Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 2nd Meeting

of the 2003 Interim


<MeetMDY1> September 16, 2003


The<MeetNo2> 2nd meeting of the Interim Joint Committee on Judiciary was held on<Day> Tuesday,<MeetMDY2> September 16, 2003, at<MeetTime> 10:00 AM, in<Room> Barbourville, Kentucky, at Union College. Senator Robert Stivers, 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 Tom Buford, Richard Roeding, Dan Seum, and Katie Stine; Representatives Perry Clark, Joseph Fischer, Arnold Simpson, Kathy Stein, Robin L. Webb, and Brent Yonts.


Guests:  Chief Justice Joseph Lambert, Jim Deckard, Supreme Court of Kentucky; Secretary Ishmon Burks, Justice Cabinet; Commissioner Patrick Simpson, Lt. Col. Robert Milligan, Kentucky State Police; Jeff Warnecke, Central Forensic Laboratory; Gay Dwyer, Jan Gould, Kentucky Retail Federation; Hon. Susan Johnson, President, District Judges Association; Hon. Eric Hall, Floyd County District Judge; Hon. James Avritt, Marion County District Judge; Hon. Oscar G. House, Clay County District Judge; Hon. Ralph McClanahan, Estill County District Judge; Hon. Michael Caperton, Knox County District Judge; Hon. Lewis Hopper, Knox County Circuit Judge; John Hansen, Perry County Commonwealth’s Attorney; Roger Gibbs, Jim Norris, Cotha Hudson, Department of Public Advocacy; Will Warner, Mary McCarthy, Kentucky Coalition to Abolish the Death Penalty; Ed DeRosset, Bobbie Doolin, L. James Cox, Hugo Freund, John Gould, Robert Armour, Union College; Karen Crabtree, Sharon Cantrell, Legislative Research Commission; Richard Yaeger, Peace Place; Leanne Herda, OLPH; Betty Jordan, Cumberland River Rape Victim Services; Eileen Recktenwald, MaryLee Perry, Kentucky Association of Sexual Assault Programs; Steve Lynn, Department of Criminal Justice Training; Christy Burch-Epperson, Kentucky Domestic Violence Association; Sara Boswell Dent, Administrative Office of the Courts; Darren West, The Center for Pregnancy Help and Abstinence Education; David Miller, United Methodist Church; Jamie Gaddis, Advocate; Sean Cutter, Pat Hauser, Pam Lawson.


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


The September meeting of the committee was held at the Edward H. Black Technology Center at Union College in Barbourville, Kentucky.  Chairman Stivers called the meeting to order and the roll was called.  Chairman Stivers announced that the meeting in Barbourville and the previous meeting in Henderson were an effort of the General Assembly to bring the work of the legislature and its committee closer to the people.  Chairman Stivers thanked Union College and its President, Dr. Edward DeRosset, for providing facilities and support for the meeting.  Chairman Stivers then introduced Representative Jim Stewart who represents the local area and was attending the meeting.


Senator Stivers then introduced Chief Justice Joseph Lambert of the Supreme Court of Kentucky.  Chief Justice Lambert recounted the history of the Family Court in Kentucky from its beginnings as a pilot project with six judges in Jefferson County, its expansion to nine judges, and then ultimately as a statewide pilot project in 1998 with nine judges in rural areas.  Chief Justice Lambert described the Family Court as being designed to combine previously diverse domestic relations jurisdiction from the District Court and the Circuit Court under several judges to a new Family Court with one judge handling all domestic relations cases.  Justice Lambert indicated that the Family Court, although originally founded in urban areas, was equally effective in rural areas, but that there was a nagging constitutional question about combining jurisdiction under one judge in one court.  An opinion of the Supreme Court of Kentucky, Justice Lambert recounted, had decided that the Family Court had been properly established as a pilot project but suggested that it could not continue indefinitely without a constitutional amendment.  That constitutional amendment was passed by the General Assembly in 2001 and ratified by the people of Kentucky in 2002.  Following the passage of the constitutional amendment, the 2003 session of the General Assembly authorized the creation of new circuit judgeships as family court judgeships with the concomitant elimination of the former district judgeships of those judges elevated to the Family Court Division of Circuit Court and specified the jurisdiction of the Family Court Division of the Circuit Court.  This was accomplished without creating an overall increase in judgeships according to the Chief Justice.  Chief Justice Lambert indicated that presently 42 Kentucky counties are served by 34 Family Court judges and that about half of the population is served by a Family Court. 


