Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Judiciary was held on Friday, October 4, 2013, at 10:00 AM CST., in Hopkinsville, Ky. at the Christian County Justice Center. Senator Whitney Westerfield, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Sara Beth Gregory, Jerry P. Rhoads, and John Schickel; Representatives Reginald Meeks, Darryl T. Owens, Ryan Quarles, Tom Riner, Steven Rudy, Ken Upchurch, Gerald Watkins, and Brent Yonts.
Guests: Chief Justice John D. Minton, Jr. and his Chief of Staff, Katie Shepherd; Morgain Sprague, Counsel, Kentucky State Police; Lt. Brian Sumner, Kentucky State Police Criminal Identification and Research Branch; and Kelly Stephens, Counsel, Administrative Office of the Courts.
LRC Staff: Jon Grate, Matt Trebelhorn, Alice Lyon, Dallas Hurley, Nicole Straus, and Kathy Miller.
Approval of Minutes
The minutes of meetings one and two of the Interim Joint Committee on Judiciary were not approved, as a quorum of members was not met.
Welcome
Senator Whitney Westerfield welcomed Chief Justice John Minton, Jr. to the meeting, and recognized the many judges and public officials in the audience. Representative John Tilley joined in the welcome and noted both that Hopkinsville is the fastest growing city in Kentucky and the best place to watch the longest total eclipse in 2017.
State of the Judiciary Address: The Changing Face of Kentucky Courts
Chief Justice John Minton, Jr. presented the State of the Judiciary address to the Committee. Chief Justice Minton said he was proud of the partnership achieved with the legislature, and the balance of good government, maintaining separation of powers without compromising collaboration.
Chief Justice Minton spoke about several factors impacting how the courts carry out their business.
Mediation on the Rise
The rising cost of discovery, the expense and time involved with going to trial, and the unpredictability of jury verdicts have resulted in a significant decline in jury trials. Mediation mitigates some of these concerns by giving parties an opportunity to save time and money. There has been an increase in parties using mediators to resolve conflicts since the AOC created a mediation program in 2005, relieving some of the strain on court dockets. For criminal cases, the Felony Mediation Program started in 2008 and has grown steadily with an 81 percent settlement rate.
Self-Represent Litigants
Particularly in Family Court, the number of self-represented litigants has been on the rise for several years. The factors driving the trend are the cost of legal representation and the loss of funding for civil legal aid programs. The statewide legal aid funds have decreased by $3 million, or 25 percent. While funding and programs decrease, the number of low-income Kentuckians increased by 27 percent.
Challenges as a result of the increase in self-represented litigants include longer court proceedings to familiarize litigants with court procedure, a higher margin of error impacting the course and outcome of a case, and limited legal resources for legal advice.
Escalating Demand for Court Interpreters
The cost to the court system to provide interpreters to parties and defendants who enter the court system without the ability to communicate in English is $2 million in 2013. Recent and rapid changes in the number of languages and dialects requiring interpreters have stressed the limited resources of the court interpreting program. 90 certified and registered interpreters, representing 31 different languages, are listed on the AOC Interpreter Directory.
Problem Solving Courts
Kentucky is embracing the role of problem-solving courts to deal with specific types of cases. This expansion places a demand on the time and energy of the trial court judges.
Family Court case filings have increased, sometimes to the point of unmanageability. Family Court serves 3.2 million citizens in 71 counties.
The jurisdiction of Family Court includes: Dissolution of marriage; spousal support and equitable distribution; child custody, support and visitation; paternity, adoption; domestic violence; dependency, neglect and abuse; termination of parental rights; and status offenses. These cases would otherwise be heard in circuit and district courts. The benefit of Family Court is that one judge will hear all the legal issues of a family, providing continuity.
Drug Court has been successful in combining treatment and legal support to participants. This jail alternative substance abuse program is supervised by circuit and district court judges and has had 6000 graduates since 1996. Other successes include the birth of 865 drug-free babies and over 1.1 million community service hours worked. Justice Minton characterized the volunteer roll of the Drug Court judges as “a calling.”
