Legislature(2017 - 2018)BELTZ 105 (TSBldg)
04/14/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB8 | |
| SB29 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 8 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 29 | TELECONFERENCED | |
HB 8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS
1:33:56 PM
CHAIR COGHILL announced the consideration of HB 8. [SCS HB
8(CRA) was before the committee.]
1:34:16 PM
TIM CLARK, Staff, Representative Bryce Edgmon, Alaska State
Legislature, introduced HB 8 speaking to the following sponsor
statement:
In 2014, a bill sponsored by Sen. Lisa Murkowski and
former Sen. Mark Begich eliminated the "Alaska
Exemption" from the Violence Against Women Act (VAWA).
This brought attention to the state's obligation to
enforce protection orders issued by other
jurisdictions, including other state, territorial, or
tribal courts.
As current statutes are written, law enforcement is
only compelled to enforce a tribal or another state's
protection order if it has been filed (that is,
registered) in an Alaska court. However, with Alaska
subject to the VAWA, the state is required to enforce
protection orders issued in another jurisdiction even
if the order has not been registered.
SCS HB 8(CRA) follows the recommendation of the
Department of Law to amend conflicting state statutes
in order to bring Alaska into compliance with the
federal law. SCS HB 8(CRA) will not only clarify the
duties of law enforcement but also will eliminate
potential for complications in prosecutions that could
stem from the contradictions currently found in state
statutes.
Additionally, the bill adds a presumption of validity
on the part of state law enforcement, so that they are
required to enforce a protective order issued in
another jurisdiction so long as it appears authentic
on its face. SCS HB 8(CRA) also more clearly specifies
in statute that "other states" and "other
jurisdictions" include courts of another state or
territory, United States military tribunals, and
tribal courts.
It's important to note that the state still encourages
registration of protection orders from other
jurisdictions. As the Department of Law has noted, the
state's central registry "gives officers access to
tribal and foreign protection orders anywhere in
Alaska, even if the victim does not have a copy of the
order at hand."
MR. CLARK advised that the Senate Community and Regional Affairs
Committee amended the bill prohibiting online publishing of a
protective order, restraining order, or injunction in a case
involving domestic violence, stalking, or sexual assault if
doing so would likely reveal the identity or location of the
individual protected under the order. According to the Alaska
Court System, this will result in all information relating to
protective orders being removed from CourtView.
1:38:32 PM
SENATOR WIELECHOWSKI asked how many tribal protection orders are
issued per year.
MR. CLARK deferred the question to Nancy Meade.
CHAIR COGHILL asked if the various jurisdictions include foreign
governments.
MR. CLARK clarified that the term "foreign" is legal parlance
that refers to other U.S. states, U.S. territories, and tribal
courts.
CHAIR COGHILL asked Mr. Clark to go through a brief sectional
analysis of HB 8.
1:39:49 PM
MR. CLARK stated that the best way to summarized HB 8 is to
first look at Sections 5 and 6. He read the following:
Section 5 adds a new section to statute, AS 18.65.867,
regarding the enforcement and recognition of
protective orders issued in other jurisdictions that
have to do with stalking or sexual assault but not
with domestic violence.
A protective order related to stalking or sexual
assault issued "by a court of the United States, a
court of another state or territory, a United States
military tribunal, or a tribal court" has the same
effect and must be recognized and enforced in the same
manner as a protective order issued by an Alaska state
court.
This section also cites United States Code Title 18,
Chapter 2265, which is the part of the Violence
Against Women Act that addresses protection orders
originating in other jurisdictions. Chapter 2265
expressly states that orders issued in other
jurisdictions do not have to be filed (registered) in
an Alaska state court in order to be enforced here.
Chapter 2265 also describes certain criteria the
issuing jurisdiction needs to meet in order for its
protection order to be given full faith and credit by
another jurisdiction.
Section 5 further instructs law enforcement that a
stalking- or sexual-assault-related protection order
issued in another jurisdiction that appears authentic
on its face should be presumed valid. (This might be
characterized as erring on the side of caution when it
comes to those in need of protection.)