Chief Justice Lambert then proceeded to clarify an answer to a question posed at the Henderson meeting of the committee which asked, "if a case which was previously in the jurisdiction of the District Court is now in the Family Court Division of the Circuit Court, to what court is an appeal of the Family Court now taken?"  The answer is that the appeal is to the Court of Appeals, according to the Chief Justice. 


Chief Justice Lambert indicated that the goal of the court system is to expand the Family Court statewide during the next ten years, and that at the 2003 session of the General Assembly the request for 16 new Family Court judges died for a lack of available funding.  Chief Justice Lambert then discussed a further problem regarding implementation of a new Family Court division in a small judicial district where the caseload or population would not ordinarily support a new judgeship.  Chief Justice Lambert observed that the court system found that population was a more reliable indicator of the need for new judges than caseload.  That in those small counties with little caseload and little population growth, the Supreme Court was considering creating, with the authorization of the General Assembly, a new family court district consisting of enough counties to provide a suitable population and caseload base.  Senator Dan Seum asked the Chief Justice if criminal assault cases were within the jurisdiction of the Family Court, to which the Chief Justice replied "no."  Representative Brent Yonts asked where new judgeships were under consideration and whether any judge would be required to become a Family Court Judge if the judge did not want to become a Family Court Judge.  Chief Justice Lambert responded that the matter of location of judgeships is still under discussion, but that no judge had been "conscripted" into a Family Court judgeship and that no judge would be "conscripted" in the future.  Representative Kathy Stein then asked about the terms of office of the new circuit judgeships created in the 2003 session of the General Assembly.  Jim Deckard, Counsel for the Supreme Court, responded that the terms would end along with all of the current circuit judgeships.  Chairman Stivers asked what process would be followed for the creation of new Family Court judgeships.  The Chief Justice replied that the Supreme Court would decide which courts would be selected, then the Supreme Court would issue a "Certificate of Necessity" to the General Assembly for the new positions.  Legislation would then be introduced to create the judgeships and the requested budget of the Supreme Court would reflect the additional funding needed.  He stated that the ultimate decision of how many judgeships, if any, would be created is that of the General Assembly. Chairman Gross Lindsay asked what would happen to a temporarily assigned judge in a new Family Court position if the General Assembly did not approve a new Family Court position to which the Chief Justice replied that the new position would expire and the judge would return to his or her previous duties.  Senator Katie Stine asked what happened to old District Court cases now handled by a Family Court judge to which the Chief Justice replied that the cases are transferred to the Circuit Court as Family Court cases.


The next speaker was Justice Cabinet Secretary Ishmon Burks who was responding to a committee invitation to make recommendations regarding the case examination backlog at the State Police forensic laboratories, which had been discussed at the August meeting in Henderson.  Secretary Burks indicated that 90 percent of the backlog at the forensic laboratories is related to illegal drug activity and that has been a result of increased drug enforcement through federal Byrne grants.  These grants resulted in a huge increase in drug related arrests, which then resulted in the seizure of higher quantities of drugs which needed to be examined and identified.  The increased quantities of drugs necessitated more employees and equipment, and attendant delays in providing the needed laboratory examination results to the court system.  Secretary Burks indicated that the laboratory problems are just an example of much larger problems in the criminal justice system relating to prison space and prison costs, the unavailability of treatment and counseling programs, the need for Drug Courts and other innovative solutions to handling the increased caseload.  The Secretary urged the committee to study the entire problem and not just parts of it and promised to provide his observations and suggestions relating to the larger problems in the criminal justice system to the committee.  Secretary Burks introduced Kentucky State Police Commissioner Pat Simpson, who introduced Lt. Col. Robert Milligan, who is the commander of the forensic laboratory division of the State Police, and Mr. Jeff Warnecke who is the commander of the central forensic laboratory in Frankfort.


Commissioner Simpson acknowledged that there was a problem with delays in the examination of evidence at the State Police forensic laboratories.  He indicated the delays had been growing, but that he had elevated the priority for funding of the laboratory, hiring of personnel, acquisition of new equipment, acquisition of new facilities, and outsourcing of drug and alcohol testing.  Commissioner Simpson, responding to a question raised at the August meeting of the committee, indicated that there are no plans to move the forensic laboratory in Madisonville to Bowling Green and that there are, indeed, plans to expand the Madisonville facility and to include the Medical Examiner's laboratory in the same facility.


Chairman Lindsay asked about the reported plans to outsource laboratory services through utilization of out-of-state laboratories.  Commissioner Simpson replied that the contract process for these services was well under way and should be completed shortly.


