Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 1st Meeting

of the 2006 Interim


<MeetMDY1> September 19, 2006


The<MeetNo2> 1st meeting of the Interim Joint Committee on Judiciary was held on<Day> Tuesday,<MeetMDY2> September 19, 2006, at<MeetTime> 10:00 AM, in<Room> Room 171 of the Capitol Annex. Senator Robert Stivers II, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Robert Stivers II, Co-Chair; Representative Gross C Lindsay, Co-Chair; Senators Perry B Clark, Carroll Gibson, Jerry P Rhoads, Richard "Dick" Roeding, Ernesto Scorsone, Dan Seum, Katie Stine, and Jack Westwood; Representatives Jesse Crenshaw, Joseph M Fischer, Stan Lee, Darryl T Owens, Frank Rasche,  Kathy W Stein, John Vincent, Robin L Webb, Rob Wilkey, and Brent Yonts.


Guests:  Bill Heffron, Dept. of Juvenile Justice; Teresa Barton, Justice Cabinet; Pierce Whites, Office of Attorney General; Charles Geveden, Office of Attorney General; Todd Leatherman, Office of Attorney General; Ian Sonego, Office of Attorney General; David James, Office of Attorney General; Jennifer Shiuver, Office of Attorney General; Margaret Case, Dept. of Public Advocacy; Ken Schwendeman, Justice and Public Safety Cabinet


LRC Staff: Norman Lawson, CSA, Jon Grate, Katie Coyle, Ray Debolt, Autumn Dmytrewycz, and Michelle Coyle.


Senator Robert Stivers called the meeting to order, the roll was called, and a quorum was present.  The first speaker was Commissioner    Reese of the Department of Corrections who spoke about a revised prison industries enhancement bill.  The bill, which is authorized by a Federal law, provides that prisoners engaged in a prison industries program which meets federal standards which include minimum wage, not displacing domestic workers, payment of taxes on wages and other requirements, can sell its products and services in interstate and international commerce.  Commissioner Reese indicated that 39 states have enacted prison industries enhancement legislation and that the program has kept U.S. jobs from going abroad, returned U.S. jobs from abroad, provided U.S. companies with laborers, and at the same time has trained inmates for gainful employment upon release and has reduced recidivism for inmates who have participated in the program.


The next bill Commissioner Reese spoke about was the reintroduction of 06 RS SB 245 which related to a pretrial drug diversion program.  This bill is designed to complement the programs of Drug Courts by providing a treatment program for persons with substance abuse problems.  The bill was funded in the 2006 budget.  Versions of the bill were passed in both houses but did not pass the General Assembly.


The next bill Commissioner Reese spoke about was the reintroduction of 06 RS HB 351 which was a corrections housekeeping bill which required the party desiring the attendance of a convict at a civil proceeding to pay the costs of guarding, transportation, housing and feeding, and encouraged video conferencing in such cases.  Commissioner Reese indicated that the department has been working with the Administrative Office of the Courts to implement the programs in courts equipped for video conferencing.


The next bill which Commissioner Reese spoke about was the reintroduction of an inmate banking and fees bill, 06 RS HB 425, which provided for administrative charges for inmate account transactions, increasing the supervision fees for inmates on probation or parole, and required an inmate to pay for pre-sentence investigations not to exceed the actual cost of the investigation or $75, whichever is lower.


The next bill which Commissioner Reese spoke about was a bill relating to the parole of prisoners with terminal illness conditions.  This proposal, which appeared as an amendment to several bills in 2006. would shorten the time for notices of parole hearings for inmates with terminal medical conditions.  Commissioner Reese indicated that the adoption of the proposal would save the department money currently expended for medical costs.  Rep. Robin Webb indicated that she had applied for medical paroles in the past for inmates with terminal medical conditions and that some had died prior to the hearing under the current law.  Chairman Lindsay asked whether we already had a statute on this subject to which Commissioner Reese replied, yes, but the hearing times following notice to victims and others are so long that many inmates die prior to the hearings.


The next bill which Commissioner Reese spoke about was 06 RS HB 407 which would penalize as a felony consensual sexual conduct between an inmate, probationer, or parolee, and a staff employee, volunteer, or probation and parole officer.


