Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 1st Meeting

of the 2003 Interim


<MeetMDY1> August 20, 2003


The<MeetNo2> 1st meeting of the Interim Joint Committee on Judiciary was held on<Day> Wednesday,<MeetMDY2> August 20, 2003, at<MeetTime> 10:00 AM CDT, at the Henderson Community College Fine Arts Center in<Room> Henderson, Kentucky. Representative Gross Lindsay, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Robert Stivers, Co-Chair; Representative Gross Lindsay, Co-Chair; Senators Ray Jones II, Jerry Rhoads, Dan Seum, and Katie Stine; Representatives Perry Clark, Tim Feeley, Stan Lee, Frank Rasche, Arnold Simpson, Robin L. Webb, and Brent Yonts.


Guests:  Chief Justice Joseph E. Lambert, Justice J. William Graves, Supreme Court of Kentucky; Honorable Edwin White, Henry “Mac” Griffin, Ronnie Dortch, Steve Hayden, Tommy Chandler, Circuit Judges; Honorable Sheila Farris, Family Court Judge; Honorable Robert Wiederstein, Deborah Hawkins Crooks, Rene Williams, Tim Watson, James Adams, Rob Soder, Arnold Lynch, Logan Calvert, Joseph Castlen, District Judges; Honorable William Markwell, Bill Greenwell, Tim Coleman, Commonwealth’s Attorneys; Honorable John R. Cunningham, Charles McCollom, Brucie Moore, Alan Stout, County Attorneys; Honorable Scott Robbins, Assistant County Attorney; John Lile, Deputy Secretary of the Justice Cabinet; Sara Boswell Dent, Administrative Office of the Courts; Maria Hines, Director of Murder Victim’s Families for Reconciliation; Reverend Pat Delahanty, Catholic Conference of Kentucky; Carl Wedekind, Pat Solomon, Michael Erwin, Ruth Stevens, Sylvia Martin, Kentucky Coalition Against the Death Penalty (KCADP); John R. Banks, Jr., Hopkinsville/Christian County NAACP; Katherine Hope Goodman, Glenda Walden, Daniel Gilliam, Rachel Hurst, Ryan Marshall, Kentucky Fairness Alliance; Phyllis K. Stone, OASIS; Ernie Lewis, Public Advocate; Sharon Currens, Kentucky Domestic Violence Association.


LRC Staff:  Norman W. Lawson, Jr., CSA; Jon Grate, Peter Cassidy, Stephanie Martin, and Lisa Fenner.


Chairman Lindsay called the meeting to order, explained that he and Co-Chair Stivers were engaged in an effort to bring the General Assembly closer to the people.  He then introduced Chief Justice Joseph Lambert.  Justice Lambert complimented the committee for meeting in Henderson.  Chairman Lindsay then introduced Justice J. William Graves who represents the First Supreme Court District in Western Kentucky.


Chairman Lindsay called the committee's attention to the recent Supreme Court of Kentucky case, Barnett v. Wiley, in which the court specified that an emergency protective order could not be granted in a case in which a couple were merely dating.  Chairman Lindsay indicated his support for the decision.


Chairman Lindsay called the committee's attention to a resolution that had been prepared to honor Ms. Barbara Jones, General Counsel of the Justice Cabinet, upon her retirement from state service.  Representative Brent Yonts moved for adoption of the resolution.  Representative Arnold Simpson seconded the motion and the resolution was passed by voice vote.


Chairman Lindsay then invited comments from the Circuit Judges, District Judges, Commonwealth's Attorneys and County Attorneys.  Several judges and prosecutors thanked the committee for the opportunity to appear and for the committee coming to Western Kentucky.  District Judge Robert Wiederstein from Henderson complimented the General Assembly for its support of the court system, for providing a new judicial center in Henderson, a family court judge for Henderson, and for passing a court costs bill to provide for one basic court cost.  Chairman Lindsay responded that while there are various pressures to increase court costs for what he described as "various worthy causes" that increases in court costs were unlikely for the upcoming session of the General Assembly.


District Judge Deborah Crooks from Mayfield asked for legislation to solve a problem where a minor commits a felony at any age less than 18 and is ordered to provide restitution, does not do so, and the court loses jurisdiction at age 18, so thus cannot compel the person to pay the restitution. Judge Crooks urged the committee to consider legislation to grant the juvenile session of the District Court continuing jurisdiction for payment of restitution and for transfer of a juvenile from the juvenile system to the adult system for continuation of incarceration past the 18th birthday. Judge Crooks indicated that such legislation is in effect in Florida and Alabama.  Representative Stan Lee, Senator Ray Jones, and Representative Tim Feeley made suggestions regarding possible court orders and procedures for continuing jurisdiction.


