MOORE, Chief Justice.
AltaPointe Health Systems, Inc. ("AHS"), appeals from an order entered by Judge Don Davis of the Mobile County Probate Court denying its petition for an award of expert-witness fees in civil-commitment proceedings. This case presents a matter of first impression: Whether a
The board of directors of AHS, the community mental-health agency for Mobile County and Washington County, is appointed by the governing bodies that authorize and fund it. See § 22-51-1 et seq., Ala.Code 1975; Ex parte Greater Mobile-Washington Cnty. Mental Health-Mental Retardation Bd., Inc., 940 So.2d 990, 1005 (Ala.2006) (holding that AHS, although a public corporation, § 21-51-2, Ala.Code 1975, "is an independent entity rather than a State agency"). An AHS employee provides expert-witness testimony at civil-commitment hearings based on AHS's court-ordered evaluation of respondents to involuntary-commitment petitions, known as "consumers." Until April 2007, the Mobile County Probate Court had routinely paid AHS $160 to provide expert testimony at a commitment hearing. At that time, however, the probate court decided to terminate the payment of that fee because AHS was already being compensated independently for conducting mental-health evaluations of consumers. As the probate court explained:
Despite the probate court's change in policy, AHS continued to submit monthly bills for providing testimony at commitment hearings. On October 27, 2009, the probate court held a hearing on these accumulated requests for payment. On January 14, 2010, the probate court denied payment, holding that the testimony of a salaried AHS employee did not require reimbursement by the court. "AHS is not actually incurring the fees for which it is seeking payment from the Alabama State General Fund and it appears that AHS is seeking double payment for a service it has provided." The probate court viewed the testimony as "a vital and integral part of the evaluation process," for which AHS was already compensated through general public funding. The court also noted that the AHS employees testifying "do not individually bill either AHS or the Court for their time spent" and that any payment would go to AHS, not the employee/witness. AHS did not appeal the denial of its request.
On August 17, 2011, AHS filed a new fee petition, seeking payment for testimony at commitment hearings from July 2008 through August 2011. An exhibit to the petition listed all the days AHS employees had provided testimony and the number of hearings on each day. In total, AHS requested $188,800, representing testimony at 1,180 hearings at a rate of $160 per hearing.
Markham testified that AHS received funding from the City of Mobile, Mobile County, Medicare, Medicaid, from private insurance companies, and from federal grants. None of these funds, however, he said, could be used for payment of expert-witness fees at commitment hearings. Markham provided documentation that neighboring Washington County authorized payment at a flat rate of $180 for AHS's expert testimony at commitment hearings; that Chilton County paid $100 per hour to a local mental-health center for court screening, evaluation, and testimony; and that the Montgomery County Probate Court allowed payment of expert-witness fees at a rate of $70 per hour to the Montgomery Area Mental Health Authority for testimony at commitment hearings by qualified employees.
Barber is "the designated employee of [AHS] who ... testifies during civil commitment proceedings in the Probate Court." Markham Affidavit. Her full-time job (except for Tuesday afternoons) is "preparing to testify and testifying in Probate Court." The expert-witness services that AHS provides to the probate court consist solely of Barber's work. "In defining expert witness services in this manner," Barber stated, "I have excluded the services provided by the clinical staff persons who perform the evaluations and the services of the clinical staff persons who provide mental health treatment to the consumers."
Barber provides specialized knowledge that not only assists the trier of fact, but also is indispensable to its decision-making. In the week before each commitment hearing, Barber reviews records, interviews patients and relevant personnel, and consults with the treating physicians. Coupled with her formal training and experience as a professional counselor, she is qualified by knowledge, skill, experience, training, and education as an expert on civil-commitment evaluations.
The probate judge acknowledged that Barber provided "an expert opinion" and complimented her on the quality of her testimony. "[S]he is very prepared. She is able to — to answer most questions that lawyers and I have.... So I want to compliment Ms. Barber for the manner in which she discharges her duties at the court hearings. And thank you for what you do in that regard." See Charles Gamble, McElroy's Alabama Evidence § 127.02(2) (5th ed. 1996) ("The quantum of necessary expertise is determined by whether it is sufficient to justify an opinion that will be of aid to or assist the trier of fact.").
In its order of April 19, 2012, denying payment of expert-witness fees to AHS, the probate court did not dispute that Barber qualified as an expert witness but instead claimed that "[t]he statute is not intended to reimburse an employer for time spent by an employee testifying, even if such employee may qualify as an expert witness." Thus, the probate court held, if AHS retained an outside consultant to testify
The probate court denied the fee petition in its entirety. AHS filed a notice of appeal on May 31, 2012.
