The 5th meeting of the Interim Joint Committee on Judiciary was held on Tuesday, November 18, 2008, at 10:00 AM, in Room 171 of the Capitol Annex. Senator Robert Stivers II, Chair, called the meeting to order, the secretary called the roll, a quorum was present, and the minutes were approved.
Present were:
Members: Senator Robert Stivers II, Co-Chair; Representative Kathy W. Stein, Co-Chair; Senators Perry B. Clark, Gerald A. Neal, Jerry P. Rhoads, Dan Seum, Katie Stine and Jack Westwood; Representatives Kevin D. Bratcher, Jesse Crenshaw, Stan Lee, Mary Lou Marzian, Darryl T. Owens, Steven Rudy, Greg Stumbo, John Vincent, Robin L. Webb and Brent Yonts.
LRC Staff: Norman W. Lawson, CSA; Ray DeBolt, Joanna Decker, Jon Grate, Carolyn Gaines, Secretary, and Andrew Howell.
The first speaker was Chief Justice John Minton, Jr. of the Supreme Court of Kentucky. At Senator Stivers’ request, each Justice of the Supreme Court of Kentucky introduced themselves and identified their respective district. The President of the Kentucky Association of Circuit Court Clerks and the Clerk of the Supreme Court were also introduced.
Chief Justice Minton began his presentation by stating that the duty of the Supreme Court is to separate itself from politics, but at the same time he wants a constructive relationship between the court and the General Assembly.
Chief Justice Minton then described the implementation of the pay improvements for Deputy Circuit Clerks authorized by 2008 HB 408. Chief Justice Minton indicated that the program authorized a one-time $3,700 increase for deputies which helped to bring clerk salaries in line with what similar employees in county government were making. Other features of HB 408 which the court has implemented include: Raising the civil filing fee and associated fees to fund court operations which has brought in $5 million and is on target; authorizing a request for proposals (RFP) to have a private collection agency attempt to collect unpaid fines, fees, and costs which are due the court system; and reported progress in the selection of a sculptor to create a bust of the late Justice McAnulty.
Chief Justice Minton next described a problem where County Attorneys were operating unauthorized traffic court and other diversion programs, charging fees, and using the funds to operate the County Attorneys offices. Chief Justice Minton described the statutory and court authorized diversion programs for felony cases and indicated that in any diversion program no funds should be paid to any outside source but should be paid to the court system directly.
Chief Justice Minton reported that during the last fiscal year that 1.23 million new cases were filed in Kentucky trial courts and that this filing level is increasing by 40,000 cases yearly and commented that this is an all time high. Chief Justice Minton observed that the operation of a fair, equitable and court system has risen from 25th priority goal to 9th priority goal in a recent report by the LRC Long Term Policy program.
Commenting on budget matters, Chief Justice Minton explained that the Court of Justice will use all of its restricted funds this year, that the impending deficit in 2011 will be $37.5 million of which $15 million in deficit relates to the opening of courthouses already authorized for construction. Chief Justice Minton explained that while the court system would like to avoid layoffs that reducing the personnel costs of the court system is one of his priorities since personnel costs involve 88% of the court budget. Chief Justice Minton commented that the court system has eliminated 73 positions at the headquarters of the Administrative Office of the Courts in Frankfort and elsewhere in the state. Additional cuts in personnel might be detrimental to such vital programs such as drug court programs and pretrial diversion programs which provide an alternative to incarceration, provide defendants with treatment, employment, and deter them from a life of further crime.
