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May 22-23, 2006
Gillette City Council Chambers
Gillette, Wyoming
Senator John Hanes, Co-Chairman
Representative Jack Landon, Co-Chairman
Senator Bruce Burns
Senator Ken Decaria
Senator Tony Ross
Senator Kathryn Sessions
Representative Deb Alden
Representative George Bagby
Representative Ed Buchanan
Representative Tom Lubnau
Representative Monte Olsen
Representative Ann Robinson
Representative Kevin White
Representative Deb Alden
Representative Stephen Watt
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.
Chairman Hanes called the meeting to order at 8:30 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Brenda Lyttle, Department of Family Services (DFS), Child Support Enforcement, indicated she had three matters to present to the Committee. She has been working with the clerks of court to address issues raised by the child support abatement process that is unique to Wyoming. Most states factor extended visitation periods into the child support order to avoid the complications of amending payment amounts periodically. Ms. Lyttle advised her working group may present its recommendations to the Committee to coordinate with the child support guidelines review, due in 2008. She is working with a group of people to address possible changes in the income withholding statutes to replace the changes proposed and withdrawn last interim. The federal government is developing an electronic income withholding program with large national employers such as Wal-Mart to collect child support payments. Finally, with respect to the federal Deficit Reduction Act, federal regulations affecting child support enforcement will not be adopted until October, 2007, so the state may have to enact legislation to comply with those federal regulations by October, 2008. It is anticipated that DFS may be required to collect a $25.00 fee from specified clients if DFS assists in the collection of $500.00 or more per year. Who will be responsible for payment of the $25.00 fee may have to be decided. DFS estimates that 1,209 cases would have been subject to the fee if its had been required in calendar year 2005, for a total fee collection of $305,225 of which the state share would have been about $102,000. The remainder would go back to the federal government which provides about 66% of the child support enforcement program's funding. An additional matter that is being considered by the Child Rules Committee, relates to the amount of the child support payment can be passed through to a recipient who is also receiving public benefits. That matter may be presented for Committee consideration next year.
Justice Marilyn Kite distributed Appendix 3, Report to the Joint Judiciary Interim Committee, dated February 28, 2006, from the Board of Judicial Policy and Administration, and Appendix 4, summarizing the consequences of the judicial retirement system changes proposed by the Board. She explained the problem the Supreme Court was facing in attracting qualified candidates to fill judicial vacancies as a result of the new judicial retirement system created in 1998. The demanding nature of the work makes it difficult for trial judges to remain on active status until age 70. Authorizing state contributions to the judges' retirement program would help address the problem of reductions in retirement benefits of judges who take early retirement. Justice Kite also described the potential to address the shortage of judges by implementing a senior status program for retired judges.
District Court Judges Jeffrey Donnell, Keith Kautz and John Perry all described reasons why the judicial retirement system created problems for judges who, for a variety of reasons, may have to take early retirement. Judge Perry added that the proposal for state contributions to judges' retirement was only a "band-aid" fix and that a senior status judge program was necessary because of recent capital cases he and Judge Deegan were assigned, which makes participation in their regular civil and criminal case dockets virtually impossible. They will need help in the 6th Judicial District to keep the dockets moving. Using a senior status judge program would be much less expensive than creating new judgeships. Judge Perry believes the Board of Judicial Policy and Administration can quickly develop a proposal for the Committee's consideration.
With respect to state contributions to judges' retirement programs, Justice Kite presented proposals in Appendix 4 for Committee consideration. The Committee directed staff to work with Justice Kite and Mr. Tom Mann to develop draft legislation for consideration at the next meeting on the matter, based on proposals contained in Appendix 4. The Committee also requested a bill to create a senior status judge program for consideration at the August meeting, depending on the development of a proposal by the Board of Judicial Policy and Administration.
Judge Donnell provided the history leading to the consideration of court security by the courts and law enforcement. After law enforcement approached the judiciary with security concerns, a task force was created to study the matter in greater detail. The task force's findings include: court security is woefully inadequate throughout the state; threats that have been made to judges, attorneys, local elected officials and the public should be taken seriously; and, plans for security to protect against those threats has to be developed. The legislature may be approached soon for funding to develop costing estimates for consideration in the 2008 Budget Session of the implementation a court security system. The request for funding to develop a plan may be made at the August meeting of the Committee. In response to a question from the Committee, Judge Donnell advised that currently court bailiffs are generally not available in most civil cases, where most of the courtroom violence occurs.
Marilyn Mackey, Campbell County Commissioner, and Vice-President of the Wyoming County Commissioners Association, advised the Campbell County Commissioners have installed some security measures, but Campbell County is more fortunate than most counties because it has resources available to it that many other counties in the state do not have.
