Call to Order and Roll Call
The 6th meeting of the Interim Joint Committee on Judiciary was held on Friday, November 6, 2015, at 10:00 AM, at the Votruba Student Union Building at Northern Kentucky University in Highland Heights, KY. Representative John Tilley, 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 Danny Carroll, Perry B. Clark, Ray S. Jones II, John Schickel, Wil Schroder, and Dan "Malano" Seum; Representatives Robert Benvenuti III, Denver Butler, Joseph M. Fischer, Chris Harris, Thomas Kerr, Ryan Quarles, and Tom Riner.
Guests: NKU President Geoffrey Mearns, Chief Justice John D. Minton, Director of the Administrative Office of the Courts Laurie Dudgeon, Executive Director of the National Association for Public Defense Ernie Lewis, and Rebecca DiLoreto of the Kentucky Association of Criminal Defense Lawyers.
LRC Staff: Director David Byerman, Jon Grate, Matt Trebelhorn, Dallas Hurley, Chandani Jones, Natalie Burikhanov, and Beth Taylor.
Prior to testimony from the speakers, the committee observed a moment of silence for fallen Richmond Police Officer Daniel Ellis.
Northern Kentucky University (NKU) President Geoffrey S. Mearns welcomed the committee to the university, which has over 15,000 students and 2,000 faculty and staff. President Mearns provided background information on the Chase College of Law, including its unique tradition of night-school and full-time class options. Legislative Research Commission (LRC) Director David Byerman followed with a brief welcome and introduction, emphasizing his commitment to proactively reaching out to the public and promoting education programs about the legislative system.
2015 State of the Judiciary Address
Chief Justice John D. Minton of the Supreme Court of Kentucky continued the tradition of providing a “State of the Judiciary Address” before the committee, and he called 2015 a “Seminal Year for Kentucky Courts” due to events, accomplishments, and turning points for the judicial branch since 2014.
New Technology Transforming Court, Legal Systems. Chief Justice Minton spoke about the technological efforts within the judicial branch, including eCourts. This initiative involves upgrading hardware and software infrastructure, replacing case management for trial and appellate courts, and creating a document management system for electronic storage of court documents. Another successful initiative of the judicial branch is eFiling, which has been available in each of the state’s 120 counties since October 21, 2015. Kentucky is now one of the few states who join the federal court system to offer electronic filing, and Chief Justice Minton plans on opening e-Filing access to self-represented litigants. AOC provides training on eFiling and plans on providing online training soon; AOC staff has offered on-site training to over 6,200 attorneys and staff thus far. At the end of October 2015, around 42,000 eFiling submissions were recorded, and the largest number of filings came from Boone, Campbell, Fayette, Franklin, and Kenton counties. With the success of eFiling, the judicial system is considering when to transition from the official court record from paper file to electronic court record.
The judicial branch plans on implementing a new appellate case management system with Thomson Reuter’s C-Track Court Case Management System. Chief Justice Minton stated that the new C-Track System will enhance the ability of the Supreme Court and Court of Appeals to capture, track, process, and report on cases at every stage. The system is expected to take 18 months before it will be fully operational.
CourtNet 2.0, the first major upgrade to CourtNet, is another technological advancement for the justice system that occurred in the past year. It allows for nearly real-time, online access to Kentucky civil and criminal cases, and it improves upon the original search functions and security features. More than 6,000 users have subscribed to CourtNet 2.0, and it is widely available to legislative, judicial, and executive personnel, as well as members of the Kentucky Bar Association. It will soon be available to law enforcement agencies through the Kentucky State Police.
The court system’s new automated Accounts Receivable system is available to 113 counties, and it is expected to have statewide access once Jefferson County goes live in May 2016. Mercer County will begin testing a Restitution Module in December 2015 which calculates interest owed in court-ordered restitution. Upon successful testing, the Restitution Module will become a part of the Accounts Receivable system.
