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October 30 and 31, 2003
Holiday Inn
Cody, Wyoming
Senator John Hanes, Cochairman;
Representative Colin Simpson, Cochairman;
Senators Bruce Burns, Ken Decaria, Keith Goodenough and Curt Meier;
Representatives Deb Alden, George Bagby, Rosie Berger, Ed Buchanan, Jack Landon, Monte Olsen, Owen Petersen and Wayne Reese.
John Rivera, Senior Staff Attorney
Please refer to Appendix 1 to review the Committee Sign-in Sheet for a list of other individuals who attended the meeting.
All meeting materials and handouts provided to the Committee by the Legislative Service Office (LSO), public officials, lobbyists, and the public are referenced in the Meeting Materials Index, attached to the minutes. These materials are on file at the LSO and are part of the official record of the meeting.
Chairman Simpson called the meeting to order at 8:10 a.m. After roll call, Senator Hanes moved to approve the minutes of the June 19 and 20, 2003 committee meeting. The motion carried on a voice vote. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Senator Hanes moved, seconded by Senator Meier, to amend the committee rules governing interim committee work by requiring that any roll call vote on final actions by the committee should be taken separately for the House Judiciary Committee and the Senate Judiciary Committee with the majority of each house needed to adopt that final action. The motion carried on a voice vote with 1 no.
Chairman Simpson advised that the committee would be reviewing all law enforcement jurisdiction bills before deciding what action to take on the proposed draft legislation.
Mr. Bill Westerfield, Department of State Parks and Cultural Resources, distributed Appendix 3, containing an explanation of the three bills affecting state park rangers as peace officers. He explained that the first bill adds park rangers as peace officers in the definitions contained in Title 6 to protect them from assault by enhancing penalties if they are assaulted while performing their official duties.
Mr. Westerfield explained that park rangers are not authorized to enforce the Controlled Substances Act even if offenses involving the Controlled Substance Act occur in state parks. All park rangers are already certified by Peace Officers Standards and Training Commission (POST), so there would be no additional costs under this bill. There are nineteen park rangers at four sites, most of whom work in summer, and the rest are full-time park rangers who are superintendents or assistant superintendents at parks and do maintenance during the winter.
Mr. Byron Oedekoven, Wyoming Sheriffs and Chiefs Association, explained law enforcement officers will only call upon park rangers in emergency situations, which is no different than they would do if an untrained civilian were on-site to assist in stabilizing a situation.
Mr. Westerfield explained that a new law enforcement retirement program is established which most law enforcement officers have since joined. When the new system was being contemplated, park rangers were excluded from consideration because of costs. Currently the cost of park rangers joining the system would be approximately $350,000.00. Since park rangers experience the same stress that other law enforcement officers experience, he is recommending that park rangers be allowed to join the new law enforcement retirement program. The concern is park rangers with less than ten years experience, if injured on the job, would only get a 2% computation factor based on their salary. Under the law enforcement retirement program they would receive 50% of their current salary for an on-duty disability. Additionally, under the law enforcement retirement program, there is no rule of 85 or a minimum 60 years of age before a law enforcement officer can retire.
Chairman Simpson advised the committee that attendees at the meeting wanted to consider the .W3 version of the bill, rather than the .W1 or .W2 versions of the bill.
Mr. Oedekoven stated it was unnecessary to discuss the need for new expansion of peace officer jurisdiction. The need exists. The only thing the committee needs to consider, he stated, were the wordsmithing of the bill. He stated that he agrees with W.S. 7‑2‑106(a) but a new subsection (b) is needed to address municipalities that do not have police departments.
Senator Burns moved to work the bill further.
Senator Meier moved to amend the bill on page 3, line 4, after "a" insert "specific"; line 5 delete "performing" insert "acting within the scope of". The motion carried unanimously on a voice vote.
Representative Reese moved to amend subsection (a) on page 2, line 17 through 23. After discussion of the proposed amendment, Representative Reese moved to table the motion without prejudice.
Chairman Simpson proposed amending new subsection (c) beginning on page 4, line 13. After discussion of the lengthy proposed amendment, Chairman Simpson advised he will have his proposed amendment typed up for committee consideration.
Chairman Simpson called for a straw vote to determine whether the committee should proceed to consider this bill further with amendments to be proposed at a later time. The straw vote indicated a majority of committee members were in favor of proceeding further with the bill.
