The 5th meeting of the Interim Joint Committee on Judiciary was held on Friday, November 6, 2009, at 1:00 PM, in Room 171 of the Capitol Annex. Representative John Tilley, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Mike Reynolds, Jerry P. Rhoads, and Jack Westwood; Representatives Johnny Bell, Jesse Crenshaw, Kelly Flood, Stan Lee, Harry Moberly Jr., Darryl T. Owens, Tom Riner, Steven Rudy, and Brent Yonts.
Guests: Larry Bland, Barkley FOP; Amanda Crenshaw, Lucas Brummitte, Jamie Lawrence, Jennifer Matthews, Kris Knickelbien, and Eugene Gross, AFSCME; David Hudson, Sharon Currens, and Ann Perkins, Kentucky Domestic Violence Association; Ernie Lewis, Kentucky Association of Criminal Defense Lawyers; Douglas Morris, Kentucky Justice Association; and Mary Lee Underwood, Kentucky Association of Sexual Assault Programs.
LRC Staff: Norman W. Lawson, Jr., CSA, Ray DeBolt, Jon Grate, Joanna Decker, Christy May and Rebecca Crawley.
Representative Tilley called the meeting to order, the roll was called, and a quorum was present. The minutes were approved with a technical change on page 4, 3rd paragraph, 2nd sentence, to read “A ‘traditional’ Circuit Judge operates in a circuit court but does not have duties assigned to a family court judge.” Representative Yonts moved and Representative Floyd seconded a motion to accept the report of the Subcommittee on the Penal Code and Controlled Substances Act and transmit the report to the Legislative Research Commission. The motion was approved on a roll call vote of 15-0.
The first speaker was Representative Greg Stumbo, who discussed 10 RS BR 251, the Amanda Ross Domestic Violence Prevention Act. Representative Stumbo explained the impetus for the bill was to find a better solution for protecting domestic violence victims after the tragic events in Lexington which resulted in the death of Amanda Ross. Representative Stumbo indicated that his wife is involved with Carol Jordan from the University of Kentucky in fundraising efforts relating to domestic violence prevention and response. Representative Stumbo indicated his bill is needed to help provide security and peace of mind to domestic violence victims who feel threatened and that every day at least three women on average are killed nationally because of domestic violence.
Representative Stumbo explained his bill would use electronic monitoring devices to provide real-time warning to victims, apply in domestic violence orders, be issued at a judge’s discretion using risk assessment provided by law enforcement, be paid for by offenders, have an estimated cost of $7-14 per day, and that removing or tampering with the device would be a Class A misdemeanor for the first offense and a Class D for subsequent offenses. He stated under his proposal, the offender would be required to wear a GPS ankle bracket, and the victim would be offered the opportunity to carry a similar GPS device that would indicate when the offender had breached the victim’s security zone. Representative Stumbo indicated that a private assessment of the alleged assailant in the Amanda Ross case using a risk assessment instrument with 12 categories, met 8 categories, which would have placed the alleged assailant in the electronic monitoring category. He stated that tracking and monitoring could be done throughout Kentucky, but that notification of victims may be limited in 40 counties.
Representative Lee asked what would happen if the defendant violated the exclusion zone unintentionally. Representative Stumbo explained the monitoring device includes a “buffer zone” to warn the defendant and the victim, that the defendant has the opportunity to leave the area without entering the exclusion zone, and that if the defendant is at home and the victim drives by the location, the information from the device automatically records that the defendant was not at fault for the violation. Representative Lee asked for a copy of the risk assessment form which was provided to the members of the committee.
Representative Stumbo then reviewed the history of domestic violence legislation in Kentucky starting with the creation of Domestic Violence Orders in 1984 and indicated that about 11,000 domestic violence orders are issued in Kentucky each year. He said that 3,650 women, children, and a few men were admitted to Kentucky’s fifteen domestic violence centers during fiscal year 2009, a recent University of Kentucky survey indicated that 80% of respondents said they felt the protective order was effective, that protective orders reduce violence and saved $85 million in 2007, that other states use electronic monitoring in about 15% of domestic violence cases, that approximately 5,000 abusers were being electronically tracked nationwide, that Ohio was the most recent state to pass electronic monitoring legislation, and that a U.S. Justice Department study indicated that 3.4 million persons were stalked in the one-year period being studied.
