03/07/2019 03:00 PM House STATE AFFAIRS

                    HB  12-PROTECTIVE ORDERS                                                                                
                                                                                                                                
3:58:36 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  KREISS-TOMKINS   announced  that  the  next   order  of                                                               
business  would  be  HOUSE  BILL  NO. 12,  "An  Act  relating  to                                                               
protective orders."                                                                                                             
                                                                                                                                
3:58:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CHUCK  KOPP,  Alaska State  Legislature,  as  the                                                               
sponsor of  HB 12,  reminded the committee  that HB  12 addresses                                                               
the  August 2018  Whalen  v. Whalen  ("Whalen")  decision by  the                                                               
Alaska  Supreme Court,  which stated  that  it was  not clear  in                                                               
statute  that  long-term  protective   orders  can  be  extended,                                                               
renewed,  or  otherwise  reauthorized, unless  there  is  another                                                               
crime of  domestic violence perpetrated  against the victim.   He                                                               
said  that  the  proposed  legislation   would  make  the  needed                                                               
statutory changes.                                                                                                              
                                                                                                                                
3:59:36 PM                                                                                                                    
                                                                                                                                
CO-CHAIR KREISS-TOMKINS opened public testimony on HB 12.                                                                       
                                                                                                                                
4:00:00 PM                                                                                                                    
                                                                                                                                
ROBIN  MITCHELL  testified that  Judge  Jennifer  Wells made  her                                                               
homeless for  two years;  the judge  denied Ms.  Mitchell medical                                                               
and  dental care  causing her  to  have three  surgeries and  six                                                               
weeks of daily  intravenous therapy (IV); she is  still facing at                                                               
least  two  more surgeries.    She  stated  that she  was  denied                                                               
employment  because of  what she  considered to  be a  fraudulent                                                               
domestic  violence  restraining  order (DVRO)  against  her;  the                                                               
judge allowed  an attorney to misappropriate  $32,000 of $110,000                                                               
(indisc.) from his client, while admitting no domestic violence.                                                                
                                                                                                                                
MS. MITCHELL cited another domestic  violence case involving that                                                               
same  judge, which  cost the  City of  Kenai $35,000  due to  the                                                               
judge's  abuse of  a  women in  DVRO.   She  maintained that  the                                                               
system  has no  protection  for falsely  accused  victims of  the                                                               
court system.   She acknowledged  that people need  protection in                                                               
domestic violence  and stalking; however, there  is no protection                                                               
or  standardized meaning  of the  preponderance of  the evidence.                                                               
She relayed that  she started going to Anchorage  almost daily to                                                               
watch the  DVRO court and  maintained that Alaska has  some great                                                               
judges.                                                                                                                         
                                                                                                                                
MS. MITCHELL requested that the committee  not rush HB 12 and add                                                               
some protections for victims.                                                                                                   
                                                                                                                                
4:03:36 PM                                                                                                                    
                                                                                                                                
ADAM  FLETCHER testified  that there  are legitimate  protections                                                               
put in place  by judges and magistrates for  victims; however, it                                                               
is  his  belief  that  restraining   order  abuse  is  not  being                                                               
recognized or  addressed.  He offered  that countless individuals                                                               
are becoming  the real  victims through  an abusive  process; the                                                               
current  statutes  do not  offer  recourse  against the  original                                                               
petitioners  who have  illegally obtained  false statements.   He                                                               
maintained  that he  is  one  of these  victims  - with  multiple                                                               
restraining orders  against him through false  information.  When                                                               
he takes  evidence to court  that would defend his  position, the                                                               
petitions are either withdrawn or  dismissed, but the prejudicial                                                               
effect  is  already  there.     He  asserted  that  this  happens                                                               
repeatedly.   He expressed the  need in the  proposed legislation                                                               
to  protect people,  like himself,  who are  being abused  by the                                                               
process.   He maintained that  if HB  12 is "pushed  through" too                                                               
quickly,  there will  be greater  abuse by  individuals who  take                                                               
advantage of the system.                                                                                                        
                                                                                                                                