After request, Chairmen Hanes appointed Representative White and Senator Burns to serve as liaisons to the Court Security Task Force. Chairman Hanes added for the record that the appointed liaisons, as with other liaisons appointed by the Cochairmen, would be eligible for salary, per diem and mileage in the performance of their duties as Committee liaisons to the various task forces and other working groups.
Judge Ed Grant, First Judicial District, distributed Appendix 5, a Resolution of the Conference of District Court Judges, and Appendix 6, a description of the Family Responsibility Program Laramie County Project. He advised that he was one of the more vocal opponents of the problem-solving courts proposal last year because he was primarily concerned with the melding of judicial and executive branch functions. He has since met with Director Rodger McDaniel, DFS, to work out the proposal for the pilot project in Laramie County, outlined in Appendix 6. The project would provide for a hearing officer employed by DFS, who can impose some sanctions such as revocation of a consent decree and can refer a case back to the district court. Judge Grant believes no legislation is necessary to implement the pilot project because authority already exists in the Juvenile Court Act for the functions that will be performed under the pilot project, although the project will require funding. The pilot project will operate as part of his caseload because he currently handles most cases in the First Judicial District involving abuse or neglect. He believes that families need more appearances before the court to get family problems resolved.
Representative Landon asked if any consideration had been given to creating a pilot project in another less populated area of the state with fewer resources and services. Judge Grant replied that no such consideration had occurred, but it is a good suggestion.
Representative Lubnau asked if master could be appointed under Rule 53 of the Wyoming Rules of Civil Procedure as a fact-finder for the court. Judge Grant agreed that was an excellent suggestion. Senator Ross advised that he serves on the Child Rules Committee, which hasn't, but could, include that process in its final rules.
Chairman Hanes thanked members of the judiciary for attending the meeting and presenting their concerns and suggestions.
Brain Schuck, Cheyenne attorney, advised he had chaired the lien statute review committee appointed by Wyoming State Bar President Paul Drew in 2000. That committee looked primarily at contractors' liens.
Comments received by the committee indicated there were problems with the lien statutes because the law had been amended over the years in a patchwork fashion, making the statutes difficult to understand. His committee recommended reordering the statutes to reflect the chronological process for filing and enforcing liens. It would be important to provide uniformity between the contractors' lien statutes, oil and gas provisions and other lien statutes to require a uniform filing of notice for each.
Bob Bailey, First American Title Insurance Company, explained he was a close friend of Barry Williams, who was consulted by the lien statute review committee for his comments, but Mr. Williams died before he was able to provide comments on the proposals of the lien statute review committee. Mr. Bailey is willing to work with Mr. Schuck and can provide his and Mr. Williams' comments. He believes this study would be a very huge undertaking. His primary concern is that a mortgage lien may not take priority over a contractor's lien. He would need to know where the Committee wants to go with respect to a policy on the priority of various liens. It is difficult to ascertain risk under current law for purposes of title insurance.
Curt Betcher, Wyoming Contractors' Association, stated he was comfortable with the lien statutes as they currently exist.
Chairman Hanes advised he would like a bill drafted for consideration at the August Committee meeting. He added that he would like the draft made available to interested parties well in advance of the August meeting.
Chairman Hanes advised that ten bills had been drafted on this topic for last session. None of the bills was enacted which allows this Committee to examine the various proposals in more depth.
Senator Kit Jennings described how a GPS ankle bracelet would work to track violent sex offenders. He distributed Appendix 7, which is a modified version of a bill he had drafted last year to establish a program to track sex offenders. He explained that he modified the LSO bill draft to administer the program within the Department of Corrections, rather than the Division of Criminal Investigation, because the former agency already has some experience managing ankle bracelets.
In response to questions from the Committee, Senator Jennings did not believe the tracking signal could be intercepted by a third party. He believes the technology is primarily a cell phone technology, so there could be some gaps in relaying information from the tracking entity to law enforcement in some rural parts of the state.
Dr. William Heineke, Ed.D., distributed Appendix 8, consisting of his comments before the Committee. He stated he has worked with over 400 sex offenders and 800 victims of sex offenses in his professional practice in Wyoming. He believes sex offender registration is a deterrent to re-offense; the requirement for registration should be expanded to include misdemeanor sex offenses; and, assessments should be conducted to establish the offenders' risk of reoffense, using a protocol of accepted practices to serve as a guide for the assessments. He recommended Wisconsin's civil commitment process as an effective means to implement a level of risk assessment.