Representative Stumbo indicated that costs if the bill is not passed include the hidden costs of domestic violence, $60 per day to keep someone in jail, cost of a murder trial $185,000, cost of women missing work due to domestic violence is $2 million per day nationwide, and that medical services for domestic violence victims cost millions of dollars each day.
Questions were raised about who would be responsible for the cost of the program in the case of indigent persons. Representative Stumbo responded that under his proposal, neither state nor local government would be responsible for the costs. He said the vendor would absorb those costs by increasing fees on those who could pay. Representative Flood complimented Representative Stumbo on the bill. Representative Moberly asked if the domestic violence order hearing required the presence of the defendant who would have an opportunity to present evidence to which Representative Stumbo responded, yes.
The next speaker was Ron Bishop, Director of the Division of Community Corrections in the Lexington-Fayette Urban County Government, who was accompanied by Sgt. Hubbard Dabney who operates the GPS monitoring program in Fayette County. Mr. Bishop and Sgt. Dabney described the web based GPS monitoring program, where a GPS unit is placed on the offender with ability to track and pin-point the participant’s exact location, is presently used for higher risk offenders such as domestic violence and sex offenders, gang members, and murderers, and is used to determine offender movements for the protection of the victim. The devices can be set to provide inclusion zones and exclusion zones, provide speed of offender movement, and when coupled with data programs, provide a wealth of information about offenders and victims at real time speed. Mr. Bishop said a passive system used in Lexington, which provides periodic reports at regular intervals, has a contract cost of $5.50 per day with a cost to the offender of $8 per day, and an active system, which provides continuing real time information, has a contract cost of $10 per day with a cost to the offender of $12 per day. Representative Crenshaw asked how much had been saved by using the system. Mr. Bishop responded that he did not know an exact figure but that an average savings would be $7 per day for monitoring versus $60 per day for incarceration. Senator Gibson asked if police will automatically respond if the defendant invades an exclusion zone or removes the device and Mr. Bishop responded this would have to be a matter of local policy.
Representative Owens asked if the victim is automatically notified if the offender enters the exclusion zone and if police would automatically respond, to which Mr. Bishop responded the victim is automatically notified and could take needed protective action, that monitoring staff is automatically notified, but that automatic police response would have to be reserved for local policy decisions. Representative Moberly asked who pays the costs for using the system when the defendant is indigent. Mr. Bishop responded that in Lexington, the Urban County Government currently absorbs those costs, but that under the proposed legislation, the vendor would absorb those costs with increased fees on those who could pay.
The next speaker was Representative Brent Yonts who spoke in favor of 10 RS BR 114 relating to eliminating private food service at state prisons. Representative Yonts was accompanied by Mr. Daniel Ball, a corrections officer from Eastern Kentucky Correctional Complex, Mr. Ron Jackson, a corrections officer from Western Kentucky Correctional Complex, and Mr. Matthew Hughes, a correctional officer from Northpoint Training Center. Representative Yonts presented a list of complaints which he has received from prisoners and staff at all of the prisons in Kentucky with regard to the food service contracted by the state. Representative Yonts said the reported problems included shortages of food, water and flour added to food, food thinned to the point where it was nothing but thin soup, running out of food, continually using leftover food, chicken and turkey products used in lieu of other meat, small portions, dirty kitchens, dirty serving areas, and other complaints. Representative Yonts indicated that prisoners are fed for $2.63 per day per person. Representative Yonts indicated that other complaints involved worms in soup at Green River Correctional Complex, recipes calling for 60 pounds of food reduced to 20 pounds at Eddyville, and human feces in burritos, complaints of feces in brownies at Blackburn Correctional Complex, and potato salad spilled on the floor, scooped up, and served to inmates.
Mr. Hughes, a correctional officer from Northpoint, indicated correctional officers are frequently used to assist in food preparation and service, creating a line shortage of guards. Other information presented showed that at Northpoint, 69.25% of inmates eat most of the time, 51% get enough food to eat, 42% did not get enough food to eat, that pieces of cardboard have been served in the food, that recipes are not followed, flies, gnats, mice, rodents and other vermin are found in food preparation and storage areas, and that despite repeated complaints from inmates, the Commissioner of Corrections may not know what is happening because staff conceal the complaints and the true situation.
