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November 11 & 12, 2004
Best Western Inn
Lander, Wyoming
Senator John Hanes, Chairman
Representative Colin Simpson, Chairman
Senator Bruce Burns
Senator Ken Decaria
Senator Keith Goodenough
Senator Curt Meier
Representative George Bagby
Representative Rosie Berger
Representative Ed Buchanan
Representative Jack Landon
Representative Monte Olsen
Representative Owen Petersen
Representative Wayne Reese
Representative Deb Alden
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 Simpson called the meeting to order at 8:00 a.m.. 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 approve the minutes of the June 28 and 29, 2004 meeting of the Joint Judiciary Interim Committee. The motion carried unanimously.
Ms. Donna Sheen, Senior Policy Analyst, Department of Family Services, introduced Honorable Gary Hartman, 5th Judicial District Court Judge, who has worked with Ms. Sheen on the issues related to the legal representation of children.
Chairman Simpson presented Appendix 3, a proposed amendment to the budget bill. The proposed amendment contained some language in strike and underline format to show the changes proposed as a result of a review by the judiciary to the original language drafted by LSO. Chairman Simpson explained the amendment was drafted using the assumptions contained in a LSO research memorandum (Appendix 4). The staff comment at the end of the amendment to explain an alternative approach to the representation of children in need of supervision (CHINS) was based on another LSO research memorandum (Appendix 5), which described what the costs for children's legal representation would be if the Public Defender's Office, rather than attorneys appointed by the courts, provided representation in CHINS cases.
Judge Hartman explained that the Supreme Court wanted to limit its involvement in the proposed program, so the proposal now would authorize the Judicial Conference to set the standards for attorneys representing children as guardians ad litem.
Senator Meier moved to convert the proposed amendment to the budget bill into a bill for introduction in the 2005 General Session. The motion failed.
Mr. Joe Evans, Director, Wyoming County Commissioners Association (WCCA), stated he agreed with the concept of standards, but is concerned that the program may result in benefits to some counties and losses to other counties that participate in the program to reimburse counties for legal representation by guardians ad litem. As an amendment to the budget bill, the program could operate for a trial period to get a better sense of the impact on counties.
Senator Burns moved, seconded by Representative Berger, to approve recommendation of the proposed amendment, as revised by the Supreme Court, to the Joint Appropriations Interim Committee (JAC) before its next meeting in December. The motion carried on a roll call vote with 4 ayes and 1 no in the Senate and 8 ayes and 1 excused in the House. Senators Burns, Decaria, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voted aye. Senator Goodenough voted no. Representative Alden was excused. Chairman Simpson directed that the amendment be submitted to the JAC, together with the LSO memoranda that were considered by this committee. Chairman Simpson encouraged any members of the committee and Department of Family Services staff who are able to attend the December JAC meeting to do so in support of the proposed amendment.
Ms. Sheen advised that she had presented the bill at the previous committee meeting. She and Mr. Dan Wilde, Supervising Attorney General for Human Services, were available to answer committee questions on the bill.
In response to a question from Senator Meier, Ms. Sheen advised that court appointed special advocates (CASAs) were not added to the interagency collaborative created by W.S. 14-3-215(a) because CASA is not a statewide organization. The purpose of the collaborative is to provide statewide agencies with a forum to discuss issues they face in providing services.
After discussion, Senator Hanes, seconded by Senator Meier, moved approval of the bill for sponsorship by the committee as a Senate File. The motion carried unanimously on a roll call vote with Senators Burns, Decaria, Goodenough, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voting aye. Representative Alden was excused.
The following proposed amendments to the bill were adopted by the committee:
The following proposed amendments to the bill were withdrawn or failed adoption:
After expressing concern with the term "risk factors" on page 30-line 21, Senator Decaria and Representative Landon were requested to work with Ms. Sheen to develop alternative language to address their concerns.
