The 2nd meeting of the Interim Joint Committee on Judiciary was held on Thursday, June 9, 2005, at 10:00 AM, in Newport on the Levee Community Center. Senator Robert Stivers II, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers II, Co-Chair; Senators Carroll Gibson, Ray S Jones II, Richard "Dick" Roeding, Dan Seum, Katie Stine, and Jack Westwood; Representatives Perry B Clark, Jesse Crenshaw, Joseph M Fischer, Stan Lee, Frank Rasche, Steven Rudy, Arnold Simpson, Kathy W Stein, and Brent Yonts.
Guests: Lieutenant Governor Steve Pence; John Rees, Commissioner, Department of Corrections; Luke Morgan, General Counsel, Justice Cabinet; Ken Schwendeman, Executive Director, Office of Legislative and Intergovernmental Services; Representative Rocky Adkins; Jim Deckard, Chief of Staff for Chief Justice Lambert; Chief Senior Status Judge William Wehr; Boone Circuit Judge Anthony W. Frohlich; Campbell Circuit Family Court Judge D. Michael Foellger; Boone District Judge Charles T. Moore; Boone County Judge Executive Gary Moore; Representative Jon Draud; Kenton County Sheriff Chuck Korzenborn; Chris Vissman, Staff Attorney, Campbell Circuit Court; Harrison and Pendleton County Circuit Judge Robert McGinnis; Kenton County Jailer Terry Carl; and Campbell County Jailer Greg Buckler.
LRC Staff: Norman Lawson, CSA; Jon Grate, Joanna Decker, Tiffany Lockhart, and Lisa Fenner.
The meeting was called to order by Chairman Stivers, the roll was called, and a quorum was present. The first speaker was Lieutenant Governor Steve Pence, accompanied by Commissioner of Corrections John Rees, Justice Cabinet General Counsel Luke Morgan, and Executive Director of the Office of Legislative and Intergovernmental Services Ken Schwendeman.
Lieutenant Governor Pence announced the appointment of a sex offender task force to study proposals for changes in the laws relating to sex offenders and their monitoring.
Commissioner Rees spoke about legislation which was proposed during the 2005 regular session. In particular, he spoke about 05 RS HB 75, which would permit inmates to labor for private industry in the prison industries program. Commissioner Rees indicated that there were 39 federally approved programs in 35 states in which inmates produce material and provide other labor for business and industry. The inmates are paid for their labor, the program must not displace regular laborers, and labor organizations must be represented on the advisory board for the program. Prisoners in the program must pay child support, restitution, and other court ordered payments from their salaries. The program in other states has produced a 13% recidivism rate, which is lower than for other prisoners serving out their sentences. Commissioner Rees indicated that the cabinet will reintroduce the legislation in 2006.
Ken Schwendeman then spoke about 04 RS HB 389, which would require an inmate to exhaust administrative remedies within the corrections system prior to filing a lawsuit against the department or its employees. Mr. Schwendeman indicated that during the past year inmates had filed 1,900 lawsuits, that 99 percent of them had failed, and that the suits took longer to come to court than if the inmates had taken their grievances through the internal appeal process.
Mr. Schwendeman then spoke about 05 RS HB 226, which was a bill relating to status offenders. It eliminated determining that a person was a status offender by an oral report and required a written report. The current statute requires an oral report and a written report and is in conflict with federal law. Mr. Schwendeman indicated that if the change is made there will be no cost increase since a written report is already required by the statute. He also indicated that additional federal funding may be available.
Mr. Schwendeman then spoke about 05 RS HB 361, which related to confidential communications between offenders and workers in sex offender treatment programs. Mr. Schwendeman indicated that this bill would most likely be a part of any comprehensive sex offender bill prepared by the cabinet for the 2006 regular session. Mr. Schwendeman also indicated that the cabinet is looking at a proposed comprehensive sex offender bill by Representative Jon Draud.