Byron Oedekoven, Director, Wyoming Association of Sheriffs and Chiefs of Police, spoke in support of Senator Jennings' draft legislation requiring the tracking of sex offenders. That program would be helpful to keep track of persons who sexually offended a victim outside his family. A problem members of his association struggle with is the need for help in providing the notification required by law. It is difficult to keep track of offenders who move frequently and the cost of the neighborhood notification each time the offender moves falls on the local law enforcement agency. Mr. Oedekoven also spoke in favor of a life sentence without the possibility of parole for violent sex offenders. Representative Landon asked Mr. Oedekoven to provide recommendations for effective and efficient neighborhood notification regarding sex offenders.
Suzan Pauling, Wyoming Coalition Against Domestic Violence & Sexual Assault, stated the 24 programs statewide are willing to help the Committee in any way they can with respect to the drafting of a bill to deal with sex offenses against minors.
Jim Wilson, Division of Criminal Investigation, advised that federal legislation is being considered relating to registration of sex offenders, which may impact the state. Both HR 4472 and SF 1086 have passed the U.S. House of Representatives and Senate, respectively. Both bills veer away from requiring an assessment of the level of risk for reoffense; propose a 3-tiered system of level of risk for reoffense based on the type of offense committed; and, provide a 20 years to life registration requirement, depending on the tier in which the offender is placed. The Attorney General's office is interested in supporting a bill similar to 06 HB 0081. Mr. Wilson believes 297 sex offenders (about 30% of all sex offenders) in the state are unclassified, i.e., they have not be assessed as to the level of risk the offender may present for reoffense specified in W.S. 7-19-303.
After Chairman Hanes advised the Committee that the proposed meeting dates for the next meeting have been changed to August 24 and 25, 2006, the Committee recessed at 4:35 p.m.
Chairman Landon called the meeting to order at 8:35 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Ric Paul, State Advisory Council on Juvenile Justice (SACJJ), stated he had been with the Gillette Police Department for 30 years before retiring and had served as Police Chief. He has been on the SACJJ since its inception in 1998. He explained the mission and goals of the SACJJ. Wyoming is the only state in the nation that is noncompliant with the federal Juvenile Justice and Delinquency Prevention Act (JJDPA). Some of the goals of the SACJJ are to: improve data collection with the help of the Wyoming Statistical and Analysis Center at UW; expand membership in the SACJJ; provide more community training; become compliant with the JJDPA; raise the SACJJ's profile throughout the state; and, increase collaboration with other entities. In response to a question from the Committee, Mr. Paul advised the SACJJ distributes about $800 thousand in funding each year. If the state were JJDPA compliant the state would receive another $600 thousand per year. The SACJJ will try to have a proposed bill for Committee consideration at the August meeting. Senator Hanes asked that any proposed legislation be provided to LSO staff in July so it can be drafted and distributed to the Committee well in advance of the August meeting.
Mr. Paul said if the state could reduce the high school drop-out rate, the juvenile court statistics would be impacted positively. The Kalispell, Montana school district developed an alternative school program, which reduced the drop-out rate from 18% to 3%.
Doug McLaughlin, Casper attorney, distributed Appendix 9, entitled Asset Protection Summary. He explained that the Wyoming Estate Planning Advisory Council (WEPAC) is developing a proposal to amend the Uniform Trust Code for the Committee's consideration. The proposed changes would significantly amend Title 5 of the Wyoming Statutes. He provided a background to the historical forms of asset protection under common law and more modern forms such as off-shore and non-domestic forms of asset protection. Alaska, Delaware and South Dakota have begun developing procedures for creation of domestic asset protection trusts. WEPAC has been looking primarily at the South Dakota model because that state has a favorable tax environment. Using that model would benefit Wyoming because we have an even more favorable tax environment.
Chairman Landon asked that WEPAC submit its proposed legislation to LSO staff in a timely manner to allow distribution of a draft bill to the Committee a few weeks before the August meeting.
Mr. Mike Bohl, Wyoming Bank & Trust officer, stated WEPAC had asked for Senator Hanes' sponsorship of a bill to create a Wyoming Unitrust Act. Because the request was made too late, the bill did not go forward as hoped. He explained the purpose of the bill, which is modeled after the Delaware and South Dakota legislation because those states are our chief competitors for business. The bill would affect a select group of trusts, provided competing interest beneficiaries could agree to creation of the unitrust to divide benefits among those beneficiaries. The legislation would be necessary protect income from taxation by complying with specified Internal Revenue Service (IRS) instructions. Chairman Landon asked why the bill establishes a floor of 3% for the current return from the trust, as proposed in W.S. 2-3-908. After discussion, Mr. Bohl advised that IRS, possibly, and existing case law, clearly, require this threshold amount. Mr. Bohl will verify the reason for the specified percentage and advise the Committee at its next meeting.