4:06:15 PM                                                                                                                    
                                                                                                                                
TASHINA  FLETCHER testified  that  HB 12  would  infringe on  the                                                               
rights of children to have access  to both parents.  She has seen                                                               
the judicial process be corrected in  a way that has infringed on                                                               
those rights;  allowing a parent  to maintain control  of custody                                                               
based on an  unsubstantiated allegation is unfair.   She asserted                                                               
that a higher  level of scrutiny should be applied;  it becomes a                                                               
quasi-criminal  matter   that  needs   to  be  addressed.     She                                                               
maintained that  protective orders have  been used to  withhold a                                                               
child from a  parent; it is unfair; and  the proposed legislation                                                               
needs  to address  this  matter fully,  because  it infringes  on                                                               
one's constitutional rights.                                                                                                    
                                                                                                                                
4:07:32 PM                                                                                                                    
                                                                                                                                
CHERI SMITH,  Executive Director, The LeeShore  Center, testified                                                               
that  her  agency  provides   emergency  shelter,  advocacy,  and                                                               
support  to  victims of  domestic  violence  and sexual  assault.                                                               
Many of the victims receiving  services from the center also seek                                                               
help through  the court system  by filing for  protective orders.                                                               
Last year  the center  assisted 64  victims in  court procedures.                                                               
She stated that she cannot  express strongly enough how important                                                               
it is for a  victim to be allowed to file  for a protective order                                                               
extension for  the same incident  if needed.  She  explained that                                                               
often  when a  victim secures  a protective  order, the  violence                                                               
escalates,  and the  order  can be  violated  by the  perpetrator                                                               
multiple  times.   The  victim  has good  cause  to fear  ongoing                                                               
violence because the perpetrator often  continues to pose a great                                                               
risk to the victim.  She  asserted that arrests for violations of                                                               
an order  do not  always occur.   She gave the  example:   if the                                                               
perpetrator is  ordered to  stay 500 feet  away from  the victim,                                                               
the perpetrator  will stay 510  feet away  from the victim.   She                                                               
maintained  that  such  actions  continue to  cause  fear  on  an                                                               
ongoing basis up to and after  expiration of the order.  A victim                                                               
should not  have to  wait for another  violent incident  to occur                                                               
after a  protective order has  expired to be safe  from violence.                                                               
She expressed her belief that  HB 12 would better protect victims                                                               
of domestic violence, sexual assault, and stalking.                                                                             
                                                                                                                                
4:09:33 PM                                                                                                                    
                                                                                                                                
TERYN  BIRD testified  that  she is  an  attorney who  represents                                                               
victims  of domestic  violence, sexual  assault, and  stalking in                                                               
protective order and  family law matters.  She  asserted that the                                                               
Whalen decision  issued by the Alaska  Supreme Court interpreting                                                               
protective order  statutes has had  a devastating effect  on men,                                                               
women,  and  children in  the  Interior  seeking protection  from                                                               
extremely  lethal perpetrators  of domestic  violence and  sexual                                                               
assault.  She said that a victim,  who has not been a victim of a                                                               
new crime, could formerly seek  protection through re-issuance of                                                               
a protective order in the  Fourth Judicial District in Fairbanks.                                                               
That remedy  has been removed,  leaving victims of  egregious and                                                               
lethal crimes  without protection  unless re-victimized in  a way                                                               
that is recognized as a crime by the State of Alaska.                                                                           
                                                                                                                                
MS. BIRD maintained that the  gap left in protecting victims must                                                               
be remedied by legislative action for  a variety of reasons.  She                                                               
mentioned two  primary reasons:     1) protective  orders prevent                                                               
perpetrator escalation, which  has been shown to  lead to further                                                               
harm, serious  injury, or death;  and 2)  one year is  not enough                                                               
time for  every perpetrator of  domestic violence to  either cool                                                               
down enough to  move on or to rehabilitate.   She stated that she                                                               
has  countless  clients who  have  been  impacted by  the  Whalen                                                               
decision.   She  described the  case  of a  client, who  suffered                                                               
direct harm:   The client, her 10-year-old son,  and her 14-year-                                                               
old daughter all  had protective orders against  her ex-husband -                                                               
the children's father  - due to physical assault,  and sexual and                                                               
physical abuse of the children.   In January 2019, the protective                                                               
order expired.   Because  their perpetrator  had not  committed a                                                               
new crime, they were left  exposed.  The perpetrator was incensed                                                               
over   an  ongoing   custody  case   and  began   to  send   them                                                               
correspondence.    While  not threatening  a  crime  of  domestic                                                               
violence,  he often  alluded to  such by  attaching music  videos                                                               
containing  content  of  murders   over  unrequited  love.    The                                                               
children  received  messages  about  their  father  appearing  in                                                               
places that  they frequented and experienced  the constant threat                                                               
of being easily  accessed and harmed.  Each of  the children were                                                               
victims of  serious crimes; they  were provided a  brief reprieve                                                               
and the opportunity to heal  during the time the protective order                                                               
was  in  place.   Because  of  the  Whalen  case, they  were  re-                                                               
victimized  and   denied  the   opportunity  to  heal   and  feel                                                               
protected.                                                                                                                      
                                                                                                                                