Senator Westwood questioned the advisability of having prisoners enter private personal data of persons in the prison industries program because of opportunities for identity theft and other misuse of the information. Commissioner Rees indicated that the inmates have already been used to input sensitive data for the State Police, but that the data is deconstructed in a manner that each inmate does not know what the data is. He stated that the State Police were satisfied with the services provided by the inmates.
Senator Stivers asked if Kentucky was currently certified to engage in the Prison Industries Enhancement (PIE) program. Commissioner Rees responded no and indicated that this is why the authorizing legislation is needed to engage in the federally approved program. Commissioner Rees indicated that under the PIE program the state can sell prison made goods in interstate and international commerce, whereas now they can sell prison made goods only in state. Commissioner Rees also indicated that he has already received inquiries from a firm that wishes to have prison made caskets for sale in Africa, that the state will make more money from the prison industry program, and that recidivism may go from 40 percent to 13 percent as has happened in other states. Senator Westwood asked if the inmates are represented by a labor organization and Commissioner Rees responded no.
Commissioner Rees indicated that there is a new state of the art prison industries building at the Elliott County prison facility. Representative Rocky Adkins complimented the Commissioner on opening and staffing the Elliott County facility.
The next speakers were Chief Senior Status Judge William Wehr, Boone Circuit Judge Anthony W. Frohlich, Campbell Circuit Family Court Judge Michael D. Foellger, Boone District Judge Charles T. Moore, Boone County Judge Executive Gary Moore, and Jim Deckard, Chief of Staff and Counsel for the Supreme Court of Kentucky.
Jim Deckard indicated that creating a new judgeship costs approximately $300,500 per judge and necessitates new courtrooms, offices, and additional personnel. In response to growing caseload problems, the need to provide additional judges for cases in which the judge is disqualified or otherwise cannot serve, and other similar problems, the Supreme Court created the Senior Status Judge program in which a retired justice or judge who is willing to work for an additional 600 days is entitled to a five percent retirement increase rather than a 2.75 percent rate. This program has dramatically reduced the time in handling cases because more judges are available to take care of temporary caseload spikes, reducing backlogs, and filling in for judges who must be absent. Mr. Deckard indicated that this is a great savings to the Commonwealth over the cost of additional regular judgeships. According to Mr. Deckard, the American Bar Association Standard is 800 to 1,000 cases per judge. Judge William Wehr, who is the chief senior status judge for the Commonwealth, indicated that over half of the senior status judges are in permanent positions.
Judge Anthony Frohlich indicated that he had initiated child support and paternity programs, caseload management programs, and had closed 2,000 cases, but during that same year more cases than that were opened. Judge Frohlich indicated that he has extended the civil mediation program to include felony criminal cases. This is the first such program in the state and the second in the nation. His fast track criminal case docket of 150 cases per day has been reduced to 100 cases per day through the use of the mediation program in which prosecutors, defense attorneys, and victims participate along with the defendant. Judge Frohlich indicated that the civil mediation program has reduced civil trials to eight trials per day. In order to aid in caseload processing, the judge receives jail admission data daily, uses the best students in the Chase College of Law's trial advocacy program to aid the courts, and has succeeded in recruiting two retired judges to donate their time to the criminal mediation program. One of these judges also donates time to the civil mediation program. Also, according to Judge Frohlich, felony indictments are increasing, drug court is utilized, all civil cases are mediated with an 80 percent settlement rate, there are 57 volunteer mediators for civil cases, and all have had 40 hours training in mediation.
Senator Seum indicated that there are 250,000 unserved criminal warrants statewide of which 16 percent are for felonies. He stated that in Jefferson County alone, there are 51,000 unserved criminal warrants of which 25 percent are for felonies.
Senator Stivers observed that the court system is not equitable throughout the state. He stated that in some counties you may get a trial and in others you may not, and with eight trials per day, if you miss a trial date, it may be months before another date comes open. Senator Stivers further observed that some day an attorney might go to court and get the entire system declared unconstitutional on the grounds that persons throughout the state are being denied equal protection. Senator Stivers observed that juvenile hearings must be conducted in 48 hours and asked if these could be done by video teleconferencing. He also asked if alternative dispute resolution in civil and criminal cases could be expanded. Judge Frohlich indicated that major civil case trials are already backed up until April of 2006.
