January 22 & 23, 2008
Room 302, State Capitol
Cheyenne, Wyoming
Senator Tony Ross, Cochairman
Representative Ed Buchanan, Cochairman
Senator Bruce Burns
Senator Ken Decaria
Senator Drew Perkins
Senator Kathryn Sessions
Representative Deb Alden
Representative George Bagby
Representative Dan Dockstader
Representative Monte Olsen
Representative Lisa Shepperson
Representative Mary Throne
Representative Keith Gingery
Representative Erin Mercer
John Rivera, Senior Staff Attorney
Ian Shaw, Staff Attorney
Please refer to
Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.
The Committee met January 22 and 23, 2008, in Cheyenne. The Committee considered draft legislation on valid court orders, community juvenile services, post-conviction relief petitions, regulation of carbon capture and sequestration, and ownership of subsurface pore spaces. The bills were amended and approved for introduction as committee bills. This meeting concluded the activities of the Joint Judiciary Interim Committee for the 2007 interim.
Chairman Buchanan called the meeting to order at 9:00 a.m. The minutes of the November, 2007 meeting, were approved The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
The committee reviewed a matrix containing information on reports that are required by law to be submitted to the Joint Judiciary Interim Committee. Ms. Holly Hansen, Supreme Court Administrator, discussed the reports that are due from the Supreme Court.. She advised that the report required under W.S. 5-2-120 (Appendix 3) was provided as a matter of practice to the Joint Appropriations Interim Committee as part of the Court's budget narrative. She stated the Court was unaware of the reporting requirement under W.S. 1-1-124. She also provided a copy of the GAL report (Appendix 4) required under 2007 Wyo. Sess. Laws, Chap. 136, section 1.
Mr. Kebin Haller, Division of Criminal Investigation, explained the report required on pen registers.
After discussing reports that were due to the Committee, the Committee approved motions to have staff draft amendments incorporating the Committee's recommendations to 08LSO-0139.C1, being considered by Management Council. The recommended changes include:
Amend W.S. 5-2-120 in the last sentence after "joint judiciary interim committee" by inserting "and joint appropriations interim committee".
Amend W.S. 1-1-124(c) by striking "legislature" and inserting "joint judiciary interim committee".
Amend W.S. 14-10-101(f)(viii) by striking "legislature" and inserting "joint judiciary interim committee".
Amend W.S. 42-3-102 by striking "legislature" and inserting "joint judiciary interim committee and joint appropriations interim committee".
Ms. Beth Evans, Wyoming County Commissioners Association (WCCA), explained the federal requirement to provide a process referred to as a "valid court order" to ensure due process for status offenders. While many of the required procedures are already within the Wyoming Juvenile Justice Act, state law does not provide for a timely interview, assessment and recommendations when a juvenile is detained for violation of a court order. The bill only affects juveniles before juvenile courts, it does not affect municipal or circuit courts procedures, even though a majority of status offenders in the state appear before those courts.
Mr. Mike Blonigen, Natrona County District Attorney, advised he wanted the bill to apply to circuit courts also, but, as drafted, the bill is simple and narrow in concept and easy to implement. He did request the Committee consider amending the bill to allow other qualified persons designated by the Department of Family Services to perform the interviews proposed in the bill. Mr. Brian Christensen , Natrona County Assistant District Attorney added that the assessments for detention and shelter care hearings may overlap with the time frames proposed in the bill.
After discussion, Senator Ross moved, seconded by Representative Alden, for the Committee to sponsor 08LSO-0119.W1 in the 2008 Budget Session. After consideration and adoption of amendments, the motion carried on a roll call vote of 4 ayes, 0 noes and 1 excused by the Senate Judiciary Committee, and 7 ayes, 0 noes and 2 absent by the House Judiciary Committee. Senators Burns, Perkins, Ross and Sessions, and Representatives Alden, Bagby, Buchanan, Dockstader, Olsen, Shepperson and Throne voted aye. Senator Decaria was excused. Representatives Gingery and Mercer were absent. The following amendments to the bill were adopted:
Page 4-line 15 Delete "as soon as reasonably possible not" insert "or its designee prior to the detention or shelter care hearing, but in no event".
Page 4-line 18 After "department" insert "or its designee"; after "a" insert "written".
Page 9-line 8 Delete "as soon as reasonably possible not" insert "or its designee prior to the detention or shelter care hearing, but in no event".
Page 9-line 11 After "department" insert "or its designee"; after "a" insert "written".
Senator Ross explained the bill's purpose and the proposals contained in the bill. Senator Sessions distributed Appendix 5, proposed amendments to the bill being considered.
