Legislature(2005 - 2006)BUTROVICH 205
05/02/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB414 | |
| HB190 | |
| HB258 | |
| HB442 | |
| HB258 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 414 | TELECONFERENCED | |
| += | HB 190 | TELECONFERENCED | |
| + | HB 258 | TELECONFERENCED | |
| += | HB 442 | TELECONFERENCED | |
HB 414-INTERCEPTION OF MINOR'S COMMUNICATIONS
8:46:57 AM
CHAIR RALPH SEEKINS announced CSHB 414(RLS) to be up for
consideration.
MICHAEL O'HARE, Staff to Representative Pete Kott, introduced
the bill. It is a simple bill that intends to protect children
from predators by allowing parents to monitor their child's
conversations. Parents who currently listen in on their
children's conversations are breaking the law and are subject to
criminal prosecution. The bill would allow for a court to enter
into an ex parte order to authorize a wiretap if the court
determines probable cause. Section 1 contains a definition of
"probable cause." The bill would also allow the parent or
guardian of a minor to intercept private communications except
for any communications between the minor's attorney, guardian ad
litem, or child custody investigator.
8:48:35 AM
The information could be considered as evidence by a judge and
admitted in an official proceeding if it is found that the
parent was acting in good faith and had a reasonable belief that
the interception was necessary for the welfare of the minor.
8:49:44 AM
REPRESENTATIVE PETE KOTT, bill sponsor, added that it is
currently illegal for a parent to listen in on a telephone
conversation in his or her own home. He emphasized the
importance of giving parents tools to lawfully monitor their
children for their own welfare. The bill would "cut the mischief
off at the pass", he said, and would allow the parents to
monitor, under reasonable situations, the oral conversations
between their minor child and another party.
8:52:23 AM
SENATOR GUESS commented that lines 10-15 on page 1 appear to be
out of sync with what the bill was trying to do.
MR. O'HARE responded that the paragraph in question merely
defines "probable cause."
CHAIR SEEKINS asked how the bill would tie in with federal law.
REPRESENTATIVE KOTT replied it would not violate the federal
eavesdropping statutes.
CHAIR SEEKINS asked whether the definition of parent includes
stepparents.
MR. O'HARE referred to the definition of "parent" on page 4,
line 12.
CHAIR SEEKINS noted that the definition didn't specify
stepparents.
ANNIE CARPENETI, Assistant Attorney General, Department of Law
(DOL), testified that the stepparent would have to be the
adoptive parent in order to be covered under the law.
8:56:36 AM
REPRESENTATIVE KOTT consented that an adoptive stepparent should
be included in the definition of parent.
SENATOR GRETCHEN GUESS asked whether the bill could be used for
one parent to gain access to a child talking to the other
parent.
MS. CARPENETI responded that concern was addressed on page 3.
The bill puts many limitations on the circumstances to when a
parent could put a wiretap on a child. She said the DOL has
additional concerns that she would like to address at the proper
time.
SENATOR GENE THERRIAULT referred to page 3, line 21 and
questioned the meaning of "acting in good faith."
8:58:57 AM
REPRESENTATIVE KOTT replied the court would have to determine
what that means. After review of all the evidence, the judge
will have to determine whether the parent acted on good faith in
behalf of the minor. The parents would have to legitimize their
claim.
MS. CARPENETI added that was also a concern of the DOL. It is
not a very clear hurdle.
SENATOR GUESS referred to page 2, line 4 and asked Ms. Carpeneti
to define the term "objectively reasonable belief."
MS. CARPENETI explained "objectively reasonable person" is an
often-used term in legal interpretations and it means a
reasonable person's standard and not necessarily a subjective
belief.
CHAIR SEEKINS asked Ms. Carpeneti to describe the concerns that
the DOL has with the bill.
MS. CARPENETI said the criminal division supported the bill in
its process through the House Judiciary version, but were
concerned with the House Rules Committee Substitute (CS) that
was amended during the House Floor Session.
9:02:20 AM
MS. CARPENETI stated the main concerns are with the subjectivity
of the phrase "acting in good faith" and in the limits placed on
the provision of when it is allowable to wiretap a child. She
posed an example of a parent who has a hunch that their child is
in danger and wants to overhear a conversation. She said it is
in everyone's best interest that the parent be able to listen to
that telephone conversation on less than probable cause and that
the evidence should be admissible in a court of law if
necessary. Short of probable cause, it is the parent's duty to
interfere when a person is preying on their child, she said.