Mr. Daniel Ball from EKCC indicated that the food preparation areas contain cockroaches, ants, etc., the vendor of the food has watered down the food and juices, and that inmates turn to gambling and borrowing to obtain foods from the canteen and that those foods are sold at inflated prices. Mr. Ball observed that these conditions result in gangs, debts, loan operations, fights, and inmate injuries. Mr. Ball also indicated that radios do not work, that there are not enough handcuffs, there is not enough OC (pepper spray) and other supplies are in short supply. Mr. Ball commented that he no longer eats the food because he was tired of getting sick, that food illnesses have caused guard shortages, that even though the vendor has saved the Department of Corrections money, these savings are overshadowed by protective custody costs, medical bills, and other problems resulting from fights over debts owed by inmates who cannot repay the high costs of food at the canteen, causing repeated security problems. Other information presented included hospitalization of inmates from Northpoint for food borne illnesses and that surveys indicated 78% of inmates complained about food quality, 45% indicated they have become sick from the food, food has run out 75% of the time, conservation officers have been used in food service operations 51% of the time, and 71% of respondents indicated the poor food quality presents a safety risk. Representative Yonts indicated that complaints are not acted upon, that inmates may file a second grievance on the same subject only once every six months, and that the committee is unlikely to receive a straight answer about the cause of the riot at Northpoint.
The next speaker was Mr. Matthew Hughes, a correctional officer from Northpoint with 10 years of experience in corrections, including one year at Eddyville and one year at Northpoint. Mr. Hughes indicated that between his experience at Eddyville and Northpoint, he has encountered green hotdogs, greasy bologna wiped off with a towel, hard meatballs, and watered rice that looked like gruel. Mr. Hughes described conditions at Northpoint as having open dorms, a lot of freedom for the inmates, inmates who can smoke, and that the lockdown following a fight was not the real cause of the riot, but that the food was. He described the food as “atrocious”, that roaches are on the floor, dirty conditions abound, food service personnel do not wear hair nets or gloves, and that inmates get mad about the poor food quality, get mad at the guards, and then riot. Mr. Hughes commented the canteen is owned by the food vendor, cigarettes cost $6.10 per pack, a small can of ham is $5, and there are similarly inflated prices for other items as well. Inmates who work do not make enough to pay the canteen prices, relatives cannot send enough money to meet inmate canteen needs, and inmates must borrow from other inmates to make canteen purchases. Mr. Hughes described cigarettes as a means of payment for loans and that when an inmate cannot repay a loan, other inmates to whom the loans are owed punish the inmate by attacking the inmate. Inmates also are stealing food from the cafeteria and kitchen and must be patted down by guards upon leaving which also causes problems and Mr. Hughes pointed out that when the vending machines in the visitor area work, which they frequently do not, visitors cannot afford to pay the high prices charged.
Senator Westwood asked whether the prison food service facilities were inspected by local health departments to which the response was that health inspections are scheduled in advance and that with advance notice of the inspections, the facilities are cleaned up for the day of the inspection and properly prepared food is served. The comment was made that “you just can’t walk into a prison” to make an inspection followed by the observation that the same procedure is followed when representatives of the American Correctional Association visit to rate the prison for accreditation purposes. This was followed by the comment that things return to “normal” the day after the inspection.
Representative Bell indicated that even in private industry, some facilities with community influence are rarely inspected and that there is advance notice of the inspections. Representative Moberly asked about the attitude of the chain of command at the institutions to which Mr. Hughes responded that in one instance, an inmate had a seizure in his cell and when the officer responded, the officer’s radio did not work and aid had to be summoned by a person going to the control center. When the officer wanted to insert in his report that aid was delayed because of a dead battery, he was told that a dead battery could not be mentioned in the report. Mr. Hughes indicated that the guards and the chain of command knew that prisoners at Northpoint were planning a riot two weeks before its occurrence. Representative Moberly indicated that the same vendor operates the food service at Eastern Kentucky University and that the food is good because the university monitors the food service operations closely. Several members of the committee urged the co-chairs to hold a special meeting on the prison food service problems and secure testimony from the Department of Corrections, from the vendor, from guards, and from other interested parties and that reluctant parties be subpoenaed and that testimony be taken under oath at the hearing.
