Call to Order and Roll Call
The 5th meeting of the Interim Joint Committee on Judiciary was held on Friday, October 20, 2017, at 10:00 AM, in Room 154 of the Capitol Annex. Representative Joseph M. Fischer, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative Joseph M. Fischer, Co-Chair; Senators Danny Carroll, Perry B. Clark, Ray S. Jones II, Alice Forgy Kerr, John Schickel, Dan "Malano" Seum, and Robin L. Webb; Representatives Robert Benvenuti III, John Blanton, Larry Brown, Tom Burch, McKenzie Cantrell, Daniel Elliott, Angie Hatton, Joni L. Jenkins, Stan Lee, Chad McCoy, C. Wesley Morgan, Jason Nemes, Jason Petrie, Brandon Reed, and Kevin Sinnette.
Guests: Chief Justice John D. Minton Jr. and Representative Diane St. Onge.
LRC Staff: Katie Comstock, Alice Lyon, Chandani Kemper, Dale Hardy, Matt Trebelhorn, and Jay Jacobs.
State of the Judiciary
Chief Justice of Kentucky John D. Minton Jr. presented the 2017 State of the Judiciary address. He began by thanking the General Assembly for allowing him to present and the nearly 3,800 individuals that work for Kentucky’s judicial branch.
Chief Justice Minton stated the Administrative Office of the Courts (AOC) is currently facing several challenges. AOC is grappling to keep up with rapid technological and social developments, the opioid epidemic has expanded court caseloads and altered Drug Court treatment, and juvenile justice reform and pretrial justice reform are top priorities. These forces have led AOC to put aside business practices that no longer work and adopt new practices that meet current needs.
Kentucky Pretrial Services continues to lead the nation. In 1976, Kentucky was one of the first states in the country to abolish bail bonding for profit and AOC’s leadership continues today as AOC managers share their expertise on pretrial programs each year. The goals of pretrial release are to ensure public safety by determining which people should be released and which people should stay in jail, and to help ensure that those released come back to court. To meet these goals, pretrial officers apply a validated risk assessment to the defendant's criminal history. The risk of the defendant to fail to appear or to be arrested again is then reported to the court. Properly assessing and determining pretrial release is extremely important, and AOC continues to refine that process.
Chief Justice Minton announced that AOC’s Department of Pretrial Services has recently undergone its most extensive reorganization in several years. Pretrial officers must apply the risk assessment tool consistently statewide so that all judges can be confident they are receiving reliable, accurate information. Also, AOC is improving how pretrial officers report risk assessment information. The scoring process has recently been revised and AOC believes this change will increase the accuracy of the scoring. AOC’s Department of Pretrial Services is offering an Updates to Risk Assessment Scoring seminar for judges, prosecutors, and public defenders in eight locations across the state in October.
Chief Justice Minton spoke about the financial incentive fund from Senate Bill 200. AOC is working with the Kentucky Justice and Public Safety Cabinet and the Department of Juvenile Justice to launch the financial incentive fund. Senate Bill 200 requires the savings realized from juvenile justice reform to be reinvested in programs that supervise low-risk youth. The money AOC would have spent to detain youth will instead be used to provide resources and treatment services to young people. AOC will support the incentive fund by acting as the fiscal agent, providing assistance for grant applications, and collecting and reporting the data required from judicial districts. The AOC Department of Family and Juvenile Services and the Department of Juvenile Justice began this support by hosting community partner meetings in each of the 66 judicial districts to educate those jurisdictions about how the fund will work.
In response to Governor Bevin's call to improve Kentucky's adoption process, Chief Justice Minton created a Dependency, Neglect and Abuse (DNA) Judicial Workgroup. This workgroup identifies policies that would reduce the adoption timeline, and addresses inefficient policies and redundant paperwork. The workgroup will focus specifically on policies and processes that directly impact the permanency, safety, and well-being of children. Also, the DNA Judicial Workgroup is collaborating with the Cabinet for Health and Family Services, the Justice and Public Safety Cabinet, the Finance and Administration Cabinet, and the Department of Education to resolve local court-community barriers, enhance support for various initiatives, and determine how to better serve Kentucky’s children and families.