Mr. Don Pierson, Director, POST, stated another issue that he would like the committee to address is in W.S. 18‑3‑606. He has been advised by the attorney general's office that sheriffs cannot hire reserve officers as defined by POST regulations. He believes the statute should be amended to authorize sheriffs to hire reserve officers as needed.
Ms. Holly Hansen, Supreme Court Administrator, explained the changes that were made to the bill since the committee's last meeting.
Senator Hanes moved, seconded by Representative Reese, to work the bill.
Representative Reese moved to amend the bill on page 25, line 5 to strike "justice" and insert "judge". The motion carried unanimously.
Representative Berger moved to amend the bill on page 44, line 19 through page 45, line 9 to delete the amendments to W.S. 9‑2‑2401; on page 74, line 7, delete "9‑2‑2401(c)(i)(E)". The motion carried on a voice vote.
After consideration of amendments to the bill, Chairman Simpson called for a roll call on the bill. The approved sponsorship of the bill unanimously with Senators Hanes, Burns, Decaria, Goodenough and Meier and Representatives Simpson, Alden, Bagby, Berger, Buchanan, Landon, Olsen, Petersen and Reese voting aye.
Ms. Hansen explained the bill and changes that were made since the last committee meeting.
The committee discussed reinserting language distinguishing revival of child support actions. The committee directed staff to revise the bill by increasing the deadline for reviving judgments from five years as proposed in the bill to ten years, and to include language to allow a child support action to be revived up to twenty-one years after a judgment becomes dormant.
Mr. Don Likwartz, State Oil and Gas Supervisor, explained the bonding process for oil and gas operators. He distributed Appendices 4 and 5 describing the drilling permit and raw plugging program administered by the Oil and Gas Conservation Commission. He explained that sometimes it takes several years to restore a drilling site, which delays release of the bond to the operator. Mr. Likwartz was not aware of any state that requires a bond for downstream landowners, but that doesn't mean Wyoming can't establish such requirement. There has been discussion in recent years that coal bed methane well bonds should be somewhat higher because of the different impact they may have on certain lands.
Mr. John Masterson, Governor's office, distributed Appendix 6, a comparison matrix of the two surface owner damages bills the committee had received, and a third version the Governor's office is working on. He proceeded to explain the differences among the three bills. The Governor's bill has not been distributed very widely because it is still a work in progress. The Governor's office has been working with stakeholders in the state in an attempt to address issues presented by the proposed draft legislation.
Representative Pat Childers recommended that authorizing flexibility in setting bonds by the Oil and Gas Conservation Commission would be good for the bill.
Miss Linda Reynolds, Cody landowner, stated she is a private landowner whose land has been used for access to mineral leases on other people's property so she wants the committee to understand that peripheral landowners are also impacted by oil and gas drilling operations.
Mr. Jim Magagna, Wyoming Stockgrowers Association, stated he supports the efforts of the committee to resolve issues. He recommended five changes to 04LSO-0062.W1. Those changes include adding adjacent areas to the definition of surface; the provision in W.S. 30‑5‑403 should be expanded to require notice before any access to property with a detailed plan of activities by the oil and gas operator; the list for which damages may be paid should be expanded because it is too inclusive; he believes the bonding provision in the .W2 version of the bill encourages all parties to go to opposite extremes and suggests that for agriculture lands the bill should include a multiplier developed by the department of revenue for different type of property; and, he thinks further consideration should be given to the attorneys fees provision in the bill since the oil and gas operator has the money to hire more lawyers than the landowner does. He believes attorney fees should be limited to situations when negotiations are not conducted in good faith.
Mr. Rick Robitaille, Anadarko, stated his company is the largest mineral rights owner and the largest private surface owner in the state of Wyoming. He doesn't believe legislation is necessary, but if the Legislature is going that direction then he wants the best bill possible. Key to any legislation would be notice requirements and compensation for damages. The bill must allow for adequate opportunity to exercise mineral rights and he doesn't want to see a laundry list as exists on page 5 of the .W1 version. Since the following subsection on page 6 provides the flexibility for the surface owner and the oil and gas operator to negotiate damages he disagrees with Mr. Magagna about notice before any access to surface property because some access doesn't cause any damages to the surface.
