Joint Judiciary Committee Minutes for Meeting June 2 & 3, 2008

Committee Meeting Information

June 2 & 3, 2008

Covered Wagon Motel

Lusk, Wyoming

Committee Members Present

Senator Tony Ross, Cochairman

Representative Ed Buchanan, Cochairman

Senator Bruce Burns

Senator Drew Perkins

Senator Kathryn Sessions

Representative George Bagby

Representative Dan Dockstader

Representative Keith Gingery (Monday only)

Representative Erin Mercer

Representative Mary Throne

Committee Members Absent

Senator Ken Decaria (Excused)

Representative Deb Alden

Representative Keith Gingery (Excused on Tuesday)

Representative Monte Olsen

Representative Lisa Shepperson (Excused)

Legislative Service Office Staff

John Rivera, Senior Staff Attorney

Ian Shaw, Staff Attorney

Kelley Shepp, Associate Research Analyst

Others Present at Meeting

Representative Tom Lockhart

Representative Tom Lubnau

Please refer to Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.

Executive Summary

The Committee met for two days in Lusk. The Committee considered draft legislation on release of information in sexual assault trials. It also heard testimony on the process for creation of new district court judge positions, issues relating to driving under the influence charges and penalties, liens and carbon capture and sequestration. It also toured the Women's Center in Lusk. The Committee directed staff to draft legislation on liability for carbon capture and sequestration for consideration by the Committee at the next meeting.

The Committee will meet again in August or September, 2008, to receive more information on the issues considered at this meeting and to consider revised and new draft legislation requested by the Committee.

Call To Order (June 2, 2008)

Chairman Buchanan called the meeting to order at 9:05 a.m.. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.

Process for Creation of New Judge Positions

Chief Justice Barton Voigt, Wyoming Supreme Court, explained that the Court is using a version of weighted case load study software to determine the need for new judges. The software indicated that a new district court judge position was necessary in the 9^th Judicial District last year. The timing of that determination was such that the request was submitted to the Joint Appropriations Interim Committee (JAC) and the Joint Judiciary Interim Committee, but without enough time for those committees to act on the matter. As a result, an individual legislator sponsored the required legislation to authorize the positions and funding necessary. An amendment to that bill required the Chief Justice to certify in person before the JAC that the infrastructure was in place before the search for a judge could begin. The county commissioners in Sublette County quickly developed the necessary infrastructure, but the search for a new judge cannot begin because the JAC has not met, and is not scheduled to meet to allow the Chief Justice to certify in person that the conditions precedent have been met. Another judge position may be required soon in Sweetwater County and the Chief Justice is concerned that requiring him to certify in person that the infrastructure is in place creates an unnecessary delay in the process. He asked what the Court can do to help develop a process that allows a timely search and appointment of new district court judges. Chief Justice Voigt also advised that the requirement that each county have a full-time magistrate of the circuit court may have to be revisited because not every circuit court is so busy to require a circuit court magistrate in the county.

Ms. Holly Hansen, Supreme Court Administrator, described the weighted case load study process. Courts provide their data at the end of the fiscal year and the results can be analyzed by September 1, to determine if a district is overburdened and in need of an additional judge. That timing makes it difficult to make any recommendations for any legislation authorizing a new district court position. District court judges are statutorily authorized, but circuit court judges can be authorized through the budget process. In the past, some district court judge positions have been authorized through legislation authorized by individual legislators, but that approach appeared to create a problem with the latest position. The sponsor of the legislation did attend meetings involving the Court and county commissioners to determine if Sublette County would provide the infrastructure necessary before a judge position would be sought. In light of the difficulty with the timing, Representative Olsen then sponsored the legislation creating the new district court judge position in Sublette County.

The Committee discussed whether a more formal process was necessary prior to creating a new district court judge position, or whether the current process would work if it is fine tuned to get Supreme Court recommendations to the Joint Judiciary Interim Committee. It was agreed that the Court might refine its analysis of the weighted case load statistics to provide the Committee with its recommendations by the first Committee meeting after the end of the fiscal year, so the Committee can draft authorized legislation for consideration at its final meeting of the interim.

Draft Legislation, O9LSO-0038.W1, District courts-release of information

Chief Justice Voigt stated the proposed legislation is being misconstrued by the media. The prior process for filing of criminal charges was by complaint, which protected the identity of the victim, but now charges are filed through an information which occurs before there is a preliminary hearing. Wyoming Rules of Criminal Procedure 3(a) changed the timing of the release of information. W.S. 6-2-310(a) is inconsistent with the Rule, and this bill is merely an attempt to make the two consistent.