Chief Justice Minton spoke on AOC’s investments in court technology, which was one of his biggest goals when becoming the Chief Justice in 2008. Nearly 900,000 court cases are filed in Kentucky state courts each year, and he stated that adapting to the rapid changes in technology for use by the courts was one of the biggest challenges. In 2013, the Administrative Office of the Courts started KYeCourts, a multi-year initiative to update court technology. Four years later, AOC is upgrading the hardware and network infrastructure, replacing trial and appellate case management systems, and providing a document management system that will electronically store and index court documents. Also, eFiling is now available in all 120 Kentucky counties for civil and criminal cases in Circuit and District courts. AOC’s next steps include expanding eFiling to juvenile, forcible detainer, and probate and appeals cases, and offering eFiling to self-represented litigants. While there has been success with eFiling, the paper file is still the official court record in Kentucky and AOC is unsure of when it will move completely to a paperless system. In addition, AOC anticipates rolling out a new appellate case management system and an eFiling system for the Supreme Court and Court of Appeals in 2018. CourtNet 2.0, which provides near real-time, online access to Kentucky civil and criminal cases, also continues to expand. AOC has started a pilot project in Trimble County that will be the basis for a new, statewide case management system and electronic court record.
Chief Justice Minton also spoke about new policies that will save money while improving juror reporting and making jury management more uniform statewide. The Supreme Court recently adopted amendments to the Rules of Administrative Procedures for Jury Selection and Management. The changes took effect October 1. The new rules call for centralized mailing of juror summonses, which will save time and money. Also, each county will now use AOC's electronic Jury Management Program to administer jury management practices and procedures. The Jury Management Program will record disqualifications, excuses, and permanent exemptions of summoned jurors.
Another important change clarifies how AOC compiles the master list of prospective jurors from the statutorily required source lists. In an effort to reduce the number of undeliverable summonses, AOC worked with the source list providers to ensure the availability of the most accurate information about people who are eligible for service. AOC is also making an effort to reduce the number of people who fail to appear for jury service, and has developed a postcard to notify prospective jurors of their delinquent status with directions to contact the court.
This summer, the seven Supreme Court Justices voted unanimously to approve an Open Records Policy. The policy took effect August 15, 2017. This is the first Open Records Policy for AOC. The policy is in the form of an Administrative Procedure of the Court of Justice, which carries the weight of law under the Kentucky Constitution. Chief Justice Minton stated that while the Judicial Branch has long complied with the spirit of the Open Records Act, he was proud that AOC’s commitment was written into policy.
Chief Justice Minton addressed the opioid epidemic in Kentucky and how it is effecting Kentucky families and children. To help judges handle drug-related cases, and give judges a better understanding of addiction and treatment, AOC hosted the first statewide Opioid Summit in January 2017. Judges learned about the science of treating addiction; case law, statutes, and regulations regarding medication-assisted treatment; and the role of the government in the opioid epidemic. In August 2017, AOC held a statewide conference for the Department of Specialty Courts, where judges, court staff, probation and parole officials, prosecutors, public defenders, treatment providers, and others who are part of Specialty Court teams were invited. The sessions covered the latest trends in treatment for participants in Drug Court, Veterans Treatment Court, DUI Court and Mental Health Court.
On the regional level, Chief Justice Minton was part of a team from Kentucky that participated in the first Regional Judicial Opioid Initiative (RJOI) in August 2016. Participants included teams from Kentucky, Ohio, Illinois, Indiana, Michigan, Pennsylvania, Tennessee, Virginia, and West Virginia, along with critical public and private partners. The goal of the summit was to create a framework that would coordinate the state and federal policymakers who are confronting the opioid problem. Several Supreme Court justices and court administrators from this region have committed to serving on the RJOI Leadership Committee. The Supreme Court of Ohio, on behalf of the RJOI, has been awarded a three-year, $1 million grant from the Bureau of Justice Assistance to improve prescription drug monitoring exchanges across state lines, establish regional best practices, and standardize procedures to provide a more unified regional response to the opioid epidemic. The Conference of Chief Justices and the Conference of State Court Administrators have formed a joint Opioid Task Force with funding from the State Justice Institute. The task force will encourage the sharing of strategies and will identify unmet needs, create partnerships to address the impact of opioids on children and families, and develop principles for state courts to use when collaborating with treatment providers, criminal justice systems, and child welfare agencies.
Chief Justice Minton discussed changes to Kentucky’s guardian ad litem program. More than 11,300 Kentucky children are in state custody because they have been removed from their homes due to dependency, neglect, or abuse. Guardians ad litem are attorneys who provide legal representation to these children. The Judicial Branch is working with the Executive and Legislative Branches to establish more consistent payment practices statewide. The Supreme Court and the Finance and Administration Cabinet are finding ways to clarify practices and jointly create rules and forms that will increase accountability for the state dollars that pay for these services.
AOC wants to be proactive in helping Kentucky attorneys adapt to new trends in the practice of law. To achieve this, the Kentucky Bar Association has created a Commission on the Future of the Legal Profession. The commission is designed to identify and explore all areas relevant to the practice of law and the delivery of legal services. Four subcommittees have also been created to address the issues of access to justice, transitions within the practice of law, sustainability of the legal profession, and technology.