4:12:28 PM                                                                                                                    
                                                                                                                                
CHRISTINE  PATE,  Legal  Program   Director,  Alaska  Network  on                                                               
Domestic Violence  and Sexual Assault (ANDVSA),  paraphrased from                                                               
her   written   statement   as  follows   [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Thank  you Chairs  and Members  of the  Committee.   My                                                                    
     name  is Christine  Pate  and I  am  the Legal  Program                                                                    
     Director  for  ANDVSA.    In  this  capacity  I  run  a                                                                    
     statewide  legal  services  program  for  survivors  of                                                                    
     domestic  violence, sexual  assault  and  stalking.   I                                                                    
     also providing training to the  advocates at our member                                                                    
     programs  around that  state that  go into  court daily                                                                    
     with survivors on civil protection orders.                                                                                 
                                                                                                                                
     Domestic  violence,  sexual  assault and  stalking  are                                                                    
     often part of  a pattern of behavior  that can escalate                                                                    
     over time and  separation is often the  time of highest                                                                    
     lethality for  survivors.   Because of  this, survivors                                                                    
     often  need  protection from  abuse  for  more than  12                                                                    
     months yet that is all  that they can get under current                                                                    
     Alaska law.                                                                                                                
                                                                                                                                
     Historically,    courts    interpreted   the    current                                                                    
     protection  order  statutes  differently:   some  found                                                                    
     that  the  statutes  allowed  discretion  to  grant  an                                                                    
     extension of  a long  term order or  grant a  new order                                                                    
     based on  prior found acts of  violence, others didn't.                                                                    
     For  example, in  Fairbanks,  courts routinely  granted                                                                    
     new  orders based  on past  violence or  extended them.                                                                    
     In Anchorage  and SE Alaska,  some courts did  and some                                                                    
     didn't.  This  led to confusion for  survivors and lack                                                                    
     of predictability  for them  at a  time when  they were                                                                    
     making  difficult   decisions  to  end  the   cycle  of                                                                    
     violence that they had experienced.                                                                                        
                                                                                                                                
     In Whalen  v. Whalen,  the Alaska  Supreme Court,  in a                                                                    
     divided 3/2  opinion, ended  this confusion  by stating                                                                    
     that  the  current  protection  order  statute  doesn't                                                                    
     allow  for  extension  or  new  orders  based  on  past                                                                    
     domestic violence, sexual assault or stalking.                                                                             
                                                                                                                                
     The court  was clear  in its decision  that it  "is the                                                                    
     legislature's  role to  establish Alaska's  policy with                                                                    
     respect   to  domestic   violence  protective   orders,                                                                    
     including  the time  limits for  protective orders  and                                                                    
     the availability of extension or renewal.                                                                                  
                                                                                                                                
     We  appreciate   Representative's  Kopp's   efforts  to                                                                    
     establish  policy  now that  makes  it  clear that  new                                                                    
     protection orders  can be granted based  on prior found                                                                    
     DV,  SA  or stalking  and  that  the court  can  extend                                                                    
     already issued protection orders.                                                                                          
                                                                                                                                
     As a  civil legal  provider for  survivors    have seen                                                                    
     devastating effect that the Whalen  decision has had on                                                                    
     survivors    we have heard from  numerous survivors who                                                                    
     need protection  after histories of terrible  abuse but                                                                    
     are unable to get it.                                                                                                      
                                                                                                                                
