The 3rd meeting of the Interim Joint Committee on Judiciary was held on Tuesday, September 20, 2005, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Gross C. Lindsay, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers II, Co-Chair; Representative Gross C. Lindsay, Co-Chair; Senators Carroll Gibson, Ray S. Jones II, Ernesto Scorsone, Dan Seum, Katie Stine, and Jack Westwood; Representatives Perry B. Clark, Joseph M. Fischer, Stan Lee, Darryl T. Owens, Frank Rasche, Steven Rudy, Arnold Simpson, Kathy W. Stein, John Vincent, Robin L. Webb, Rob Wilkey, and Brent Yonts.
Guests: Sylvia Lovely, Executive Director/CEO, William Thielen, General Counsel, Kentucky League of Cities; Tim Nolan, Former Campbell County District Judge and City Attorney; Norman Davis, President, Take Back Kentucky; Lloyd Rogers, League of Kentucky Property Owners and former County Judge Executive from Campbell County; Osi Onyekwuluje, Attorney from Bowling Green; Theresa Camariano, Attorney from Louisville; Brett Gaspard, President, League of Kentucky Property Owners; Teena Halbig, Co-chair, Floyd Fork Environmental Association; Greg Nichols, citizen from Jefferson County; Lieutenant Governor Steve Pence, Secretary, Justice and Public Safety Cabinet; Ken Schwendeman, Executive Director, Office of Legislative and Intergovernmental Services, Justice and Public Safety Cabinet; Representative Joni Jenkins; Representative Rick Nelson; Representative Marie Rader; Representative Ron Crimm; Attorney General Greg Stumbo; Tami Stetler, Assistant Attorney General, Criminal Appellate Division, Office of Attorney General; Peter O. Samples, Pendleton County Detective, Pendleton County Attorney's Office; Representative Scott Brinkman; Trey Grayson, Secretary of State; Thomas Rutledge, Ogden, Newell & Welch PLLC, Louisville; Allan W. Vestal, Dean, University of Kentucky School of Law; Amy Barker, Assistant General Counsel, Department of Corrections; Luke Morgan, General Counsel, Justice and Public Safety Cabinet.
LRC Staff: Norman Lawson, CSA; Jon Grate, Katie Coyle, Tiffany Lockhart, and Lisa Fenner.
Presiding co chairman Representative Gross Lindsay called the meeting to order, the roll was called, and a quorum was present. The minutes of the April 14, 2005 meeting were approved and then the minutes of the June 9, 2005 meeting were approved.
Chairman Lindsay observed that Kentucky statutes relating to taking of private property which is designated as blighted or as a slum for private development purposes utilizing eminent domain is similar to the Connecticut statute approved by the Supreme Court of the United States in the case of Kelo v. City of New London. Chairman Lindsay further observed that the members of the committee have indicated that they want a change in the law.
The first speakers were Sylvia Lovely and William Thielen of the Kentucky League of Cities. Mr. Thielen indicated that the Supreme Court of the United States found that economic development was a legitimate public purpose justifying the use of eminent domain, pursuant to the Fifth Amendment to the Constitution of the United States. Mr. Thielen further indicated that in the case of Owensboro v. McCormick, the Supreme Court of Kentucky, in construing the Kentucky Industrial Finance Authority Act of 1979, ruled that viable private property cannot be taken by eminent domain and then given for private purposes, with exceptions for takings of blighted and slum areas.
Chairman Lindsay observed that Bowling Green and Newport had taken private property for economic development by terming the areas blighted. Chairman Lindsay observed that he was offended by the practice.
Representative Fischer asked Mr. Thielen who decided to take the private property in such cases, to which Mr. Thielen replied that this is usually done by the planning commission in cooperation with the local legislative body. Mr. Thielen then suggested that the legislature codify the principles of the Owensboro v. McCormick case.
Representative Wilkey informed the committee that he has a proposal relating to the use of trained appraisers, rather than ordinary citizens, to determine the value of property to be taken by eminent domain.
Senator Stivers observed that the amount set by the three person commission be deposited in an escrow account to gain an immediate right of entry to the property, and that the property owner be compensated for his or her attorney fees in addition to the judgment if the amount awarded by a jury trial was 20% or more higher than the appraisal.