1:41:01 PM
SENATOR WIELECHOWSKI offered his understanding that under the
Violence Against Women Act, the state is obligated to enforce a
protective order issued in another state. He asked if the bill
changes or clarifies that.
MR. CLARK replied that law enforcement has been enforcing
protective orders from other states since the Department of Law
issued an opinion in 2015. State statute is in conflict with the
superseding federal law.
SENATOR WIELECHOWSKI asked if there has been a constitutional
challenge to the existing law.
MR. CLARK said his understanding is that the state is able to
prosecute the violation of a protective order issued in another
state because of the superseding federal law. However, the
Department of Law did warn that the conflict in state statute is
a potential liability in the event of litigation.
CHAIR COGHILL suggested Mary Lundquist supplement the
explanation.
1:44:40 PM
MARY LUNDQUIST, Senior Assistant Attorney General, Civil
Division, Opinions, Appeals & Ethics Section, Office of the
Attorney General, Department of Law, Fairbanks, Alaska, said she
is not aware of a constitutional challenge to the existing law.
She agreed with Mr. Clark that the federal law overrides state
law, so there could be a prosecution of a violation of a
protective order. HB 8 will clarify that a foreign order would
not need to be registered with the Court System to be enforced.
CHAIR COGHILL asked if tribal orders were included as an MOU or
as a matter of course.
MS. LUNDQUIST replied tribal orders are recognized under VAWA;
it requires the state to give full faith and credit to tribal
protection orders.
1:46:06 PM
MR. CLARK continued to read Section 6:
Section 6 addresses protective orders relating to
domestic violence. It amends AS
18.66.140 to state that (just as with protective
orders relating to stalking and sexual assault in the
absence of domestic violence, addressed in Section 5)
a protection order related to domestic violence issued
in another jurisdiction must be recognized and
enforced just as if it were issued by an Alaskan
court, regardless of whether the protection order has
been filed (registered) with an Alaskan court.
This section also cites United States Code Title 18,
Chapter 2265, which includes certain criteria the
issuing jurisdiction needs to meet in order for its
protection order to be given full faith and credit.
CHAIR COGHILL referenced Section 7 and asked if the language in
the new subsection, [AS 18.66.140(d)], is unique. It says that a
protection order issued in another jurisdiction that appears
authentic on its face should be presumed valid. He asked, "What
caused this to have to be in here?"
MR. CLARK said that language exists in laws in other states.
Including it here is an effort to err on the side of caution and
protect the person who is holding the order.
1:48:09 PM
MR. CLARK continued reading from the following sectional
analysis for HB 8.
Section 1 addresses statutes defining what constitutes
the crime of violating a protective order. HB 8 amends
AS 11.56.740(a) to add language to include recognition
of protection orders issued by another jurisdiction,
in accordance with the provisions outlined in Sections
5 and 6 of the bill.
Section 2 further amends AS 11.56.740, in paragraph
(c), to conform to Sections 5 and 6 of the bill.
Section 3 relates to release conditions of a person
charged with or convicted of a crime involving
domestic violence.
It amends AS 12.30.027(b) to make sure that protective
orders issued by other jurisdictions are recognized in
cases where a judicial officer may not allow a
released person to return to the residence or place of
employment of someone who has taken out a protective
order against them.
Section 4 addresses statutes related to the
requirement that the Child Fatality Review Team,
housed in the Department of Health and Social
Services, reviews a report of a death of a child if
anyone in the child's immediate household was a
petitioner or respondent of a protection order within
the previous year. Specifically, it amends AS
12.65.130(c) to conform to Section 6 of the bill.
MR. CLARK noted that Section 7 was discussed previously.
Section 8 amends AS 22.35.030, statutes detailing what
the Court System is prohibited from publishing on a
publically available website. At AS 22.35.030(2),
section 8 adds a prohibition against publishing "…a
protection order under AS 18.65.850 - AS 18.65.870 or
AS 18.66.100 - AS 18.66.180, restraining order, or
injunction in a case involving domestic violence,
stalking, or sexual assault if the publication would
likely reveal the identity or location of the party
protected under the order."