Mr. Shawn Andrikopoulos, private landowner, stated that the largest natural gas producer in Wyoming is a Canadian company with a single agent in the state of Wyoming, so that producer has no ties like Anadarko has. While Anadarko works well with surface owners in the state, the Canadian company is less concerned about impact that occurs to surface owners. He believes notice should be increased to one hundred twenty days but recognizes that the timeframe is not realistic. A detailed description of operations is needed since impact in many cases will be long term over several generations of surface owners. He believes settlements on damage claims are collusive within the industry and somewhat arbitrary, so a laundry list of types of damages that can be negotiated is necessary and the laundry list should include reasonably foreseeable future uses of the surface. He agrees that attorney fees should be addressed since there is asymmetry in financial and experiential capabilities of the parties. He agrees with Mr. Magagna about notice prior to initial access to surface property because seismic surveys can be very impacting on that surface.
Ms. Laurie Goodman advised the committee she represents numerous surface owners. She suggested changes to the bill should include amending the term "drilling operations" to be oil and gas development; the bill needs to establish a negotiation partnership atmosphere; on page 5, line 9 after "sustained" insert "or anticipated"; on page 8, line 14 she recommends an immediate effective date rather than the proposed effective date of July 1, 2004.
Ms. Pennie Vance, Powder River Resource Council, distributed Appendix 7 consisting of memoranda, including proposed changes to 04LSO-0062.W1, her memorandum explaining the changes that PRBRC is proposing; and, an article measuring the impact of coal bed methane wells on property values. She explained that an equal playing field would diminish problems currently faced by surface owners. Any asymmetry in bargaining power or legal representation should be addressed by statute.
Mr. Bruce Hinchey, Wyoming Petroleum Association, explained that the definitions contained in 04LSO-0062.W1 and the notice requirement are problematic. The damages in the bill are too "blue sky" to properly determine what damages are eligible for negotiation. He believes a bill should contain either no attorney fees award or allow attorney fees for the prevailing party, regardless of who that party may be. He believes the .W1 version will only spur litigation; therefore, he requested that 04LSO-0062.W2 be considered as the industry alternative to the surface owner damages bill.
Chairman Simpson stated that, given the fact that the Governor's office is developing an alternative to the bills before the committee and the worthwhile suggestions made by Mr. Randall Cox (see Appendix 8) in his three memoranda to the committee, it appears further work is necessary before the committee takes final action on any bill affecting surface owner damages.
The committee recessed at 5:30 p.m.
Chairman Simpson called the meeting to order at 8:10 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Chairman Simpson distributed Appendix 9, an email from Steve Lindly, Department of Corrections, describing an update to the report required by 2003 SF 16, and introduced Mr. Bob Lampert, newly appointed director of the Department of Corrections.
Mr. Lampert indicated that he does not actually begin his position with the Department of Corrections until November 10. He believes the SF 16 report was well done for the most part. He plans on moving forward with the requests for proposals (RFPs) for projects outlined in the report, including minimum custody beds at the honor farm and looking at the needs of the kitchen and visiting space there also; thirty-two intensive treatment beds at the state penitentiary in Rawlins; and, one hundred eight beds at the women's facility in Lusk, but he believes those beds should be mixed custody beds, not just minimum custody beds. The dining kitchen and programming space at the women's facility will also have to be reviewed, which renovations may cost approximately $25.8 million. He is not yet prepared to discuss the dismantling of the north facility at the state penitentiary but believes it is for the most part unusable.
Mr. Masterson said Governor Freudenthal suggests proceeding with the projects outlined in SF 16. With the appointment of Mr. Lampert, the RFPs should proceed expeditiously. Currently no one knows what can be salvaged at the north facility so the Governor proposes waiting until more study is done. Also more information is needed before proceeding with building a new prison facility. Mr. Masterson said Mr. Chris Boswell had initially proposed $20 million for the projects outlined in SF 16, but now believes the estimate of 42 million dollars for the projects as specified in Mr. Lindly's letter is perhaps more accurate. The estimate of $80 million for a new penitentiary facility may change once better information is obtained.
Chairman Simpson asked what the time lines were for the RFPs. Mr. Lampert advised that the finalists will be selected by the end of November. Chairman Simpson advised that the budget session begins February 9, 2004, so the Legislature would need recommendations from the Department of Corrections before then and he asked Mr. Lampert to be frank with presenting the needs of the Department of Corrections.
Mr. Lampert stated he plans on doing a long term strategic plan that will be available for public review. He does not want to delay time lines for returning inmates placed out-of-state back to Wyoming. He is currently not willing to suggest a preference for one large facility or for two medium size facilities. He did state the larger facility would be cheaper to operate and build, but two separate, smaller facilities would be easier to site in smaller communities. There are numerous factors that have to be considered. He believes that transitioning from incarceration to the public and the parenting needs of inmates are critical areas that aren't currently being addressed adequately by the department.