The next speaker was Ken Schwendeman of the Justice and Public Safety Cabinet who spoke about other bills which the cabinet would like to introduce at the 2007 Regular Session.  The first bill, 06 RS SB 118, was a codification of budget changes adopted in recent years adding the State Police, Kentucky Vehicle Enforcement and other law enforcement officers to the Kentucky Law Enforcement Program Foundation Fund (KLEPF Fund) which provides a salary supplement to officers who receive basic and in-service peace officer training and which also increases the stipend to $3,100.  The funding for these changes, according to Mr. Schwendeman, has been in the budget for several years and the desire is to amend the KLEPF Fund statutes to make the changes permanent.


The second bill was the Justice and Public Safety Cabinet housekeeping bill, 06 RS HB 351, which included provisions for the Kentucky Law Enforcement Council to have standards for revocation of certified peace officer status, provide for extensions of certifications for peace officers serving in the military, permitting KRS Chapter 16 (State Police) employees to participate in the Kentucky employee suggestion program , eliminate a conflict as to how quickly the Department of Corrections must respond to an open records request by specifying five days response time, change the Sudden Infant Death Syndrome definitions to match current medical definitions and require further investigation of the circumstances of such cases, provide for criminal record checks on persons displaced during disasters and for emergency placement of children, and provide for restrictions on the release of security sensitive Department of Juvenile Justice information.


The next speaker was Deputy Secretary of the Justice and Public Safety Cabinet Theresa Barton, who also directs the Office of Drug Control Policy, who spoke about 06 RS HB 130 the "AWOL" bill which prohibits the sale or use of alcohol vaporizing devices except for medical use.  Deputy Secretary Barton indicated that these devices are being sold on the Internet as recreational devices for inhaling alcohol in a manner similar to a nebulae and that it has been reported that some bars in Louisville have been considering the purchase of such devices.  Ms. Barton indicated that eight states are currently considering similar legislation and that four states have passed similar legislation.


The next bill about which Deputy Commissioner Barton spoke was the methamphetamine laboratory clean up bill, 06 RS HB 591 which would provide for listing properties which had been used for clandestine drug production, require clean up and remediation, and require state or local health inspections for such properties prior to the property being sold or rented.  Representative Robin Webb observed that she supports the bill but hopes that the bill will be amended to include motor vehicles and recreational vehicles used for similar purposes.  Chairman Lindsay asked who will pay for the costs of remediation and for lost income to which Deputy Secretary Barton replied that the costs would be borne by the owner of the property and that no other public reimbursement was planned.  Representative Lindsay observed that considerable time might elapse during the clean up, inspection and restoration period and that the bill might be considered as "condemnation without compensation".  Senator Seum asked if consideration had been given to acceptable levels of residual contamination to which Deputy Secretary Barton replied that this matter would have to be regulated by the Natural Resources and Environment Cabinet.  Representative Yonts asked if the bill provided that the property was off the tax rolls during the period it was unusable to which the reply was "no".  Representative Yonts observed that this was a situation relating to inverse condemnation which might require the government to pay for the taking of the property.  Senator Roeding asked whether the bill would be a burden to Realtors to which Deputy Secretary Barton replied that most Realtors to whom she has spoken favor the bill because of liability issues associated with selling contaminated property.


The next speaker was Ms.  Margaret Case from the Department for Public Advocacy who spoke in favor of a proposal to forgive student loans for attorneys serving in prosecutors officers, public defender offices, and civil litigation programs.  Under the proposal a maximum of $6,000 per year could be forgiven and that funding would be from an allocation of two cents per dollar from court costs.  In response to questions from Representative Stan Lee, Representative Wilkey described the court cost legislation passed a few years ago and how the current funds are divided between various statutorily approved programs.


Senator Scorsone asked Commissioner Reese about delays in the processing of applications for restoration of rights.  Commissioner Reese replied that the Department of Corrections responds promptly to the applications and that the actual granting of a restoration of the right to vote and hold public office must be done by the Governor.


The next item for consideration was a proposal by the Department of Juvenile Justice for a new administrative regulation, 505 KAR 1:060 relating to juvenile sexual offender programs within the Department of Juvenile Justice, particularly those portions relating to polygraph examinations.  Chairman Stivers indicated that since this administrative regulation was still in the comment phase that those desiring to comment on the regulation direct their comments to the department and to the Administrative Regulations Review Subcommittee at the appropriate times.  Senator Scorsone asked about a portion of the regulation relating to the use of IQ testing relating to admission to treatment programs to which Dr. Heffron and Ladonna Coble of the department indicated that they would look at the language of the proposed regulation with Senator Scorsone's concerns in mind.