Representative Flood indicated that she has received information from corrections officers and others that food was the problem at Northpoint and that she understood the link between bad food, high canteen prices, debts, and violence at the institution. Representative Crenshaw observed that the Department had promised a report on the Northpoint riot early in November but at a recent meeting of the Appropriations and Revenue subcommittee on courts, the department failed to present the report or any meaningful information about the causes of the riot. Upon request, Mr. Hughes commented that the riot did not “just happen”, it was carefully planned by the inmates who studied the guard and supervision patterns, inmates knew at the time of the riot there would be fewer staff, and that six of the guards had less than six months of experience. Based upon their observations, inmates chose the time when the riot would happen and knew that only 19 officers would be available to control 1,250 inmates. The riot was put down in 4.5 hours with help from other institutions and from state and local police, but during that time arson fires destroyed or damaged much of the institution. Senator Jensen asked if the food at Northpoint had improved since the riot to which the answer was, no.
The next speakers were Representative Jody Richards, Representative Joni Jenkins, Jefferson Family Court Judge Jerry Bowles, and Darlene Thomas and Sharon Currens from the Kentucky Domestic Violence Association, who spoke in favor of 10 RS BR 133 and 10 RS BR 145, which would make victims of dating violence eligible for emergency protective orders, domestic violence orders, and permit arrest of violators without a warrant by officers who did not view the commission of the offense. Representative Richards indicated the bills were similar and that he had agreed to co-sponsor Representative Jenkins’ 10 RS BR 145. Representative Richards commented that 40 states have passed domestic violence protection for dating couples and that dating couples are now protected under the federal Violence Against Women Act. Ms. Darlene Thomas indicated the Kentucky Domestic Violence Association supports the legislation. She said 53% of victims are abused by current or old partners, that partner violence in the 16-24 year old age group is three times higher than other age groups, and that domestic violence orders allow for more rapid law enforcement intervention in domestic violence cases. Ms. Thomas said a recent University of Kentucky survey showed 34% of University of Kentucky female students indicated they had been victimized by dating partners. Ms. Thomas shared a story in which the dating couple broke up, the partner harassed and stalked the victim continuously, and three years later attacked and strangled the victim, leaving her unconscious for over an hour and a half, and while the victim was unconscious, broke into the victim’s home and destroyed the home prior to the victim’s return home.
Judge Bowles indicated these bills have the support of the Jefferson County Domestic Violence Prevention Council. He said that Kentucky, which was the leader in adoption of the VINE victim notification program, has fallen behind in this area and is one of only ten states that do not offer domestic violence protection to dating couples. Litigants in his court seek domestic violence order protection and are surprised to find it is not available when it would be available if they had lived together, married, or had a child together. Judge Bowles spoke of a case in which the perpetrator attempted to suffocate and strangle the victim, placed a rag in the victim’s mouth, and assaulted the victim. When a neighbor called the police, the police arrived at the scene and did nothing. The victim was advised to obtain a domestic violence order which the victim received from the court, only to have the Kentucky Court of Appeals reverse the decision citing that courts do not have the authority to issue such orders to dating couples. Judge Bowles commented the Court of Appeals in its opinion urged the General Assembly to remedy the situation.
Representative Flood asked how many attempts had been made to pass the bill in the past and was informed that this was the third attempt in six years. Representative Flood then asked what the arguments against the bill had been. Responses included problems with how dating couples were defined as being too broad, but Judge Bowles indicated that judges are required do make similar decisions every day in other cases such as “best interest of the child” and that the definition in the bill is workable.
Senator Jensen asked if in the cases cited, a criminal warrant could have been obtained and the perpetrator prosecuted, to which Judge Bowles replied that criminal action could have been used but that police did nothing, that victims are wary of using the criminal system because perpetrators will ultimately be released from confinement, and that the civil protection orders provide a better option. Senator Jensen then asked if, when a person was released on bail or probation the court could order the perpetrator to stay away from the victim, to which Judge Bowles responded, yes. Senator Jensen then commented that we may be getting into a “gray area” with this legislation. Representative Crenshaw asked if the bill would apply to married persons to which Judge Bowles replied that the current domestic violence statutes already apply to married persons and divorced persons. Representative Moberly asked if criminal remedies are available where courts could require perpetrators not to harass or threaten the victim, to which Judge Bowles replied yes. But he said that such orders are not presently entered into the law enforcement computer networks, where domestic violence orders are, so officers do not have instant access to the contents of bail conditions and other criminal orders. Senator Jensen commented that the response that the victim has no other options was not true, and that even if the police did not view the commission of a misdemeanor offense, the victim could still go to the county attorney and begin the criminal process.
Representative Flood commented that awareness for the issue and for the remedies should be increased and that protection should be enhanced. She urged zero tolerance for assaults. Senator Rhoads commented that civil process protections should be enhanced because police and prosecutors will not institute criminal proceedings, and victims see little hope for anything but civil process using civil protection orders and many victims do not want perpetrators to end up in jail by using the criminal process. Representative Tilley commented that in his experience couples frequently get back together after the criminal process is used.