Mr. Blonigen said that anything that would expand juvenile probation services would be welcome. The bill would also increase local opportunities to establish juvenile services. He expressed concern that small counties would have a problem implementing the bill. He recommended adding W.S. 14-3-301(a)(vi) to the bill to remove a questioned limitation on the authority of courts, other than juvenile courts, to order juvenile probation.
Mr. Rodger McDaniel, Deputy Director, Department of Health, recommended amending the language requiring a Department of Health local representative on the community juvenile services board to require a representative of the local public health office; adding "substance abuse" after "mental health" to reflect that the local provider can be either a mental health or substance abuse provider; and, W.S. 14-9-106(b)(v) should be amended to reflect what the bill would accomplish.
Mr. Tony Lewis, Director, Department of Family Services (DFS), distributed Appendix 6, describing efforts in some counties to provide juvenile services. He advised that an Attorney General's opinion would allow DFS probation officers to supervise municipal and circuit court juvenile probationers, but agreed that amending the statute would be helpful. Currently, the Departments of Health, Family Services and Education are apportioning costs for juveniles, depending on the services provided.
Ms. Mary Kay Hill, Department of Education, distributed Appendix 7, showing a continuum of services that are provided to children at risk. She explained that Senator Sessions' proposal with respect to sharing of costs among agencies wouldn't pose a problem, since such payments among the agencies are already coordinated.
Mr. Joe Evans, speaking as the grantee of funds from the federal Office of Juvenile Justice and Delinquency Prevention, stated this bill would address issues the WCCA has worked on for several years and the $2 million contained in the bill is very adequate for all counties in the state to implement a community juvenile services board.
After discussion, Senator Ross moved, seconded by Representative Olsen, for the Committee to sponsor 08LSO-0208.W2 in the 2008 Budget Session. After consideration and adoption of amendments, the motion carried on a roll call vote of 5 ayes and 0 noes by the Senate Judiciary Committee, and 7 ayes, 0 noes and 2 absent by the House Judiciary Committee. Senators Burns, Decaria, Perkins, Ross and Sessions, and Representatives Alden, Bagby, Buchanan, Dockstader, Olsen, Shepperson and Throne voted aye. Representatives Gingery and Mercer were absent. The following amendments to the bill were adopted:
Page 1-After line 14 Insert W.S. 14-6-301(a)(v) and amend that paragraph by striking "juvenile".
Page 1-After line 14 Insert W.S. 14-9-103(a)(iv) and
amend the introductory paragraph to read "'Juvenile services' means
programs or services provided to children at risk of coming under the
jurisdiction of the juvenile any court., including seriously emotionally disturbed youth.".
Programs of service may include: (M) Pretrial
diversion programs and graduated sanctions.".
Page 2-line 16 Delete "field offices of".
Page 2-line 17 Delete "department of health" insert "public health".
Page 3-line 9 After "health" insert "or substance abuse".
Page 3-After line 10 Insert: "(viii) A representative from the public defender's office;"; renumber as necessary.
Page 3-After line 13 Insert W.S. 14-9-107(b) and create new paragraphs to require inter-agency rules for "(iv) Research based strategies;" and "(v) Graduated sanctions and intervention levels for all juveniles.".
Page 4-lines 2 and 21 Delete "offenders".
Page 4-line 22 Delete "directly" insert "cooperatively"; delete "department" insert "departments"; after "family" insert "services, health and education".
Page 5-line 2 After "and" insert "(vi) and".
Page 5-line 3 After "(D)" insert "and (v)".
Page 6-line 3 Delete "2009" insert "2010".
Mr. Blonigen, President of the Wyoming Prosecutor's Association, presented the draft bill on post-conviction relief based on DNA evidence 08LSO-0123.W1, developed with the participation of Mr. Matt Redle, Sheridan County and Prosecuting Attorney, Ms. Kathryn Monroe, Director, Rocky Mountain Innocence Center (RMIC), other district attorneys, Ms. Diane Courselle, University of Wyoming Law Professor, and Ms. Tina Kerin, Appellate Attorney, Public Defender's Office.
Mr. Blonigen explained proposed amendments to address a "trigger mechanism" for new trials (Appendix 8) and to allow DNA testing of third parties (Appendix 9). The "trigger mechanism" proposal is intended to establish a way to allow a finding of innocence as opposed to a reversal that could occur for other technical reasons. The Prosecutors' Association believes the testing of third parties as proposed would pass constitutional muster because it is non-invasive and is based on American Bar Association standards.