Veterans Treatment Court provides treatment and support services to veterans in the justice system. VTC began operating in Jefferson County, November, 2012 with a $350.000 grant from the U.S. Department of Justice. Hardin County has received the same grant.
Mental Health Courts use judicial oversight and mental health assessments and treatment to reduce the recidivism rate of mentally ill offenders while protecting public safety. With significant commitment from judges and community partners, the Northern Kentucky Regional Mental Health Court has diverted 219 participants from 36,000 jail days. Chief Justice Minton recognized the efforts of Karen Thomas and Kelly Easton in making the program a success.
Pretrial Services
House Bill 463 has resulted in higher rates of pretrial release for moderate and high risk defendants, dramatically increasing the workload of pretrial officers. Pretrial officers interview and investigate individuals who have been arrested and make recommendations to a judge regarding their pretrial release. The court system is absorbing the cost of adding and training personnel who can handle the level and volume of supervision. Since HB 463 went into effect, pretrial officers have made more than 327,000 defendant contacts.
Senior Judges Program
The court system has been saving money by allowing senior judges to fill in for judicial vacancies, delaying the cost of a new sitting judge. Citizens got access to justice more quickly when there were experienced senior judges to keep cases moving. The Senior Status Program for Special Judges will soon be ending, resulting in the system reverting to requiring sitting judges to cover for each other during absences. The result will likely be delays in already heavy dockets.
Another concern on the topic of retired judges is that recent legislative changes to the state pension system will have a detrimental effect on Kentucky’s ability to attract experienced, competent attorneys to be judges.
Purchase of New AOC Office Building
The AOC will be moving into its own building on Vandalay Drive in November 2013. The payments for the lease-purchase of the building are within the rental amount the AOC currently pays for the Millcreek Park location. The AOC will save more than $1 million a year when the building is paid off. The Vandalay location will bring staff together under one roof and have a positive impact on morale.
Breakthroughs in Court Technology
The court system is hindered by the lack of current technology. Updates are planned for the obsolete case management system and electronic filing. Committees are being formed to oversee the eCourts initiative, addressing the changes to court rules, guidelines, and business processes. AOC is installing a new automated bookkeeping function for circuit court clerks’ offices and launching CourtNet 2.0, which lets members of the legal system access civil and criminal court cases on line and in real time.
Pay Equity for the Judicial Branch
Investing in human resources is a top priority. Lagging Judicial branch salaries severely compromise the ability to recruit and retain the caliber of employees who can handle the complex work of the courts. Chief Justice Minton said he will request legislation, a “Pay Equity Initiative,” with an appropriation to increase the wages within the court system to bring Judicial Branch salaries in line with other branches of government.
Conclusion of the State of the Judiciary Address
Chief Justice Minton emphasized that Kentucky’s judiciary is resourceful and resilient, using creativity and drive to deliver justice at a high level during an era of change.
Chief Justice Minton and his chief of staff, Katie Shepherd, answered questions from committee members. Senator Rhoads asked about the status of tracking restitution payments from convicted defendants. Katie Shepherd answered that it is a labor intensive process, that many clerks taking care of payments, and that the new accounts receivable program will help.
Representative Watkins asked Justice Minton about the current timeframe from arrest to trial. Justice Minton said that he does not know all the data but there is a backlog in evidence collection and administrative tasks in court. He further explained that use of the Senior Judges Program would help to keep cases moving through the court system.
Representative Rudy posed a question to Katie Shepherd about the approval of funding for the new AOC building. Ms. Shepherd replied that the budget authorized a lease in Franklin County, and that the court’s internal rules allowed those funds to be used for a lease-purchase arrangement. She also pointed out the budget savings and careful use of the limited resources.
Representative Meeks asked about the number of veterans served by Veterans Court and future projections. Ms. Shepherd replied that there is no data available.