Mr. Kim Floyd, Director, AFL/CIO, stated he is encouraged by the new director's comments and urges the state to utilize the experienced workforce in the state which is available to build and staff the prisons.
Senator Hanes explained that Wyoming had entered into the Interstate Compact on Juveniles soon after it was enacted in 1955. Since that time there has been three amendments to the Interstate Compact, of which Wyoming has adopted one. Other compacting states have enacted some, but not all, of the amendments that were proposed, so the Interstate Compact on Juveniles is now inconsistent among states and is also outdated. While attending the Council of State Governments meeting a few weeks earlier, Senator Hanes and Representative Buchanan were advised of the new Interstate Compact for Juveniles. If Wyoming is among the first thirty-five states to enact the Interstate Compact, then Wyoming will have a place at the table in drafting rules and regulations for the Compact.
Senator Goodenough advised he has requested LSO to draft a bill to implement the Uniform Child Custody Jurisdiction Enforcement Act.
Cochairman Simpson requested that Cochairman Hanes chair the committee during the discussion of proposed legislation on juveniles.
Chairman Hanes advised the proposed legislation listed on the agenda would be considered out of order, beginning with 04LSO-0081.W3, then 04LSO-0084.W4, 04LSO-0048.W1 and 04LSO-0021.W5.
Chairman Hanes explained the background that led to the formation of the Select Committee on Juveniles. Title 14 was amended last significantly in 1978. Since then there has been a patchwork of amendments that has created some inconsistencies and lack of clarity. A systemic review of Title 14 began by the Department of Family Services in 2001 by formation of the Title 14 Review Committee. Recommendations from that committee resulted in 2003 SF 29, of which the Legislature proceeded only with the Uniform Parentage Act and conforming amendments. To further consider additional recommendations made by the Title 14 Review Committee, the Select Committee on Juveniles was created as a budget footnote consisting of fifteen members. Subsequently, three subcommittees were appointed to study specific issues. The Select Committee met on August 15 to receive the recommendations from the subcommittees which resulted in the final report and the draft legislation before the committee today.
Representative Buchanan, along with Ms. Donna Sheen, Department of Family Services, proceeded to explain the bill, then he suggested some possible amendments to the bill. After comments by Mr. Steve Cranfill, a private attorney in Cody, and from Nicole Krieger, Teton County and Prosecuting Attorney's Office, the committee proceeded to consider the bill.
Representative Berger moved the bill. Representative Bagby seconded the motion. After amendments to the bill were moved and adopted by the committee, the motion carried on a roll call vote with Senators Hanes, Decaria, Goodenough and Burns and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voting aye. Senator Meier and Representative Alden voted no.
Amendments to the bill adopted by the committee include:
Page 3, line 20 Delete "agrees in writing" insert "signs an intensive supervised probation agreement".
Page 3, line 21 After "by" insert "the terms of".
Page 4, line 6 After "from" insert "court ordered"; after "placement" insert ", and if authorized by the court,".
Page 6, line 19 After "program" insert "and provide a copy of the signed agreement to the juvenile court and the prosecuting attorney".
Page 9, line 22 Delete "14‑4‑431(d)(i)" insert "14‑3‑431(d)".
Page 14, line 9 After "that" delete "the".
Page 14, line 23 After "." insert "In no case shall the court hold the adjudicatory hearing more than ninety (90) days after the date the petition is filed.".
Page 15, line 22 Delete the sentence beginning "Subsequent" insert "Modifications to an existing consent decree may be allowed.".
Page 16, lines 6 through 8 Delete entirely and renumber as necessary.
Page 17, line 1 through Page 18, line 6 Delete entirely and insert language provided in Appendix 10 for those lines.
Page 20, line 21 After "continue" insert "and"; delete "a" insert "what".
Page 29, line 16 Delete "evidence of a delinquent act exists" insert "there is probable cause to believe that a child has committed a delinquent act".
Page 30, line 7 After "." insert "In no case shall the court hold the adjudicatory hearing more than ninety (90) days after the date the petition is filed.".
Page 31, lines 21 through 23 Delete entirely and renumber as necessary.
Page 32, lines 6 through 14 Delete entirely and insert language provided in Appendix 10 for those lines.
Page 32, lines 20 through 24 Delete entirely and insert language provided in Appendix 10 for those lines.
Page 43, line 23 After "." insert "In no case shall the court hold the adjudicatory hearing more than ninety (90) days after the date the petition is filed.".
Page 45, lines 20 through 22 Delete entirely and renumber as necessary.
