The 4th meeting of the Interim Joint Committee on Judiciary was held on Tuesday, October 18, 2005, at 10:00 AM, in Room 149 of the Capitol Annex. 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; Representative Gross C. Lindsay, Co-Chair; Senators Carroll Gibson, Richard "Dick" Roeding, Katie Stine, and Jack Westwood; Representatives Kevin D. Bratcher, Perry B. Clark, Jesse Crenshaw, Stan Lee, Darryl T. Owens, Frank Rasche, Steven Rudy, Arnold Simpson, Kathy W. Stein, Robin L Webb, and Brent Yonts.
Guests: Robert W. McGinnis, Chief Regional Circuit Judge, 18th Circuit; Chief Justice Joseph E. Lambert, Supreme Court of Kentucky; Jason Nemes, Chief of Staff and Counsel, Supreme Court of Kentucky; Melinda Wheeler, Director, Administrative Office of the Courts; Scott Jones, Chief of Staff, Office of the Speaker Pro Tem; Jim Jacobs, Issues Specialist on Grandparenting, American Association of Retired Persons (AARP).
LRC Staff: Norman Lawson, CSA; Jon Grate, Katie Coyle, Tiffany Lockhart, and Lisa Fenner.
Chairman Stivers called the meeting to order. The roll was called and a quorum was present. The minutes of the September meeting were approved.
The first speaker was Circuit Judge Robert McGinnis, who spoke about the benefits derived from the ten community corrections programs currently operating in the state. Judge McGinnis stated that each of the ten programs operate differently, but that the program in his circuit is designed to provide alternatives to incarceration for persons who ordinarily would not be granted probation. The program involves home incarceration, intensive supervision, restitution for damages done, payment of child support, and public work. There are 40 persons in the program and the success rate is 50 percent. Judge McGinnis indicated that after expenses are deducted, the program saves the counties in his judicial circuit, and the state for prisoners who would have gone to prison from his judicial circuit, approximately $230,000 per year in costs of incarceration. On a statewide basis, the program costs $262,956 and saves the state and counties $1,867,474, and according to Judge McGinnis there are additional benefits because the offenders remain employed, must pay child support or restitution, undertake counseling and treatment as necessary, and in some cases do public labor. Judge McGinnis indicated that the need to have participants engage in regular employment to pay child support and restitution has reduced the amount of community labor in his program. Another problem cited by Judge McGinnis was the difficulty in obtaining jobs for participants in the program because of a general loss of jobs in the area of his judicial circuit.
Representative Kathy Stein commented that in some areas of the state Commonwealth's attorneys oppose the program and asked if Judge McGinnis' Commonwealth's attorney was in support of the program. Judge McGinnis replied that the Commonwealth's attorney was in support of the program and was, by statute, a member of the community corrections board. Judge McGinnis observed that some Commonwealth's attorneys oppose the program as being too lenient and believe that confinement is the proper sanction. Judge McGinnis indicated that, under the community corrections program, if a person failed, they can still be locked up but there are greater benefits if they successfully complete the program. Judge McGinnis indicated that the program has been set at $600,000 for the past five years and that the program is state funded. Judge McGinnis indicated that the Department of Corrections had opposed continuing funding of the program. Representative Webb indicated that Commonwealth's attorneys and child support personnel are coercing parents, mainly fathers, into signing child support agreements saying that it is a civil matter, only to have the agreeing parent face criminal charges for nonpayment shortly thereafter.
Several members of the committee suggested that Judge McGinnis present the successes and needs for the community corrections program to the Appropriations and Revenue subcommittee on Justice and the Judiciary.
Chairman Lindsay asked if the costs of ankle bracelets were paid by the program or by the participants. Judge McGinnis responded that in most of the programs that use ankle bracelets, the participant must pay the cost, but that in his circuit participants are monitored by telephone calls and home visits rather than electronic monitoring.
In Northern Kentucky, Judge McGinnis indicated a program called Transitions uses its community corrections money for drug testing and drug treatment.
Representative Yonts asked if participants in Judge McGinnis' program doing public service wore orange jumpsuits. Judge McGinnis replied no.
Representative Stan Lee asked what constituted a participant in the program being "unsuccessful". Judge McGinnis responded that it could include nonpayment of child support, nonpayment of restitution, being convicted of driving under the influence, being charged with a new crime, and similar failures. When asked if drug testing was a part of the program, Judge McGinnis responded that if drugs were a problem that drug testing was used.
When asked if there were written guidelines for the program, Judge McGinnis responded that there were both statutes and written guidelines for the program. Representative Owens asked what constituted success for a program and how success was measured. Judge McGinnis responded that this is measured both by the local community corrections board and the state community corrections board, following a review of the program and its statistics.
