Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/28/2017 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB8 | |
| SJR4 | |
| HB18 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 18 | TELECONFERENCED | |
| *+ | SJR 4 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 8 | TELECONFERENCED | |
HB 8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS
CHAIR BISHOP announced consideration of HB 8.
SENATOR MACKINNON moved Amendment 1, labelled 30-LS0127\A.3
30-LS0127\A.3
Wallace
3/16/17
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR MACKINNON
TO: HB 8
Page 4, following line 22:
Insert a new bill section to read:
"* Sec. 8. AS 22.35.030 is amended to read:
Sec. 22.35.030. Publication of Records [RECORDS
CONCERNING CRIMINAL CASES RESULTING IN ACQUITTAL OR
DISMISSAL]. The Alaska Court System may not publish a
court record [OF A CRIMINAL CASE] on a publicly
available website
(1) in a criminal case if 60 days have
elapsed from the date of acquittal or dismissal and
(A) [(1)] the defendant was acquitted of
all charges filed in the case;
(B) [(2)] all criminal charges against the
defendant in the case have been dismissed and were not
dismissed as part of a plea agreement in another
criminal case under Rule 11, Alaska Rules of Criminal
Procedure;
(C) [(3)] the defendant was acquitted of
some of the criminal charges in the case and the
remaining charges were dismissed; or
(D) [(4)] all criminal charges against the
defendant in the case have been dismissed after a
suspended entry of judgment under AS 12.55.078;
(2) of a protective order under
AS 18.66.100 - 18.66.180, restraining order, or
injunction in a case involving domestic violence if
the publication would likely reveal the identity or
location of the party protected under the order."
Renumber the following bill sections accordingly.
CHAIR BISHOP objected for discussion purposes.
3:39:41 PM
BRITTANY HUTCHISON, staff to Senator MacKinnon, Alaska State
Legislature, Juneau, Alaska, explained that Amendment 1 would
put Alaska in further compliance with the Federal Violence
Against Women Act (VAWA). It requires that all protective
orders, restraining orders, or injunctions in cases involving
domestic violence, sexual assault, or stalking shall not be
published on the Internet if they would likely reveal the
identity or location of the party protected under the order.
She said the bulk of the amendment is in section 2 and
everything else is conforming changes. Section 2 was written to
comply with Title 18 of US Code Section 22.65 (d)(2), entitled
"No Prior Registration or Filing as a Prerequisite for
Enforcement." However, right below that (d)(3), entitled
"Limits on Internet Publication or Registration Information" is
what the amendment seeks to be in compliance with. The amendment
is worded exactly the same.
3:41:26 PM
NANCY MEADE, General Counsel, Alaska Court System, Juneau,
Alaska, explained that using this language means that the court
system would remove the public version that people can access
from home from CourtView and it applies to all records of
domestic violence protective orders, as well as stalking and
sexual assault protective orders. This is because any record of
a protective order would likely [inadvertently] reveal the
identity or location of a protected party. Just removing the
petitioners' names could leave clues as to the other
information. If something is left on CourtView like unpublished
or anonymous versus Click Bishop with a Fairbanks case number,
that does in fact reveal the identity of the person bringing it
as well as the location. She said the court system can remove
everything with no fiscal impact.
SENATOR MACKINNON asked what language about protecting a
victim's identity would instruct the court to adequately comply
with the federal law.
MS. MEADE answered the problem is that by saying "to remove
anything that reveals the identity or location of the person who
files," makes it very easy to figure out the information that is
left out. The court system could be instructed to remove all
names or one name, but removing just one name (thus leaving
enough information to figure out other names) would be violating
federal statute.
She explained that in the past, the court system applied VAWA to
foreign (non-Alaskan) domestic violence protective orders,
because it is in federal law. That meant they didn't post
anything about protective orders that came from other
jurisdictions. The legislature can tell the court to do more if
it thinks VAWA requires more and they will do it. She just
wanted to make sure they know how language would be implemented.
