa Code section 331.424(1)(a)(6) provides a potential funding source for payment of these fees by a county. (Miller to Patton, 9-5- 2014) *1 Mr. Dave Patton *1 Buena Vista County Attorney *1 606 Geneseo Street *1 P.O. Box 1246 *1 Storm Lake, Iowa 50588 Dear Mr. Patton: *1 You have requested an opinion from this office to determine the party responsible for payment of sheriffs fees incurred in serving trial subpoenas, court-ordered show cause notices in contempt actions, and notices for hearing in probation violations where these actions are brought under state criminal law and the action is ultimately dismissed with court costs assessed to the state. You have included a State Court Administration office directive dated July 20, 2011, instructing county clerks of court that sheriffs' subpoena service fees in criminal cases where costs have been taxed to the state shall not be paid from court funds, but rather should be zeroed out from the Iowa Court Information System. *1 As addressed in State v McKinney, 756 N.W.2d 678 (Iowa 2008), the legislature reorganized the judicial system in 1983 to shift funding for portions of the court system from the county to the state, and generally placing the responsibility for the cost of prosecutions under state law with the state, and for costs of prosecutions of city or county ordinance crimes to the city or county. McKinney, at 680-82 (discussing provisions of the court reorganization legislation contained in 1983 Iowa Acts ch. 186). McKinney sought to resolve an ambiguity regarding the party responsible to pay fees for a material witness held in custody regarding a state criminal charge. Iowa Code section 815.6 provides a fee to material witnesses held in criminal cases, but does not specify who pays these fees. In McKinney, the Iowa Supreme Court reviewed several sections of the Code that specifically provide for state payment of witness fees in state law prosecutions - but do not specifically exclude material witness fees - with other provisions requiring counties and cities to pay witness fees in criminal cases under local ordinances. Id. at 681-82. The Court in McKinney found a general legislative intent for the state to pay costs in state law criminal actions and for the city or county to pay such costs in local ordinance actions. The Court cited to this general legislative intent and found that several statutes providing state payment of prosecution witness fees in state law criminal cases required state payment of material witness fees arising from state law prosecutions. McKinney at 682. *2 After review of the McKinney case and the prosecution cost statutes cited therein, we have concluded that the sheriffs fees for costs of service of subpoenas and for service of notice of probation violations and show cause hearings in criminal cases brought under state law are not payable by the state. We reach this conclusion by careful analysis of the scope of the cost provisions in these statutes and the funding mechanisms created for payment of these costs. Costs provisions *2 Review of the following Code sections, also considered by the Iowa Supreme Court in McKinney, reveals that these statutes narrowly fix responsibility for costs payable by the state in state law prosecutions to witness fees, jury fees and mileage. These statutes similarly require cities and counties to pay witness fees and mileage in local ordinance prosecutions but also fix city and county responsibility for the broader categories of court fees, court costs, and district court clerk services in local ordinance violations. See excerpts from Iowa Code §§ 602.1302, 602.1303(7), 602.11101, and 815.13 below. In addition, counties are responsible for deposition and transcript costs in all criminal cases- whether under local ordinance or state law. See excerpts from and section 815.13, below. State-paid expenses in state law cases *2 the state shall assume responsibility for the costs of jury fees and mileage ... and ... the state shall assume the responsibility for and costs of prosecution witness fees and other witness fees and mileage assessed against the prosecution in criminal actions prosecuted under state law as provided in sections 622.69 and 622.72. (Emphasis added.) *2 Iowa Code § 602.11101 ( 2014).

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