Chief Justice Minton then cited other new improvements and cost savings include an automated jury management program which selects jurors, sends notices, and pays costs in 77 counties; a felony mediation program which uses Senior Status Judges to come to a judicial circuit with high caseloads to assist in helping Commonwealth’s Attorneys and defense attorneys to arrive at plea bargains for defendants which has resulted in an 88% plea bargain rate; the introduction of an E-Pay system whereby court filing fees, costs, and other monetary fees can be paid by the Internet or by telephone; an expansion of Jefferson County’s E-Warrant system to a statewide system enabling law enforcement, prosecution, and the courts to easily determine whether a person has a warrant and which will allow judges to issue warrants through the computerized E-Warrant system by computer or I-phone, delete warrants, and make other needed changes by reducing paperwork and increasing the speed of the criminal justice system. Another improvement cited by Chief Justice Minton is the revitalization of the Judicial Council consisting of judges, legislators, lawyers, public officials, and citizens as a sounding board and strategic think tank with the goal of making the court system a model of accountability and service to the public. Chief Justice Minton commented that he wants to partner with the General Assembly to help the court system serve the public and to appear frequently before the appropriate committees of the General Assembly.
The floor was then opened for questions by members of the committee. Representative Webb praised the Chief Justice for his “Lincolnesque” style of management and then commented that she does not see a need for a felony mediation program since this matter is normally handled by direct negotiations between the defendant, defense attorney, and Commonwealth’s Attorney without the necessity for intervention by a Senior Status Judge. Chief Justice Minton responded that the criminal mediation program is not utilized in a county unless it is requested by the Circuit Judge and the Commonwealth’s Attorney. Representative Webb observed that while she is a drug court supporter that she is concerned that once a defendant enters the drug court program that the defense attorney is frequently shut out of further contact with the defendant, that this may become a due process issue, and that the client’s defense attorney needs to be a continued part of the drug court process. Representative Webb then commented that she objects to the use of Senior Status Judges to hear cases at the Court of Appeals level. Representative Webb observed that she felt that the purpose of the Senior Status Judge program was to provide a judge on an emergency or temporary basis when the normal judge was sick or injured, got indicted, or was otherwise unavailable. Representative Webb commented that she is opposed to a “hybrid” system of elected and unelected judges, that this creates the appearance of impropriety, and that nonelected judges are not accountable to the public.
Senator Stivers commented that the Drug Court program is a voluntary program entered into by a defendant with the advice of his counsel and, in his view, does not create a due process problem. Representative Crenshaw complimented the Chief Justice on his implementation of the salary increase for deputy clerks. Senator Seum indicated that he supports a team effort between the General Assembly and the court system but that actions of the General Assembly in creation of new crimes and requirements have resulted in unfunded mandates to the courts and to governments, that the government should be more tolerant of people’s lifestyles, and that attempts to criminalize stupidity breed contempt for the criminal justice system and for the court system. Senator Seum complimented the Chief Justice and the Office of Homeland Security for implementing the E-Warrant system statewide and expressed the hope that the system would reduce the backlog of unserved warrants.
Representative Yonts asked about the Request for Proposals to collect costs, how much this would return in unpaid costs, the costs of collection, the methods of collection, whether the collectors would use civil suits or criminal proceedings to collect the funds, and how the program would work. Laurie Dudgeon, Deputy Director of the Administrative Office of the Courts, responded that the RFP is initially for a few pilot counties to see how the program will work, that an 11% collection rate is anticipated, that the amount collected depends on how far back attempts to collect unpaid funds extend, that civil actions and criminal proceedings are not contemplated and that the first contracts are expected to be let in mid-December. Representative Yonts then commented that he had heard that 45 additional judges may retire by the end of the year and seek Senior Status. Chief Justice Minton observed that he feels that the number is correct, that some judges will retire and not seek Senior Status, and that the Senior Status judge program is scheduled to sunset on January 31, 2009 unless the program is extended by the General Assembly. Chief Justice Minton further observed that the judges who are retiring will place a heavy burden on the Judicial Retirement System but that the costs to the court system will remain the same because any new judge who is appointed or elected will receive the same salary and benefits as the retiring judge. Representative Stumbo indicated that he has heard rumors that there is an effort to save money by not replacing the retiring judges by not convening a Judicial Nominating Commission to give names to the Governor. Senator Stivers commented that the Chief Justice convenes the Judicial Nominating Commission in the case of a vacancy, that the Judicial Nominating Commission submits three names to the Governor, that the Governor selects a person from the list, and that if the Governor does not act within 60 days that the appointment is to be made by the Chief Justice. Representative Vincent observed that he, too, had heard that retiring judges may not be replaced and that the position would remain vacant filled by a Senior Status judge until a new judge is elected, and that a new judge would ultimately be elected as required by the Constitution. The Chief Justice responded that no decision has been made on this matter.