Mr. Jim Angell, Director, Wyoming Press Association, distributed Appendix 3, containing proposed changes to the draft legislation. He stated he has no problems with the proposed changes in the bill, but recommended changing not just W.S. 6-2-310(a), but also subsection (b) of that section and W.S. 6-2-319(a) and (b). The intent of the proposal is to protect the victim without restricting publication of the identity of the offender. Newspapers in Wyoming have a policy against releasing victims' identities. They also will not release the identity of the offender until district court because the media does not have that information until then.

In response to questions from the Committee, Mr. Joe Baron, Crook County Attorney, advised that it is usually easy in smaller communities in Wyoming to identify who the victim is if the identity of the offender is known. Also, it is sometimes useful to exclude the public from the filing of the information or preliminary hearing because both the victim and the offender often have supporters at a hearing who can become disruptive.

Representative Gingery suggested amending W.S. 6-2-310(a) by specifying the hearing shall be closed and the file sealed, until released by the district court.

Chairman Buchanan said the bill will held back until the next Committee meeting to develop additional revisions to the bill.

Driving Under the Influence (DUI) – Charges and Penalties

Ms. Hansen introduced Mr. James Bothamley, Supreme Court Database Administrator. She explained that 14 district courts and 8 municipal courts use the same case management systems employed by the Supreme Court. Mr. Bothamley will attempt to identify the types of information the Court may be able to provide the Committee.

Mr. Bothamley presented a PowerPoint presentation (Appendix 4) describing the Supreme Court Information System (SCIS). He explained how the database can extract, transform and analyze the data provided by the various courts. The next step will be to broaden the bandwidth, so all court data can be transactional-based. Responding to a question from Chairman Buchanan, Mr. Bothamley stated sentencing data is difficult to extract because most clerks of court do not input that data. The Division of Criminal Investigation may have better data on sanctions that the Court has.

Mr. Baron added that a clerk will file a report only if an arrest occurs, but clerks are becoming aware that they should submit sanction data. Mr. Bothamley stated that the clerks are the biggest obstacle because they are reluctant to implement change. Ms. Hansen advised that the court automation fee helps municipalities pay for system updates, but the municipality first has to pass an ordinance to authorize collection of the fee. Chief Justice Voigt explained that another problem is that district courts' systems are paid for by the counties, which aren't reimbursed if they buy new software, so there is no incentive to buy the software necessary to participate in the SCIS. Both the Wyoming Association of Municipalities and the Wyoming Association of Sheriffs and Chiefs of Police (WASCOP) are willing to work toward standardizing citation language, which should help the extraction of charges and sanctions that are being applied for driving under the influence offenses.

Ms. Lorrie Pozarik, Governor's Council on Impaired Driving, distributed Appendix 5, containing a list of the white papers developed by the Council. She offered the Council's help with issues the Committee may be considering with respect to DUI. Under sanctions, the two things that appear to be effective include ignition interlock systems and intensive supervised probation. Judges appear to prefer treatment, rather than minimum mandatory sentences to address DUI offenders. Ms. Pozarik said some of the issues relating to DUI are not amenable to statistical analysis because the data may not exist. For example, ingestion of controlled substances is not a provable offense under Wyoming law, so that offense can't be quantified. She advised that the National Committee on Uniform Traffic Laws and Ordinances had proposed a new model law that the Committee could consider in preparation of draft legislation it may consider sponsoring (see Appendix 6).

Mr. Byron Oedekoven, Director, WASCOP, explained the South Dakota law which requires persons suspected of DUI to submit to testing. Sargent Jonlee Anderle, Laramie Police Department and member of the Governor's Council, stated South Dakota law enforcement officers prefer to use a breathalyzer test, but if the person refuses to submit to voluntary testing, the offender is advised that he will be taken into custody and testing will be performed under restraints if necessary. Sargent Anderle agreed that getting arrest and sanction data from municipalities would be a monumental task.

Senator Perkins advised that he has provided 3 documents to LSO relating to the New Mexico laws applicable to DUI, including the state's ignition interlock system. He said New Mexico has made a refusal to submit to testing an aggravated DUI, with an enhanced penalty, which encourages drivers to submit to a test to avoid penalties greater than might be applicable if the driver is only found guilty of driving under the influence.

