Call to Order and Roll Call
The 6th meeting of the Interim Joint Committee on Judiciary was held on Friday, November 7, 2014, at 10:00 AM, in room 275 at the Brandeis School of Law in Louisville, KY. Representative John Tilley, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Sara Beth Gregory, Ray S. Jones II, John Schickel, Dan "Malano" Seum, Katie Stine, and Robin L. Webb; Representatives Joseph M. Fischer, Mary Lou Marzian, Suzanne Miles, Darryl T. Owens, Ryan Quarles, Tom Riner, and Steven Rudy.
Guests: Turney P. Berry, Darlene Thomas, and Marcia Roth.
LRC Staff: Jon Grate, Matt Trebelhorn, Alice Lyon, Chandani Jones, Dallas Hurley, Dale Hardy, Matthew Doane, and Elishea Schweickart.
Senate Bill 200 & Juvenile Justice Reform – Update
Senator Whitney Westerfield and Representative John Tilley provided an update on Senate Bill 200 and juvenile justice reform. Senate Bill 200 was a product of two years of task force activity that aimed to improve Kentucky’s approach to juvenile justice. Senate Bill 200 was developed in 2012, then reformed in 2013 when The Pew Charitable Trusts became involved, bringing additional analytical resources and manpower to Kentucky. As of July 2014, parts of Senate Bill 200 became active, the rest are to become active in July 2015. By doing this, departments involved with juvenile justice have the time to prepare, and to make any adjustments that are needed. The oversight council that the bill sets up for the next eight years has met several times so far, making communication between different agencies easier. There are also several pilot counties already holding family accountability, intervention, and response (FAIR) team meetings, which discuss cases involving juveniles, and issuing reports. Senator Westerfield also explained that one of the biggest challenges in the process of implementing Senate Bill 200 is data collection. Although data collection and use of a uniform tracking system was already mandated by statute, it was not being followed.
Uniform Fiduciary Access to Digital Assets Act
Turney P. Berry discussed the Uniform Fiduciary Access to Digital Assets Act as recommended to the states for adoption by the Uniform Law Commission. This act will allow an executor or personal representative to gain access to someone’s digital assets when they die. It would include information from various digital accounts, such as email, bank accounts, and social media. The act would not only include granting executors access, but could also grant access to an attorney or guardian if a person becomes incapacitated.
Mr. Berry stated that a statute was needed for two primary reasons:
1) Provider contracts – Contracts from these digital providers specifically say that someone, other than the user, cannot have access to a user’s personal information.
2) Jurisdiction issues – Companies typically do not want to be subject to jurisdiction of a Kentucky court. If a user wants to pursue legal action, the user must do so in the state where a company is located.
Many states have shown interest in this topic, Delaware passed the act before it was finalized. Susan Walsh, who shepherded this act, has traveled and spoken at a number of events about this topic, including in Kentucky, and would be happy to speak with committee members further if any wish.
Responding to a question from Senator Webb, Mr. Berry said that an executor would not be able to get any more information of any greater scope under this act than they could gain under existing law. A collateral benefit to this act is a way to distinguish things of legitimate interest from simple curiosity.
Responding to a question from Senator Gregory, Mr. Berry said that this act would address social media accounts such as Facebook.
Responding to a question from Senator Gibson, Mr. Berry said that many digital providers do not want to be regulated, so they use contractual relationships as a way to avoid it. Responding to a follow up from Senator Gibson, Mr. Berry said that he did not expect a fee increase, but there could be possible changes to the general contracts so that the act’s provisions are specifically accounted for.
Responding to a question from Senator Seum, Mr. Berry said that there is not enough experience to say if there is any liability exposure to the executor when it comes to this act.
Responding to a question from Representative Riner, Mr. Berry said there have been problems in the past with internet service provider’s recognizing powers of attorney.
Responding to a question from Senator Westerfield, Mr. Berry said that this act was passed in Delaware and is pending in many other states. Responding to a follow up from Senator Westerfield, Mr. Berry said that this act would be service provider specific as to its application. Responding to another follow up, Mr. Berry said that this act does not convert an account into an asset, but allows an executor to stand in the shoes of a user.
A New Approach to Civil Protective Orders
Marcia Roth, Executive Director of The Mary Byron Project, and Darlene Thomas, Executive Director of Greenhouse17, spoke about the need to expand civil protection for people in a dating relationship. Ms. Roth spoke about Mary Byron who was murdered by her boyfriend in 1993. If she had qualified for a protective order it may have saved her life. Ms. Roth stressed that thousands of victims are safer because of protective orders, so “to deny protection because someone does not qualify is arbitrary.” Ms. Thomas explained that in this past year alone there were 31,000 survivors of domestic violence and sexual assault. She spoke about various research studies that have shown that protective orders reduce violence, and with help from the General Assembly, more victims can be helped.
Senator Westerfield spoke about the necessity of this expansion and his support for it. Although there are laws against assault, those cases take time that victims may not have. Currently people who are married, share a household, or have a child in common can gain an emergency protective order, but that option needs to be extended to those that are in a dating relationship. Senator Westerfield referenced studies showing that one in three women have experienced this type of dating violence, and protection needs to be created where it does not exist.
Representative Tilley explained that the bill draft is not a lot of new legislation, but is text that has been pulled from KRS Chapter 403, revised, and placed in a new KRS chapter. He believes this draft streamlines and makes Kentucky’s approach on domestic violence more efficient. Representative Tilley stated that the domestic violence process would remain unchanged, but would add dating, stalking, and sexual assault victims. In speaking about the addition of stalking victims to the process, he stated that 35 other states currently have civil protection against stalking. Also, as to jurisdiction, Representative Tilley noted that the subject is still open and that the draft allows the Judicial Branch by local rule to place it where they choose. Representative Tilley finished by reiterating that the material in the folders is a preliminary draft and that input is being taken into consideration in order for this bill to be successful.
Responding to a question from Senator Stine, Senator Westerfield said that in dating cases, a judge’s discretion in using the bill’s definitions will be trusted. Representative Tilley followed up by stating the definitions used are modeled after a federal law that is used in 44 other states.
Responding to a question from Representative Fischer, Representative Tilley said that the definition that is being used is not permanent and can be tweaked if necessary.
Responding to a question from Senator Webb, Senator Westerfield said that most language in this bill is not new language; it is only in a new chapter. He said that an expungement provision is something that needs to be considered.
The meeting adjourned at 11:36 AM.