Because the issue before this Court is the proper interpretation of § 22-52-14, Ala.Code 1975, our review is de novo. "A ruling on a question of law carries no presumption of correctness, and appellate review is de novo." Ex parte City of Brundidge, 897 So.2d 1129, 1131 (Ala.2004).
"The jurisdiction of the probate court is limited to the matters submitted to it by statute." Wallace v. State, 507 So.2d 466, 468 (Ala.1987). See § 12-13-1, Ala.Code 1975. Probate courts have jurisdiction over petitions seeking the involuntary commitment of persons believed to be mentally ill. Section 22-52-1.2, Ala.Code 1975. The Code also provides for payment of the costs of the commitment proceeding, including expert-witness fees.
§ 22-52-14, Ala.Code 1975 (emphasis added).
The issue for resolution in this appeal is whether AHS is eligible for expert-witness fees under § 22-52-14 when Barber or another qualified employee of AHS testifies as an expert witness in a civil-commitment hearing.
In interpreting a law, we first look to the plain language of the statute. "Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says." Tuscaloosa Cnty. Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa Cnty., 589 So.2d 687, 689 (Ala.1991). Section 22-52-14, Ala.Code 1975, states: "In any commitment proceeding, the fees of ... any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge ... shall be paid by the state general fund upon order of the probate judge...." (Emphasis added.)
The probate court contends that AHS, as a recipient of public funding, is entitled to no separate compensation for providing expert testimony to the court. However persuasive such an argument might be as a matter of public policy, the statute itself makes no such distinction, but instead applies to "any expert employed to offer expert testimony."
The probate court complained that it had "not been provided any authority which would allow for fees ... for services rendered by salaried employees of the party making the request." But no such additional authority is necessary when the statute in question makes no exception to its general requirement for payment of reasonable fees for expert testimony. The probate court's order states: "AHS is not employing outside experts and thus is not incurring any expert fees or expenses." Section 22-52-14, however, does not require that AHS hire an outside expert and incur specifically billed fees before AHS may qualify for expert-witness fees. Should the legislature desire to change the statute to disallow experts such as those employed by AHS from receiving expert-witness fees from the State's general fund, it is free to do so. Neither the probate court nor this Court, however, is free to limit the scope of the statute through an exclusionary judicial construction not stated in its text. See Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir.1980) (rejecting argument that award of attorney fees to state-funded legal-services organization was unfair "double payment" and finding that by not including such an exception in the Fee Awards Act, the "question of fairness has been resolved by Congress"); Del. Op. Att'y Gen. No. 78-003 (Feb. 13, 1978) (noting that state statute "governing the payment of expert witness fees, draws no distinction between expert witnesses who are public employees and other expert witnesses"). Just as "the trial court does not have the discretion to award fees for expert witnesses unless a statute authorizes the recovery of such fees," Southeast Envtl. Infrastructures, L.L.C. v. Rivers, 12 So.3d 32, 52 (Ala.2008), it also does not have discretion to refuse reasonable fees where the legislature has authorized their payment.
By disqualifying AHS from receiving expert-witness fees for the testimony of its employees, the Mobile County Probate Court erred as a matter of law. If the probate court desires fact testimony regarding the services rendered by AHS to those committed to its care and the response of such persons to that care, the court may order the appearance of "non-expert" employees who do not provide an
We therefore reverse the Mobile County Probate Court's order of April 19, 2012, and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
STUART, J., concurs.
PARKER, J., concurs specially.
MURDOCK, J., concurs in part as to the rationale and concurs in the result.
BOLIN, MAIN, WISE, and BRYAN, JJ., concur in part and dissent in part as to the rationale and concur in the result.
SHAW, J., dissents.
PARKER, Justice (concurring specially).
I join in the main opinion, and I concur specially for the following reasons.
First, § 22-52-14, Ala.Code 1975, has been amended by the legislature so as to authorize payment to any expert providing expert testimony to a probate court in commitment proceedings. As initially enacted, the statute limited payment to expert witnesses who were employed by the attorney appointed to represent the subject of the proceeding:
Act No. 1226, § 11, Ala. Acts 1975 (emphasis added).
Two years later, the statute was amended to read:
Act No. 670, § 1, Ala. Acts 1977 (emphasis added). Among other changes, the legislature deleted the phrase "by the attorney appointed to represent the person sought to be committed" that originally followed "any expert employed." This amendment removed the restriction that limited the payment of expert witnesses to those experts employed by the appointed attorney. The statute was amended again in 1984, but the phrase "any expert employed to offer expert testimony" remained undisturbed. Act No. 84-833, § 2, Ala. Acts 1984.