County Attorney John Cunningham from Graves County indicated support for jailing of juveniles past the age of 18 for crimes committed prior to age 18.  He also called the committee's attention to the recent Supreme Court of Kentucky decision which requires possession of all of the ingredients for manufacture of methamphetamine for a conviction on the charge of manufacture to occur.  Mr. Cunningham suggested removal of the word "the" from the statute.  Senator Stivers indicated that he would be discussing the methamphetamine decision and bill drafts related thereto at the September meeting of the committee in Barbourville.  Representative Yonts indicated that he has prefiled bills to correct the matter. 


County Attorney Charlie McCulloch from Henderson informed the committee that the Department of Juvenile Justice, in an apparent money saving measure, has instructed its workers not to inform the county attorney or the courts when a juvenile violates the provisions of probation or diversion so that they will not be sent to an institution.  Chairman Lindsay referred the matter to Deputy Secretary John Lile of the Justice Cabinet who was present at the meeting.


Circuit Judge Edwin White of Christian County praised the initiation of both adult and juvenile "drug court" programs in Kentucky, spoke of their effectiveness and a 70 percent success rate, very low recidivism, and low costs as compared to incarceration.  Judge White and several other judges present indicated that they operate drug court as volunteers, that most of the other persons dealing with the program including probation and parole officers, treatment programs, and others also volunteer their time and services for the success of the program.  Judge White indicated that his program has saved $400,000 in incarceration costs thus far and has resulted in employed offenders who kick the drug habit and continue to pay taxes.  Various judges and prosecutors indicated that more funding and mental health resources are needed to continue and expand the program.  Chief Justice Lambert indicated that drug court judges are volunteers and that if extra funding was available that Kentucky could have 50 more drug courts.  Justice Lambert indicated that the annual cost for a person participating in the drug court program is $2,700 while the cost of incarcerating the same person would be $16,000.


Representative Robin Webb indicated that in Eastern Kentucky the program is successful, but is severely limited by the lack of mental health and counseling resources in the region and that some of her clients would rather serve a sentence than have the intense scrutiny and drug testing involved in the drug court program.


Senator Ray Jones described prescription drug abuse as a major problem in Eastern Kentucky.  He asked what percentage of the Western Kentucky drug court participants had been involved in prescription drug abuse to which the judges responded that the number was 20 percent to 30 percent, that a person required to take prescription drugs was ineligible for drug court, and that there had been no physician prosecutions for over prescribing in Western Kentucky.  Senator Jones indicated that in Eastern Kentucky there were few resources for treatment and that high unemployment in the region complicated requiring the person to obtain a job and maintain it.  The judges responded that the Kentucky employment services had been very helpful in finding jobs in Western Kentucky and that the program was also open to full-time students, and to pregnant women with drug problems.


Circuit Judge Mac Griffin from Owensboro indicated that while he supports the drug court program that the major problem in Western Kentucky centers around the inability of the State Police Forensic Laboratory in Madisonville to produce drug test results and other evidence test results in a timely manner, sometimes exceeding one year from the time of submission to the time of report to the court.  Judge Griffin described the problem as a fairness issue which is resulting in court orders for the production of evidence, contempt citations for failing to produce evidence in a timely manner, and dismissal of cases.  Various judges and prosecutors commented on the situation in their jurisdiction and indicated that some defendants are committing three or four new offenses while on pretrial release awaiting test results on the first case.


Chairman Lindsay commented that police requiring blood or urine tests from persons who pass breathalyzer tests in driving under the influence cases may be contributing to the problem.  Several prosecutors indicated the usefulness of urine or blood tests in determining whether marijuana or other drugs contributed to the impairment of the driver when alcohol was not involved.  Several members of the committee responded that urine tests do not adequately reflect the amount of alcohol in the body and may test positive for marijuana use 30 days prior to the arrest for driving under the influence.  Senator Stivers indicated that the September meeting of the committee will also focus on the issue of poor forensic laboratory performance, the use of the five million dollars appropriated for forensic laboratory improvements at the past session, and related issues.  Senator Jerry Rhoads commented that high turnover, low salaries, inability to attract qualified examiners, and lack of in-state training programs contributed to the problem.  He suggested that the Kentucky Community and Technical College System and the four-year universities team up to institute a training program for forensic technicians. 


