The4th meeting of the Interim Joint Committee on Judiciary was held on Friday, October 2, 2009, at 10:00 AM, in Manchester, KY. Senator Robert Stivers II, Chair, called the meeting to order, and the secretary called the roll.
Members:Senator Robert Stivers II, Co-Chair; Senators Perry B. Clark, Ray S. Jones II, Mike Reynolds, John Schickel, Dan "Malano" Seum, and Katie Kratz Stine; Representatives Jesse Crenshaw, Kelly Flood, Stan Lee, Mary Lou Marzian, Harry Moberly Jr., Darryl T. Owens, Tom Riner, Steven Rudy, and Brent Yonts.
Guests: Dr. Doug Whitlock, President, Eastern Kentucky University; Hon. John D. Minton, Jr., Chief Justice of Kentucky; Hon. Sara W. Combs, Chief Judge, Kentucky Court of Appeals; Hon. Thomas J. Clark, Chief Regional Circuit Judge, 22nd Judicial Circuit, Fayette County, Past President, Circuit Judges’ Association; Hon. Larry E. Thompson, Family Court Judge, 35th Judicial Circuit, Pike County, President, Circuit Judges’ Association; Hon. Karen A. Thomas, Chief Regional District Judge, 17th Judicial District, Campbell County, President, District Judges’ Association; and Hon. Kirk Tolle, Mason County Circuit Clerk, President, Kentucky Association of Circuit Court Clerks.
LRC Staff: Norman W. Lawson, CSA; Ray DeBolt, Jon Grate, Joanna Decker, Carolyn Gaines, and Christy May.
Senator Stivers called the meeting to order, a quorum was present, and the minutes of the August and September meetings were approved. The first speaker was Dr. Doug Whitlock, President of Eastern Kentucky University who complimented Senator Stivers on his vision and support for the building in which the committee meeting was held. President Whitlock then proceeded to stress the mission of the university as student success, regional stewardship, and use of a quality enhancement plan. President Whitlock then described the recent academic successes of the university.
The next speaker was Chief Justice John D. Minton, Jr. of the Supreme Court of Kentucky, accompanied by Ms. Laurie Dudgeon, Director of the Administrative Office of the Courts. Justice Minton introduced judges and other persons who would be speaking to the committee and recognized other judges and circuit clerks in the audience.
Justice Minton proceeded with his "state of the judiciary" report in which he described recent successes in the court system as completing efforts made to satisfy bonding requirements for new judicial buildings under construction throughout the state, securing a bonding opinion, and settlement agreements with contractors which have resulted in all construction projects being properly bonded. Justice Minton announced that construction of new court facilities in the current six-year plan will be placed on hold until the economy improves. Justice Minton described as painful the recent elimination of 47 positions at the headquarters of the Administrative Office of the Courts which will result in a savings of $4.5 million and warned that, in order to meet the judicial branch budget deficit, further cuts in personnel may be necessary because 87% of the Court of Justice budget consists of personnel costs. Justice Minton reported that the courts are in the process of filling 28 judicial vacancies resulting from recent retirements and the sunsetting of the Senior Status Judge program. Justice Minton observed that 17 vacancies have already been filled but that since some of the Circuit Court vacancies were filled by District Judges appointed to the Circuit Court bench, that 3 additional vacancies were created and that there are now 13 vacancies remaining to be filled. Justice Minton reported that not filling the vacancies and utilizing 67 retired judges who are participating in the Senior Status Judge program had saved the state $3 million. Justice Minton observed that more of the Senior Status Judges are reaching their service limit and that by 2011 very few judges will still be participating in the program.
Representative Moberly asked the Chief Justice if he had heard concerns from prosecutors that the use of Senior Status judges that prosecutors needed more funding to handle the cases assigned to Senior Status judges. Justice Minton responded that he had heard these concerns and the concerns of public defenders and Circuit Clerks of a similar nature and that the use of Senior Status judges to dispose of cases required sensitivity and the cooperation of all involved. Justice Minton commented that the assignment of Senior Status judges to these cases was not just to create work for the judges but to make certain that cases were handled in a prompt manner. Justice Minton reported that 1.2 million cases were filed in the courts.