Mr. Blonigen addressed the staff comments contained in the bill. Perhaps language could be added to address the concern expressed on Page 4 of the bill. The intent of the language was to prevent "fishing expeditions" by inmates. Language would be added to require a good faith assertion, based on particularized facts that evidence is still in existence. While the date (December 31, 1995) requiring "due diligence" on page 6 of the bill is intended to address when reliable DNA testing standards were developed, a date of January 1, 2000 is also workable because that is the date that a contract was entered into by the state crime laboratory for DNA testing which made DNA testing widely available in the state. With respect to the issue of the unavailability of the trial judge on page 9, the language was intended to allow another judge to hear the retrial if the original judge is unavailable for reasons that may not be foreseeable. The question on page 10 of the bill about whether subparagraphs W.S. 7-12-305(d)(ii)(A) and (B) should be in the disjunctive (as drafted) or conjunctive was not addressed in the draft presented to LSO, but the subparagraphs are in the alternative, so an "or" as drafted would be correct.
Ms. Monroe stated that Utah has had its law on DNA exonerations since 2002 and there have been six cases with a single exoneration since that time. About 22 states have restitution provisions. Most are based on the number of years in prison with a cap on total damages. About 20% of the 212 exonerations nationally have received restitution. She will provide the language of the proposed law on restitution that is being considered during the current Utah legislative session and a spreadsheet showing the methods of restitution employed by the states that have authorized restitution. Ms. Monroe recommended changing the date on Page 6 that establishes when due diligence must be shown from December 31, 1995 to January 1, 2000.
After discussion, Senator Burns moved, seconded by Representative Olsen, for the Committee to sponsor 08LSO-0123.W1 in the 2008 Budget Session. After consideration and adoption of amendments, the motion carried on a roll call vote of 5 ayes and 0 noes by the Senate Judiciary Committee, and 7 ayes, 0 noes and 2 absent by the House Judiciary Committee. Senators Burns, Decaria, Perkins, Ross and Sessions, and Representatives Alden, Bagby, Buchanan, Dockstader, Olsen, Shepperson and Throne voted aye. Representatives Gingery and Mercer were absent. The following amendments to the bill were adopted:
Page 1-line 2 Insert into the bill Appendix 9, creating a new W.S. 7-7-106 authorizing third party DNA testing.
Page 3-line 12 Delete "all of" insert "a good faith, particularized factual basis containing".
Page 6-lines 4 and 9 Delete "December 31, 1995" insert "January 1, 2000".
Page 14-After line 23 Insert into the bill Appendix 8, creating new subsections W.S.7-12-310(c)and (d) specifying procedures that will be used to establish exoneration and expungement.
Page 18-line 14 Delete "herein" insert "in this section".
Page 18-line 17 Reinsert stricken "any provisions to the contrary"; delete "subsection (a) of" insert "in".
Page 19-line 6 After "testing" insert "or preservation".
The Committee recessed at 5:15 p.m.
Chairman Ross called the meeting to order at 9:00 a.m. The following sections summarize the Committee proceedings by topic. Please refer to the Appendix to review the Committee Meeting Agenda.
The Committee discussed 08LSO0047.W7, a new version of prior legislation, drafted jointly by the Department of Environmental Quality ("DEQ"), Wyoming Oil and Gas Conservation Commission ("OCGG") and the Governor's Office.
Governor Dave Freudenthal addressed the Committee. Governor Freudenthal thanked the Committee for its hard work on carbon dioxide sequestration legislation and for taking steps to secure the long-term success of Wyoming's minerals industry. The Governor praised the most recent versions of the legislation and warned the Legislature should not try to tackle every issue relating to carbon dioxide sequestration. Governor Freudenthal explained his opinion that this legislation must maintain a distinction between sequestration for long-term storage and enhanced oil and gas recovery operations. He stressed that this legislation must allow current oil and gas operations to continue under their current regulatory scheme. The Governor also stated that the Legislature should not attempt to regulate carbon credits in its legislation. Governor Freudenthal addressed the issue of pore space ownership and explained that the current legislation is important because it permits the citizens of Wyoming to realize the economic benefit of owning pore space, rather than allowing the federal government to realize that benefit through its ownership of mineral rights.
Mr. John Corra, Director, DEQ, addressed the Committee. Mr. Corra explained 08LSO0047.W7 and the details of DEQ regulation of long-term carbon dioxide storage. Mr. Corra spoke in favor of regulating carbon dioxide storage as part of the existing UIC program. Mr. Corra explained that, by staying within that framework, the Wyoming DEQ would be able to integrate future regulatory changes by the U.S. Environmental Protection Agency.