The legislative history of this statute reveals the legislature's intent to remove
Second, the conclusion in the main opinion that AHS is entitled to expert-witness fees is buttressed by the Alabama Rules of Evidence, which clearly provide for the compensation of expert witnesses appointed by the court. Rule 706, Ala. R. Evid., provides, in relevant part:
(Emphasis added.) The Advisory Committee's Notes to Rule 706(a) provide that the power of the trial court "to appoint its own expert witnesses" is an "historic power." (Citing Alabama Great S. R.R. v. Hill, 90 Ala. 71, 8 So. 90 (1890).)
The plain and clear language of Rule 706, providing that expert witnesses appointed by the court are entitled to compensation, applies to all court proceedings in our state, including those in the probate courts. Rule 101, Ala. R. Evid., provides that "[the rules of evidence] govern proceedings in the courts of the State of Alabama to the extent and with the exceptions stated in Rule 1101." Rule 1101(a), Ala. R. Evid., provides: "Except as otherwise provided by constitutional provision, statute, this rule, or other rules of the Supreme Court of Alabama, these rules of evidence apply in all proceedings in the courts of Alabama, including proceedings before referees and masters." (Emphasis added.) The Advisory Committee's Notes to Rule 1101(a) clarify that the legislative intent of that rule "is to make the Alabama Rules of Evidence applicable to the same proceedings that were governed by the general law of evidence at the time of their adoption," including proceedings in the probate courts. (Citing § 12-13-12, Ala.Code 1975 (statutory rules of evidence, "so far as the same are appropriate," are applicable in probate courts).) The Advisory Committee also noted that "[t]hese rules in no way change preexisting law regarding the applicability of evidence rules in the probate court." Id. This makes it clear that the intent is that the Alabama Rules of Evidence apply in the probate courts.
The language of the Alabama Rules of Evidence unambiguously establishes not only the power of the courts to appoint expert witnesses, but also the entitlement of court-appointed expert witnesses to compensation. Because such provisions apply to probate courts, it is clear that AHS is entitled to reasonable fees for expert-witness services provided to the probate court.
MURDOCK, Justice (concurring in part as to the rationale and concurring in the result).
I concur in the result achieved by the main opinion and, save for two aspects, agree with the analysis by which it reasons
First, I believe the primary conclusion reached in both the main opinion and in Justice Bolin's special writing is supported by the Act of the Alabama Legislature by which the statute in question, § 22-52-14, was most recently amended, Act No. 84-833, Ala. Acts 1984. The title of that Act makes clear the intent of the legislature that experts employed to provide expert testimony in commitment hearings are to be paid a reasonable fee, notwithstanding the fact that they are supplied and employed by a facility that receives State funds. That title states that the Act has as its purpose "[t]o amend 1975 Code of Alabama, Sections 22-52-14 and 22-52-17, which relate to mental health evaluations and commitments, so as to require all probate judges to utilize mental health facilities of the State of Alabama when available." Section 1 of the same Act that in Section 2 adopts the current language of § 22-52-14 at issue in this case clearly contemplates that mental-health facilities supported by public funds will be used "to perform mental evaluations of persons sought to be committed for use in final commitment hearings." Act No. 84-833, § 1, amending Ala.Code 1975, § 22-51-17.
Second, I read the main opinion as interpreting — and correctly so in my opinion — § 22-52-14 to require the payment of expert witnesses employed in a commitment hearing but, in accordance with the language of the statute, only to the extent such fees are "reasonable." Accordingly, I am not sure how much, if any, space actually exists between the position expressed in the main opinion and that expressed in Justice Bolin's special writing (with much of which I also agree).
Insofar as the foregoing bears on the issue of the standard of review, however, I do agree with the axiomatic position taken by the main opinion that the question of the meaning of the statute (as either requiring a reasonable fee or not) is a question of law to be decided by this Court de novo. I also agree with Justice Bolin, however, and I do not read the main opinion as saying otherwise, that our review of the amount of fee to be awarded an expert is not de novo, but instead is based on an excess-of-discretion standard.
Having expressed these preliminary concerns, I turn now to the two aspects of the main opinion that I decline to join. First, I decline to join in the following statement in the Conclusion section of the opinion and the footnote (footnote 5) that accompanies it: "If the probate court desires fact testimony regarding the services rendered by [AltaPointe Health Systems, Inc. (`AHS'),] to those committed to its care and the response of such persons to that care, the court may order the appearance of `non-expert' employees who do not provide an opinion and for whom no fee is required."