Chairman Lindsay expressed concerns about the cost and burden of issuing subpoenas to persons who are out of state for testimony in state courts. Commissioner Simpson replied that the initial approach would be to have the laboratory analysts testify by video conferencing in those courtrooms equipped for same and that the State Police were working toward this end with prosecutors and the Administrative Office of the Courts.  Chairman Lindsay responded that most defense attorneys would want the witness physically present in the courtroom. Commissioner Simpson responded that in such a case where the out-of-state witness could not attend, that the case materials would be returned to Kentucky, examined by a Kentucky State Police laboratory and that State Police laboratory personnel would testify.  Chairman Lindsay observed that the process would not only delay the case further but would double the cost of the examination.  Senator Seum asked if there were any private or other government laboratories in Kentucky with which the state could contract, to which the commissioner replied "no."  Representative Yonts then asked if the contract with the out-of-state laboratory contracts would include a clause waiving normal service of process procedures for out-of-state witnesses to which the commissioner replied "yes."  Representative Simpson asked for further information about the laboratory search process.  Mr. Warnecke responded that he had called "every laboratory" in each metro area in the state and that either the laboratory could not handle the matters or they would send the case out of state for examination rather than conduct the examination in Kentucky.  Mr. Warnecke indicated, for instance, that the Lab Corporation of America, although having locations in Kentucky for the receipt of samples, actually shipped them to North Carolina for examination so it was cheaper for the state to contract directly with out-of-state laboratories in Tennessee and Pennsylvania.


Chairman Stivers asked Ms. Karen Crabtree of the Legislative Research Commission budget staff about the extra amounts appropriated to the State Police for forensic laboratory improvements at the 2001 session.  She replied that the first year provided a $500,000 increase while the second year provided a $750,000 increase.  Chairman Stivers then asked about staff turnover and what was being done to recruit new staff.  Mr. Warnecke replied that since 1999 the laboratories had lost 53 staff members due to higher paying jobs elsewhere, less stressful jobs elsewhere even without higher pay, and retirements.  Chairman Stivers asked if amendments might be needed to the personnel laws to permit hiring a new staff member for the six-month training period prior to the departure of a retiring staff member. Lt. Col. Robert Milligan replied "yes" and that the State Police would also like to have a different personnel classification system for each analytical specialty in the laboratory, with a definite career ladder with attractive salary increases to keep laboratory salaries competitive with private laboratories and other governmental laboratories with a goal of being within $3,000 to $5,000 of the other salaries. 


Representative Robin Webb commented that as a defense attorney and a legislator that some judges tend to blame legislator attorneys for the high rate of dismissals in criminal cases.  She then asked how much the out-of-state laboratories will charge for testimony in Kentucky to which Mr. Warnecke replied that the fees will be $160 per hour plus costs.


Mr. Warnecke indicated that he has cross trained ten blood alcohol analysts to do additional laboratory jobs, that only ten percent of the cases examined result in a subpoena for court testimony, and that about half of those cases actually result in a court appearance.  He said that the outsourcing is a temporary solution to reduce the current backlog while new personnel are hired and trained.


Representative Yonts then asked that since some personnel are leaving for higher paying jobs elsewhere right after training, if consideration had been given to including a provision in their employment contracts that they must repay the cost of their training if they leave before a certain number of years. Lt. Col. Robert Milligan responded that they had not been doing so because they believe that the current personnel laws will not permit such a condition.  Representative Yonts then asked if the University of Kentucky and the University of Louisville had been approached to provide laboratory services, to which the answer was "no" because of problems with calibration of instrumentation and the chain of custody of the evidence.  Representative Yonts then asked what the average cost of training a new analyst was, to which Mr. Warnecke replied that his guess would be about $30,000 depending upon the person's prior training, the person's ability to absorb new material, time available to conduct laboratory examinations, and other factors.  Chairman Stivers then asked Commissioner Simpson "didn't you see the problem approaching", to which Commissioner Simpson replied that as early as 1996 that the State Police had requested additional laboratory personnel, but that the request was denied.  He stated that he was currently in the process of creating a six-year plan for improvement of the forensic laboratories to be able to better anticipate and respond to the needs for the future. 


Senator Richard Roeding then commented on the successes of the State Police and other law enforcement agencies in marijuana seizures, drug enforcement, and that he appreciated the efforts of the State Police and other law enforcement agencies in drug enforcement efforts.  Secretary Burks indicated that the situation of the State Police forensic laboratory is one in a series of "hiccups" in the criminal justice system resulting from increased enforcement, longer sentences, and other factors.  He reiterated the need for the committee to address problems in the entire system.


Senator Katie Stine asked if information presented at the August meeting regarding the need for additional typists was correct.  Commissioner Simpson replied that the primary need was for laboratory analysts, to which Lt. Col. Robert Milligan added that there was a need for additional typists or voice recognition software to assist the analysts in the preparation of their reports.  He stated that the department was attempting to determine the best and most cost effective solution. 