New Legislation and the Courts. Chief Justice Minton also spoke about the changes in the court system which have arisen from successful legislation. In particular, Chief Justice Minton discussed the ways in which the justice system has responded to SB 200 on juvenile justice reform. The AOC has redesigned the court designated worker program (CDW) and the juvenile court process in response to SB 200 with great success so far. AOC expects that there will be a large increase in the entry of juveniles into diversion programs in FY 2016 due to requirements under the bill for first-time misdemeanant offenders with no prior diversions or adjudications to enroll in these programs. The court system has also seen successes with Family Accountability, Intervention and Response (FAIR) Teams, which derived from SB 200, including a reduction in juvenile caseloads in District Court and Family Court. FAIR teams have reviewed over 552 cases with 21 percent of those resolved outside of court, 26 percent referred to court for formal processing, and the remaining cases still in the process of review. Furthermore, FAIR Teams are hearing cases in 34 judicial districts with 12 additional districts meeting to review cases and 14 other districts in the orientation stage.
SB 200 demonstrated a need for statewide juvenile court rules, and Chief Justice Minton discussed the pilot program of a uniform system. Recommendations for the uniform system will be accepted until February 1, 2016, and the final version of the system will be adopted by the Supreme Court in the fall of 2016. Existing Juvenile Court forms were revised and new ones developed; these new forms were made available in July 2015.
Chief Justice Minton discussed the ways in which the justice system has responded to the implementation of the dating violence protection bill, HB 8, and how AOC remains on target to fulfill its responsibilities. Revisions are occurring on 18 legal forms in the domestic violence series, and these changes are in the process of being integrated into Kentucky State Police’s LINK system. Four core protective order forms have been revised and sent to the vendor for the e-EPO program in Boone, Christian, Fayette, Gallatin, Jefferson, and Kenton counties. The court system is also in the process of preparing an informational brochure for the public on the protective order process. Furthermore, all jurisdictions have until November 15, 2015 to provide a preliminary protocol for protective order review which also indicates which court will handle the cases. The final protocol is due November 30, 2015.
Changing Trends in Drug Court and Specialty Courts. Chief Justice Minton spoke about the increasing demand for specialty courts in Kentucky, and he discussed the Drug Court program as an exemplary model of success. Because of the successes of Drug Court, Kentucky has been able to implement Veterans Treatment Court in Northern Kentucky and Christian, Fayette, Hardin, and Jefferson counties. The Drug Court model also serves as the basis for Kentucky’s growing Mental Health Courts. In August, AOC created the new Department of Specialty Courts to focus solely on the oversight of these programs.
Chief Justice Minton spoke about the state’s growing heroin epidemic, mentioning that the state has the third-highest drug overdose mortality in the country. He stated that SB 192, aimed at addressing this issue, expanded “rocket dockets” which allow prosecutors and defense attorneys to expedite drug-related cases to provide treatment sooner. Additionally, the AOC has developed a pilot program which uses Vivitrol, an opioid antagonist, as part of a medically-assisted treatment (MAT) for eligible Drug Court participants. Unlike other MATs, Vivitrol requires a monthly injection from a physician’s office and cannot be diverted or abused. Chief Justice Minton stated that Vivitrol is cost-prohibitive at $1,200 a month. He spoke about his initiative to form a Judicial Medically Assisted Treatment Panel in May 2015 to examine the use of MAT in specialty courts. This was done in response to changing grant policies to provide federal funding only to Drug Court programs which allow all forms of MAT. Chief Justice Minton discussed the varying viewpoints on MAT.
Pretrial Services Program a National Model. Each of the state’s counties have pretrial services, and pretrial officers are required to interview and investigate all individuals within 24 hours of arrest. Chief Justice Mention spoke of how this contributes to a reduction in crime, improved public safety, and smaller jail populations. In FY 2015, 75 percent of defendants obtained pretrial release. He also mentioned that Kentucky has become a national model for evidence-based pretrial reform.
Judicial Center Construction. Chief Justice Minton stated that there are no judicial centers under construction in Kentucky.
Retired Judges Program. The Supreme Court created a new Temporary Assignment of Retired Judges Program this past year to help relieve the burden of vacancies. The program is limited to 21 judges who are willing to commit up to 120 days per year. These judges are paid a per diem and are not eligible for benefits or the accrual of additional service credits toward retirement.