The quoted sentence from the text speaks of the ability of the court to order, without payment, the appearance and testimony of what it labels "`non-expert' employees." It speaks of these "non-experts" as giving "fact testimony." It contemplates that these "fact" witnesses will provide their testimony in a commitment hearing conducted by a judge, without formal medical training, for the purpose of receiving medical evidence and formulating an opinion on a patient's condition, the patient's ability to function safely with or without certain treatments, and, ultimately, the need for institutionalization. The sentence contemplates that the value of ordering testimony from such a witness will derive from the fact that the patient is "committed to its care" and that the witness will be able to testify competently as to that care and "the response of such [patient] to that care." As a general rule, the only person qualified or competent to testify as to the "facts" of a patient's condition and the patient's clinical response to treatments that have been provided will, in fact, be a medical expert. Moreover, it almost invariably will be the case that expert opinion testimony, not just the "facts" of raw clinical data or observations, is necessary to assist a court in making the necessary judgments as to these matters. Accordingly, I question whether this extra step taken by the main opinion of implicitly sanctioning the calling of such experts as "fact witnesses" to share the "facts" pertaining to their clinical assessments and conclusions (conclusions that would never have been formed had the patient not been sent by the probate court to the witness or his or her employer for assessment in the first place) in effect just undermines the general rule requiring the compensation of such witnesses that we otherwise uphold today.
Furthermore, and independent of the foregoing concerns, I am concerned by footnote 5 in its own right. I fail to see how the encouraged "separation of the treatment and testimony functions" addresses the stated concern for the impairment of the doctor-patient relationship when the "separate" witness's testimony simply relays information the witness has received from the doctor.
Secondly, in terms of the main opinion, I decline to join footnote 4. The first sentence of this footnote states, in part, that "we do not wish to imply that the probate court must in all instances pay the fee of any expert ... who testifies in a civil-commitment hearing." 141 So.3d at 1003. Again, subject to the reasonableness restriction, that is exactly what I read the main opinion as not only implying, but expressly holding. If an expert has in fact testified as an expert, it will be because the "preliminary questions" regarding his or her qualifications to do so have already been resolved by the court in the witness's favor.
Because of these concerns and because I believe the preceding aspects of the main opinion go beyond the question before us today, I respectfully decline to join them.
BOLIN, Justice (concurring in part and dissenting in part as to the rationale and concurring in the result).
The probate judge in this case entered an order denying the petition for expert-witness
Section 22-52-14 provides:
(Emphasis added.)
Section § 22-52-14, regarding payment of fees to be taxed as costs in involuntary-commitment proceedings, is unambiguous in establishing that the probate judge appoints attorneys to act as advocates and attorneys or guardians ad litem for the respondent and that their fees are set by statute, while the fees awarded to unappointed expert witnesses "employed," or, put another way, "used," to offer expert testimony are determined by the probate court, not by statute, in such amounts as found to be reasonable by the court. Hence, I submit that the proper standard of appellate review of the probate court's order in this proceeding should be guided by whether the probate judge exceeded his or her discretion, and therefore not subject to the interpretation and analysis of the statute embodied in the main opinion.
The key phrase of the statute, i.e., "found to be reasonable," clearly vests the probate court with the discretion to fix and determine the appropriate expert-witness fee under the statute, subject only to correction if the probate court exceeds its discretion. The reasonableness of an expert-witness fee to be paid is a matter within the discretion of the probate court and its decision on such matter will not be reversed on appeal unless the court exceeds that discretion.
As stated, the first part of § 22-52-14 applies to the payment of court-appointed attorney/advocates and court-appointed attorneys or guardians ad litem for the respondent. These attorneys, pursuant to the statute, are paid fees in amounts set by a fixed standard in § 15-12-21, Ala.Code 1975. The second part of § 22-52-14 specifically provides for the payment of expert-witness fees and provides that such fees are to be set "in such amounts as found to be reasonable." Although the first part of § 22-52-14 empowers the probate court to "appoint" the necessary attorneys or guardians for the proceedings, the second part of the statute simply refers to any expert "employed" to offer expert testimony. In this case, AHS "designate[d]" or provided the expert-witness testimony to be given to the probate court during the "merits" hearing. Because the expert witness in this case was not appointed by the court, the use of the term "employed" in the statute must be given its plain meaning. Words in a statute must be given their natural, ordinary, commonly understood meaning. Ex parte Weaver, 871 So.2d 820 (Ala.2003). In the context of this statute, the word "employ[ed]" is defined by Black's Law Dictionary 586 (8th ed. 2006) as "[t]o make use of" or "to hire." See also American Heritage Dictionary of the English Language 428 (New College ed. 1976) defining "employ[ed]" as "[t]o engage the services of."