The next speakers were Deputy Attorney General Pierce Whites and Director of the Criminal Appellate Division, Charles Geveden.  They first spoke of potential problems with 2006 RS HB 3, the sex offender legislation, which related to a technical problem with the Class C felony provision for incest, clearly defining whether new registration provisions and extension of periods of registration apply to persons convicted prior to the effective date of the act, extension of the 90 day verification of sex offender residence to all sex offenders not just ones with lifetime registration, and whether the title to the act adequately covered all of the material within the act.  Mr. Whites also indicated that the Attorney General is looking into the matter of the 1,000 foot residence restriction as it relates to nursing homes and medical facilities.  Representative Lindsay asked how recent federal legislation requiring registration of juvenile sex offenders would impact our law to which Ian Sonego of the Attorney General's office replied that it is impossible to answer the question at this time because the Attorney General of the United States was required to design and implement the program through federal regulations over the next several years.


The Attorney General's next proposal was to change the habeus corpus legislation to require the petitions to be filed in the county of the conviction rather than of the residence of the offender and to limit the number of times that a court could consider the same issue in a petition.  Representative Webb commented that having the sentencing judge to review a habeus corpus petition on the same manner might be improper.  Senator Scorsone also objected to the proposal.  Senator Stivers observed that the proposal would limit the number of frivolous petitions which are currently being filed.  Ian Sonego of the Attorney General's office indicated that various other states have such limitations and that the Federal government also has such limitations.


The next speakers were Mr. David James of the Kentucky Bureau of Investigation and Ms. Jennifer Shiuver of the Attorney General's Office who spoke about the successes in the implementation of 2006 RS SB 63 the internet pharmacy bill in detecting and prosecuting the distribution of illegal drugs.  Mr. James described the arrest of persons in Louisville who had opened an internet pharmacy filling prescriptions from doctors in Florida for drugs such as hydrocodone, Zanax, and steroids for patients in Kentucky and other states who have never had an actual doctor/patient relationship.  Mr. James described the cooperation of authorities in Florida and the Drug Enforcement Administration in the investigation.  Representative Robin Webb observed that many persons in Eastern Kentucky have been traveling to Florida to obtain drugs illegally.  Representative Webb also observed that the drug companies have records of drug production and distribution which are valuable to which Mr. James indicated that the Drug Enforcement Administration is already using these records to track illegal diversion of the drugs.  Mr. Pierce Whites observed that constitutional challenges have been mounted by persons convicted of manufacturing methamphetamine that the warrantless inspection and requirement for registration of purchasers of pseudoephedrine and related products violates the 4th Amendment to the Constitution of the United States relating to warrantless searches.  According to Mr. Whites, the Attorney General is defending these cases.  Senator Westwood asked if doctors are signing off on the illegal prescriptions to which Mr. Jones replied that some doctors are and have been successfully prosecuted but that other doctors have been the victims of identity theft and the thieves are signing the prescriptions.


The next speaker was Mr. Todd Leatherman, director of the Consumer Protection Division of the Attorney General's Office who spoke of the need to reintroduce 06 RS HB 4 relating to identity theft.  Mr. Leatherman indicated that changes suggested include security breach notification which has been adopted in 20 states, tightening of controls on the collection and use of Social Security Numbers, including limitations on the collection of Social Security Numbers by government agencies, and a new provision prohibiting "Phising" for personal information.  Mr. Leatherman also spoke of the need to reintroduce 06 RS HB 543 relating to protection of telephone records and to prohibit "pretexting" and other illegal record gathering.


Mr. Whites spoke of the next proposal for a bill relating to false claims for Medicaid programs which would reward whistle blowers and increase the amount of money which the state could recover for such actions.  At present the federal government provides 70 percent of the funds and the state 30% of the funds for Medicaid programs.  Under this proposal, which is based on a recent federal law, the state could recover 40% of illegal payments and receive double or triple damages as well.  Mr. Whites observed that Florida recently recovered $75 million in improper payments under similar legislation.  Senator Stivers asked where the state part of the split came from and Mr. Whites responded that the state would receive 40% of the amount recovered plus 40% of additional damages.  Representative Darryl Owens asked where the reward money came from and how much it was to which Mr. Whites responded that the money came from both the state and the federal share of the proceeds and was from 15% to 25% of the total and that the amount is determined by the judge.


The next proposal was a change in the statute requiring coroners to perform post mortem examinations to include persons who die in nursing homes and similar facilities where the circumstances meet the requirements of the law.


The final proposal was the requirement of a security bond for persons receiving Medicaid and similar payments where the circumstances have involved fraud in the past or could involve fraud.


The meeting was adjourned at 12:10 p.m.