Justice Minton then described the Supreme Court as the state court of last resort and the final interpreter of Kentucky law. He said the Supreme Court hears all appeals from the Circuit Court resulting in criminal cases where the death penalty is imposed, a life sentence is imposed, or a sentence of 20 years or more is imposed, and that all other appeals normally go to the Court of Appeals prior to reaching the Supreme Court. The Supreme Court consists of seven Justices elected for eight-year terms from seven Supreme Court districts. Justice Minton then described the various other courts within the system and their jurisdiction. Justice Minton described the Administrative Office of the Courts as the service arm of the court system and that only 16 states have a unified court system which Kentucky adopted in 1976. Justice Minton described the functions of the Administrative Office of the Courts as constructing and operating court facilities, drug court programs, the pretrial release program, a training division, court designated workers in juvenile court, and other programs.
Senator Stivers asked if the Senior Status Judge program would end in 2011 to which Justice Minton replied that the program would expire when the final judge participating in the program reached 600 days of service, which might last past 2011. Justice Minton then discussed proposals to change court facilities construction from the Administrative Office of the Courts to the Finance Cabinet and stated that the courts were considering the matter but that no decision had been made.
Senator Jones asked the Chief Justice to look into several problems, the first of which was the failure of the ethics hotline personnel of the Kentucky Bar Association to deal promptly with and in some cases not answer ethics questions asked by lawyers and observed that the Bar Association is more punishment-oriented than helpful in ethics matters. Senator Jones observed that lawyers who want to be ethical and seek advice from the Bar Association are not receiving that advice. The second problem that Senator Jones addressed was that of lawyer advertising, particularly soliciting clients the day after an accident or other incident along with solicitation by chiropractors and others. Soliciting a day after the wreck is a pervasive problem, and lawyer advertising in the media "makes a joke of what we do," Senator Jones commented. Justice Minton responded that the ethics matter at the Bar Association would be looked into but that he was proud of the establishment of the ethics hotline and that ethics is a matter of complexity. Justice Minton promised to bring the matter to the Bar Association's attention. With regard to the matter of lawyer advertising, Justice Minton responded that much regulation of lawyer advertising has First Amendment free speech implications and that many restrictions on lawyer advertising had been overturned by the Supreme Court of the United States. He said he would discuss the specifics of the matter in private with Senator Jones. Representative Flood commented that the $4.5 million in layoffs at the Administrative Office of the Courts would not go far to help with the overall budget deficit to which Justice Minton agreed and indicated that additional revenue would be needed to avert further layoffs.
The next speaker was Sara Walter Combs, Chief Judge of the Kentucky Court of Appeals. Judge Combs observed that the Kentucky Court of Appeals has appellate jurisdiction over most cases appealed from the Circuit Courts, some state agencies, and that the court also handles appeals Circuit Court decisions on judgments from District Court. All cases handled by the Court of Appeals are on the judgment from the courts below and are not retried as new cases. Judge Combs observed that the Court of Appeals consists of 14 judges, elected for eight-year terms, and that two judges are elected from each Supreme Court district. Judge Combs reported that the Court of Appeals hears and disposes of 2,000 cases a year and that the goal that the court has set for itself is to render a decision on an appeal within six months of its filing. Judge Combs observed that the first concern of the court is for quality of its work product with the second concern being speed, and that family matters are on a fast track with the court. Senator Reynolds commented that his father had the honor of serving on both the Court of Appeals and the Supreme Court.
The next speaker was Pike Family Court Judge Larry Thompson, President of the Circuit Judges Association. Judge Thompson indicated that there are 51 Family Court Judges serving in 35 circuits who are elected for a term of eight years and that the Family Court is a hybrid court in that it handles cases traditionally handled by the District Court and the Circuit Court in cases where family matters are involved. Judge Thompson explained that the objective of the Family Court is that it handles in one court all matters related to the family which used to be handled by the District Court and the Circuit Court, sometimes with differing results. Judge Thompson indicated that in 2004, Family Courts had 102,000 case filings while so far in 2009 there have been 112,000 case filings for a 9.5% increase in case filings. Pike Family Court disposed of 1,119 cases last year, and the goal of Pike Family Court has been to reduce the time to handle such cases from one year to 90 days.