Page 46, lines 1 through 10 Delete entirely and insert the proposed language from Appendix 10 for those lines.
Page 46, lines 18 through 24 Delete entirely and insert the proposed language from Appendix 10 for those lines.
Ms. Sheen explained that in light of the Wyoming Supreme Court decisions which expressed concern over the role of a guardian ad litem in juvenile matters, a committee was formed several years ago to consider the issue and make proposals. The recommendations proposed by the Guardian ad Litem Committee were to clarify the roles of the guardian ad litem and any other attorney for the child, but such legislation was not introduced. Currently, counties pay for guardians ad litem at very different rates. For example, recently in Natrona County guardians ad litem were paid $100.00 per case, which is contrasted with Teton County, where guardians ad litem are paid $100.00 per hour. Ms. Sheen stated that the Select Committee had looked at both Colorado and Alaska's laws and drafted a law that is based on the Colorado law with significant changes.
Ms. Pam Emerson, Sheridan County Court Appointed Special Advocate (CASA) Program, advised that five of nine judicial districts in Wyoming currently have CASA Programs. She distributed her comments on the proposed draft legislation (see Appendix 11). Although she thinks the state office coordinating the appointment of guardians ad litem would be helpful, the proposed draft legislation is not the best model to achieve that goal. Her biggest problem with the bill is that it requires a guardian ad litem to be a licensed attorney which creates a potential two attorney system in juvenile cases and it also weakens the CASA Program. The definition of lay volunteer lay advocates is too broad and vague with respect to duties and also ignores existence of the CASA Programs. She believes that placing the Office of Children's Representative within the Department of Family Services creates an inherent conflict of interest. She stated that she would not be able to support a bill that doesn't recognize CASA Programs or that doesn't at least remove oversight of CASA Programs by the Office of Children's Representative from the bill. She also mentioned that Colorado has a separate definition in statute for addressing the CASA Programs and the roles of those programs in the representation of youth.
Attorney General Patrick Crank stated the Governor asked him to find out what the status of the bill is. While he doesn't want the Office of Children's Representative placed within the Attorney General's office, he would accept it if that was the legislative charge. If necessary, the firewalls required to avoid conflict of interests could be developed. Ms. Lisa Delker, Sheridan County CASA Program, suggested placing the Office of Children's Representative within the Victims' Services Program in the Attorney General's Office.
Ms. Sheen stated that Director McDaniel was not advocating for placement of the OCR within the Department of Family Services, but he is interested in going forward with the bill because there is a critical need for consistent and quality representation of youth. She also stated the Department does support the CASA Programs and, in fact, provides grants for those programs.
Representative Simpson asked Ms. Sheen what the priority of the four bills was from the Department's perspective. Ms. Sheen replied that she cannot assign priorities since each bill is a leg of the table. If she had to chose which bills were more important, Ms. Sheen indicated the Office of Children's Representative bill and the Child Protection bills perhaps the more critical of the four and, of those two bills, the Office of Children's Representative bill may be more critical.
Representative Landon said he recognizes the need for the bills, but he is unconvinced this bill is the best approach. He suggests a public/private partnership approach may be preferable.
Senator Decaria inquired what appropriation would be necessary to fund the proposed Office of Children's Representative. In response, Ms. Sheen distributed Appendices 12, 13 and 14, the last of which provides an estimated budget summary for the Office of Children's Representative.
Cochairman Simpson asked for a straw poll to determine whether the committee wanted to work the bill further. The straw poll was inconclusive, so Cochairman Hanes advised that perhaps it would take too much time and effort to get the bill ready for the session in a manner that is acceptable to everyone, but the bill is a good concept to proceed with as an interim topic. The bill contains too many problems in its current form, some of which have not yet been identified.
Representative Berger moved, seconded by Representative Landon to indefinitely postpone this bill for this interim. The motion failed on a roll call vote with Senator Burns and Representatives Simpson, Berger, Buchanan and Landon voting in favor of postponement and Senators Hanes, Decaria, Goodenough and Meier and Representatives Alden, Bagby, Olsen, Petersen and Reese voting against postponement.
Senator Decaria then moved to table the bill until the next committee meeting. Cochairman Simpson asked committee members to get their amendments on the bill to LSO staff before the next meeting.
Due to inclement weather, Cochairman Simpson adjourned the meeting at 2:30 p.m. to allow members, who can, to return home that day.
Respectfully submitted,
Senator John Hanes, Cochairman Representative Colin Simpson, Cochairman