     For example: a  sexual assault victim lives  in a small                                                                    
     town in  Alaska and  gets a  SA protection  order after                                                                    
     the  assault.  The  survivor  reports   the  SA  and  a                                                                    
     criminal investigation  begins but the DA  doesn't have                                                                    
     enough  evidence   to  prosecute  the  case   beyond  a                                                                    
     reasonable doubt  and the  charges are  dismissed after                                                                    
     five months.   The survivor  now has one more  month of                                                                    
     protection  and  cannot  get further  protection  under                                                                    
     current  law  and  has  to see  her  assailant  in  the                                                                    
     grocery store, school or library.                                                                                          
                                                                                                                                
     Or  a survivor  who  has endured  a  history of  lethal                                                                    
     domestic  violence in  the  past  including biting  and                                                                    
     strangulation gets a 12 month  order.  After that order                                                                    
     expires there  is an escalation of  concerning behavior                                                                    
     including excessive drinking,  violent outbursts around                                                                    
     children, and other limit pushing    behaviors that the                                                                    
     survivor,  who best  understands the  meaning of  these                                                                    
     behaviors,  sees as  red flags  -  has to  wait like  a                                                                    
     sitting duck  until there is  a crime  of DV for  a new                                                                    
     order.                                                                                                                     
                                                                                                                                
     Survivors  who have  endured terrible  histories of  DV                                                                    
     including strangulation,  sexual assault  and stabbing,                                                                    
     are  currently  forced  to  make  impossible  strategic                                                                    
     decisions as  to when to  apply for a  protection order                                                                    
     so  as  to  maximize  their  safety.   If  there  is  a                                                                    
     criminal case,  should they wait until  it is resolved?                                                                    
     What  if  the  criminal   contact  provisions  are  not                                                                    
     comprehensive  enough? If  there is  no criminal  case,                                                                    
     should  they wait  until they  file  for divorce  since                                                                    
     that could be  a dangerous point or should  they get it                                                                    
     at the  time of immediate separation  because they feel                                                                    
     unsafe now?                                                                                                                
                                                                                                                                
     When will  they best use  the 12 months of  safety that                                                                    
     current Alaska law allows for?                                                                                             
                                                                                                                                
     These  aren't the  types  of  decisions that  survivors                                                                    
     should have to make for themselves and their families.                                                                     
     Protection  orders, to  be effective,  must respond  to                                                                    
     the  cyclical  nature  of crimes  of  intimate  partner                                                                    
     violence.    Please  approve this  bill so  that courts                                                                  
     have  discretion to  continue  protection for  victims,                                                                  
     after 6 or 12 months, if safety demands it.                                                                                
                                                                                                                                
MS. PATE expressed her belief that  Alaska is one of the very few                                                               
states  that  does not  allow  for  an  extension or  renewal  of                                                               
protection orders; forty-eight other states do.                                                                                 
                                                                                                                                
CO-CHAIR FIELDS  suggested that the  duration of the order  is an                                                               
additional  issue  and outside  the  Whalen  problem.   He  asked                                                               
whether the  legislature should consider extending  the length of                                                               
protective orders in future legislation.                                                                                        
                                                                                                                                
MS.  PATE  agreed that  doing  so  could  be  a good  remedy  for                                                               
survivors.                                                                                                                      
                                                                                                                                
CO-CHAIR KREISS-TOMKINS  asked for  a recommended length  of time                                                               
for a protective order.                                                                                                         
                                                                                                                                
MS. PATE responded that she did  not wish to speculate but wanted                                                               
to do additional  research.  She suggested that  a varying length                                                               
might  be appropriate  in different  situations.   She maintained                                                               
that  HB 12  would be  helpful because  if one  year is  not long                                                               
enough,  the policy  change would  give the  court discretion  to                                                               
look at the totality of  the circumstances and decide whether the                                                               
survivor needs more protection.                                                                                                 
                                                                                                                                
4:18:40 PM                                                                                                                    
                                                                                                                                
CARMEN  LOWRY, Executive  Director,  Alaska  Network on  Domestic                                                               
Violence and  Sexual Assault (ANDVSA),  testified that  the issue                                                               
addressed by  HB 12 has  been discussed extensively  among ANDVSA                                                               
member organizations, and all are in support.                                                                                   
                                                                                                                                
