The 4th meeting of the Interim Joint Committee on Judiciary was held on Tuesday, November 18, 2003, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Gross Lindsay, Cochair, called the meeting to order, and the secretary called the roll. Upon his arrival shortly thereafter, Senator Robert Stivers chaired the meeting.
Present were:
Members: Senator Robert Stivers, Co-Chair; Representative Gross Lindsay, Co-Chair; Senators Tom Buford, Ray Jones II, Jerry Rhoads, Richard Roeding, Ernesto Scorsone, Dan Seum, and Katie Stine; Representatives Perry Clark, Jesse Crenshaw, Tim Feeley, Jeffrey Hoover, Stan Lee, Arnold Simpson, Kathy Stein, John Vincent, Robin L. Webb, and Brent Yonts.
Guests: C. T. Richmond, Bruce Dudley, and Berry Banks, Probate Committee of the Kentucky Bar Association; Dana Mayton, Secretary, and Jennifer Hayes, Revenue Cabinet; John Coy, Chair, and Keith Hardison, Executive Director, Parole Board; Steve Durham, General Counsel, Department of Corrections; Deputy Secretary John Lile, Justice Cabinet; Rick Kurtz, Administrator of Polygraph Program, Lt. Col. Robert Milligan, Division of Forensic Services Director, and Jeff Warnecke, Central Forensic Laboratory Director, Kentucky State Police; Nick Muller, Executive Director, Criminal Justice Council; Larry Bland, Daphne Hopkins, Jamie Geveden; Fraternal Order of Police, Department of Corrections.
LRC Staff: Norman Lawson, CSA; Jonathan Grate, Peter Cassidy, Stephanie Martin, and Lisa Fenner.
The fourth meeting of the committee was held in the new capitol annex building in Frankfort. The meeting was chaired by Senator Stivers. A quorum was present and the minutes of the August, September, and October meetings were approved.
The first speakers, C. T. Richmond, Bruce Dudley, and Berry Banks, represented the Probate Committee of the Kentucky Bar Association and spoke in favor of adopting the most recent version of the Uniform Principal and Income Act and the Uniform Prudent Investor Act. Mr. Richmond indicated that the proposals for investment counselors are already used by banks under the banking laws and that the proposals would make the law more uniform. The Uniform Principal and Income Act was presented as providing a means of determining how a trustee allocates money from investments and other income between principal and income and to whom the moneys are disbursed when the trust instrument is silent about the divisions. Under present law, if changes are to be made it is, according to the representatives of the Bar Association, necessary to go back to court to have the court amend the provisions of the trust and that this would no longer be necessary under the proposal. Various members of the committee felt that the provisions would not materially change the law and that court appearances would still be necessary. The Uniform Prudent Investor Act was described as changing the principle of investment supervision from each individual investment to a principle where the prudence of the investment was judged from the totality of the investments rather than a single investment. The act also provided that if the trustee hired an outside financial consultant, that the outside consultant, and not the trustee, would be liable for the decisions. Mr. Dudley indicated that both of the acts provide "default" positions for the investor to follow when the documents providing for the trust or other agreement do not spell out the investment procedures and the allocation of income and interest. Mr. Dudley further indicated that if the legal documents in the matter fully describe what is to be done and how the accounts are to be handled, then the documents and not the act will prevail. Mr. Dudley also stated that the acts help persons serving as trustees and that 41 states have adopted the acts. Chairman Lindsay and other members of the committee questioned the wisdom of changing the investment theory since it would allow investment in poorly performing stocks, which would have to be sold before the investor made much money, and might encourage much stock and investment trading to increase broker fees, and would result in lawsuits anyway. Other members questioned the transfer of liability to outside consultants who may or may not have insurance or who may require arbitration of the claims by out-of-state arbitration boards thus depriving the Kentucky plaintiff the right to go to a Kentucky court for a resolution of their problems.
The next speaker was Ms. Dana Mayton, Secretary of the Revenue Cabinet, accompanied by Ms. Jennifer Hayes. Secretary Mayton spoke in response to a request from the committee as to whether previously passed limited liability corporation legislation has resulted in a revenue loss to Kentucky. The secretary explained that limited liability corporations do not pay the corporate income tax but are taxed as partnerships. The secretary indicated that the two proposed pieces of legislation, HB 505 and HB 558, by themselves did not have adverse revenue impacts. In response to a question from cochair Gross Lindsay, the secretary responded that if limited liability corporations were to be taxed as corporations that the increase of revenue to the state would be approximately $30 million.