Chairman Landon asked that a bill be prepared creating the Wyoming Unitrust Act for consideration at the next meeting. The bill should be distributed well in advance of the meeting so amendments to the bill can be prepared if Committee members have concerns.
Mr. Bob Wyatt, Sheridan Attorney, explained he had served on the last Wyoming State Bar Committee that reviewed the Wyoming Probate Code (WPC) . That Committee proposed changes to simplify probate and create the summary probate procedure. The Wyoming Probate Code and the Uniform Probate Code (UPC) are dissimilar. He believes the Wyoming probate procedures work well overall, because most probate can be done without court supervision. Those cases that are complex justifiably need court supervision. The UPC, if enacted, could cause conflicts for existing wills, e.g., for augmented estates.
Mr. McLaughlin agreed that the WPC works well, but the Code could be revised to improve the process. Those cases where court supervision is provided are usually cases where the supervision is necessary. If the Committee wishes to proceed with consideration of adopting the UPC, that proposed legislation would require close scrutiny. WEPAC would need at least a year to examine the UPC before it could make recommendations with respect to that act.
Representative Lubnau advised he served in the later stages of the Wyoming State Bar review committee with Mr. Wyatt. He recalls the original maximum estate allowable under the summary distribution process was set at $20,000 because that amount was equal to the homestead exemption. Now the maximum estate that can be subject to summary distribution is $150,000, thereby allowing $130,000 to be subject to creditors' demands. He asked if the homestead exemption should be increased. Mr. McLaughlin replied he believed it should be raised, but such change in the law should include a statutory requirement for notice to creditors. The notice could be by certified mail, without the requirement for publication and other expensive processes.
Senator Ross asked if the summary distribution estate amount should be increased to some greater amount, such as $200,000, also, in light of current housing values. Mr. McLaughlin said that amount might run afoul of the new Bankruptcy Code. Senator Ross also asked about procedures to deal with after-discovered assets and establishment of a small estate procedure. Mr. McLaughlin said those might be helpful in some circumstances.
Senator Hanes suggested that the Committee might be better served to consider legislation to create a joint legislative/WEPAC committee to look at all probate issues, including the UPC, possible amendments to the WPC, homestead exemptions and other matters related to probate. Mr. McLaughlin stated the WEPAC is not fully representative of all interests affected by probate. WEPAC consists primarily of attorneys, accountants, fiduciaries and trust officers, but does not include members of the general public. After discussion, the Committee directed staff to draft legislation for consideration at the next meeting to create a select committee with broad representation and with an equally broad charge to review matters relating to probate.
Governor Dave Freudenthal appeared with Attorney General Pat Crank to further discuss the topic of sex offenses against minors. Governor Freudenthal provided Appendix 10, consisting of his prepared statement for the Committee's consideration. He is hopeful the Committee will sponsor legislation by the end of this interim. He expressed strong support for a bill that would mandate life sentences for specified sex offenders. He is not in favor of Senator Burns bill to require assessments because the bill would require a conviction and the occurrence of another event to be placed on the sex offender registry. He prefers that a conviction alone would be sufficient to require placement on the registry.
Senator Hanes believes the Wyoming sex offender website is poorly designed and offers very little information, compared to the Texas website which allows the site user to locate his neighborhood using Map Quest. Any offenders on the registry living in the neighborhood are easily identifiable and the offender's level of risk is provided at the same time. Attorney General Crank will explore ways to better publicize the Wyoming website and to improve its procedures for providing useful information. Governor Freudenthal will ask the Attorney General to review the Texas website and request funding as necessary to improve Wyoming's website. Attorney General Crank stated he will find out how many offenders are listed on the Wyoming website and provide that number to the Committee.
Attorney General Crank reminded the Committee that there may be some federal legislation soon requiring the state to place all convicted sex offenders on the registry. It is important to have legislation that is more stringent than surrounding states to avoid becoming a haven for sex offenders. He advised he will provide a strike and underline version of the bill Senator Sessions sponsored in the Budget Session (06 SF81) to Committee members upon request. Senator Burns questioned why it was necessary to eliminate the levels of risk of reoffense in 06 SF81. Governor Freudenthal replied that upon reaching the threshold of conviction, the risk posed is sufficient to warrant placement on the website. He does not believe in the distinctions that professionals think are valid.
