Legislature(2011 - 2012)CAPITOL 120
03/07/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB76 | |
| HB153 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 76 | TELECONFERENCED | |
| *+ | HB 153 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 76 - STALKING/SEXUAL ASSAULT PROTECTIVE ORDERS
1:04:14 PM
VICE CHAIR THOMPSON announced that the first order of business
would be HOUSE BILL NO. 76, "An Act relating to costs and fees
for stalking and sexual assault protective orders."
REPRESENTATIVE HOLMES, speaking as the sponsor, explained that
HB 76 is intended to fix a loophole in the statutes pertaining
to protective orders for stalking and sexual assault. When the
statutes pertaining to protective orders for domestic violence
(DV) were created, they included a provision that allowed the
court to order a perpetrator of DV to pay the costs and fees
incurred by the victim for the protective order. However, when
the statutes pertaining to protective orders for stalking and
sexual assault were created, no such similar provision was
included. She characterized this as an oversight that HB 76
would correct.
1:06:31 PM
JAMES R. WALDO, Staff, Representative Lindsey Holmes, Alaska
State Legislature, on behalf of the sponsor, Representative
Holmes, explained that Section 1 of HB 76 would add a new
paragraph (5) to AS 18.65.850(c) that would allow the court,
when issuing a protective order for stalking or sexual assault,
to also require the respondent to pay the costs and fees
incurred by the petitioner in bringing the action. Section 2
would alter AS 18.65.855 such that proposed AS 18.65.850(c)(5)
would not apply in situations involving ex parte and emergency
protective orders for stalking and sexual assault; this
exemption mirrors one in the statutes pertaining to ex parte and
emergency protective orders for DV.
REPRESENTATIVE LYNN asked what a protective order typically
costs.
MR. WALDO suggested that others might be better able to address
that question, but surmised that there could be a number of
costs associated with a protective order. In response to a
question, he explained that the change proposed by Section 1 of
HB 76 would allow the stipulation about paying costs and fees to
be included in the protective order itself, whereas, in
contrast, recovering such costs and fees under the Alaska Rules
of Civil Procedure - specifically Rule 79 pertaining to costs
and Rule 82 pertaining to attorney fees - would require
additional court filings from the victim, and these could be
fairly onerous, particularly when the victim is a pro se
petitioner.
REPRESENTATIVE GRUENBERG, noting that he supports HB 76,
questioned whether the changes proposed by HB 76 constitute an
indirect court rule change.
MR. WALDO offered that HB 76's proposed new language simply
mirrors language already existing in the statutes pertaining to
protective orders for DV.
REPRESENTATIVE HOLMES added that the proposed changes have
already been vetted by both the Department of Law (DOL) and
Alaska Court System (ACS), and neither raised concerns about
potential court rule changes.
MR. WALDO, in response to a question, explained that under
current Alaska law, protective orders for stalking and sexual
assault may only contain those items listed in AS 18.65.850(c),
which currently reads:
(c) A protective order issued under this section may
(1) prohibit the respondent from threatening to
commit or committing stalking or sexual assault;
(2) prohibit the respondent from telephoning,
contacting, or otherwise communicating directly or
indirectly with the petitioner or a designated
household member of the petitioner specifically named
by the court;
(3) direct the respondent to stay away from the
residence, school, or place of employment of the
petitioner, or any specified place frequented by the
petitioner; however, the court may order the
respondent to stay away from the respondent's own
residence, school, or place of employment only if the
respondent has been provided actual notice of the
opportunity to appear and be heard on the petition;
(4) order other relief the court determines to be
necessary to protect the petitioner or the designated
household member.
1:17:42 PM
MR. WALDO again explained that Section 1's proposed AS
18.65.850(c)(5) would allow the court, if it so chooses, to also
include in the protective order a requirement that the
respondent pay the costs and fees incurred by the petitioner in
bringing the action. In response to a further question, he
relayed that the language in proposed paragraph (5) mirrors that
found under existing AS 18.66.100(c)(14), which pertains to
protective orders for DV. Again, HB 76 would merely be
addressing an oversight in the statutes pertaining to protective
orders for stalking and sexual assault, and because the proposed
provisions are already part of existing law as it pertains to
protective orders for DV, the courts have already dealt with
such provisions.
MR. WALDO, in response to questions, reiterated that Section 2
would alter AS 18.65.855 such that proposed AS 18.65.850(c)(5)
would not apply in situations involving ex parte and emergency
protective orders for stalking and sexual assault; and that this
exemption mirrors one pertaining to ex parte and emergency
protective orders for DV. In situations involving ex parte and
emergency protective orders, the respondent wouldn't be present
or have knowledge of the proceeding, and so there would be
significant due process issues raised if the court were to
require the respondent to pay costs and fees when he/she wasn't
present to defend himself/herself. He then recounted his
understanding of the various types of protective orders
available in Alaska.
1:29:05 PM
LISA A. MARIOTTI, Policy Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), explained that last summer
the ANDVSA became aware of two cases in which the respondent of
a stalking and sexual assault protective order came to the
proceeding with a lawyer and essentially turned it into a mini-
trial in order to thwart the process. [The magistrates in those
cases] felt it was appropriate to order the respondent to pay
for the costs and fees incurred by the petitioner, but current
statute didn't allow for it. The ANDVSA thought this odd
because the law already allows the court to order a respondent
of a protective order for DV to pay costs and fees incurred by
the petitioner, and so the ANDVSA approached the sponsor about
introducing a bill to remedy the situation, the result being
HB 76.
MS. MARIOTTI, too, pointed out that when the statutes pertaining
to protective orders for DV were created, they included a
provision that allowed the court to order the respondent to pay
costs and fees, and offered her understanding that the inclusion
of that provision didn't result in an indirect court rule
change. House Bill 76 would bring some parity to the statutes
pertaining to protective orders, and, under the bill, it would
not be mandatory for the court to order a respondent of a
protective order for stalking or sexual assault to pay the costs
and fees incurred by the petitioner, but would instead be left
up to the court to determine on a case-by-case basis whether
such would be appropriate. In conclusion, she relayed that the
ANDVSA fully supports HB 76, and agreed to provide the committee
with information about typical costs and fees associated with
protective orders.
REPRESENTATIVE GRUENBERG, in response to information provided
him, expressed disfavor with the fact that protective orders for
stalking and sexual assault are only in effect for six months,
and relayed that he would be researching that issue further.
1:42:04 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), in response to questions, provided information about the
lengths of the various types of protective orders available in
Alaska.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 76, and announced that
HB 76 would be held over.