MS. CARPENETI reiterated the Department's concern with the
limits placed on the provision. "Whatever evidence the parent
gathers ought to be admissible in court", she said.
CHAIR SEEKINS asked the reason behind the amendment that
incorporated the strict limitations.
REPRESENTATIVE KOTT informed the committee it was an amendment
by Representative Max Gruenberg and his argument was "vehemently
persuasive."
CHAIR SEEKINS asked Representative Kott how he would amend the
bill.
REPRESENTATIVE KOTT deferred to Ms. Carpeneti.
MS. CARPENETI said the DOL would like to go back to House
Judiciary version and then add the stepparent in.
CHAIR SEEKINS called a brief at ease at 9:04:53 AM.
9:08:16 AM
CHAIR SEEKINS called the meeting back to order and asked Mr.
O'Hare to describe the differences between the House Judiciary
Committee version and the amended House Rules Committee version.
MR. O'HARE advised that Section 1 in version L does not contain
the probable cause definitions. The ninth exception on page 3
does not include the evidentiary definitions nor does it have
the inclusion of a child custody investigator.
9:10:02 AM
SENATOR GUESS asked Ms. Carpeneti whether there was a reason to
state the definition of "probable cause" in the bill.
MS. CARPENETI informed her that it is a very common standard in
the courts and indicated that it didn't need to be defined.
CHAIR SEEKINS expressed a preference to work from version 24-
LS1565\L.
SENATOR CHARLIE HUGGINS made a motion to move the language
contained in version L to be considered a Senate Judiciary
Standing Committee Substitute and to be the working document
before the committee. Hearing no objections, the motion carried.
CHAIR SEEKINS posed a hypothetical example of a stepparent who
believed his stepchild was in danger and said he should have the
opportunity to protect that child and be covered by the law.
SENATOR GUESS said part of her supports that and part of her
does not since those situations tend to be very delicate and
complex.
9:14:03 AM
SENATOR HOLLIS FRENCH shared Senator Guess's concern but stated
so long as the stepparent was living in the same home as the
natural parent and the child he was agreeable to it. He said he
sees this as a defensive measure and not offensive.
SENATOR FRENCH moved Amendment 1. Include "stepparent" in the
definition of "parent." Hearing no objections, Amendment 1 was
adopted.
REPRESENTATIVE KOTT noted that page 3 lists exceptions and he
suggested adding "child custody investigator" to that list of
exceptions.
SENATOR FRENCH moved Amendment 2. Page 3, line 15, after the
word "attorney" insert "child custody investigator." Hearing no
objections, Amendment 2 was adopted.
9:16:36 AM
SENATOR FRENCH asked whether the bill would protect older
brothers and sisters who eavesdropped.
MS. CARPENETI said it would depend on the circumstances. She
said, "This is a private over-hearing of conversations and I
think it would be addressed based on the circumstances. I think
it would be admissible if it were a brother."
SENATOR FRENCH asked whether the older brother or sister would
be allowed to testify in court.
MS. CARPENETI believed so. She said evidence gathered by a
private person is not subject to the Fourth Amendment [of the
United States Constitution] and depending on the circumstances,
should be admissible.
SENATOR FRENCH clarified that the bill would allow for a
listening device to be put on a telephone to capture all the
conversations of a minor child.
MS. CARPENETI added that it would also allow for taping of cell
phone conversations as well, provided the parent had a warrant.
9:19:16 AM
MS. CARPENETI commented that the House Rules Committee version
restricted when the law could be used and said that with the
working version, anything overheard could be admissible in court
so long as the police weren't involved.
SENATOR FRENCH asked Ms. Carpeneti whether the bill was in
conformity with federal law.
MS. CARPENETI deferred to the chairman but said she would assume
that all Title 42 wiretap exceptions do comply.
REPRESENTATIVE KOTT asserted the bill was in compliance.
9:22:16 AM
SENATOR HUGGINS asked Ms. Carpeneti to explain the amendment
that Representative Gruenberg added to the House Rules Committee
version.
MS. CARPENETI said she was not present and did not know his
stated intentions but his words limit the interception and made
for reasonable belief that the child was in danger. The DOL's
position was that a parent should be able to act on "less than
probable cause." They should be able to act on a suspicion or a
hunch that their child is in danger. The amendment limited the
circumstances under which the evidence gathered would be
admissible in a court of law. The DOL's response is that it
seems reasonable that when a parent stumbles over evidence that
their child is potentially in danger, that evidence ought to be
admissible.
9:24:58 AM
SENATOR HUGGINS moved SCS CSHB 414(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
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