Rodger McDaniel, Director, Department of Family Services, explained he has been working with Judge Ed Grant to find a way to accomplish their mutual goals. They decided upon a pilot project that would be created under Judge Grant's court. In recognition that a major concern of Judge Grant was the mixing of executive and judicial branch functions, the intensive supervised treatment would be administered by the executive branch. Thus, an administrative hearing officer would be hired. Current law in the Juvenile Court Act may be sufficient to allow the project to function without need for further legislation, at least initially. The hearing officer could impose some lesser sanctions, but what the range of those sanctions might be still has to be developed and agreed upon. Any sanctions beyond those that may be imposed by the hearing officer will only be imposed by the juvenile court.
Judge Donnell expressed concern with the use of the term "court" when discussing the pilot project because project is not going to be a court. It may be necessary to clarify that the constitutional and statutory jurisdiction of the court is not modified by the pilot project. It may be necessary to amend statutory language to clarify what type of entity the drug court is.
Judge Perry advised that Judge David Park, President of the District Court Judges Association, sends his apology for not being able to attend the meeting because he has a trial that court not be rescheduled. Judge Perry emphasized to the Committee that the Laramie County Pilot Project would apply in juvenile court and family court, but has no application in the adult drug court setting where the judge is the primary decision-maker. If a special master is established under Rule 53 of the Wyoming Rules of Civil Procedure, or if the program is to be implemented within the judiciary, there may be need for legislation to fund the program.
Chairman Landon asked Director McDaniel about the possibility of a second pilot project in a less populated region of the state. Director McDaniel agreed that the idea merits further study. He believes funding can be found from federal sources, so state legislation may not be necessary as suggested by Senator Ross. Further legislation may be necessary if the pilot projects prove successful and should be expanded as a program.
Jeani Stone, Campbell County Attorney, advised that 22 of 48 abuse or neglect cases in her county involve drug abuse, with 4-6 cases in the process for termination of parental rights. She supports the concept of a treatment court, but the need for the proposed program is immediate. Currently, time and resources are the greatest limitation for provision of the necessary services.
Director McDaniel will provide the Committee with an update of the status of the proposed project at the next Committee meeting. He would also like some time at the next meeting to present more information on problem-solving courts for domestic violence cases.
Chairman Landon advised Director McDaniel to provide to LSO staff before August 1 any legislative changes he might identify while developing the pilot project concept.
After calling for public comment, no one rose to speak. The Committee then began discussion of bills on sex offenses against minors it may want drafted for consideration at the next meeting.
Bob Lampert, Director of the Department of Corrections, was asked about his opinions relating to the various sex offense bills being considered by the Committee. Director Lampert said assessments are important for Department of Corrections' purposes and for the courts, more so than for purposes of placement of the sex offender registry. The assessments are necessary primarily for the management of high risk offenders. He believes ankle bracelets can be an effective tool, but not for all offenders. Life parole is justifiable for very high risk offenders, but the Committee should realize that sex offenders actually pose a lower risk of reoffense than most other offenders. The problem is a reoffense committed by a sex offender is more traumatic than property or other offenses. The Board of Parole is not the best placement for administration of the risk assessment program. The best placement would be at the community level, but local assessments are not occurring as quickly as they should; therefore, if a state level risk assessment program has to be implemented the Department of Corrections is probably the best placement for the program. He would like the Committee to consider legislation to address sex offenses committed by corrections staff against inmates. Senator Hanes advised he has received by letter a similar request from Linda Burt, Director of the Wyoming ACLU. Chairman Landon asked Director Lampert for an update on the status of construction bids for the new prison. Director Lampert said the only bid received was for 187% of the budgeted amount for the construction of the prison. The Department is working with the State Building Commission to scale back building plans to reduce costs but may only be able to come within $15 to $20 million over the currently budgeted amount.
After discussion of the outline of issues identified by Senator Hanes, the Committee directed staff to draft the following bills pursuant to motions that carried:
Senator Hanes moved for a bill similar to 06 HB140, except no changes to the sex offender registry will be included in the bill except for necessary conforming amendments;
Representative Robinson moved for a bill similar to 06LSO-0401, and to incorporate the assessment process created by 06 SF67 into the bill;
Senator Burns moved for a bill similar to 06 HB110;
Senator Burns moved for a bill similar to 06 HB152;
Senator Burns moved for a bill similar to 06LSO-0244.L2, as modified by Senator Jennings;
Representative Lubnau moved for a bill to eliminate consent as a defense in situations involving sex offenses committed by corrections staff against inmates, as requested by Director Lampert and Ms. Burt.
There being no further business, Chairman Landon adjourned the meeting at 5:20 p.m..
Respectfully submitted,
Senator John Hanes, Cochairman Representative Jack Landon, Cochairman