State v. Washburn , 48 Or. App. 157 ( 1980 )

THORNTON, J.,

dissenting.

I dissent. A close reading of ORS 161.665 convinces me that the trial judge was correct and that the majority’s construction is in error.

Overtime pay for the three deputy sheriffs who testified at defendant’s trial was part and parcel of the "expenses specially incurred by the state in prosecuting the defendant.” ORS 161.665. Continuing our analysis with the next sentence of this same section, the challenged overtime expenses are not "inherent in providing a constitutionally guaranteed jury trial,” nor "expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.” Clearly, the extra expenses in issue do not come within the last mentioned exceptions.

The majority relies on the fact that the overtime pay was based on a collective bargaining agreement. This, I submit, is beside the point. This expenditure was the direct result of the trial, not the collective bargaining agreement. The collective bargaining agreement was at most only the indirect cause of the extra expense. The fact remains that Lane County had to pay overtime to these three deputies. It was a part of the "expenses specially incurred by the state in prosecuting the defendant.” As the Oregon Supreme Court declared in State v. Young, 74 Or 399, 145 P 647 (1915), an unambiguous statute should not be interpreted but should be enforced according to its clear language. Accord: Whitney v. Morgan, 9 Or App 289, 497 P2d 865 (1972).