CO-CHAIR FIELDS  asked whether Ms.  Lowry agreed  that protective                                                               
order time periods should be lengthened.                                                                                        
                                                                                                                                
MS.  LOWRY answered  affirmatively and  added that  the situation                                                               
must be considered  to determine the appropriate  length of time.                                                               
She relayed  that it would  be helpful  to know the  reasons that                                                               
other  states  have  longer  term  protective  orders  than  does                                                               
Alaska.                                                                                                                         
                                                                                                                                
4:20:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE VANCE referred  to testimony regarding restraining                                                               
order  abuse and  asked,  "What  recourse is  there,  if any,  if                                                               
someone  feels that  they  have  been wrongly  accused  ... if  a                                                               
protective order  has been  wrongly placed on  them."   She asked                                                               
whether there is due process for those individuals.                                                                             
                                                                                                                                
MS. LOWRY responded that she did not have that information.                                                                     
                                                                                                                                
4:21:13 PM                                                                                                                    
                                                                                                                                
CO-CHAIR KREISS-TOMKINS closed public testimony on HB 12.                                                                       
                                                                                                                                
4:21:26 PM                                                                                                                    
                                                                                                                                
KEN  TRUITT,  Staff,  REPRESENTATIVE  CHUCK  KOPP,  Alaska  State                                                               
Legislature,  replied  that  he  did  not  have  the  answer  and                                                               
deferred  to the  representative from  the Alaska  Legal Services                                                               
Corporation (ALSC).                                                                                                             
                                                                                                                                
4:22:02 PM                                                                                                                    
                                                                                                                                
MAGGIE   HUMM,  Supervising   Attorney,  Alaska   Legal  Services                                                               
Corporation (ALSC),  testified that ALSC is  the largest provider                                                               
of  civil   legal  services  to  victims   of  domestic  violence                                                               
statewide;  it  serves  approximately  800  victims  of  domestic                                                               
violence  and  their children  every  year.    She asked  if  the                                                               
question was,  What protectives are  in place for  respondents in                                                               
domestic violence protective order cases?                                                                                       
                                                                                                                                
REPRESENTATIVE VANCE  reiterated her  question:   Is there  a due                                                               
process for an  individual named in a protective  order for which                                                               
the individual feels he/she has been wrongly accused?                                                                           
                                                                                                                                
MS. HUMM replied that there  are several protections available to                                                               
a respondent in  protective order proceedings.   The law requires                                                               
that  respondents   receive  notice   of  the   protective  order                                                               
proceedings; and they have an  opportunity to be heard in respect                                                               
to the allegations  being made.  She added  that respondents must                                                               
be notified  10 days prior  to the  hearing; they may  attend the                                                               
hearing, present their own testimony,  and present witnesses.  If                                                               
the  protective order  is issued  against them,  they can  file a                                                               
motion  for reconsideration  or file  an appeal.   She  said that                                                               
under the proposed legislation, in  the case of someone wanting a                                                               
protective  order  extension,  there are  again  protections  for                                                               
notice  and  opportunity to  be  heard  built into  the  proposed                                                               
legislation;  the  order  will  not  simply  be  granted  at  the                                                               
petitioner's request.                                                                                                           
                                                                                                                                
4:24:28 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  KREISS-TOMKINS   cited  a  sentence  from   the  Whalen                                                               
decision, included in the committee packet, which read:                                                                         
                                                                                                                                
     Even  if   amici  are  correct  that   the  legislature                                                                    
     believed in  2004 that domestic violence  victims could                                                                    
     receive a  new protective  order without showing  a new                                                                    
     incident of domestic violence, we  will not rewrite the                                                                    
     law to conform  to a mistaken view of the  law that the                                                                    
     legislature had when it amended the statute.                                                                               
                                                                                                                                
CO-CHAIR KREISS-TOMKINS offered that  the statement expresses the                                                               
importance  of paying  attention to  detail in  legislative work;                                                               
the courts won't provide cover.                                                                                                 
                                                                                                                                
4:25:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE STORY  moved to report  CS for HB 12,  Version 31-                                                               
LS0103\S, out  of committee  with individual  recommendations and                                                               
the zero  fiscal notes.   There being no objection,  CSHB 12(STA)                                                               
was reported from the House State Affairs Standing Committee.