Deputy Justice Secretary John Lile responded that the forensic laboratories have been hit by retirements of senior technicians, better salaries offered by other agencies, and a vast increase in demand for laboratory services.  Secretary Lile indicated that the cabinet has been meeting on the problem, that 26 additional new personnel are being hired, that two out-of-state laboratories have been contracted to do additional testing, and that it is hoped that video conferencing can avoid the necessity for in-court testimony.  Senator Jones observed that the forensic laboratory had lost evidence, test results, photographs, and other materials in several cases involving his clients.  Judge White observed that existing video conferencing equipment in the Madisonville laboratory has never worked and cannot be fixed.  Chairman Stivers and several other attorney members of the committee indicated that they would not accept video conferencing testimony in their criminal cases, opting instead for an appearance of the laboratory examiner in court.  The Commonwealth's Attorney from Henderson commented on the legal difficulties attendant in subpoenaing a witness from outside the state.


The roll was called and a quorum was not present.


Henderson County Attorney Charles McCollom commented on a problem where the owner of a vehicle is cited for not having insurance when the person driving the vehicle is the one without the insurance, and that the citation should be issued to the driver.  He then commented on the difficulty of accessing the Administrative Office of the Courts' fiber optic communications system and that the county was having to pay additional costs for its own communications system when another system was already in place; that the entire Western Kentucky area was overwhelmed with methamphetamine cases; that slow forensic reports and presentence investigation reports caused extra jail expenditures for the county; that the state should operate an outstanding warrants web site so that when an arrest was made that trial could be had on all outstanding warrants; and that one of the basic problems with the forensic laboratories was not a lack of analysts but a lack of persons to transcribe the reports made by the analysts.


Senator Robert Stivers commented on a problem regarding appeals from a family court decision in a case where the matter would be handled originally in the District Court but is now in the Family Court Division of the Circuit Court.  Senator Stivers asked if the matter should be appealed to the Circuit Court or to the Court of Appeals.  Chief Justice Lambert responded that there was a Supreme Court of Kentucky decision from several years ago that indicated that a District Court family matter would be appealed to the Circuit Court and that a family matter originally in the jurisdiction of the Circuit Court would be appealed to the Court of Appeals.  Justice Lambert further observed that he knew of a recent case in which the judge of another division of Circuit Court had overruled the decision of a judge of the Family Court Division of a Circuit Court in a case involving a matter originally in the jurisdiction of the District Court.


Chairman Lindsay then opened the floor to others who indicated that they desired to speak.  The first speaker was Maria Hines, Director of the Kentucky Murder Victims’ Families for Reconciliation, who indicated that she had previously unsuccessfully sought clemency in Virginia for a person who murdered her brother who was a Virginia State Trooper.  She gave reasons why she was opposed to the death penalty and urged that the committee permit reference of death penalty repeal legislation to the floor of the respective chambers.  Ms. Hines was followed by Reverend Patrick Delahanty, Interim Director of the Catholic Conference of Kentucky, who urged the committee to approve a bill abolishing the death penalty, or if the committee would not do so, at least to approve a bill prohibiting the execution of persons who commit a death penalty eligible crime while under the age of 18.  Carl Wedekind of the Kentucky Coalition Against the Death Penalty indicated that support for abolition of the death penalty is growing in the Commonwealth, that in these tight budget times that the death penalty is too costly, that if Kentucky opts to retain the death penalty that it adopt recent reforms recommended in Illinois to prevent innocent persons from receiving the death penalty, and that persons who commit death penalty crimes while under 18 not be eligible for the death penalty.  He also presented a petition relating to exception of persons under 18 and copies of the Illinois guidelines to the committee.  Ms. Pat Solomon, whose father was Paul Stevens and who served as chaplain for the Kentucky State Penitentiary, also indicated support for abolition of the death penalty.


Ms. Katherine Goodman of Henderson indicated that Henderson had the largest number of same sex couples in Kentucky and urged that the community generally is tolerant of and supports them, but that statewide legislation is needed to protect the rights of same sex couples in matters of employment, housing, and other forms of discrimination.


Ms. Phyllis Stone, who is a domestic violence advocate, expressed her support for the family court system and expressed her desire for additional funding for programs involving classes for child witnesses of domestic violence, classes relating to high school dating violence, and related programs.


The next speaker was Mr. Michael Erwin who indicated that he wants the General Assembly to be able to vote on abolition of the death penalty. 


The final speaker was Mr. Jeff Butler, a minister, who indicated that he supports the death penalty, that the death penalty was effective in reducing drug crime in China, that God had created the death penalty, and that the legislature should stop homosexual activity.


The Chairman announced that the September meeting of the committee would be held in the Student Center of Union College in Barbourville, Kentucky, at 10:00 AM on September 16, 2003. 


The meeting was adjourned at 12:15 PM.