In response to a question from Representative Meeks on the sex and ethnicity of judges, Chief Minton said that there is always an emphasis on members of the bench reflecting the demographics of the rest of the state.
Senator Schickel commented that the disproportional work load for judges calls for court redistricting. Chief Justice Minton agreed that this was a fair point, and that case load demands are not equitable state wide. By way of example, Chief Justice Minton said there was a constitutional imperative that Family Court be available statewide, but it is not. Discussion of the prohibition of political association in judicial races followed a comment by Senator Schickel that the right to free speech in campaigns is being infringed upon.
Everything You Want to Know About Expungements
Morgan Sprague, Counsel, Kentucky State Police, and Kelly Stephens, Counsel, Administrative Office of the Courts spoke about the expungement process. Expungement is the removal or deletion of records by the court and other agencies which prevents the matter from appearing on official state-performed background checks. By statute, the motion for expungement shall be filed no sooner than sixty days following of the order of acquittal or dismissal by the court. The court must notify the County or Commonwealth’s Attorney of an opportunity to respond to motion and notify CHFS General Counsel in cases involving abuse or neglect of child. Also in statute, the court may grant the expungement after finding that there are no current or pending charges in the matter sought to be expunged. The order must be on a form provided by AOC. Subject agencies must certify within 60 days of order that the expungement is complete. The statute also states that a person convicted of a misdemeanor, violation, or traffic infraction or a series of these infractions arising from a single incident may petition the court of conviction for expungement of the conviction and any amended or dismissed charges in the same action. The petition shall not be filed until 5 years after the completion of the person’s sentence or probation, whichever occurs later.
When the Court receives a petition, the statute directs a date to be set and parties notified. The court must grant expungement order if petitioner submits eligibility certification and at the hearing the court finds that the offense was not a sex offense or an offense committed against a child, the person had no previous felony convictions, and that the person had not been convicted of any other misdemeanor or violation offense in the 5 years prior to the conviction sought to be expunged. Also, the person should not, since the time of the conviction sought to be expunged, have been convicted of a felony, misdemeanor, or violation, and can have no pending felony, misdemeanor, or violation.
Expungement certification petitions must include a background check from AOC and KSP and the applicant must pay the requisite fees. An explanation of the electronic filing process for certification was discussed. Behind the scenes, the AOC process the payment, completes the background check, including a search of KCOJ records, and electronically transmits background check information and the fee to KSP. KSP in turn conducts its background check, checks compliance with statutory requirements, and completes the form indicating whether the applicant is eligible for expungement.
All documents are returned to the applicant, who then files the petition with the Office of the Circuit Court Clerk. A hearing is held, and if the Court finds that the applicant qualifies, the expungement petition is granted.
The Circuit Clerk completes the process by performing the steps that may include physically segregating the record from other files.
Felony Expungements
Expansion to felony expungements create the issue of an increased logistical burden due to the 94,645 cases that would qualify, and the diluted effectiveness of background checks for professional licenses or employment in a position involving access to money, medication, children or the elderly. The fiscal impact of expanding expungement would run $59.56 in hourly compensation. In 2012, KSP incurred costs of $1,019,607.64 for which it received no reimbursement.
Senator Gregory asked about the process timeline. In response, Ms. Sprague answered that the process takes 30 days to 2 months and has associated fees of $30.00 for a background check and $100 filing fee.
Representative Riner asked whether a person may truthfully answer “no” to a conviction on an employment application. Ms. Sprague answered that one is being legally honest that he or she has not committed a crime after the expungement.
In response to questions about filing fees from Representatives Watkins and Owens, Ms. Sprague said that as of January 1, 2014, a $100 filing fee would go to the general fund, and 2 separate $20 fees would go to KSP and AOC for background checks.
The 3rd meeting of the Interim Joint Committee on Judiciary was adjourned at 12:00 PM CST.