Senator Seum indicated that in the City of Louisville's takings of private property for the expansion of the Standiford Field Airport which was later sold to private developers, the United States District Court fined the city $11 million for improperly taking the property. The end result was that the people of Louisville had to pay for the initial taking of the property and the fine of $11 million, while the developers had to pay nothing extra.
The next speakers were Tim Nolan, former district judge and former city attorney from Campbell County, and Norman Davis of Take Back Kentucky. Mr. Nolan asked that the General Assembly repeal KRS Chapter 99 in its entirety, because KRS Chapter 99 allows the taking of private property in areas determined by government to be blighted or slum areas. Mr. Nolan indicated that in the Newport Cote Brilliant development, the city allowed the streets and the sewers in the area to become deteriorated. They then used the determination of blight to take the houses in the area for sale to a private developer, despite the fact that it was the city's duty to maintain the streets and the sewers. Mr. Norman Davis observed that in this case the threat of eminent domain created further blight. Mr. Thielen responded that the League of Cities favors retaining the statute without any changes.
The next speaker, Mr. Osi Onyekwuluje, an attorney from Bowling Green, suggested that KRS 416.540 be amended to change the public use definition to restrict public use in eminent domain cases to the traditional role of government. Mr. Onyekwuluje further indicated that we do not want a Kelo case in Kentucky, and that if KRS Chapter 99 is retained, it should be amended to deal with voluntary sale of property only and eliminate the use of eminent domain under the chapter, because the use of eminent domain disfavors the public.
Senator Stivers then asked what should government do about pieces of property which are legitimately blighted, to which the reply was that the government can use its ordinary police power, public nuisance statutes, or voluntary purchase. Mr. Nolan indicated that governments sometimes go in and repair the property and clean it up, send a bill to the property owner, and place a lien against the property. Representative Wilkey observed that cities use blight as a pretext to take private property for development purposes.
The next speaker, Brett Gaspard, President of the League of Kentucky Property Owners, asked the committee to consider a subcommittee to consider the eminent domain proposals.
The next speaker, Ms. Teena Halbig of the Floyd Fork Environmental Association in Jefferson County, asked the committee to prohibit the Jefferson County Sewer District and other districts from using recapture agreements where the district basically hands the power of eminent domain to a private developer. Ms. Halbig observed that in such situations frequently the roads built by the developer are not up to standard, water pressure is adversely affected because of additional development, and the public has to pay for repairs or expansion of other systems within a short period of time.
The next speaker, Mr. Greg Nichols, spoke of a situation were a developer of an adjoining property wanted to run a sewer line through a wooded area of his property, rather than down the side of the developer's property. Because the line across the non-developed property would be shorter, the developer would then have additional land on his property because a sewer line was not being run on the developer's property. Although the Metropolitan Sewer District had no development rights or easement on Mr. Nichols' property, the developer threatened to use MSD's eminent domain rights to condemn the easement. Mr. Nichols went to court and won against the developer and the sewer district, but was left with all of the court costs and attorneys fees.
The next speakers were Lieutenant Governor Steve Pence and Ken Schwendeman, Executive Director of the Office of Legislative and Intergovernmental Services of the Justice and Public Safety Cabinet. Lieutenant Governor Pence informed the committee of the information and legislative proposals which had been presented at forums throughout the state to seek public input into what should be done with regard to sex offenders. Lieutenant Governor Pence indicated that the Justice and Public Safety Cabinet has no proposals at this time, but that proposals made to the task force which he created include: making possession of child pornography a felony, requiring sex offenders to remain in treatment after release during their entire period of registration, mandatory increased sentences for repeat offenders for forcible rape, castration of sex offenders, lifetime supervision for more offenders, and improvements in registration and monitoring.
Representative Webb indicated a concern that prosecutors are threatening defense attorneys representing persons in child pornography cases.
Representative Stan Lee asked if any states use castration for sex offenders. Lieutenant Governor Pence replied that some states mandate castration, and that in others it is voluntary, but that in all cases castration is used in addition to the ordinary penalties for the offense.
Representative Lindsay observed that there are many sex offender proposals from various sources, and that those persons desiring sex offender legislation should compromise and introduce only one bill rather than competing proposals. Senator Stivers indicated that he too favors the single bill approach and urged sponsors to compromise on a single proposal.