As mandated by the legislature in the Judicial Branch budget bill in the 2014 Regular Session, the General Assembly received a comprehensive, statewide judicial redistricting plan. Chief Justice Minton stated that research shows the last statewide redistricting took place in 1893. AOC’s statewide plan responds to access to justice needs across the commonwealth. While the legislature did not take up judicial redistricting during the 2017 regular session, Chief Justice Minton stressed the need for statewide redistricting. He stated that the jurisdictions in urgent need of redistricting include: Lincoln, Pulaski, and Rockcastle; Boone and Gallatin; Kenton; Floyd; Knott and Magoffin; Bourbon, Scott, and Woodford; and Daviess. The plan certified by the Supreme Court is still valid, but AOC is open to modifying that plan.
Chief Justice Minton discussed the need to improve Judicial Branch salaries. Despite some recent improvements in compensation for elected circuit clerks and non-elected employees, those salaries still fall short. He also stated that a growing number of non-elected employees’ compensation falls below the federal poverty guidelines. Since 2007, judges have received only two years of 1 percent raises and two years of $400 raises. A January 2017 Survey of Judicial Salaries by the National Center for State Courts shows that Kentucky has fallen in national rankings, with Circuit Court salaries ranked 48 out of 50 states. Chief Justice Minton said he will be including a request to increase compensation for judges, circuit clerks, and non-elected employees in AOC’s biennial budget.
Responding to a question from Senator Seum, Chief Justice Minton stated that depending on circumstances, a person who does not attend jury duty may be charged with contempt of court.
Responding to a follow-up question from Senator Seum, Kelly Stevens, Manager of AOC’s Court Services Division, stated that eWarrents are state-wide and that statistics remain high.
Responding to a question from Senator Webb, Lori Dudgeon, Director of AOC, stated that the DNA Judicial Workgroup will provide suggestions that it feels will improve foster care and adoption in Kentucky.
Responding to a question from Representative Cantrell, Carole Henderson, AOC Budget Director, stated that AOC’s current fiscal health is good.
Responding to a question from Representative Blanton, Chief Justice Minton stated that the open records changes includes furnishing tax information on request.
Responding to a question from Senator Schickel, Chief Justice Minton stated that AOC is readdressing the Code of Judicial Conduct to the most recent federal ruling regarding candidates associating with political parties.
Responding to a question from Representative Morgan, Chief Justice Minton stated that a Circuit Court judge’s salary is $124,780 per year. Ms. Henderson stated that a 10 percent salary increase over the next two years would rank Kentucky at 39 out of 50 states.
Responding to a follow-up question from Representative Morgan, Chief Justice Minton stated that the amount of children entering the foster system is extremely high and, in his opinion, a real problem in the Commonwealth.
Responding to questions from Representative Nemes, Chief Justice Minton stated that AOC’s emails are exempted from the Open Records rule because of prohibition against judges having contact with parties or lawyers involved in litigation. Chief Justice Minton stated that Kentucky does the best job in the area of pretrial.
Brian Cumbo, President of the Martin County Bar Association, expressed opposition for judicial redistricting in Martin County. He and many others do not support moving Martin County from the 24th Judicial circuit.
Unmanned Aircraft Systems: BR 2
Representative Diane St. Onge presented BR 2, which is the same as House Bill 291 from the 2017 Regular Session. BR 2 is a bill that attempts to balance privacy rights with drone usage in Kentucky.
Use of drones by law enforcement officers would also be regulated under this bill. If law enforcement wishes to use a drone during an investigation and search, a search warrant must be obtained and it must specifically authorize the use of an unmanned aircraft system (UAS). Also, when law enforcement uses a drone in a search or for legitimate government purposes, limited data shall be collected on non-suspects. Disclosure of data is prohibited except by court order.
Representative St. Onge said that, with this bill, a person is guilty of an offense with the aid of a UAS if it is under his or her control and the conduct would have given rise to criminal liability for the offense if preformed directly by the person. A person is guilty of an offense for intentionally obstructing or disrupting an emergency responder from preforming official duties. The first offense would be a violation and second or subsequent offenses would be a Class B misdemeanor
Responding to a question from Representative McCoy, Representative St. Onge stated that as a recreational user or a commercial user, evidence collected can be used in court.
Responding to a question from Representative Benvenuti, Representative St. Onge stated that concerns about this expressed by the Kentucky State Police (KSP) have been addressed and KSP supports the bill.
Responding to a question from Senator Carroll, Representative St. Onge stated that she is waiting to hear from the Federal Aviation Administration (FAA) to move forward with a separate bill.
There being no further business, the meeting adjourned at 11:34 AM.