Judge Thompson indicated that, although there has been an increase in the number of Family Court judges in recent years, Family Courts are not yet available in every judicial circuit. He commented that, while Family Courts take some cases from District Courts and some from Circuit Courts, realignment of judges in those courts reducing the number of District Judges or Circuit Judges has leveled the caseloads between the courts. Several legislators requested statewide Family Court caseload information which Judge Thompson indicated that the Administrative Office of the Courts would provide to the members. Representative Yonts commented that the General Assembly, when authorizing Family Courts, prohibited the use of domestic relations commissioners and similar persons and asked if any courts were still using domestic relations commissioners and similar persons. Judge Thompson indicated that he did not use commissioners and that he would provide information as to whether any remained in the system.
Judge Thompson indicated that he is a firm believer in mediation if both parties want it in domestic relations cases but that he does not use mandatory mediation in lieu of court hearings. When asked about mandatory custodial investigations, Judge Thompson indicated that he knew of one court that did so but that the costs were about $1,500 per case. Senator Jones praised the work that Judge Thompson has done in Pike County. Senator Seum asked why acts of domestic violence are tried in normal District Court and Circuit Court when domestic violence orders are handled in Family Court, to which Judge Thompson responded that domestic violence orders are civil in nature and actual acts of domestic violence are criminal in nature, such as assaults which must be tried in District Court if misdemeanors and in Circuit Court if felony assaults, this means that persons end up in two different courts with two different lawyers. Judge Thompson explained that for violation of a Domestic Violence Order the person who was the petitioner in the case has an option to seek contempt of court in the Family Court where the judge can sentence a person to 180 days in jail or the matter can be handled in the District Court as a misdemeanor where the judge can sentence a person to up to 12 months in jail.
Representative Moberly indicated that many Family Courts have truancy court programs in conjunction with local schools and that these programs have cut truancy dramatically which has resulted in an increase in state funding for schools since state school funding is based on attendance. Senator Rhoads commended Judge Thompson on coping with workloads in the Family Court and asked if studies had been done in the shift in caseloads in District Court and Circuit Court in jurisdictions where a Family Court had been created and what would be looked on as an ideal caseload. Judge Thompson responded that Justice Noble of the Supreme Court is currently considering Family Court rules and juvenile problems but that no full studies had been conducted.
The next speaker was Chief Regional Circuit Judge Thomas Clark from Fayette County who is a "traditional" Circuit Judge and the Past President of the Circuit Judges Association. A "traditional" Circuit Judge operates in a circuit court but does not have duties assigned to a Family Court judge. Judge Clark indicated that the jurisdiction of the Circuit Court consists of civil matters where more than $4,000 is in controversy, capital offenses, felony offenses, divorces, adoptions, termination of parental rights, real property title disputes, and contested probate matters. Circuit Judges serve eight-year terms. Judge Clark indicated that in recent years Daubert hearings in which the qualifications of "expert" witnesses can be challenged have increased in Circuit Court criminal court hearings. Judge Clark indicated that in Fayette County that there are 184 indictments average per month and that some Circuit Judges have 1,400 cases filed per judge per year. Senator Stivers asked what the American Bar Association guidelines for judicial caseloads were to which the Judge responded that 700 to 900 cases per year is the recommended number.
When asked if the process in capital cases was fair, Judge Clark responded that he currently has four capital cases pending, that the Commonwealth's Attorney in Fayette County tries all death eligible cases as death penalty cases to avoid problems with unfair selection and prejudice, that the death penalty has been rarely imposed by juries in Fayette County and that qualified defense counsel are needed. In the past, Judge Clark indicated, there were problems with jury selection but that the Administrative Office of the Courts’ new computerized jury selection program will give a more random cross section of the community. Representative Stan Lee commented that the Judge was hard-working, competent, and fair.