Representative Joseph Fischer asked about the unavailability of blood alcohol services in the northern Kentucky area.  Commissioner Simpson replied that the problem arose when a serologist retired, but that two weeks ago two serologists had been assigned to the northern Kentucky laboratory.  Chairman Lindsay, commenting on the fact that there is only one laboratory west of Jefferson County and several laboratories in eastern Kentucky, asked about the services of each laboratory and the distribution of services. Commissioner Simpson responded with an explanation of the services offered by each of the laboratories.  He indicated that the only full service laboratory was in Frankfort and that analyst distribution was designed to handle the types of cases most typically found in each of the laboratory areas, and that each of the regional laboratories did not have the same specialties.  Commissioner Simpson further observed that while drugs and alcohol accounted for 80 percent of the cases and 90 percent of the complaints, circuit judges wanted more DNA analytical services.  Senator Seum asked why a local hospital could not be contracted in each area to do blood alcohol analysis to which the response was that the costs involved were too high, that there were problems in securing testimony and that the state could do the job cheaper.  Senator Roeding asked if colleges could help in the training of analysts and forensic specialists for the state police. Mr. Warnecke replied that the only university with a forensic science program is Eastern Kentucky University and that they do get some of their graduates.  Mr. Warnecke then described that the KSP laboratory testing is much more exacting than in a normal hospital setting, that the analysts must be trained in court testimony, must correctly do many monitored tests, and write one or more "term papers." 


Chairman Lindsay then asked if part of the problem with blood and urine testing came from a situation where a police officer making a DUI arrest got a low breath alcohol reading and then took the defendant to a hospital for blood and urine testing, and whether or not this constituted "over testing".  Mr. Warnecke responded that this was an enforcement issue rather than a laboratory issue. 


Representative Robin Webb indicated that in her practice in eastern Kentucky, seven out of ten persons stopped for driving under the influence because of their erratic driving were not under the influence of alcohol but were under the influence of prescription drugs which were causing the impairment and without laboratory testing there would not be a conviction.  Representative Perry Clark asked if the state government personnel cap had hampered hiring new personnel for the laboratories to which Chairman Stivers responded that the State Police and the forensic laboratories had been exempted from the hiring freeze. 


Chairman Stivers then asked Secretary Burks if the problems of the State Police forensic laboratories could be better addressed by transferring the forensic laboratory from the State Police to an independent department within the Justice Cabinet.  Secretary Burks declined to give a yes or no answer, but urged the committee to study the matter carefully along with problems in probation and parole, community corrections and other programs within the Justice Cabinet.  Chairman Stivers then asked Commissioner Simpson the same question to which Commissioner Simpson responded by giving a short history of the laboratory being founded by State Police Lt. Fred Watson, growing through the years, and being an integral program within the State Police.  He urged the committee to retain the forensic laboratory program as a division within the State Police.  The State Police also presented the committee with a written report detailing answers posed by the committee based on testimony received at the August meeting.


The next speakers were Jan Gould and Gay Dwyer of the Kentucky Retail Federation.  They appeared in response to a committee request to appear in regard to several legislative proposals made to counter a recent Supreme Court of Kentucky decision which ruled that a defendant had to possess "all" of the chemicals or "all" of the equipment necessary to manufacture methamphetamine.  Several bills have been prefiled to lower the number of chemicals or items of equipment from "all" to two or three depending upon the bill.  Ms. Dwyer indicated the rise in methamphetamine laboratory seizures and the problems that retail merchants had both with thefts of chemicals and equipment, and concerns relating to possible criminal liability of a merchant who possessed chemicals or equipment necessary for the manufacture of methamphetamine.  Since the materials and chemicals necessary for the manufacture of methamphetamine include common items such as drain cleaner, coffee filters, and other equally common items, most merchants would have virtually all of the ingredients or equipment and farm suppliers would have the anhydrous ammonia necessary to the process. 


Ms. Dwyer recounted the efforts of the retail merchants and law enforcement to successfully pass legislation in 2000 prohibiting stealing anhydrous ammonia, possessing anhydrous ammonia in an unapproved container, and other measures designed to punish such acts as felonies.  Ms. Dwyer indicated that theft of anhydrous ammonia is still a major problem for farm suppliers and for farmers, and that theft of entire "nurse tanks" of ammonia is increasing.  This was followed in 2002 by legislation supported by the retail merchants punishing possession or purchase of large quantities of pseudo ephedrine, another primary ingredient in methamphetamine manufacture, according to Ms. Dwyer.  Mr. Gould then detailed some of the provisions of the new case law and the proposed statutes.  Senator Dan Seum asked if he had three or four of the ingredients or coffee filters under the proposed bills, or another proposal to insert the words "any of" the chemicals or equipment for the manufacture of methamphetamine, whether he would be guilty under the law.  The response was "perhaps" if the jury or judge was convinced that the defendant had the requisite intent to manufacture the drugs.  Chairman Lindsay asked if there was a method of manufacturing methamphetamine that did not require anhydrous ammonia to which the response was "yes."  Ms. Dwyer indicated that some merchants were worried about having the number of chemicals or equipment too low might result in unintended consequences.