Ms. Sheen and Mr. Wilde explained the provisions of 04HB0088 that were included in this bill. Senator Burns expressed concern that an unqualified person may be required to make a legal decision with respect to whether a child has been abused or neglected, or face penalties for failure to report a suspected case of child abuse or neglect. Mr. Rodger McDaniel, Director, DFS, advised that the Wyoming Education Association had requested protection for teachers who report suspected cases of abuse or neglect as a result of a Wyoming Supreme Court decision that ratified the firing of a teacher who made a report.
After explanation of the bill, Representative Berger, seconded by Senator Burns, moved approval of the bill for sponsorship by the committee. The motion carried on a roll call vote with 4 ayes and 1 no in the Senate and 8 ayes and 1 excused in the House. Senators Burns, Decaria, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voted aye. Senator Goodenough voted no. Representative Alden was excused.
The following proposed amendments to the bill were adopted by the committee:
After discussion, a motion to revise the penalties contained in W.S. 14-3-205(c) was withdrawn.
Mr. McDaniel provided a history of the Children and Families Initiative and the composition of the advisory board. The board was helped by the University of Wyoming and community colleges in its consideration of data. He distributed for the committee's consideration Appendix 6, "The Top Five Goals and Indicators", and Appendix 7, the Children and Families Initiative Preliminary Report, and explained the findings of each document. He hopes to have available for the Legislature's consideration a report card on each of the outcomes by January, 2005, and what the trends on each might be. Some recommendations include using $2 million of the tobacco settlement funds to provide grants to counties to build upon the goals described in Appendix 6. The recommended funds are not currently being used for any other purpose and he hopes the funds will appear in the DFS budget appropriation in the budget bill. Governor Freudenthal has already directed agencies to identify how they will achieve the specified goals. The local grants should also help to achieve the goals.
Honorable Richard Lavery, Evanston Municipal Court Judge, who served on the advisory board, stated that the questions the committee posed were the same questions the board had when it met. Since local resources vary, the solutions for each will also vary. Governor Freudenthal cautioned the advisory board that the issue is not about more money, but about better use of existing monies within the community.
Ms. Dona Playton, University of Wyoming College of Law Domestic Violence Legal Assistance Project, provided a brief summary of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The committee requested Ms. Playton email her summary of the UCCJEA and an article in a publication by the Office of Juvenile Justice and Delinquency Prevention Act describing the UCCJEA to LSO for distribution to committee members. Ms. Playton indicated that 40 states have adopted the UCCJEA and another 6, including Wyoming, may be considering it in their upcoming legislative sessions.
Senator Meier suggested the bill should include an appropriation to allow use of the UCCJEA to broaden legal services that should be available under the UCCJEA. He recommended that a separate budget item to the University would accomplish that goal.
Senator Hanes, seconded by Senator Meier, moved approval of the bill for sponsorship by the committee. The motion carried unanimously on a roll call vote with Senators Burns, Decaria, Goodenough, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voting aye. Representative Alden was excused.
Ms. Brenda Lyttle, DFS Child Support Enforcement Manager, distributed Appendices 8 through 11, including an introduction to the support guidelines review to date, the current and proposed child support tables, suggested changes to W.S. 20-2-301 et seq., and a table comparing child support abatement rates. The guidelines were last reviewed in 2000, but were not revised. The current support guidelines are out-dated, based on amounts established in Michigan law in the 1970s.
Ms. Lyttle stated that a review of the child support guidelines is statutorily required every four years. The Department has contracted this year with Policy Studies, Inc. (PSI) to conduct the review. Abatements were also reviewed. Wyoming is one of three states that permits abatements. Ms. Lyttle advised that neither custodial parents, non-custodial parents nor the clerks of court like the current abatement process. DFS also doesn't like the current process because it creates havoc with the POSSE system of tracking child support payments. The Department recommends adopting the "Arizona" model that allows, if the parties agree to standard visitation, a proration of the monthly obligation to account for the child's stay with the non-custodial parent, rather than a rebate that occurs a couple of months after the extended visitation occurs which causes a hardship for all parties. Ms. Lyttle recommended eliminating all deviation factors except for the cost of daycare, special health care needs and support for other children as a result of a second, existing marriage.
Chairman Simpson distributed Appendix 12, a letter from the Wyoming Clerks of District Court Association, in support of eliminating W.S. 20-2-305, relating to child support abatement.