Boone County Judge Executive Gary Moore indicated that population in the county is growing and is now 103,000, and is expected to be 180,000 in a few years, but that these figures do not tell the entire story because of the day population in the county due to worksites, the airport, and tourism. He stated the jails are overcrowded, the jail stays are longer, and there are not enough judges to handle the caseload. He also stated that jail expenditures are the responsibility of the county and are increasing.
Representative Yonts asked Jim Deckard if the court system really needed more circuit judges instead of family court judges. Mr. Deckard responded that family court judges reduce the caseload of both the circuit court and the district court. Mr. Deckard continued by saying the Senior Status Judge Program is costing the state a total of $420,000 per year and has been very successful in reducing caseloads. He also stated that if a regular circuit judgeship is saved in a county for three years, that is a savings of $900,000 just for that one judge. Judge Wehr indicated that new judges, whether senior status or regular, also require increases in the number of prosecutors, public advocates, court rooms, security staff, and clerks.
Discussion then turned to the use of domestic relations commissioners who hear domestic relations cases and then recommend actions to the circuit judge or district judge. Domestic relations commissioners charge for their services and several members observed that the use of a domestic relations commissioner may be unconstitutional. Some counties have domestic relations commissioners while in other counties, particularly in those with family courts, they do not. The litigants take their cases directly before the judge and there is no extra cost. The filing fee covers the entire process. Several members thought that this was unfair.
Senator Stivers observed that what might be needed is recircuiting, moving existing judgeships from counties with small caseloads to counties with larger caseloads. Senator Stivers cited the situation in Bell County, a single county circuit, which used to have a population of 60,000 people, but now has a population of 30,000 people and a significantly reduced caseload. Senator Roeding urged the committee to look at the daytime population of the county when assigning judges since Boone County has a daytime population twice that of the nighttime population. Senator Stine indicated that she was "incensed" that constituents are being denied justice and urged adjusting judgeships according to population and caseload. Senator Stivers indicated that recircuiting may also involve changing Commonwealth's attorneys since there is one Commonwealth's attorney for each judicial circuit. He also indicated that there are still a number of four-county circuits in which the judge must spend a large amount of the time traveling between courthouses and home. Jim Deckard indicated that any justice or judge, active or retired, may serve anywhere in the state and that regional programs for judge assignment and the senior status program have been utilized to equalize caseloads. Upon being asked if more judges are needed, Mr. Deckard responded yes. Senator Jones indicated that it was his opinion that more judges are mandatory and that county and Commonwealth's attorneys are having to wait eight to 10 months for a trial date in criminal cases if the case must be reassigned.
District Judge Charles Moore indicated that Boone County sheriff's deputies issued 700 citations on the Memorial Day weekend. He stated these cases will need to be disposed of and that his court already uses small claims mediation, cold check mediation using a pretrial services officer, which recovered $100,000 in restitution plus court costs, but is still not keeping up with the ever increasing caseload.
Family Court Judge Foellger, observing that "parents are forever", indicated that many family court cases continue forever and that he has some cases that are 25 years old. Judge Foellger's family court has 2,000 filings per year, with 6,000 hearings per year, which represent child custody matters, abuse, neglect, and child support as typical cases.
Senator Stivers indicated that there are many other factors which influence caseload. Pulaski County's district court has a huge caseload representing recreation and travel because of lakes, boating, fishing, and travel on I-75. Senator Stivers further indicated that counties during the past year spent $150 million on local jail costs, that many of these costs were incurred by prisoners awaiting trial, and that speeding up the judicial system would materially reduce the amount of money counties had to spend on jails. County Judge Executive Gary Moore indicated that health care costs for housing prisoners were increasing rapidly and that some prisoners were taking advantage of the free health care which jails provide. He cited a case in which a pregnant woman from Ohio violated her parole, was jailed in Boone County, and the county wound up paying for the delivery and the cost of caring for the baby.