3:45:05 PM
SENATOR MACKINNON asked if Alaska protects out-of-state orders
more vigorously than in-state orders in compliance issues.
MS. MEADE answered that provision of VAWA deals with full faith
and credit to be given to foreign protective orders. They can do
the same thing for Alaskan protective orders, which this
language would tell them to do.
SENATOR MACKINNON said they are trying to come into federal
compliance with victims who petition the court for protection,
and HB 8 takes them one step closer, but the amendment is trying
to put the state in full compliance. The courts are asserting
today that there is only one way to do it, and that is to remove
all data. They have contacted the Council on Domestic Violence
and Sexual Assault, as well as the Alaska Network on Domestic
Violence and Sexual Assault. They are all inclined to have the
perpetrator, or the accused have their names public so that the
general public knows there could be harm associated with those
individuals that are being at least accused if not prosecuted.
If this amendment fails, she wanted to be able to craft new,
compliant legislation with help from the court.
3:47:21 PM
SENATOR GARDNER asked if there is a proposal to fix Senator
MacKinnon's concern without the unintended consequence.
MS. MEADE answered that she worked with Senator MacKinnon's
staff and it would be simple if the statute said that the court
system may not publish a petitioner's name in a domestic
violence, stalking, or sexual assault protective order. That
would be easy and perhaps would get to where they want to go if
what they want is to keep petitioner's names off the Internet
but leave respondent's names. That is not difficult to draft.
3:48:09 PM
At ease
3:48:51 PM
SENATOR MACKINNON said her staff had the language "petitioner"
and when it was submitted to Legislative Legal they were given a
legal opinion that said it would not be in compliance. So, she
wanted to ask Megan Wallace to speak to the reasons why she
believes it would still be out of compliance.
3:49:21 PM
MEGAN WALLACE, Legislative Legal Counsel, Legislative Legal
Services, Legislative Affairs Agency, Alaska State Legislature,
Juneau, Alaska, said in regard to changing the amendment so that
only the petitioner's name would appear on CourtView, her
concern is that the federal statute states that to be in
compliance the publication cannot reveal the identity or the
location of the party. She was not certain if they take out the
language relating to revealing the identity of or location of
the party, if it doesn't leave room for non-compliance with that
federal law. Federal statute states that publications cannot
reveal identification or location of the party.
SENATOR MACKINNON said her goal is to comply with federal law
and protect victims of domestic violence and asked to hear from
Ms. Meade.
MS. MEADE said she didn't think her legal opinion on this really
matters, but if your legal conclusion is that just writing
"petitioners" would not be compliant with federal law, then you
would go with this wording. But with this wording and perhaps
what Ms. Wallace is trying to say is that nothing would be
posted about a case on their Internet site.
It is difficult to research what other states do definitively. A
Michigan Supreme Court opinion at least implies that nothing can
be posted about domestic violence protective orders on the
Internet under VAWA. She wasn't saying that is the standard in
the U.S. and she wasn't proffering her legal opinion, but rather
she is saying how the wording in the statute would be
implemented should this amendment pass.
3:51:54 PM
SENATOR STEDMAN said this is about as clear as mud and that the
committee should proceed with caution so they understand what
they are voting on. He asked to clarify that they can't by
federal law publish the names of the accused.
MS. MEADE said it is Legislative Legal's conclusion that the
portion of federal law that says that petitioners' names ought
to be protected in protective order proceedings was interpreted
by the court previously to apply only to orders coming in from
other states. Legislative Legal has determined that applies to
all protective orders filed in the state, as well. Now the
question is how to write that into an amendment. You could write
"never put a petitioner's name on CourtView" and that can be
done. But Legislative Legal thinks that wouldn't go far enough
towards putting the state into compliance with federal law,
which says "can't put anything on there that would reveal the
identity or location." That is the wording in Senator
MacKinnon's amendment. However, in practice the CourtView can't
show anything, because displaying a domestic violence case in
Fairbanks with anonymous versus Click Bishop, alerts people to
whom the other party is.
CHAIR BISHOP, finding no further comments, held HB 8 in
committee.