The next speakers were John Cox and Keith Hardison from the Parole Board. Mr. Hardison spoke in favor of legislation to delete the current statutory requirements relating to number of board members necessary to hold a parole hearing and the requirements for actual parole hearings in favor of legislation permitting the Parole Board to determine these matters by administrative regulation. Mr. Hardison indicated that the present legislation is unworkable because of the large numbers of parole hearings and parole revocation hearings currently being conducted and the diverse locations at which hearings must be held because prisoners are now held in private prisons, county jails, and other facilities as well as state facilities. Mr. Hardison indicated that the American Correctional Association standards provide that no more than 20 parole cases be heard by the hearing officers each day, and that the current Kentucky average is 35, which results in hearings taking as little as four minutes to 12 minutes per inmate. It is anticipated by the board that face to face parole hearings are not necessary in most cases, and that in cases where a hearing is necessary, there will be two members of the Parole Board present. The board indicated that these changes would mean that adding three or more members to the board would not be necessary. Representative Robin Webb commented that the face to face hearing is unnecessary in most cases and detracts from the time required to review parole eligibility and related information.
The next speaker was Steve Durham, the General Counsel for the Department of Corrections. He spoke in favor of an adjustment to KRS 17.500, relating to the definition of a sexual offender, to restrict a reference to a person guilty of violating KRS 530.064, relating to unlawful transaction with a minor in the first degree, to only those persons convicted of causing a minor to engage in sexual activity and eliminating reference to those persons convicted of drug offenses. The second proposal was to change laws relating to escape and use of deadly force to prevent an escape, to include escaping while in transit or from other locations than a jail or penitentiary, and to permit the use of deadly force in preventing an escape. Representative Robin Webb and other members of the committee questioned the necessity of using deadly force on nonviolent offenders, the danger of using deadly force in a courtroom, on a city street, or other location. Senator Dan Seum asked if deadly force can be used against an escaped prisoner who was a threat to the officer or another person under current law. Mr. Durham responded "yes." Representative Hoover commented that under the proposed legislation, since home incarceration and community custody were forms of incarceration, that a person who was on home incarceration and who did not comply with the technicalities of the court order would be subject to being shot.
The next speaker was Rick Kurtz, from the Kentucky State Police, who indicated that legislation was needed to fingerprint applicants for detection of deception examiner (lie detector) licenses to that an FBI record check could be conducted on the applicants. Members of the committee observed that the fingerprints might be used for other purposes by law enforcement agencies and the federal government.
The next speakers were Deputy Secretary John Lile from the Justice Cabinet, Lt. Col. Robert Milligan, Division of Forensic Services Director at the Kentucky State Police, and Mr. Jeff Warnecke, Forensic Laboratory Director, who updated the committee on efforts to reduce the backlog of cases at the Kentucky State Police Forensic Laboratories. Speakers indicated that 949 drug cases had been shipped to out-of-state laboratories for processing, but that there was a remaining backlog of approximately 7,300 cases. Chairman Stivers asked Lt. Col. Milligan if the department had implemented repayment of training expenses and hiring new personnel for a six month internship with a person known to be retiring, to which the answer was "no." Members of the committee questioned the costs of and difficulty in securing testimony from out-of-state, as well as who would pay the bills for securing the testimony. Representative Robin Webb questioned provisions in the out-of-state laboratory contracts requiring the person requesting the testing to pay for it, which means that potentially a private attorney would have to ask the client to pay for testing now done for free by the KSP laboratory. Further questioning related to long range planning and efforts to reduce the backlog of cases. Members asked if the jurisdiction over the laboratory should be transferred to the Justice Cabinet or to some other agency, to which the State Police replied that they opposed such a move. Lt. Col. Milligan indicated that long term planning is now underway and that there are plans to open a DNA forensic research laboratory in Bowling Green and to support college programs in forensic science at Eastern Kentucky University. Senator Rhoads asked whether consideration could be given to supporting forensic science programs at Kentucky Community and Technical Colleges.
The next speakers were Nick Muller, the Executive Director of the Criminal Justice Council, and Deputy Secretary John Lile of the Justice Cabinet. These speakers updated the committee on the costs of the penal code study which included payments of $150,000 to professor Paul H. Robinson of the University of Pennsylvania Law School, that the penal code study had been approved by the Criminal Justice Council a week before the Judiciary Committee meeting, and responded to questions about the prosecutors and some judges leaving the penal code study group prior to its approval because of objections to the provisions of the code. Members of the committee questioned the approval process, asked how much money had been spent by the council since its creation, and questioned the necessity for retaining the council as an agency. The Justice Cabinet’s representatives stated that the council had been useful in determining criminal justice programs, court costs legislation, the Uniform Criminal Justice Information System, and the penal code study. The Justice Cabinet's representatives indicated that the council should be retained.