The probate court declined to award any fee whatsoever to AHS based on the court's findings (1) that AHS was not employing a non-employee outside expert witness to testify and was, therefore, not incurring any fees for which it was seeking payment; (2) that the expert witness designated by AHS to testify was a salaried AHS employee, who does not individually bill either AHS or the court for her time spent testifying; and (3) that the time spent by the expert witness, both preparing to testify and actually testifying in court, must be considered a part of the overall evaluation services provided by AHS. Applying the exceeding-its-discretion standard as I submit that we should, I conclude that the probate court exceeded its discretion in denying AHS's requested fees under the facts in this case. First, the fact that the expert witness in this case was employed by AHS is no different than a private psychiatrist who testifies as an expert witness being employed by a professional practice group, whereby the entity requesting an expert fee might well be the psychiatrist's employer. Indeed, AHS pays the salary of its designated expert witness from its own budget, and the record reflects that it is not reimbursed for that expenditure by any outside funding source. Second, I do not agree that the expert testimony in this case must be considered as part of the overall evaluation services provided by AHS. A respondent in an involuntary-commitment proceeding is "evaluated" to determine whether a mental illness exists and, if so, the respondent's diagnosis. A respondent then receives "treatment" for the particular diagnosis. These functions are obviously carried out by a hospital or mental-health facility outside the court's presence. At the hearing before the court, however, there must be "expert testimony" to convince the probate court as to whether a serious mental illness is present, and whether the respondent should be ordered committed on either an
However, I respectfully disagree with any implication in the main opinion that an expert-witness fee must be paid to any qualified expert giving testimony in all possible circumstances. In the event a probate judge deems a witness qualified to testify, there still may be circumstances in which the judge declines to award a fee for that testimony. The probate court in this case acknowledged that AHS's designated witness was qualified to testify and that she provided valuable testimony; however,
There are 67 probate courts and 68 probate judges in the State of Alabama presiding over involuntary-civil-commitment proceedings. The facilities and resources available to provide medical help and assistance to persons with a serious mental illness vary greatly from county to county. Some urban counties have multiple hospitals, psychiatrists, and resources to treat mental illness, while some rural counties must make do with little or limited resources. Still, the legislature was tasked with enacting a statute regarding the payment of expert-witness costs in those proceedings that would be workable and fair in all the probate courts in Alabama. The legislature answered this calling by vesting the probate courts with the discretion to fix and determine "reasonable" compensation in this area, and, accordingly, a valid exercise of that discretion under different facts than we have herein might well be that no fee is due to be awarded. For this reason probate judges have the latitude, or put another way — the discretion given to them under the statute — to determine, on a case-by-case and witness-by-witness basis, whether a fee should be awarded and taxed as costs to a qualified expert, or to an expert's employer, and, if so, the reasonableness of that fee.
MAIN, WISE, and BRYAN, JJ., concur.
SHAW, Justice (dissenting).
I believe that under the plain language of Ala.Code 1975, § 22-52-14, the probate judge in this case had the discretion to deny the payment of expert-witness fees. The Code section states, in applicable part:
This Code section contains three clauses set apart by semicolons. The first clause provides that the fees to be paid to attorneys who act as advocates or guardians ad litem are set at the rates found in Ala. Code 1975, § 15-12-21. The second clause provides that the probate judge (as opposed to a Code section) sets the fees to be paid to experts based on what it finds reasonable. The third clause provides "all other costs" — i.e., not the fees of attorneys or expert witnesses — are to be paid if the probate judge so orders.
The issue in this case involves the fee for an expert witness under the second clause: the fee for an expert is set at such amount "found to be reasonable by the probate judge." Here, the probate judge found that no fee was reasonable. I do not
I do not read the language from the third clause, "shall be paid," as commanding the probate judge to order the payment of fees to expert witnesses. Instead, it requires only that fees or costs be paid if so ordered by the probate judge. Specifically, the clause states that what "shall be paid" is only what the probate judge orders to be paid: "shall be paid ... upon order of the probate judge...." This language is not directing the probate judge to award fees to the expert, which is the issue involved in this case; it is instead directing that all fees and costs "shall be paid" pursuant to an "order [by] the probate judge." If there is no "order of the probate judge," then there is nothing that "shall be paid by the state general fund." I agree that "any expert employed ... shall be paid" but that that expert will be paid only if the probate judge so orders.
Section 22-52-10.2, Ala.Code 1975, provides:
(Emphasis added.) Section 22-52-10.4(a), Ala.Code 1975, provides:
(Emphasis added.) It would difficult, and seemingly impossible, for a probate court to order any relief to a petitioner pursuant to the elements of the statutes above without expert testimony.