The next speaker was District Judge Susan Johnson, President of the District Judges Association, who appeared in response to a committee request to provide input on proposed legislation to increase the jurisdictional amount of cases in the Small Claims Division of the District Court from $1,500 to $2,500, increase the amount of the civil jurisdiction of the District Court, and increase the number of claims which a merchant or other person could bring in the court.  Also appearing was Mr. Jan Gould of the Kentucky Retail Federation.  Mr. Gould indicated that the Retail Federation favored increasing the jurisdiction of the small claims division and the number of cases that could be filed in any year.  Mr. Gould compared the jurisdiction in Kentucky and in other states and indicated that the proposed increase in jurisdiction would merely keep pace with inflation as gauged by the Bureau of Labor Statistics.  He also stated that merchants would appreciate being able to file additional cases in the small claims division.  Mr. Gould compared our limit on case filings with those of other states and indicated that Ohio has repealed its limit on filings.  Judge Johnson indicated that while the proposals might be good for retailers, the average citizen who uses the small claims division does not understand what is necessary to win a court case, does not understand the court rules, and frequently loses simply because they do not have the necessary skills and knowledge to prevail.  Judge Johnson further indicated that the judge was precluded by the rules of court from aiding one side or the other in these proceedings, and that the end result of the increase in jurisdiction and the number of case filings would be to deprive the citizens seeking redress in the small claims division of even more money than they might lose or not be able to recover now.  Judge Johnson concluded by indicating that the District Judges Association voted unanimously at its recent meeting to oppose any legislation to increase jurisdictional amounts or the number of case filings permitted.  Chairman Lindsay asked if the judge had ascertained the views of the circuit judges in this matter to which Judge Johnson replied that she had not done so.  Representative Joseph Fischer asked the judge if the case was too complicated to be handled in the small claims division if the case could be transferred to the regular District Court where it would be argued by attorneys, to which the judge responded "yes."


 The next speaker was Mr. Jim Norris of the Department for Public Advocacy.  He asked the committee to pass legislation that would forgive the loans of attorneys from Kentucky law schools who worked for the Department for Public Advocacy or as prosecutors for the Commonwealth's attorneys or county attorneys.  Mr. Norris indicated that many students leave school with loans in excess of $50,000, and that the salaries paid by public prosecution and defense agencies are too low for the student to repay the loan so they must seek higher paying legal jobs elsewhere.  The next speaker was Cotha Hudson from the Department for Public Advocacy who urged the committee to consider further expansion of Drug Courts and similar court monitored counseling services since, according to Mr. Hudson, many defendants do not need and will not benefit from incarceration.  She stated that Drug Courts have proved extremely successful in Kentucky and elsewhere.  The next speaker was Mr. Roger Gibbs who indicated that the Department’s caseload this year was over 115,000 cases, that there were 4,100 cases in the London area alone, and that the increase was due in large part to methamphetamine cases.  He stated that the Department for Public Advocacy is losing attorneys due to low pay, cannot attract new ones, and is in desperate need of more attorneys to be able to provide defense services for drug and other defendants since the caseload is increasing at 11 percent per year.


The next speakers were Mr. Will Warner and Ms. Mary McCarthy of the Kentucky Coalition Against the Death Penalty.  Mr. Warner urged the committee to hear the proposed legislation to eliminate the death penalty for persons who commit offenses while a juvenile.  He also presented a petition signed by several hundred persons favoring elimination of the death penalty for juveniles.  Representative Kathy Stein indicated that Mr. Warner was one of her constituents and had provided her with valuable opinions on many topics in the past.  The next speaker was Ms. Mary McCarthy who presented reasons for elimination of the death penalty, the results of a poll of Kentuckians which indicated support for elimination of the death penalty in favor of its replacement for life imprisonment without parole, a study which indicated that one million dollars per case could be saved by elimination of the death penalty, a study indicating that the murder rate in non-death penalty states was no higher than in death penalty states, and that a civilized society should not condone state sponsored killing.


     The meeting was adjourned at 12:40 PM.