The 3rd meeting of the Interim Joint Committee on Judiciary was held on Tuesday, November 20, 2001, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Gross Lindsay, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers, Co-Chair; Representative Gross Lindsay, Co-Chair; Senators Ray Jones II, Marshall Long, Gerald Neal, R.J. Palmer, II, Katie Stine, Elizabeth Tori, and Jack Westwood; Representatives Paul Bather, Kevin Bratcher, Perry Clark, Jesse Crenshaw, Joseph Fischer, Bob Heleringer, Arnold Simpson, John Will Stacy, Kathy Stein, Gary Tapp, Rob Wilkey, and Brent Yonts.
Guests: Charles S. Baird, Former Judge of the Court of Criminal Appeals, State of Texas; Ernie Lewis, Public Advocate; Justice James Keller, Supreme Court of Kentucky; Ann Swango, Northern Kentucky Chapter of PACE and the Children's Rights Council of Kentucky; Jim Hummeldorf; Natalie Wilson, Chairman of the Child Support Guidelines Review Commission; Barbara Jones, General Counsel, Justice Cabinet; Keith Hardison, Parole Board; Steve Durham, General Counsel, Department of Corrections; Ralph Kelly, Commissioner, Department of Juvenile Justice; Ray Debolt, General Counsel, Department of Juvenile Justice; John Bizzack, Commissioner, Department of Criminal Justice Training; Stephanie Bingham, General Counsel, Department of Criminal Justice Training; and Larry Ball, Executive Staff Advisor, Department of Criminal Justice Training.
LRC Staff: Norman Lawson, CSA; Scott Varland; Jonathan Grate; Peter Cassidy; and Lisa Fenner.
Chairman Gross Lindsay called the meeting to order, the roll was called, a quorum was present, and the minutes were approved.
The first speakers were Senator Gerald Neal, Public Advocate Ernie Lewis, and Judge Charles Baird, former judge of the Court of Criminal Appeals of Texas, who was a member of a commission to study imposition of the death penalty.
Senator Neal explained the need for 02 RS BR 410, which is a proposal for a two year moratorium on the imposition of the death penalty coupled with a study of how the death penalty is sought, tried, and imposed in Kentucky, a study of racial and other possible bias in the imposition of the death penalty, a study of death penalty prosecution and defense needs, and a report with recommendations to the General Assembly.
Mr. Lewis indicated to the committee that "warning lights have gone off" through a nationwide trend of exonerations of death penalty cases particularly through the use of DNA evidence. Studies by Columbia University and others indicated that an increasing number of death penalty cases are being reversed on appeal.
Judge Baird indicated that the study in which he was involved resulted in 18 recommendations for reforms. Problems and recommendations included a death penalty moratorium while studies are conducted; inmates being denied access to DNA testing; limits on access to the courts for appeals; a competent lawyer for trial and full appeals; convictions of innocent people; incompetent police; bad cops; overzealous prosecutors; providing prisoners access to DNA testing; elimination of death penalty for juveniles; and a complete study of the death penalty with recommendations.
Representative Rob Wilkey indicated that the Criminal Justice Council is already looking into the matter and will have recommendations in the future.
Judge Baird complimented the state for having a statewide public defender system.
Representative Kevin Bratcher asked if the racial justice act was working to which Senator Neal responded that it was too early to tell.
Representative Wilkey asked about DNA testing to which Senator Neal replied that DNA evidence needed to be preserved until the defendant agreed to its disposition, and that DNA testing be available to the defendant even during and after appeals. Judge Baird indicated that at first Texas thought that retaining DNA evidence throughout an inmate's incarceration would be difficult, but that this had not been the case.
The next speaker was Ms. Ann Swango of the Northern Kentucky Chapter of PACE and the Children's Rights Council of Kentucky. Ms. Swango detailed what she believed to be problems with regard to the Commission on Child Support Guidelines, their meetings, their practices, and problems with open record and open meetings law violations. Ms. Swango indicated that the commission has been studied by the Program Review and Investigations Committee and others who have made recommendations for improvement. Ms. Swango indicated that she believed that the commission should be abolished and replaced with a new commission with balanced membership, facts at hand, experts for consultation, and for the commission to produce simple, easy to use guidelines for the courts. Ms. Swango indicated that more weight should be given to Kentucky economic and family cost statistics. Ms. Swango indicated that 2000 RS SB 90 was a good start and that a new commission should have private advocacy groups as members.