Mr. Don Likwartz, OGCC, commented on the OGCC's part in the proposed regulatory scheme. Mr. Likwartz described the OGCC's expertise in technical matters concerning injection wells and well siting.
Mr. Corra then reviewed the bill for the Committee. Mr. Corra also addressed the amendments proposed by Representative Lubnau (Appendix 10). With the exception of the proposed amended definition of "geologic sequestration," Mr. Corra did not have any objections to the proposed amendments. Mr. Likwartz also had no objection to the amendments.
The Committee discussed the specifics of 08LSO0047.W7 with Mr. Corra and Mr. Likwartz. Mr. Kevin Frederick, DEQ, discussed a deep-well injection site near Cheyenne and DEQ's experience with regulating these types of wells. The Committee questioned Mr. Corra and Mr. Likwartz about the bill's notice provisions, the volume of materials injected currently, the distinction between permanent storage and temporary storage and the current bonding scheme used by the DEQ and OGCC.
The Committee then received public comment on 08LSO0047.W7. Mr. Rick Robitaille, Anadarko Petroleum Corp., was the first to speak. Mr. Robitaille detailed some of Anadarko's large-scale enhanced oil recovery operations and explained that the company is currently capturing some credit for the carbon dioxide that the company leaves in the ground. Mr. Robitaille stated that enhanced oil recovery should not be treated as a commercial carbon dioxide storage operation, even when they are receiving some credit for storing carbon dioxide.
Mr. Mark Northam, Director, School of Energy Resources at the University of Wyoming, addressed the Committee. He discussed the need for higher regulatory burdens on long-term storage of carbon dioxide and explained why he believes carbon storage will become a much larger issue only when the market and government spur an active market for carbon credits. Mr. Northam discussed the permanency of carbon dioxide storage and suggested that long-term storage could be discontinued if a the new use for the carbon dioxide could guaranty the gas would not be released into the atmosphere.
Ms. Laurie Goodman , Wyoming Landowners' Association, advocated for proper notice to landowners and suggested that the current statutes requiring land owner consent in coal mine operations be incorporated into this legislation. She also suggested that surface owners be given specific immunity from and indemnification for damages caused by carbon dioxide storage.
After Representative Lubnau explained his proposed amendments (Appendix 10), Representative Olsen moved, seconded by Representative Bagby, for the Committee to sponsor 08LSO-0047.W7 in the 2008 Budget Session. After consideration and adoption of amendments, the motion carried on a roll call vote of 5 ayes and 0 noes by the Senate Judiciary Committee, and 7 ayes, 0 noes and 2 absent by the House Judiciary Committee. Senators Burns, Decaria, Perkins, Ross and Sessions, and Representatives Alden, Bagby, Buchanan, Dockstader, Olsen, Shepperson and Throne voted aye. Representatives Gingery and Mercer were absent. The following amendments to the bill were adopted:
Page 1-line 9 Insert a new W.S. 30-5-501 to read:
"Article 5. Geologic Sequestration Activities.
30-5-501. Oil and gas activities at geologic sequestration sites.
Nothing in W.S. 35-11-313 shall be deemed to affect the otherwise lawful right of a surface or mineral owner to drill or bore through a geologic sequestration site as defined by W.S. 35-11-103(c)(xxi), if done in accordance with the commission rules for protecting the geologic sequestration site against the escape of carbon dioxide.".
Page 2-lines 2 through 11 Delete entirely and insert "(b) The injection of carbon dioxide for purposes of a project for enhanced recovery of oil or other minerals approved by the Wyoming Oil and Gas Conservation Commission shall not be subject to the provisions of this chapter.
(c ) If an oil and gas operator converts to geologic sequestration upon the cessation of oil and gas recovery operations, then regulation of the geologic sequestration facility and the geologic sequestration site shall be transferred to the department. If the oil and gas operator does not convert to geologic sequestration, the wells shall be plugged and abandoned according to the rules of the Wyoming Oil and Gas Conservation Commission.".
Page 2-line 20 After "rules" delete balance of line.
Page 2-line 21 Delete the line through "wells".
Page 4-line 12 After "on" insert "subsurface structures and the surface of".
Page 5-line 17 Delete "facility" insert "site".
Page 6-line5 After "owners" insert ",".
Page 6-line 5 Before "mineral" delete "and"; after "owners and" insert "any other owners of record of subsurface interests as to".
Page 6-line 10 Before "county" delete "the" and insert "each".