Representative Joni Jenkins indicated that she is sponsoring a bill proposed by Attorney General Greg Stumbo. Attorney General Stumbo indicated that his proposal is aimed at closing loopholes in the present sex offender registration and management statutes. He further indicated that he agrees with the submission of one bill. The features of the bill include: increasing the penalty for failure to register as a sex offender or for providing false information, quarterly verification of sex offender residence for all registrants, harboring a person who has failed to register as a sex offender, and creation of a duty for sex offenders to find out whether or not they are living within 1,000 feet of prohibited facilities.
Representative Webb indicated that she has concerns about sex offenders who move from state to state to work, or who do not actually know that when they move to a new state, they are supposed to register in that state.
Representative Marie Rader indicated that she is the sponsor of 06 RS BR 63, which would require the Criminal Justice Council to study sex offender registration and make a report to the General Assembly, place automated fingerprint identification equipment in probation and parole offices, increase penalties for sex crimes against persons under 12, criminalize harboring sex offenders or lying about their residence, and provide for closer monitoring of offenders.
Representative Crimm indicated that he is the sponsor of 06 RS BR 201, which would amend KRS 439.3401 to add persons convicted of sexual abuse and criminal abuse of persons under 12 as violent offenders who must serve 85% of their sentence before being eligible for parole. Representative Crimm also indicated that he wanted to prohibit prosecutors from amending more serious sex offense charges to lesser offenses. Representative Webb observed that prosecutors generally will amend charges to lesser offenses when the police do not have enough evidence for conviction of the person for the higher offense.
Representative Nelson indicated that he is the sponsor of 06 RS BR 48, which would require a sex offender moving into the community to register with the sheriff and pay a fee, require the school district in the county to publish sex offender photographs and registration information in newspapers annually, and update the information as new offenders register.
Mr. Peter Samples, a county detective in the Pendleton County Attorney's Office, spoke of a case in which he has initially convinced a court to prohibit a sex offender who is not on probation or parole to be restricted from living within 1,000 feet of a prohibited facility, because the offender is required to register as a sex offender and that constitutes "supervision" under the law. Mr. Samples indicated that he had an affidavit from the sponsor of the amendment that it was the sponsor's intent that such persons not live close to prohibited facilities. Mr. Samples suggested that a sex offender be prohibited from living near a prohibited facility during any period of registration and that language relating to probation, parole or other forms of supervision be deleted from the law. Representative Lindsay commented that the intent of the General Assembly is determined by the courts, and not by affidavits, and that the proposal to require sex offenders not to live within 1,000 feet of prohibited facilities is included in several of the proposals already discussed.
The next speakers were Secretary of State Trey Grayson, Tom Rutledge of the Kentucky Bar Association's committee on corporate law, and Allan W. Vestal, Dean at the University of Kentucky College of Law, who spoke of proposals to replace current laws relating to limited liability corporations, combining various statutes into one combined set of laws, and replacing the current partnership law with the Revised Uniform Partnership Act. Representative Lindsay observed that the last time the General Assembly dealt with limited liability partnerships, loopholes in the law resulted in the loss of tax revenues to the state. Mr. Rutledge replied that the loophole had been closed with the passage of the Tax Modernization Act, and that the new proposals retained the current law as it is with regard to taxation.
The next speakers were Ms. Amy Barker, Assistant General Counsel for the Department of Corrections, and Ken Schwendeman, Executive Director of the Office of Legislative and Intergovernmental Services of the Justice and Public Safety Cabinet. Ms. Barker spoke of a desire to further amend a proposed administrative regulation of the Department of Corrections relating to inspection of public records. 501 KAR 6:020 was amended at the Administrative Regulations Review Subcommittee to reflect differences between KRS 61.880, which gives the department five days to either grant or deny a request for public records, and KRS 61.872, which gives agencies three days to tell a requester that an agency does not possess a public record and inform the requester which agency has the record. Ms. Barker wanted the committee to amend the administrative regulation to make the five day period uniform. Chairman Lindsay indicated that the committee does not have the authority to give preference to one statute over another and suggested that the Justice and Public Safety Cabinet prepare legislation for the 2006 Regular Session of the General Assembly to solve the problem. Mr. Ken Schwendeman agreed to the suggestion and no action was taken on the administrative regulation.
The meeting was adjourned at 12:00 p.m.