The next speaker was Mr. Jim Hummeldorf, who indicated that the current guidelines commission operates in a poor manner and that the commission should be eliminated and that the state should start over on the guidelines commission. Chairman Lindsay indicated that 2002 BR 499, with regard to the membership and duties of the guidelines commission, would be heard in the Interim Joint Committee on Health and Welfare on the next day.
Senator Jack Westwood indicated that the assumption of out of pocket medical expenses should be $250 and not $100, that a column of numbers is missing from the current statute, and that other changes need to be made to bring the draft into a useful document.
Senator Katie Stine, referring to the Program Review and Investigations Committee's referral of the matter to the Judiciary Committee for review of eight specific points of recommendation such as loss of job, accountability for expenditures on behalf of the child, and other matters had not been accomplished, asked if the committee could have a meeting in December.
The next speaker was Justice James Keller of the Supreme Court of Kentucky, who was formerly Chairman of the Commission on Child Support Guidelines. Justice Keller indicated that the commission was fair, impartial, and committed to do what is best for children. Justice Keller recommended adding two family court judges to the commission. Justice Keller indicated that surveys were conducted and have been accepted and are working, that expert testimony is allowed at any court with regard to deviation from the guidelines, and that the commission only recommends guidelines and that the legislature adopts them. Justice Keller further recommended additional funding for the commission as proposed by 02 RS BR 499.
Ms. Natalie Wilson, current chairman of the commission, indicated that earlier in its activities the commission was not worried about parliamentary procedure but that it has become more formal in its deliberations. Ms. Wilson further indicated that the commission's member support BR 499 and that they want staff permanently assigned to the commission by the Cabinet for Families and Children.
Senator Robert Stivers asked if something could be added to BR 499 to address concerns raised by the Program Review and Investigations Committee to which the chairman of the commission replied that the commission has part time members all of whom have other jobs and limited time to work on the duties of the commission. Justice Keller indicated that all of the recommendations had been addressed by the commission.
The next speaker was Ms. Barbara Jones, General Counsel with the Justice Cabinet, who introduced various speakers explaining proposed cabinet legislation.
The first speaker was Keith Hardison of the Parole Board, who spoke about BR 827 which provides that the executive director of the Parole Board be a member of the Commission on Corrections and Community Service and BR 827 which provides for continuing victim notification about meetings of the parole board at which parole will be considered for the victim's assailant unless the victim requests in writing that no further notification be given.
The next speaker was Mr. Steve Durham, General Counsel for the Department of Corrections, who spoke about BR 829 which provides concurrent criminal and civil jurisdiction for the new federal prisons in eastern Kentucky, and BR 818 which provides that inmates must exhaust internal open records appeals before going to circuit court, and places similar restrictions on court appeal in discipline and sentence calculation matters. The bill also provides for taking depositions from corrections personnel in lieu of court appearances in some cases. Chairman Lindsay asked if the provision regarding corrections staff testimony might violate the Rules of Civil Procedure.
The next speakers were Commissioner Ralph Kelly and General Counsel Ray Debolt of the Department of Juvenile Justice who explained BR 819 relating to combining two advisory panels regarding juvenile justice into one panel, closing of local juvenile facilities when state facilities open, and allowing children under 11 to be detained in state facilities if they commit a capital offense or Class A felony, and extending until age 21, the time which a youthful offender may be detained in a state juvenile facility prior to transfer to prison. They also explained BR 820, which is housekeeping legislation relating to local juvenile delinquency council access to juvenile records, medical care for children in temporary custody, and shortening the amount of time a juvenile may be detained after being taken into custody to 24 hours. Chairman Lindsay indicated that he felt that a longer period should be applied. The next bill was BR 1043, which would require appointment and presence of attorneys at all stages of a juvenile proceeding involving a felony offense or a sex offense.
The next speakers were Commissioner John Bizzack, Ms. Stephanie Bingham, General Counsel, and Larry Ball, Department of Criminal Justice Training, who discussed BR 821 relating to a career development program for law enforcement officers and telecommunicators which would permit certified areas of specialization for these fields, and BR 821 relating to telecommunicator training for Criminal Justice Information System (CJIS) telecommunicators and non CJIS telecommunicators. The next bills discussed were BR 823, relating to participation in the Kentucky Law Enforcement Program Foundation Fund program for sheriffs departments to specify that if the elected sheriff does not participate that the department can still participate if all deputies are trained, and BR 824, relating to peace officer certification training deficiency status and which also makes technical corrections in number ranges.
The meeting was adjourned at 11:50 a.m.