The 2nd meeting of the Interim Joint Committee on Judiciary was held on Tuesday, November 16, 2004, at 10:00 AM, in Room 149 of the Capitol Annex. Senator Robert Stivers, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers, Co-Chair; Representative Gross Lindsay, Co-Chair; Senators Tom Buford, Ray Jones II, Gerald Neal, Jerry Rhoads, Richard Roeding, Ernesto Scorsone, Dan Seum, and Katie Stine; Representatives Perry Clark, Tim Feeley, Stan Lee, Arnold Simpson, Kathy Stein, John Vincent, Robin L. Webb, Rob Wilkey, and Brent Yonts.
Guests: George Davis, Boyd County District Judge and representative of the District Judges Association; Jennifer Leibson, Division Chief of the Disability and Mental Inquest Division of the Jefferson County Attorney's Office; Heidi Schissler, Protection and Advocacy Division of the Department for Public Advocacy; Nancy Andrews, Board Member of the Nursing Home Ombudsman Agency of the Bluegrass; Anne Marie Regan, Senior Staff Attorney, Office of Kentucky Legal Services Program; Russ Wilkey, Attorney and Bankruptcy Trustee; Rebecca Smith, Nicholasville; Natalie Wilson, Vice Chairman of the Kentucky Child Support Guidelines Commission; Ryan Halloran, Attorney General's designee on the Child Support Guidelines Commission; Senator Katie Stine and Representative Charlie Hoffman, Co-Chairs of the Program Review and Investigations Committee; and Cindy Upton, Program Review and Investigations Committee staff.
LRC Staff: Norman Lawson, CSA; Jon Grate, Chris White, Joanna Decker, and Lisa Fenner.
Senator Stivers called the meeting to order, the roll was called, a quorum was present, and the minutes of the September meeting were approved.
The first speakers were District Judge George Davis and Representative Brent Yonts. Representative Yonts indicated that he has prefiled a bill, 05 RS BR 254, to provide for the elimination of jury trials in incompetency proceedings unless a trial is requested by the respondent, the respondent's attorney, another party, or an immediate family member. Judge Davis submitted a copy of a redacted interdisciplinary report to show the depth of the investigation made by an interdisciplinary team prior to an incompetency proceeding. Judge Davis described the proceedings as involving: 1) a special needs child who has now reached the age of majority and now needs a guardian as the parents are no longer responsible for the child; 2) an aged person with senile dementia or Alzheimer's disease who does not have a durable power of attorney; or 3) an adult, who because of sudden illness or injury, is no longer able to care for themselves and is in need of guardianship.
Judge Davis further described the emotional trauma of family members having to describe their loved one's most intimate problems to a jury of six strangers in a public courtroom setting. He indicated that seven different persons, ranging from the judge to the county attorney and the attorney for the respondent, would have to participate in any attempt to wrongfully have a person determined incompetent without a request for a jury trial.
Representative Stan Lee questioned whether or not the constitutional right to a jury trial was one that could not be waived, cited federal case law indicating that a jury trial was required in such cases, and observed that for the family to give the same testimony before the judge would be just as traumatic as testimony given before the judge and a jury. Representative Lee then asked if there would be a savings if the bill was to be adopted, to which Judge Davis responded that the savings would result from the elimination of the jury fees. Representative Lee then observed that if the person is indeed incompetent, they would not know whether or not they had a right to a jury trial and thus might not request one or might not know how to determine whether a jury would be needed.
Senator Tom Buford questioned the language of "any party" to which the answer was that this included only those persons mentioned as officially being part of the case. Senator Buford then questioned who "immediate family" were. Judge Davis replied that he felt that these would be persons of the first degree of consanguinity, but Judge Davis admitted that the statute does not define who "immediate family" includes or excludes and that a definition might be added to solve the problem. Representative Gross Lindsay agreed that an "immediate family" definition should be added to the bill. Representative Robin Webb indicated that any definition might need to be broadened because some persons have only cousins or others who will take care of the needy person.
Senator Jones indicated that the interdisciplinary report should include a provision where the evaluators could indicate whether a jury trial was needed or not, and that the guardian ad litem should also so indicate.
Senator Rhoads asked Judge Davis what other proceedings in the District Court also involved findings of fact solely by the judge. The judge indicated that they included juvenile proceedings, felony preliminary proceedings, and criminal and civil cases tried without a jury.