According to the Alaska Court System, this will result
in all information relating to protection orders being
removed from CourtView, the system's online index of
trial court cases. This includes both the name of the
person being protected as well as the name of the
person from whom protection is sought.
MR. CLARK reiterated that the prohibition against online
publishing was added in the Senate Community and Regional
Affairs Committee. It conforms to a section of VAWA.
Sections 9 and 10 add recognition of domestic-
violence-related protection orders issued by another
jurisdiction in statutes concerned with divorce and
dissolution of marriage.
In Section 8, under AS 25.24.210(e)(7)(D), a petition
for dissolution of a marriage must state whether
during the marriage either spouse was either the
petitioner or respondent of a domestic-violence-
related protection order issued in another
jurisdiction. The change in Section 8 specifies that
the protection order in question need not have been
filed with a state court.
In Section 9, a court is instructed to use a
heightened level of scrutiny of agreements relating to
a dissolution of marriage if during the marriage one
or the other spouse was either the petitioner or
respondent for a domestic-violence-related protection
order issued in another jurisdiction. Similar to
Section 8, Section 9 specifies that the protection
order issued in another jurisdiction need not have
been filed with a state court.
CHAIR COGHILL asked Ms. Meade if Section 7 is a new methodology.
It says that a protection order issued in another jurisdiction
that appears authentic on its face should be presumed valid.
1:53:27 PM
NANCY MEADE, General Counsel, Alaska Court System, advised that
Section 7 uses language in existing statute for stalking and
sexual assault protective orders. Law enforcement will enforce a
protective order somebody presents, as long as there is nothing
obviously wrong with it.
1:54:56 PM
SENATOR COSTELLO asked how law enforcement handles it when
someone says they have a protective order but it's not on their
person.
MS. MEADE deferred to the Department of Law.
1:55:26 PM
MS. LUNDQUIST said that emphasizes why a protective order should
be registered. "Without a written protective order, there would
be no full faith and credit to that protection order."
CHAIR COGHILL offered his understanding that while it is good
practice to register protective orders, it is not required.
MS. LUNDQUIST said that's correct.
CHAIR COGHILL asked Ms. Meade to discuss the different kinds of
protective orders.
MS. MEADE explained that Title 18 allows for three kinds of
protective orders: stalking, sexual assault, and domestic
violence. Domestic violence protective orders are the most
common. The first step to get the order is for the petitioner to
file an ex parte (one-sided) order either in person or at home
using the court's petition wizard. The petitioner would need to
show that they currently have or did have a domestic
relationship, allege that that a crime of domestic violence
occurred, and that protection is necessary. If the judge finds
probable cause to believe that domestic violence has occurred,
the ex parte order would be issued. That order can last a
maximum of 20 days.
The petitioner can also ask for a long-term order, which can
last up to a year. In that circumstance, there is a hearing and
the respondent is given a 10-day notice to appear, with or
without an attorney. If the judicial officer finds by a
preponderance of the evidence that a crime of domestic violence
has occurred and a protection order is necessary, then a long-
term protective violence order can be granted.
2:00:30 PM
CHAIR COGHILL stated he would hold HB 8 in committee for further
review.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 8 - Sponsor Statement.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| HB 8 - Supporting Document - 18 USCA Section 2265 Full Faith and Credit Given to Protection Orders.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| HB 8 - Supporting Document - 2014 Repeal of Alaska Exemption to VAWA.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| HB 8 - Supporting Document - Response to Tribal Court Funding Question.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| HB 8 - Supporting Document - VAWA Enforcement Dept. of Law Opinion.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| HB 8 - Explanation of Changes ver. J.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| HB 8 - Sectional Analysis ver. J.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| ANDVSA Feedback on Use of CourtView.pdf |
SJUD 4/14/2017 1:30:00 PM |
HB 8 |
| SB 29 - Letter of Support #2 - Croft Attachment.pdf |
SJUD 4/14/2017 1:30:00 PM |
SB 29 |
| SB 29 - Letter of Support - Croft.pdf |
SJUD 4/14/2017 1:30:00 PM |
SB 29 |
| SB 29 - Supporting Document - Savings Backup.PDF |
SJUD 4/14/2017 1:30:00 PM |
SB 29 |