Representative Owens asked that if civil actions and criminal proceedings will not be used to collect monies due the court system, how will anything be collected? Ms. Dudgeon responded that ordinary collection practices will be used, that the RFP contains a code of conduct for collectors forbidding threatening civil or criminal action and similar matters. Discussion then returned to the matter of Senior Status judges and how many judges are expected to be in the program as of the end of the year to which the Chief Justice responded that he expected about 90 participants. Senator Westwood asked how many cases are traced to drug and alcohol abuse. The Chief Justice responded that he did not have an exact number but that alcohol and drugs are a factor in many civil, criminal, and family court cases, that drug intervention services are needed rather than incarceration. Senator Westwood commented that we need to concentrate our efforts on adolescents, immediate intervention, and avoiding these persons having a felony record. The Chief Justice responded that while Drug Court has been an adult program that it is now expanding to juvenile court. Senator Perry Clark asked Ms. Dudgeon if there was a program to “stifle” a backlog of cases before it became a problem. Ms. Dudgeon responded that this is one of the goals of the E-Warrant program which is being driven by the Office of Homeland Security as well as the caseload management, jury management, and other programs being implemented by the Administrative Office of the Courts to identify problems and solve them rapidly. Representative Stumbo asked if there will be enough work for 90 Senior Status judges. Ms. Dudgeon replied that this was part of the challenge of her job and that the goal of the court system was to eliminate the backlog of cases in five years.
Senator Stivers then asked the Chief Justice about the American Bar Association standards for judicial caseloads and the need to redistribute judicial positions and observed that a Circuit Judge should have an annual caseload of 700 to 900 cases while a District Judge should have an annual caseload of 3,500 to 4,500 cases. Chief Justice Minton observed that the federal government has gone exclusively to E-filing of cases and that we need to look at reallocation of assets. Senator Stivers observed that 40 to 50 years ago Harlan County had 90,000 residents, a thriving coal business, and heavy caseloads and that this is not the situation today. Senator Stivers further observed that this creates a situation which might be ripe for a suit questioning the right to due process. Senator Stivers also recommended the use of mandatory bail in misdemeanor cases, that a $500 bail bond in such cases is appropriate, but that a $10,000 bail bond designed to keep a person in jail prior to trial was not. Chief Justice Minton responded that he favors studying where and how to best use current resources, but that it will take courage to reallocate the workload, that current judicial circuit lines are a “sacred cow”, and that he would like to talk further with the Senator and the committee about the issue.
Senator Neal, Senate Co-chair of the SJR 80 Subcommittee to Study the Penal Code and the Controlled Substances Act reported on the activities of the subcommittee which held two meetings, heard from former Chief Justice John S. Palmore, Professor Robert Lawson from the University of Kentucky College of Law who was an original drafter for the Penal Code and who has recently published several studies about the code and its use, Commonwealth’s Attorneys Chris Cohron and Ray Larson, current Public Advocate Ed Monahan, former Public Advocate Ernie Lewis, Justice and Public Safety Secretary J. Michael Brown, and several other persons including interested an citizen and their varying views of the Penal Code and Controlled Substances Act and needed changes to both. Senator Neal observed that Drug Court expansion is needed, that additional alternatives to incarceration are needed, and that this is “a large task” and that many “philosophical issues’ must be resolved. Senator Neal reported that it was the view of the subcommittee that additional study was needed, that the subcommittee should be extended for at least one more year and perhaps for two years, and that if extension of the subcommittee was inappropriate that a legislative-based task force be created to continue the study and make further recommendations. Senator Neal moved and Representative Webb seconded that the subcommittee report be received and adopted by the committee. The motion passed on a voice vote. Senator Neal then moved and Representative Webb seconded that the report of the subcommittee be transmitted to the Legislative Research Commission. The motion passed on a voice vote.
The meeting was adjourned at 11:45AM.