Senator Stivers indicated that Senator Karem had previously opposed the legislation as it would make it easier for family members who wanted to get hold of a relative's funds or property to do so without even the presence of the respondent or a jury trial.
The next speaker was Ms. Jennifer Leibson of the Jefferson County Attorney's Office who is in charge of incompetency cases for that office. Ms. Leibson indicated that Kentucky is the only state to require a jury trial in incompetency cases. She also indicated that KRS 387.550 requires a trial of such cases within 60 days, but that the time in Jefferson County is now about 120 days, that they try about three cases a day, that each case lasts about 2 1/2 hours, and that about half of the $67,000 in guardian ad litem fees the county now pays could be cut if the cases were tried without a jury. Ms. Leibson indicated that recent implementation of federal HIPAA legislation, which sealed personal medical records, has made it much harder for parents to care for their adult disabled children. Once the child reaches the age of maturity, the parents are no longer entitled to the adult child's medical records and must seek guardianship if they are to be able to continue to obtain the records under federal law. Ms. Leibson also spoke of the hardship of having the adult disabled person in court and the trauma between parents who have been attempting to tell the person what they could do, then having to listen through a court proceeding in which the same parents are telling the court what the disabled person can no longer do.
The next speaker was Ms. Heidi Schissler of the Department for Public Advocacy, who represents persons involved in incompetency proceedings. Ms. Schissler indicated that no change is needed in the present law and that the alleged incompetent's constitutional and statutory rights should be preserved since the person is being deprived of residence, decisionmaking, voting, handling their own funds, associating with those they want, and other valuable constitutional protections. Ms. Schissler indicated that if a change must be made with regard to eliminating a jury trial that the trial should be eliminated only upon request of counsel for the respondent. Representative Webb indicated that she favored this approach.
The next speaker was Ms. Nancy Andrews, a board member of the Nursing Home Ombudsman Agency of the Bluegrass, who indicated that declaring a person incompetent is frequently used in central Kentucky by relatives whose primary purpose is to obtain the property and funds of the respondent with little regard for the care of the person. Ms. Andrews also indicated that nursing homes frequently seek to become legal guardians so that they can control the care, association with others, and behavior of the residents, again, with little regard to the legitimate interests of the patients. Ms. Andrews recommended that the statute remain in its present state.
The next speaker was Ms. Anne Marie Regan, a staff attorney with the Office of Kentucky Legal Services Program, who spoke in support of reintroducing 2004 RS HB 463 which would raise the homestead exemption in bankruptcy cases from $5,000 to $15,000. Ms. Regan was accompanied by Mr. Russ Wilkey, an attorney practicing in bankruptcy cases who is also a Bankruptcy Trustee for the federal courts. Ms. Regan spoke of the problems encountered by the poor, the elderly, and other persons who are hit by unexpected medical bills and other costs and who are in danger of losing their homes because the current Kentucky law allows a person who files bankruptcy to keep only $5,000 of the value of the home which they own. Typically, a person runs up credit card debt paying unexpected bills when they get laid off or cannot work and pay the bills, and the creditor takes them to court and gets a judgment lien against the property. If they continue not to pay the lien, it continues to draw interest on the judgment and quickly can exceed $5,000. At that time the creditor can foreclose on the property, sell it, and then the debtor can only retain $5,000 from the value of the sale if the value of the property does not exceed the debt.
The next speaker was Mr. Russ Wilkey who described the bankruptcy exemptions in federal law which include the homestead exemption, a vehicle exemption, a general exemption, and a "pour over" provision which states that unused money from a particular exemption can be used to increase other exemptions. Mr. Wilkey indicated that the federal homestead exemption had been increased several years ago from $7,500 to $15,000, but that the federal legislation indexed that amount to increases in the consumer price index. At present, the federal homestead exemption, according to Mr. Wilkey, is approximately $18,500 and the other exemptions are also indexed to the consumer price index. Mr. Wilkey indicated that 18 states had their own homestead exemptions ranging from less than Kentucky's $5,000 to $500,000 in some states, an unlimited exemption in a couple of states, with the other states following the federal exemption. Mr. Wilkey observed that, in his experience, most of the personal bankruptcies revolved around medical bills and family disasters.