Chairman Stivers asked Judge McGinnis if he could provide the committee with information as to which programs were utilized by each community corrections board throughout the state and Judge McGinnis agreed. When asked about who is eligible to participate in the program, Judge McGinnis responded that the program is designed for persons who would not ordinarily be granted probation, but that violent offenders, most sex offenders, and persistent felony offenders are not permitted in the program.
The next speaker was Chief Justice Joseph E. Lambert of the Supreme Court of Kentucky. He was accompanied by Melinda Wheeler, Director of the Administrative Office of the Courts, and Jason Nemes, Chief of Staff and Counsel for the Supreme Court. Chief Justice Lambert indicated that he had no prepared remarks but was prepared to answer questions from committee members.
Chairman Lindsay commented on the successes of family courts and asked what changes the Chief Justice might recommend for family courts. Chief Justice Lambert responded that in 1998, family courts covered only 25 percent of the population of Kentucky and now they cover 75 percent of the population. The Chief Justice announced that the court will recommend the creation of an additional family court position in Kenton Circuit Court, but that this would be accomplished by realignment of existing judgeships. The Chief Justice observed that it is increasingly difficult to justify additional judges in some single county circuits in order to create a family court, but that he is considering a new plan under which several single county circuits or multi county circuits could be combined into a new special circuit covering the boundaries of two or more existing circuits for family court purposes. A new judge would be elected to serve this new multi county judicial circuit.
According to the Chief Justice, a typical new circuit might be created in Harlan and Bell counties, which are currently single county circuits that are contiguous, have good roads between them, and which individually cannot justify an additional family court judge. Chief Justice Lambert indicated that a similar system is already in use in Knott and Magoffin counties where the family court judge from Floyd County has been assigned to cover Knott and Magoffin counties as well. The Chief Justice acknowledged that there have been some comments that the people in Knott and Magoffin counties are being served by a judge whom they did not elect, but that the new proposal would eliminate this problem because the people in the counties of any new multi county family court circuit would elect the judge. The existing circuit clerks, county attorneys, and Commonwealth's attorneys would continue to serve the counties from which they were elected. Upon questioning, the Chief Justice indicated that it may be necessary to delay some family court circuit implementations to coincide with judicial elections.
Chairman Lindsay, Representative Stan Lee, and several other members asked if the Chief Justice had considered a general redistricting of the circuit courts and district courts to eliminate discrepancies in judicial caseloads. The Chief Justice replied that he had considered it for some time but had felt that it would be difficult to accomplish. The Chief Justice cited an attempt at recircuiting the court system undertaken by former Chief Justice Robert Stephens, which Chief Justice Lambert characterized as a "sterling failure". Chief Justice Lambert indicated that recircuiting, although needed, was a "hugely difficult thing" which involved political and practical considerations, and involved not only circuit and district judges, but Commonwealth's attorneys as well since Commonwealth's attorneys are elected by judicial circuit.
Representative Webb indicated that although there was adequate staff for the family courts, there was insufficient staff for the circuit courts and district courts. The Chief Justice responded that it was determined from the beginning that family courts would survive only in a "staff rich environment" and that this was provided from the outset, but that he recognized that additional staff were also needed for the circuit and district courts. Representative Webb also observed that in some family courts persons who are not attorneys are being used as mediators.
When asked about other potential multi county family court circuits, the Chief Justice mentioned Bell and Harlan counties, Perry and Letcher counties, and Knott, Magoffin, and Floyd counties.
Representative Stan Lee asked who had the responsibility for redistricting of the courts, to which the Chief Justice replied it was the General Assembly. Chairman Lindsay observed that under Sections 112 and 113 of the Constitution of Kentucky that recircuiting can be accomplished by the General Assembly only upon the issuance of a certificate of necessity therefor by the Supreme Court of Kentucky.
Representative Stan Lee asked if recircuiting would save money, to which the Chief Justice replied yes. The Chief Justice then commented that it would be better for the General Assembly to recircuit only to solve the most pressing caseload problems rather than to recircuit all circuit and district courts. Representative Stan Lee asked that the committee study recircuiting of the courts.
Senator Roeding spoke of the increasing population, increasing transient daytime population, and other factors in Boone county which have greatly increased the caseload of the courts in Boone County. He then asked that the Chief Justice consider additional judges in both the circuit court and district court. Chief Justice Lambert responded that the court will recommend a family court judge for the Boone and Gallatin circuit, as caseloads are also increasing in Gallatin county as well. The Chief Justice continued with an explanation of how two senior status retired circuit judges have been utilized in Boone County to assist in handling the increasing caseload in the county. Senator Roeding thanked the Chief Justice for recommending an additional circuit judge, but asked the judge to consider an additional district judge due to the increased caseload in the district court as well.