Ms. Kathy Weaver, Lander resident, stated that courts are applying a very creative definition of "weekend". She recommended: 1) clarifying that "overnight" only means one night and "weekend" means two consecutive overnights; and, 2) eliminating the abatement process entirely.
Chairman Simpson asked for a bill draft for the next meeting relating to the proposed child support guidelines and deviations. Ms. Lyttle added that DFS would also like to present draft legislation on Social Security Disability Insurance benefits applicability to a child support obligation and a reduction in support obligations of incarcerated non-custodial parents.
Mr. Bob Lampert, Director, Department of Corrections (DoC), distributed and explained each of the following:
Chairman Simpson directed staff to prepare for committee consideration at the next meeting draft legislation on each of the DoC legislative proposals.
Mr. Pat Anderson, Director, Board of Parole, distributed Appendix 20 and explained that it was a revised version of Appendix 15, which he had provided to Mr. Lampert with respect to victim notification. Both agencies support the legislative proposal which is currently being implemented by a memorandum of understanding between the agencies. Appendix 20 included another board proposal with respect to revocation hearings that does not have the support of the DoC. After discussion, Chairman Simpson asked the DoC and board to attempt to reach a mutually acceptable solution on the revocation hearing issue. If a legislative solution is agreed upon, the directors of the agencies should contact LSO staff within two weeks with their recommendation which staff can draft for consideration at the next committee meeting in December.
Mr. Steve Peay, a Fremont County resident, spoke against the possible selection of Riverton as a site for the medium security prison to be built. Prisons are losing businesses that Riverton does not need. He recommended the selection of Rawlins as the better site for the new prison.
The Committee recessed at 6:25 p.m.
Chairman Hanes called the meeting to order at 8:00 a.m.. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Mr. Pat Crank, Attorney General, introduced Mr. Jim Wilson and Mr. Flint Waters, from the Division of Criminal Investigation (DCI). Mr. Wilson explained the bill attempts to accomplish three goals, registration of sex offenders, notification of schools, and establishment of a preponderance of the evidence standard in cases involving failure to register. There are other changes that are needed with respect to the sex offender registry. There are loopholes in the current law that do not require re-registration by a registered sex offender who leaves a permanent residence and does not have another address at which to register, and that do not require a sex offender from out-of-state to register within the state as long as the offender does not have a Wyoming address. Also, the bill before the committee should be revised on page 6-line 18 by inserting "utilizing a preponderance of the evidence standard" after "7-19-303(d)".
The bill was laid back until the next meeting to allow amendments to be incorporated into the bill for the committee to consider. Staff was directed to draft other legislative proposals Attorney General Crank advised his office is interested in presenting to the committee. Attorney General Crank stated he would provide the proposals to LSO staff for drafting.
Mr. Wilson explained that 21 states have enacted similar legislation and other states are considering ratification. The purpose of the bill is to address what can be done with arrest information if the arrest did not result in a conviction. This bill would allow member states to communicate data directly to each other. States would no longer have to submit fingerprint records for multiple arrests of a single individual. DCI has been the central repository for criminal records in the state since 1973. When ratifying the Compact, states have very little leeway to amend its provisions or risk enacting a Compact that is inconsistent with, and unacceptable to, other states. There are currently 126,000 persons currently indexed within the state. Those individuals' arrest histories are effectively retained for their lifetime. the records were retained until the person attained 82 years of age, but that has been changed to age 99. The data in the records repository are not reviewed on a regular basis, but are instead reviewed when a particular record requires input of new information. Expungement of information in the database only occurs when authorized by law.
In response to questions from the committee, Mr. Wilson advised that the definition of "noncriminal justice purposes" would limit the sharing of criminal histories for other purposes such as for employment or licensing inquiries. Attorney General Crank added that, as a federal prosecutor, he found records from DCI were deficient in that they only provided arrest information, but no dispositional information.
After further discussion, Representative Berger, seconded by Senator Meier, moved for approval of the bill for sponsorship by the committee. The motion carried on a roll call vote with 4 ayes and 1 no in the Senate and 8 ayes and 1 excused in the House. Senators Burns, Decaria, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voted aye. Senator Goodenough voted no. Representative Alden was excused.