The next speaker was Ms. Rebecca Smith of Nicholasville. She spoke of her financial situation because her husband is unemployed due to continuing medical problems. They receive $683 per month in social security benefits and $141 in food stamps. She cannot work because she must take care of her husband. In 1992, prior to her husband's problems, they bought a house for $75,000 with interest at 1% under a federal program. Now, a son who was receiving social security benefits has died and because the social security administration wrongly reduced the father's benefits instead of eliminating the son's benefits, the family has been left very short of income but still have continuing medical problems. Ms. Smith indicated that while her husband is entitled to some federal medical benefits, she is not. She has had medical problems of her own, but because of insufficient income, she cannot afford medical insurance for herself. These medical problems have required her to purchase needed medication and pay for hospital emergency room visits on her credit card at high interest rates. Now there is not enough income to pay the credit card bills or the house payments. She has been sued by the creditors, but has no income to utilize a chapter 13 bankruptcy, which includes a repayment plan, and cannot utilize ordinary bankruptcy. Ms. Smith further indicated that if she loses the house, she then must, according to the terms of the federally subsidized loan, repay the loan at the going interest rate and not the 1% rate. Ms. Smith urged the committee to pass legislation increasing the homestead exemption so that she might be able to save her house.
Representative Webb indicated that raising the homestead exemption might well save the state money, because people would be able to continue to live in their homes and not become homeless and a burden upon state and federal welfare programs.
Representative Yonts indicated that he has prefiled a bill increasing the homestead exemption to $15,000, but that he would be willing to change the bill to include indexing and other features suggested during the testimony.
Senator Seum asked how a credit card company who issued the card without a home as collateral could dispossess someone of their home. The response was that the credit card company could sue the credit card holder, obtain a judgment lien, and then ultimately have the home sold to satisfy the lien.
Senator Jones observed that he favored increasing the exemptions for vehicles and personal property as well as the homestead exemption.
Representative Feeley asked Mr. Wilkey if he felt that increasing the exemption would bring more consistency in the practices of creditors, to which Mr. Wilkey replied "yes".
The next speakers were Ms. Natalie Wilson, Vice Chairman of the Kentucky Child Support Guidelines Commission, and Mr. Ryan Halloran, the Attorney General's designee on the Child Support Guidelines Commission.
Ms. Wilson described the features of 2004 RS HB 75, which would have extended the child support guidelines from the existing $15,000 per month to $20,000 per month, adjusted various guidelines upward, and corrected minor problems in the current guidelines. She stated the features of 2004 RS HB 76 would have made adjustments for shared parenting arrangements that would have allowed deviations for 30% sharing, 40% sharing, and 50% sharing. Ms. Wilson indicated that 2004 RS HB 76 had passed the House and died in the Senate. She stated they hoped that they would be reintroduced at the upcoming session, perhaps with some changes.
Senator Seum asked why, if there is 50-50 shared parenting, there would be any child support payments. Ms. Wilson responded that the parents might have disparate salaries and without child support there might be a disproportionate burden upon the parent who made less money.
Representative Webb spoke of situations where parents would lessen the number of days the child is shared with the other parent in order to increase the amount of child support payments they receive. Mr. Halloran indicated that more judicial training might reduce this problem.
Senator Stivers questioned why at 109 days a person was viewed in the bill as having 30% parenting time, and indicated that he felt the mathematics behind the proposal were in error.
The next speakers were Senator Katie Stine and Representative Charlie Hoffman, Co-Chairs of the Legislative Program Review and Investigations Committee, and Ms. Cindy Upton of the committee staff. Ms. Upton presented information detailing general and specific problems in the present adult protection programs of the Commonwealth, which included lack of training for police, prosecutors, and staff of the Cabinet for Health and Family Services, lack of communication between parties, misunderstandings of the law and procedure, and similar problems. Ms. Upton then proceeded with each problem to report recommendations of the program review committee for remedying each of the problems.
Senator Stine indicated that the findings showed little need for new legislation, that current legislation was generally appropriate, but that it needed to be more effectively utilized by all parties. Senator Stine also recommended that coordination of programs for the protection of adults be assigned to the Governor's Office.
Representative. Lindsay asked if the proposal would include new crimes or increased penalties. Senator Stine responded that in most cases new crimes or increased penalties would not be needed.
Representative Webb indicated that due to the nature of the material in the bill that it should be sent to the Judiciary Committee for consideration.
Representative Feeley indicated that in his experience prosecutors were reluctant to prosecute varying offenses against the elderly because the penalties were inadequate.
Senator Buford asked if the bill would address nursing home staff levels to which Senator Stine replied that it would not.
Senator Stine indicated that a work group headed by Secretary Holsinger was still preparing final drafts of a proposed statute.
The meeting was adjourned at 12:25 PM.