With regard to advertising by attorneys, Judge Clark indicated that after a "fender bender" accident his mother was solicited by an attorney within 24 hours. Judge Clark commented that when his mother told the attorney that her son was a judge and she would contact him about what to do, the lawyer hung up. Senator Jones indicated that in Pike County a lawyer showed up at the home of a person within 24 hours and that it appears that Kentucky State Police troopers are providing accident information to lawyers. Senator Jones then spoke of an incident in which a Bowling Green lawyer reported another lawyer to the Bar Association, the Bar Association did nothing, and the reporting attorney was sued by the attorney who had been reported. Senator Jones reported that in another case he was retained for a person who indicated that another lawyer had called the week before, even prior to the release of the accident report by the Kentucky State Police.
The next speaker was Chief Regional District Judge Karen A. Thomas from Campbell County who is the President of the District Judges Association. Judge Thomas reported that there are 116 District Judges in 60 Judicial Districts, that a District Judge is elected for a four-year term, and that the jurisdiction of the District Court includes, small claims, regular civil actions of $4,000 or less, local ordinance violations, criminal cases defined as violations and misdemeanors, uncontested probate cases, traffic offenses, and juvenile court. District Court also handles mental health matters and cases in which a person is incompetent to handle their own affairs and a guardian will be appointed following a mandatory jury trial.
Judge Thomas reported that of the 1.2 million cases filed annually in the court system, 500,000 are filed in the District Court. In one county in northern Kentucky, two judges disposed of 10,000 cases each in the past year and Judge Thomas reported that District Judges are on call 24 hours a day, seven days a week for emergency protective orders, setting bail and pretrial release, holding drug court, holding mental health court, conducting truancy programs in schools, and other civic matters. One judge held truancy court at school at 7:00AM prior to the normal daily caseload, held the daily caseload, held mental health court during lunch, and held drug court after the regular court hours.
Senator Schickel observed that Judge Thomas was "an inspiration" and that District Court was truly a "people's court" in that most persons who have contact with the court system have that contact in the District Court. Senator Schickel then commented that the judges' secretaries were very helpful, that they look on their job as "a labor of love," and that they need increased salaries, to which Judge Thomas responded that many secretaries serve several judges. Judge Thomas indicated that the District Courts in northern Kentucky do not use commissioners but use volunteers to help with mental health court, drug court, and other programs.
When asked if the jurisdiction of the small claims division of the District Court should be increased from $1,500 to a higher amount, Judge Thomas responded that it should not because if a higher amount was chosen, the case would be more complicated and that persons could no longer present the cases themselves as they do now and would be required to hire attorneys to properly represent themselves. Keeping the limit as is promotes access to justice, Judge Thomas responded. With regard to raising the jurisdictional limit of District Court civil cases from the present $4,000 to a higher amount, Judge Thomas indicated that she opposed that proposal as well indicating that the amount has worked successfully. Chief Justice Minton commented that he agreed with keeping both limits at their present amounts.
Senator Reynolds commented that in his practice he sees more foreign nationals who do not speak English and that in his local schools students spoke 26 different foreign languages. In his district, Senator Reynolds observed that Russian and Spanish are two languages frequently requiring interpreters and asked what percentage of cases required interpreters. Chief Justice Minton responded that he would obtain an exact percentage but that the number of non-English speaking participants in the court system has increased and that Spanish and Bosnian languages frequently require interpreters. The Administrative Office of the Courts has its own court-related trained interpreters on staff and hires outside interpreters as well. He said that many courts now have non-English speaking dockets so that all defendants requiring interpreters can be represented at the same time, thus saving money and better utilizing the interpreters.
The next speaker was Circuit Clerk Kirk Tolle from Mason County who is President of the Circuit Clerks Association. Mr. Tolle indicated that there is one circuit clerk in each county and that circuit clerks are elected for a term of six years. As the number of courts has expanded and the activities undertaken by the courts have expanded circuit clerks’ duties, Mr. Tolle indicated, the number of deputy clerks has expanded. Mr. Tolle explained that a circuit clerk is the first person that the public sees when they have contact with the court system, particularly since the circuit clerk serves the District Court, the Circuit Court, and the Family Court. Circuit clerk offices are where civil actions are filed, where people pay bail, fines, court costs, fees, and restitution, and where people obtain driver's licenses. Mr. Tolle indicated that recent statutory and regulatory changes require more and more of the clerk's time in verifying the information persons submit with their driver's license or identification card applications, and that many clerks would like to discontinue these licensing activities so that they can concentrate on their primary function of serving the courts.