Judicial Workload Assessment Study. Chief Justice Minton also spoke about the Judicial Workload Assessment Study, which is the first of its kind in Kentucky’s modern court system history. Over a four-week period, judges log their hours worked into an Intranet site to provide a profile of time spent handling cases and attending to judicial duties. The study worked with the National Center for State Courts and included on-site focus groups made up of family and district judges in several jurisdictions. All trial judges were asked in September to complete an online Sufficiency of Time Survey, which differs from the previous survey in that it assess whether or not judges have sufficient time to fulfill all their judicial responsibilities given the current level of resources. The results from this study will be presented in January 2016.
Kentucky Judicial Compensation Commission. Chief Justice Minton stated that there was an urgent need to address the salaries of Kentucky judges, who earn less than their counterparts throughout most of the country. Kentucky’s Supreme Court justices rank 45th out of 50, Court of Appeals judges rank 37th out of 40, and Circuit Court judges rank 42nd out of 50. Kentucky is last in regards to salary compensation among its surrounding states. Chief Justice Minton also expressed concern over the recent reductions in pension benefits for new judges and the effects it could have on attracting and retaining qualified lawyers. In response to this concern, Chief Justice Minton created the independent Judicial Compensation Commission which reviewed data and found, among many things, that since FY 2009, judges have only received two salary increases of 1 percent each.
Responding to questions from Senator Seum and Representative Harris, Chief Justice Minton stated that the justice system will expand its programs like eWarrants and e-Filing. He continued that eventually the entire system will be on eFiling because this is what is demanded by users and because it allows the system to be more accessible. AOC Director Laurie Dudgeon added that every jurisdiction has these capabilities built in and that the court system prioritizes incentives to use rather than mandates.
The Need for Reform from the Criminal Defense Perspective
Ernie Lewis, Executive Director of the National Association for Public Defense and former legislative liaison for the Kentucky Association of Criminal Defense Lawyers (KACDL), spoke on the need for reform to the judicial system, particularly in regards to criminal justice. Mr. Lewis stated that criminal justice reform is a popular topic throughout the country with bipartisan support and that the issue has reached a tipping point with 20 percent of Americans holding a criminal record. Reform at the state level has been advanced by bills that promote evidence-based practices, including SB 200 and HB 463, but Mr. Lewis argued that reducing the prison population remains at a standstill with 22,000 inmates. While the overall violent crime rate has decreased over the years, a higher percentage of those arrested are convicted than in 1970 with around 25 percent ending up in prison, and average lengths of sentences have increased 36 percent since 1990.
Mr. Lewis stated that the Kentucky must do something different in regards to its criminal justice system, and he proposed several solutions, including:
· Reducing costs and rates of imprisonment by addressing non-violent felonies, such as flagrant non-support and raising the felony theft threshold. Mr. Lewis explained that the state currently pays $22,000 per year for someone sentenced for non-support and that it costs a total of $9.5 million to incarcerate those who steal over $500 worth of items.
· Continuing support for criminal reform bills filed in the past.
· Using only evidence-based practices in parole decisions.
· Reforming both the penal code and sentencing laws. Mr. Lewis suggested establishing a penal code commission to review the current code, and he also suggested that the state lower sentences for Persistent Felony Offenders (PFOs) and certain violent offenders. In regards to the latter recommendation, Mr. Lewis promoted lowering the mandatory minimum time served of sentence from 85 percent to 50 percent which would allow these individuals to be eligible for parole.
Mr. Lewis discussed the need to pay attention to Kentucky jails where more felons are incarcerated than in any other state except Louisiana. Of particular concern is overcrowding, especially in rural jails, and the lack of opportunity for rehabilitation needs of inmates.
Further recommendations presented by Mr. Lewis include:
· Looking at models which have brought about successful criminal reform in other jurisdictions with New York, Alabama, California, New Jersey, Mississippi, Texas, and North Carolina as models;
· Additional funding for the Public Defender system where 25 percent of the yearly load are felony cases;
· Addressing the “death penalty regime”;
· Recognizing the faults and limitations of eyewitness identification; and
· Tackling collateral consequences of imprisonment, including post-jail prohibited activities.
Following a discussion with Senator Schroder, Mr. Lewis emphasized the need for a more creative solution to individuals charged with flagrant non-support. He said that there has to be a better option than incarcerating often poor and disadvantaged men. Mr. Lewis discussed the complications caused by PFO status, which he called a misnomer.
Rebecca DiLoreto, the new legislative liaison for KACDL, introduced herself to the committee.
The meeting adjourned at 12:16 PM.