Attorney General Crank stated he is aware of legislative reluctance in the past to authorize administrative subpoenas. The bill before the committee is drafted very narrowly to allow the Attorney General to issue a subpoena upon reasonable cause to believe that an internet account is being used to sexually exploit, or in an attempt to sexually exploit children. The bill is explicit in detailing what information and items may be required to be produced and what information can't be ordered to be produced. The federal government, through its customs officials, can currently issue administrative subpoenas, but the state sometimes has problem finding a customs agent who is available on a timely basis to issue a subpoena. The internet allows anonymity, thereby allowing to avoid detection. This bill would provide the tools to identify the correct individual who is using the internet to attempt to sexually exploit a child. An administrative subpoena can be limited in its scope because some information may not be appropriate to discover in the early stages of an investigation. Once the subpoena verifies the need for more information, a search warrant can be used to obtain the information that is not available under the subpoena.
Mr. Waters explained the details of the bill and why it is necessary to have rapid issuance of a subpoena to allow for the identification of the computer user who is attempting to establish criminal contact with a child over the internet.
Representative Simpson, seconded by Senator Meier, moved for approval of the bill for sponsorship by the committee. The motion carried on a roll call vote with 4 ayes and 1 no in the Senate and 8 ayes and 1 excused in the House. Senators Burns, Decaria, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voted aye. Senator Goodenough voted no. Representative Alden was excused.
The following proposed amendments to the bill were adopted by the committee:
A motion to amend page 3-line 15 be deleting "require" and inserting "authorize" was withdrawn.
Mr. Evans introduced Mr. Dave Clark, Carbon County Attorney, and Mr. Mike Barton, Fremont County Attorney. Mr. Evans stated that costs for counties are rising with respect to temporary commitments of individuals. The purpose of the bill is to clarify that the costs to counties were intended to be capped at the first 72 hours of emergency detention.
Mr. Clark explained that law enforcement officials don't want to be responsible for someone who is threatening suicide, so they will send the person to the local hospital rather than incarcerate that person. It is important to clarify that the county is only responsible for treatment for the mental health condition that caused the emergency detention. Additionally, there is an inconsistency in treatments and charges assessed to counties by providers, depending on location.
Mr. Barton advised that the counties are also looking for consistency of provision of further medical services that are needed after the first 72 hours of detention and the state is in a better position to negotiate consistency of services and costs than the individual counties are.
Representative Simpson asked why, on page 2 of the bill, hospitals are addressed until line 16, then facilities are also addressed? Mr. Clark stated that perhaps the language should be broadened.
Chairman Hanes asked how much cost would be transferred to the state if the counties no longer pay for emergency detention after the first 72 hours? Mr. Evans replied he didn't know because costs during the detention are often difficult to distinguish between allowable and unallowable services. Mr. Clark answered that in Carbon County the costs transferred to the state would only total about $10,000 because few financial obligations would be shifted, but there is a wide variance among counties.
Senator Decaria asked if the county is only responsible for the first 72 hours of detention, will local law enforcement be less restrained in placing people in emergency detention? Mr. Evans stated that police only detain people when the need is apparent without regard to who pays for the detention, so he doesn't believe that any increase in detention will occur.
Senator Burns expressed that it would be irresponsible to sponsor the bill without first knowing what the burden will be for the state and including an appropriation to pay for that added burden. Mr. Clark stated that there are too many levels of payments occurring to be able to determine accurately which services, and at what costs, would be transferred to the state.
Mr. Evans suggested that perhaps the bill should revert to the original language on page 5-lines 9 through 12, to avoid failure of the bill. Representative Simpson suggested lines 7 through 12 should revert to the original language of the statute.
Senator Meier asked for historical data from the counties with respect to their costs for emergency detentions.