Chairman Buchanan advised that the charge from Management Council on this topic was very narrow and may not include the requests to draft any comprehensive changes to the law. Before the Committee can undertake any significant changes to the law relating to DUI, it would be necessary to obtain Management Council approval. He requested that staff send to the Committee the materials provided by Senator Perkins and a compilation of the white papers prepared by the Governor's Council on Impaired Driving. Ms. Hansen advised that she will provide LSO with documents to be sent to Committee members.

Meeting Recess

The Committee recessed at 2:45 p.m. to take a tour of the Women's Center in Lusk. At the Women's Center, Committee members received Appendix 7, containing information about the Women's Center, provided by Warden Dan Shannon. The Committee then toured the Women's Center and the new Aquaculture Center which raises commercial tilapia fish for restaurants along the Front Range.

Call To Order (June 3, 2008)

Chairman Ross called the meeting to order at 9:00 a.m.. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.

Liens

Chairman Ross advised that he had requested staff to compile relevant statutes containing lien provisions. Mr.. Rivera briefly explained the results of his search (see Appendix 8) and recommended that the study could possibly focus on the process of filing liens, contained in Title 29 of the Wyoming Statutes.

Representative Buchanan discussed the charge from Management Council that the Committee should undertake a new two year study of liens, notwithstanding the problem that occurred last interim delaying the comprehensive study originally planned by the Committee. While a study of all lien provisions may be impossible, perhaps the Committee could focus on those provisions that have been identified as problematic. The starting point could be a review of the findings and recommendations of the Wyoming State Bar Task Force that previously studied liens.

Representative Lubnau advised that liens have been studied twice by the State Bar, most recently when he was president of the State Bar. He reminded the Committee that Brian Shuck was chairman of that task force. He suggested that perhaps there should be one set of procedures for mechanics liens and for oil and gas liens, which currently are inconsistent.

Chairman Ross advised that lien filing procedures for residential and commercial properties are also inconsistent. He requested that staff distribute the materials on liens provided by Mr. Shuck in 2006. Representative Buchanan asked staff to look for any model legislation that may exist for liens.

Carbon Capture and Sequestration

Representative Lubnau presented a PowerPoint presentation (Appendix 9). He stated that coal is disfavored as an energy source nationally, then presented developments since the Committee last met. The science is progressing slowly. The Environmental Protection Agency (EPA) will have draft rules by the end of this summer and final rules should be adopted by 2011. Wyoming is far ahead of other states in developing policies to deal with carbon capture and sequestration (CCS). Australia has committed $127 million for research. He suggested that the next steps for the Committee could be to address long-term liability, the amounts of compensation, and forced pooling, the latter of which the Department of Environmental Quality and the University of Wyoming are recommending. He reminded the Committee that the Governor does not want liability to attach to the state. Ultimately, the federal government may have to assume the liability. The federal government is currently paralyzed regarding development of CCS policies for fear of increasing the price of fuels. There has been a suggestion that states form a consortium to develop policies. Representative Lubnau advised that he has reconsidered proposing legislation with respect to split estates because the legislation is probably not necessary. He considered and rejected having legislation drafted on eminent domain and has discussed with staff the difficulties with issues relating to forced pooling.

Representative Lockhart added that Wyoming is establishing the benchmarks for CCS and should stay ahead of the curve to influence what federal policy may become.

Mr. Bob Mowery, Alston and Bird LLC, provided a PowerPoint presentation (Appendix 10) on behalf of NextGen Energy Council. He explained provisions of the Federal Climate Security Act (FCSA), sponsored by Senators Lieberman and Warner, along with amendments to the act proposed by Senator Boxer. The EPA may establish a new class (Class VI) of underground injection wells to address CCS. The FCSA: has a "kick start" provision to fund up to 5 states who develop demonstration projects; would broaden the Safe Drinking Water Act; and, would create a task force to make recommendations with respect to liability issues. Most states addressing CCS issues haven't tried to address liability, but Louisiana, Oklahoma and Ohio have made efforts to do so. Mr. Mowery suggested the next steps Wyoming should take include examining whether the legislation on CCS enacted in the 2008 Budget Session align with provisions of the FCSA, and addressing the liability and eminent domain issues. It may be worthwhile to examine what Louisiana had done in these areas. Like Wyoming, Montana vests the pore space with the surface owner, but unlike Wyoming, Montana does so on a nonseverable basis.