Page 6-line 16 After "site" insert "and the owners of record of other subsurface interests".
Page 6-line 20 After "discovered" insert "to the department"; delete "timely"; after "notice" insert "to all surface owners, mineral owners and owners of record of subsurface interests within thirty (30) days of when the excursion is discovered".
Page 7-line 16 Delete "damage or".
Page 7-line 19 Delete "Legislature" insert "joint minerals, business and economic development and joint judiciary interim committees, on or before September 30, 2009,".
Page 9-After line 3 Insert: "(m) Nothing in this section shall be construed to create any liability by the state for failure to comply with this chapter.".
Page 9-line 13 Delete "formation" insert "formations".
Page 10-After line 9 Insert:
"Section 4. Nothing in this act is intended to impede or impair the ability of an oil and gas operator to inject carbon dioxide through an approved enhanced oil or gas recovery project and establish, verify, register and sell emission reduction credits associated with the project.
Section 5.
The Department of Environmental Quality and the Oil and Gas Conservation Commission shall submit a joint written report, on or before November 1 of each year, to the Joint Minerals, Business and Economic Development and Joint Judiciary Interim Committees as to all aspects of compliance with this legislation including, but not limited to, the promulgation of rules and regulations, the formation of the working group, permitting and changes to pertinent federal regulations affecting the same.".
Page 10-line 10 Delete "4." insert "6.".
The Committee considered 08LSO0080.W3, relating to ownership of subsurface pore space. Representative Lubnau gave an overview of the bill and reviewed his suggested amendments, distributed to the Committee (Appendix 11).
The Committee took public comment on the bill. Mr. Walter Eggers, Questar Corporation, asked the Committee to consider amending the bill to specifically exclude from its coverage existing natural gas storage units.
Representative Olsen moved, seconded by Representative Bagby, for the Committee to sponsor 08LSO-0080.W3 in the 2008 Budget Session. After consideration and adoption of amendments, the motion carried on a roll call vote of 4 ayes and 1 no by the Senate Judiciary Committee, and 7 ayes, 0 noes and 2 absent by the House Judiciary Committee. Senators Burns, Decaria, Ross and Sessions, and Representatives Alden, Bagby, Buchanan, Dockstader, Olsen, Shepperson and Throne voted aye. Senator Perkins voted no. Representatives Gingery and Mercer were absent. The following amendments to the bill were adopted:
Page 4-line 29 through page 5, line 19 Delete entirely.
Page 5-line 30 After "estate" insert "and carbon sequestration right".
There being no further business, Chairman Ross adjourned the meeting at 4:00 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 |
|
Judicial Systems Automation Account |
|
Annual Report required under W.S. 5-2-120 describing the Wyoming justice information network |
|
Ms. Holly Hansen, Wyoming Supreme Court |
4 |
|
Guardian ad litem (GAL) Report |
|
Provides data relating to distribution of funds to counties to reimburse GALs |
|
Ms. Holly Hansen, Wyoming Supreme Court |
5 |
|
Proposed Amendments to 08LSO-0208 |
|
Proposes amendments to draft legislation on community juvenile services being considered |
|
Senator Kathryn Sessions |
6 |
|
Letter on Community Juvenile Services Board |
|
Describes the efforts in Laramie and Sweetwater Counties to serve to juveniles |
|
Mr. Tony Lewis, Director, DFS |
7 |
|
Chart of Continuum of Learning Supports for At-risk Children |
|
Describes the continuum of educational services available for at-risk children |
|
Ms. Mary Kay Hill, Department of Education |
8 |
|
Proposed Amendment to 08LSO-0123.W1, Post-conviction relief petitions-DNA evidence |
|
Proposes to amend new W.S. 7-12-310 by creating new subsections (c) and (d) providing a process for exoneration and expungement of records for a wrongly convicted person, based on DNA evidence |
|
Ms. Kathryn Monroe, Rocky Mountain Innocence Center |
9 |
|
Proposed Amendment to 08LSO-0123.W1, Post-conviction relief petitions-DNA evidence |
|
Proposes to create a new W.S. 7-7-106, authorizing third party DNA sampling |
|
Legislative Service Office |
10 |
|
Proposed Amendments to 08LSO-0047.W7, Carbon capture and sequestration |
|
Proposes new language to amend various provisions of 08LSO-0047.W7 |
|
Representative Tom Lubnau |
11 |
|
Proposed Amendments to 08LSO-0080.W3, |
|
Proposes deletion of W.S. 30-1-108 and 30-1-109, which would have been created by this bill. |
|
Representative Tom Lubnau |