Mr. Kevin Bohnenblust, representing the Wyoming Association of Psychiatric Physicians, advised the committee should be very careful about allowing a licensed psychologist to review the finding of an examiner because a licensed psychologist is not qualified to diagnose the underlying organic condition that may give rise to the mental illness symptoms. As technology advances, the distinctions between psychological problems and medical etiologies is further blurring. Costs of treatment are difficult to separate because the treatment to stabilize a mental condition may require medical interventions. The language on page 4 with respect to physicians and psychiatrists is some what redundant since psychiatrists are physicians. The purpose of that provision was to provide a safeguard for the patient and including a psychologist as a reviewer of exams weakens that safeguard.
Ms. Wendy Curran, Wyoming Medical Society, is concerned about attempting to distinguish between medical and mental conditions, since chemical imbalance is the typical reason for mental illnesses. If traumatic brain injury is present and the cause of the aberrant behavior, it does need to be addressed. Another concern is the limitation "to stabilize" because the medical community doesn't just treat to stabilize, but to treat and cure the problem under their standard of care, regardless of the medical issues that are diagnosed.
For purposes of working the bill, Representative Simpson, seconded by Senator Meier, moved the bill.
The following proposed amendments to the bill were adopted by the committee:
Mr. Rivera advised that several of the amendments would actually result in removal of the language of the section or subdivision thereof because there would be no changes to the provision to justify its inclusion in the bill.
Senator Meier moved to table the bill until the next committee meeting to allow the members to consider the bills with the amendments engrossed into the bill. The motion carried on a voice vote.
Representative Simpson and Senator Hawks presented the report and draft legislation from the Joint Executive-Legislative Committee on Split Estates. Representative Simpson described the composition of the Joint Committee and advised that a summary of the bill had been sent to members along with the bill and minutes of the Joint Committee's meetings.
Representative Simpson advised that the Joint Executive-Legislative Committee on Split Estates had worked very hard to craft a bill that strikes a delicate balance between the interests of surface estate owners and oil and gas operators. He urged the committee use caution in proposing amendments that may shift the balance that exists in the draft bill.
Representative Berger, seconded by Representative Bagby, moved for approval of the bill for sponsorship by the committee. The motion carried on a roll call vote with 4 ayes and 1 no in the Senate and 8 ayes and 1 excused in the House. Senators Burns, Decaria, Hanes and Meier and Representatives Bagby, Berger, Buchanan, Landon, Olsen, Petersen, Reese and Simpson voted aye. Senator Goodenough voted no. Representative Alden was excused.
The following proposed amendments to the bill were adopted by the committee:
The following proposed amendments to the bill were withdrawn or failed adoption:
Representative Simpson advised the Committee was charged by Management Council to study issues related to tort reform if Amendments C or D to the Wyoming Constitution were adopted by the voters at the general election. Since Amendment C did receive sufficient votes to be ratified, the Committee would have to address the issue of mandating alternative dispute resolution or review by a medical review panel. LSO has provided the committee with the existing Medical Review Panel statutes.
The Attorney General (see Appendix 22) and LSO advise that Amendment C authorized the Legislature to mandate, if it so chooses, alternative dispute resolution or review by a medical review panel in civil cases filed against a health care provider. The existing medical review panel provisions in statute were not simply revived by the passage of Amendment C; therefore, if the intent is to establish a medical review panel, the Legislature may be required to act affirmatively to create the panel. The cochairmen directed staff to draft a bill to repeal the existing provisions and recreate those provisions for the committee's consideration at the next meeting. That bill will serve as a starting point for committee deliberations on the matter.
Representative Simpson recommended that members review the information provided by the Wyoming Healthcare Commission with respect to the 12 states that have some form of a medical review panel. Staff should attempt to contact attorneys who practiced before the Wyoming Medical Review Panel before it was declared unconstitutional in 1988, including Judge Brooks and, possibly, Chuck Graves.
Chairman Hanes distributed 05LSO-0080.L1, Circuit courts-audit procedures, to members of the committee to apprise them of the bill he intends to introduce to address a separation of powers issue that has been identified.
There being no further business, Chairman Hanes adjourned the meeting at 4:15 p.m..
Respectfully submitted,
Senator John Hanes, Cochairman Representative Colin Simpson, Cochairman