Ms. Shannon Anderson, Powder River Basin Resource Council, distributed Appendix 11, outlining the concerns the Council has with issues relating to eminent domain, liability and just compensation. She recommended waiting until the science determines what the policy should be. Her concern with forced pooling is that the surface owner may become liable for carbon dioxide that he never agreed to accept. She believes that the liability issue should be addressed before considering eminent domain or forced pooling.

Dr. Bill Gern, Ph.D., Vice-President, and Dr. Carol Frost, Ph.D., Associate Vice-President for Research and Economic Development, University of Wyoming, explained the demonstration project they are leading, which is funded by a grant from the U.S. Department of Energy. The project will conduct extensive field tests to fully characterize a potential CCS site in the Moxa Arch of western Wyoming. The tasks of, and participants in, the project are listed in Appendix 12. The project will begin September 1, 2008 and preparation should be complete in about one year. Once the project demonstrates its competence, it is likely to receive continued funding from the federal government.

Chairman Ross stated he would like to further explore the issue of forced pooling. Senator Perkins asked for a basic primer on forced pooling, so Committee members can better understand the issues relating to that concept. Representative Lubnau said he would try to get Dr. Iain Wright to attend the next meeting because he is an expert on forced pooling. He further suggested the Committee could consider the provision of last year's legislation that was removed from the final bill, relating to ownership of the carbon dioxide by the injector. This may begin to address the liability issue. The Committee could also explore incentives for industry to work with the University of Wyoming. Representative Lockhart advised he is in the early stages of developing a proposal addressing carbon credits and may be working with LSO staff to identify the value that should be assigned to carbon credits. Representative Buchanan recommended having a bill drafted addressing liability and receiving more testimony on forced pooling and eminent domain.

Meeting Adjournment

There being no further business, Chairman Ross adjourned the meeting at 12:15 p.m.

Respectfully submitted,

Senator Tony Ross, Cochairman Representative Ed Buchanan, Cochairman

Appendix	Appendix Topic	Appendix Description	Appendix Provider
1	Committee Sign-In Sheet	Lists meeting attendees	Legislative Service Office
2	Committee Meeting Agenda	Provides an outline of the topics the Committee planned to address at meeting	Legislative Service Office
3	Proposed changes to statures restricting disclosure of information in sexual assault cases	Provides proposals to amend W.S. 6-2-310(a) and (b) and 6-2-319(a) and (b)	Jim Angell, Director, Wyoming Press Association
4	Wyoming Supreme Court Information System	Provides a PowerPoint presentation explaining the type of data the Supreme Court can analyze, based on information provided by district and municipal courts	James Bothamley, Wyoming Supreme Court Database Manager
5	White Paper from the Governor's Council on Impaired Driving	Provides a list of white papers on relevant issues relating to impaired driving, as identified by the Council	Lorrie Pozarik, Facilitator, Governor's Council on Impaired Driving
6	2007 Impaired Driving Prevention Act	Provides the National Committee on Uniform Traffic Laws and Ordinances model legislation relating to prevention of impaired driving	Lorrie Pozarik, Facilitator, Governor's Council on Impaired Driving
7	Department of Corrections Brochures on the Women's Center	Describes programs and services provided to inmates at the Women's Center in Lusk	Dan Shannon, Warden, Women's Center
8	Compilation of Lien Provisions in Wyoming	Contains all Wyoming statutory provisions having the word "lien" or some variant of that word	Legislative Service Office
9	Status of Carbon Capture and Sequestration (CCS) efforts in Wyoming	Provides an update of efforts in Wyoming and elsewhere relating to CCS and proposes the next steps the Wyoming Legislature should consider on CCS	Representative Tom Lubnau
10	NextGen Energy Council: The Power of Ideas	Provides a description of federal regulation of CCS that is being considered, or may be proposed, and a description of some state efforts in the area.	Mr. Bob Mowery, Alston and Bird, LLC
11	White Paper on CCS from Powder River Basin Resource Council	Describes issues identified by the Powder River Basin Resource Council relating to eminent domain, liability and just compensation for CCS	Shannon Anderson, Powder River Basin Resource Council
12	White Paper on a Demonstration Project at the University of Wyoming (UW)	Describes a federally funded demonstration project that will be operated by the UW to determine the viability of a study of CCS in the Moxa Arch formation in western Wyoming	Dr. Carol Frost, Associate Vice-President for Research and Economic Development, UW