The next speaker was Ms. Sharon Currens, Executive Director of the Kentucky Domestic Violence Association, who spoke on behalf of the Kentucky Domestic Violence Association and Representative Denham in favor of 10 RS BR 341, which would elevate strangling of a victim in a domestic violence case to a Class C felony as assault in the second degree. Ms. Currens indicated that in the 2008-2009 reporting year, there were four domestic violence strangulation deaths in Kentucky and that thirteen states have passed this type of legislation and that it was needed in Kentucky
The next speaker was Representative Carney, accompanied by Bryan Sunderland of the Kentucky Chamber of Commerce, Suzanne Northern of Unifirst Corporation, and Wendy Becker, an attorney with Greenebaum, Doll, and McDonald, who spoke in favor of 10 RS BR 498, which would reduce the statute of limitations in wrongful discharge cases from five years to two years in Kentucky. Ms. Northern described a situation where her corporation moved to Kentucky and reduced three regional centers to one. An employee who worked for the company for six weeks and was dismissed filed a wrongful dismissal action five years later under the existing statute. Ms. Northern described the difficulty in defending the suit because the employee had worked such a short time, that most record retention statutes only require record retention for two or three years, that facts were difficult to obtain and that in such actions witnesses may die, move away, or forget what happened five years earlier. Ms Northern indicated that no surrounding state has such a lengthy period during which a wrongfully discharged employee may bring suit, with Ohio having a four year limit and others only one or two years. Ms. Northern indicated that she favored the reduction and that this would make the state more business friendly.
The next speaker was attorney Wendy Becker, who indicated she had practiced employment law for twenty years and that while states prohibit termination for various reasons including civil rights protections, whistleblower protections, retaliation for filing workers compensation claims, and similar reasons including the tort of wrongful discharge which result in 85% of the claims of wrongful discharge. Ms. Becker indicated that Kentucky has one of the longest statutes of limitations, that this limit has never been addressed directly by the General Assembly, and is only in effect because it is a fallback position when no other statute applies. Ms. Becker indicated that other states surrounding Kentucky have one and two year limits and in some instances, claims must be brought in as few as 90 days and 180 days in workers compensation retaliation claims. Ms. Becker indicated the two year limit is good for both employers and employees because investigations can be completed in a shorter period, and that after two years it is more difficult to secure records, witnesses go missing or cannot remember what happened, and it is more difficult for either side to prove its case.
Senator Rhoads observed that the Kentucky statute of limitations for violation of a contract in writing is also five years and asked if this legislation would create a conflict in a wrongful discharge case where there was a contract in writing through adoption of a two year statute of limitations. Representative Carney responded this was an issue that needed further study and comment. Representative Moberly asked Ms. Becker how many cases would be barred by this legislation, to which Ms. Becker replied that she did not know. Representative Moberly indicated that more information on the effect of the proposal is needed. Senator Reynolds indicated that he tries such cases and that Kentucky is considered “business unfriendly” because of the current law. Senator Rhoads indicated that Kentucky has been a hire and fire at will state and that he did not know if states surrounding Kentucky had similar provisions only limiting discharge when it is against public policy. Representative Carney responded that he wants legislation which gives due process.
The next speaker was attorney Doug Morris of Louisville representing the Kentucky Justice Association. Mr. Morris cited situations in which workers who complained to the Equal Employment Opportunity Commission might be prejudiced by a two year statute of limitations because the EEOC frequently takes two years or more to determine that in 85% of the cases no determination is made and a “right to sue” letter is issued to the complainant. If the two year statute of limitations is enacted, plaintiffs who utilize the EECO complaint procedure will no longer be able to sue after they receive a “right to sue” letter. Mr. Morris observed that in a civil case, the plaintiff has the burden of proof, delay is not encouraged, that current statutory provisions should be observed, and that now that most companies keep records on computers, a five year record retention program is not unreasonable. Mr. Morris indicated that most at will employees do not have contracts with their employers, while most executives do have contracts with their employers and would be protected by the five year statute of limitations in the contract in writing limitations while employees would be at a disadvantage and would only be protected by a two year limit if the proposed legislation is passed. Mr. Morris asserted that the legislation was “unnecessary”.
The meeting was adjourned at 4:10PM.