Chairman Lindsay asked about situations where mediators are being required in the family court at additional expense to the litigants when the General Assembly had forbidden the use of domestic relations commissioners. The Chief Justice responded that in some family courts, mediators who are paid staff of the court are being utilized, but that he had learned that in Jefferson County outside mediators are being heavily utilized at additional expense to the litigants. The Chief Justice described the use of outside mediators for which the litigants must pay as "bad practice".
Chairman Stivers observed that in some counties there are only 400 to 500 cases per judge, while in other counties there are 2,000 cases per judge. He stated that in some counties litigants are entitled to the services of the courts by paying only the filing fee with other services free, while in other circuits they must pay extra for outside domestic relations commissioners and mediators. Chairman Stivers commented that this situation is inequitable, that in the future some attorney might file a suit claiming that the people were not receiving equal protection of the law, and that this might cause grave problems. Chief Justice Lambert observed that the use of domestic relations commissioners has been prohibited by statute in counties where there is a family court, but that in other counties, even though it would be a good idea to abolish domestic relations commissioners, that it is not feasible until we can get more judges. The Chief Justice indicated that he has made liberal use of judges who have lower caseloads to hear cases in other parts of the state where there are higher caseloads, and that the judges with lower caseloads have been most cooperative in this effort.
Representative Webb observed that there are increasing caseloads in the Court of Appeals as well, and asked if the Chief Justice felt that additional judges were needed for the Court of Appeals. The Chief Justice responded that additional judges were not needed at this time, that one judge is elected to each district and that seven new Court of Appeals Judges would thus be elected, and that caseload did not yet require seven new judges. The Chief Justice indicated that as a temporary solution to the problem, he has assigned three recently retired Court of Appeals judges as senior status judges to assist the Court of Appeals with its increasing caseload. Under the plan, one senior status judge is added to an active two judge panel to make the three judge panel for the hearing of cases. This has the effect of adding one additional panel of judges to the court.
The next speaker was Scott Jones, Chief of Staff in the Office of the Speaker Pro Tempore, who spoke about 06 RS BR 113, which has been prefiled by Representative Larry Clark relating to kinship care and grandparents rights. Mr. Jones was accompanied by Mr. Jim Jacobs, Issues Specialist on Grandparenting for the American Association of Retired Persons. Mr. Jones indicated that the bill was introduced at the 2005 Regular Session and passed the House of Representatives by a vote of 96-2, but died in the Senate due to lack of time. Mr. Jones described the bill as having three sections. The first section creates the Kincare Support Program in the Cabinet for Health and Family Services with a toll free number by which caregivers can access state services. Sections two and three provide for informal custody arrangements for grandparents and non-family adults for enrolling children in school and for medical care consent purposes. Mr. Jones indicated that the bill may positively affect 70,000 grandparents and other persons who have existing informal custody arrangements for children. Chairman Lindsay asked whether a portion of the bill which eliminates civil liability, criminal liability, or professional discipline liability for persons who in good faith rely on a care agreement was constitutional and observed that such provisions had been declared unconstitutional in the past.
Senator Roeding asked that the provisions of the bill be broadened to include pharmacy services to which Mr. Jones replied that he thought that this was a good idea and could be done.
Senator Westwood observed that the medical care provisions indicating that treatment could be given without or against parental consent "for a medical condition that, if left untreated, could reasonably be expected to substantially threaten the health or life of the minor" was too broad and could perhaps permit an abortion or other treatment, and could be interpreted to include the mental as well as physical health of the child. Senator Stine then observed that a dad's live-in girlfriend can give permission for an abortion under the provisions. Mr. Jones indicated that other states which have kinship care provisions exempt permission for abortions and that he had no objection to adding this provision to the bill.
Representative Kathy Stein indicated that she will propose reintroduction of her bill from the 2005 Regular Session which made it a Class D felony to warn a nursing home, or similar care facility, of an unannounced inspection. The only change in the bill will be to reduce the penalty from a Class D felony to a Class A misdemeanor.
Chairman Stivers called the attention of the committee members to the Kentucky Court of Appeals opinion in the case of Creed and Sadie Webb et. al. v. City of Newport, which relates to the taking of land by the City of Newport in the Cote Brilliante development. The opinion was issued on September 30, 2005.
The meeting was adjourned at 11:40 a.m.