The next speakers were Representative Jon Draud, Kenton County Sheriff Chuck Korzenborn, and Senator Westwood. Representative Draud presented a section by section summary of a proposed sex offender bill on which he is working. The bill provides that selected sex offenders would be on parole for life, that they would be subject to monitoring, restrictions on movement and residence, and various other conditions. The bill also calls for law enforcement verification of sex offender residence and public notification as to where sex offenders reside, which would be updated as an offender moves or a new offender moves into the community. Representative Draud indicated that he is considering jointly introducing the bill with Senator Westwood and that he has presented the bill to the Lieutenant Governor and the Justice and Public Safety Cabinet for consideration and recommended change. Senator Stine asked Representative Draud if he was working with the Lieutenant Governor on the legislation and Representative Draud responded yes. Sheriff Korzenborn indicated that he favored the provisions in the bill, that his department and other departments in Northern Kentucky had recently voluntarily introduced a sex offender residence verification program, but that he was worried about the increased costs which law enforcement might face in administering the bill. Senator Roeding indicated that he favored the bill but was also concerned about the additional cost.
Judge Wehr and Chris Vissman, staff attorney for Campbell Circuit Court, described their community corrections program which is funded through grants from the Department of Corrections. The program is funded for $600,000 statewide and includes 12 such programs. The program, which was initiated by Judge McGinnis in his county and has spread throughout the state, operates like drug court but involves persons with charges such as flagrant nonsupport, and other nonviolent offenses. There is one community corrections officer in Campbell County and the program costs approximately $20,000. The community corrections officer supervises the participants in the program who must have and maintain a job, pay child support, pay taxes, earn a high school diploma or GED if they have none, and participate in alcohol and substance abuse programs and testing. The program has saved the county $1 million in incarceration costs as explained by Judge Wehr and Ms. Vissman. According to Judge Wehr, only two persons have been terminated from the program for violating of the conditions of the program. Circuit Judge Robert McGinnis indicated that his program has had 94 persons in the program and has had no increase in costs to the state. He further indicated that the Department of Corrections has attempted to eliminate the program but he hopes that it can be expanded rather than eliminated. Judge Wehr indicated that he wants to expand the program to include felony pretrial detainees. Senator Westwood asked if the $1 million incarceration cost savings also included the medical cost savings. Judge Wehr indicated that medical costs were not included in the figure. Representative Fischer asked that if the amount of money for the program was doubled, could Judge Wehr find enough clients to fill the program. Judge Wehr responded yes. Senator Stivers asked if sexual or violent offenders were considered for the program and Judge Wehr responded no.
The next speakers were Campbell County Jailer Greg Buckler and Kenton County Jailer Terry Carl. Jailer Buckler indicated that there has been an influx of inmates, that the average daily inmate population has increased by 32%, that the population of the county is increasing, that recreation in the area is increasing, and that there are 25 more police making arrests than just a few years ago. Jailer Buckler also observed that the Campbell County Jail is only 14 years old and is regularly overcrowded. The jailers indicated that this problem is replicated on a statewide basis and that 61 jails are overcrowded and that many others are within 10 beds of capacity. Jailer Carl indicated that his jail had a design capacity of 358 beds and now has 487 prisoners, 76 of which are misdemeanants and the others are felons. According to the jailers, jail costs in Kenton County are $7.3 million per year and $3.2 million in Campbell County. Jailer Buckler indicated that Campbell County has just opened a restricted custody center to take some of the pressure off of the jail population for the housing of less dangerous inmates.
Judge Wehr described the new justice center which it is hoped can be built in Campbell County. The original proposal was for a $30 million entirely new facility but the present proposal is for a $20 million expansion of the existing Campbell County Circuit Court building. Judge Wehr indicated that the proposal has received a favorable recommendation by the Administrative Office of the Courts and has made it to the top five courthouse funding recommendations in the past General Assembly but was not funded.
The meeting was adjourned at 12:30 PM.