Mr. Tolle indicated that there have been several recent successes for circuit clerks including the 2008 Deputy Clerk Pay Equity program placing court information on line and new electronic initiatives from the Administrative Office of the Courts such as E-failure to appear, E-pay, E-based jury management, and E-warrants; the Senior Clerk program which rehires retired clerks, and the number of deputy clerks which has been increased to handle increasing business but is still short by about 350 deputy clerks.
Mr. Tolle indicated that problems facing circuit clerks include assisting persons who want to represent themselves in bringing or defending a lawsuit, more assistance needed by clients, collection of more and more fees for third parties when the clerk receives no additional assistance for their collection and disbursement, the underfunding by the state Transportation Cabinet of the Drivers License and Identification Card programs coupled with increasing verification workloads for the program, and the fact that the clerk's office is not fee-based and that the clerk has no financial control of the funds which go elsewhere.
Senator Stine asked about problems with KRS 24A.185 and 23A.200 where counties can impose fees on District Court and Circuit Court actions for the purpose of supporting the court system. Senator Stine commented there have been allegations that the counties spend the funds for non-court purposes. Chief Justice Minton indicated that the courts have no control of what counties and other third parties do with the money that the clerks collect for them beyond delivery of the money. Justice Minton further observed that the State Auditor has not audited these funds, to which Senator Stine commented that perhaps the matter should be referred to the Legislative Program Review and Investigations Committee.
Senator Jones asked if the court system is interested in adopting an E-filing system similar to the federal PACER system. Mr. Tolle indicated that the clerks support this, and Justice Minton indicated that he supports E-filing as well and feels that it would save the state money. Justice Minton commented that there is presently no money to implement the system but that "we need to invest in this" and that the six-year plan for the courts includes this type of system. Senator Jones responded that this is one thing we need to do.
The next speaker was Carol Henderson, Budget Director for the Administrative Office of the Courts who indicated that the projected deficit for the Court of Justice will be $35 million, that a large portion of this deficit occurred when the General Assembly transferred $22.7 million from the court budget to the General Fund, and that retirement costs plus salary increments authorized by the General Assembly have contributed to the deficit. Ms. Henderson observed that the court system had $37 million in one-time money available from 2005 operating costs and $30 million in agency funds, but by the end of 2010 these funds along with $10 million from fee increases will be depleted.
Ms. Henderson observed that $120 million will be needed for facilities and operations. Without increases in funding the court system faces the possibility of 1,400 more layoffs out of a current 3,400 employees. Ms. Henderson observed that furloughs could also be used but that they represent a one time savings and that each employee would have to take 76 furlough days per year. Chief Justice Minton commented that the future of the court system is in trouble, 87% of the court system's cost represent people, and that we cannot choose not to hold court. "The business of justice is the business of government," Justice Minton commented. He said the court system comprises 10% of state employees and 3% of the state budget. Justice Minton observed that many of the court system's programs, such as truancy programs, increased attendance at schools thus providing more money, and that diversion programs, such as drug court, save jail and prison costs. Senator Stivers commented that the courts received $271 million from an original budget of $295 million.
Representative Flood asked what type of employees had been laid off at the Administrative Office of the Courts central office, to which Ms. Henderson replied records, training, mediators, court security, and similar personnel were laid off. Representative Crenshaw asked about a reported situation that while the court system was laying off some persons they were hiring in other areas to which the reply was that hiring is based on staffing need and has been limited to cases of necessity.
Chief Judge Combs of the Court of Appeals observed that cancer, divorce, and the court system touch every family in Kentucky and service area.
The meeting was adjourned at approximately 12:40 PM.