Legislature(2017 - 2018)GRUENBERG 120
02/08/2017 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HCR1 | |
| HB8 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 8 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HCR 1 | TELECONFERENCED | |
HB 8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS
2:41:29 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 8, "An Act relating to protective orders."
2:42:01 PM
TIM CLARK, Staff, Representative Brice Edgmon, Alaska State
Legislature, explained that HB 8 will align Alaska Statutes with
federal law, which supersede some existing contradictions. In
2014, the elimination of what was known as the Alaska Exemption
from the Federal Violence Against Women Act brought attention to
the state's obligation to enforce protective orders from other
jurisdictions, including other states, territories, or tribal
courts. Under existing statutes, law enforcement is compelled
to enforce another jurisdiction's protective order if filed with
a clerk of an Alaska court. However, he advised, with Alaska
now subject to the Violence Against Women Act (VAWA), the filing
of those protective orders is not necessary for enforcement.
This legislation follows the recommendation of the Department of
Law (DOL) to amend conflicting statutes and bring Alaska into
compliance with federal law. He pointed out that it will not
only clarify the duties of state law enforcement, but also will
eliminate potential lawsuits that could stem from the
contradictions currently in statute, and possible complications
in prosecution. He explained that HB 8 adds a presumption of
validity for law enforcement by encouraging enforcement of a
protective order, issued in another jurisdiction, so long as it
appears authentic on its face. He commented that it could be
construed as erroring on the side of caution when it comes to a
situation of someone possibly in danger. The bill more clearly
specifies in statute that other jurisdictions include: courts of
another state, territories, United States military tribunals,
and tribal courts. Although, he explained, the Department of
Law (DOL) continues to encourage registration of protective
orders from other jurisdictions. "The Attorney General noted in
his opinion," that the state's central registry gives officers
access to tribal and foreign protective orders anywhere in
Alaska, even if the victim does not have a copy of the order at
hand, he stated.
2:45:28 PM
REPRESENTATIVE KOPP asked whether there is anything in the bill
dealing with child custody orders, or whether it solely
addresses domestic violence protective orders.
MR. CLARK responded that bill's various sections go into almost
all relevant parts of state law where the current or previous
existence of a protective order could bear on decision making.
For example, he opined, Sec. 4 of the bill relates to the
requirements of the Alaska Child Fatality Review Team [AS
12.65.120], to review the death of a child and consider whether
anyone in the child's immediate household was a petitioner or
respondent to a protective order within the previous year,
because it plays a part in its deliberation.
MR. CLARK acknowledged that Representative Kopp was speaking
more in terms of child custody considerations.
2:47:42 PM
REPRESENTATIVE KOPP agreed, and he advised that it has to do
with protective orders that are issued by all levels of the
judiciary [branch], including a magistrate with no legal
training all the way up to a superior court judge. He offered
that protective orders "are great," but are more limited and
narrow in scope, as opposed to child custody issues relating to
situations where people may be leaving an abusive situation, and
then a court order follows them to Alaska directing the person
to go back and bring the children. In such a situation, a
person may want the state to have the ability to examine it
carefully before jumping in. He acknowledged he had not read
the bill word-for-word, and he would like to know whether it
gets into child custody issues.
MR. CLARK deferred to the Department of Law (DOL).
2:49:53 PM
MARY LUNDQUIST, Senior Assistant Attorney General, Opinions,
Appeals & Ethics Section, Office of the Attorney General,
Department of Law (DOL), explained that protective orders govern
certain child custody orders, but only with respect to their
domestic violence protection aspect. Therefore, a protective
order can have a child custody component to it but, she opined,
Representative Kopp was addressing a true child custody order,
and this bill does not cover the type of law he was
contemplating.
2:50:46 PM
REPRESENTATIVE KOPP reiterated the importance of the committee
being aware that protective orders are issued by individuals who
do not have the same standard of training the public would
expect across the board. He opined that with protective orders,
the state should always default on the side of protecting people
in harm's way, and the bill does not appear to be addressing
that issue. Those issues, he remarked, are certainly more
volatile and the state does want to be consistent with domestic
violence protective orders with federal statute, he agreed, and
also be aware of the situations it may cover, he remarked.
2:52:26 PM
MR. CLARK offered that the definition of "protection order" can
be found in the Violence Against Women Act (VAWA), Section 204,
paragraph 5, and he paraphrased as follows:
The protection order means any injunction, restraining
order, or other order issued by a civil or criminal
court for the purpose of preventing violence or
threatening acts or harassment against sexual violence
against contact or communication with or physical
proximity to another person. And includes any
temporary or final order issued by a civil or criminal
court whether obtained by filing an independent action
or as a pendente lite vitae order in another
proceeding if the civil or criminal order was issued
in response to a complaint, petition, or motion filed
by or on behalf of a person seeking protection.
MR. CLARK opined it is a narrower definition than ...
REPRESENTATIVE KOPP agreed.
2:53:48 PM
REPRESENTATIVE EASTMAN surmised that, currently, statute
recognizes and enforces protective orders from other states. He
asked the main difference in how it is currently enforced as
opposed to what would happen under this bill.
MR. CLARK responded that the intent of the bill is to reconcile
the requirement that a protective order issued, in another
jurisdiction, be registered with an Alaskan court before
enforcement. Whereas, he explained, the intent of VAWA and
reconciling these statutes, is so that if someone were being
menaced against someone whom they had a protective order
against, they would receive immediate assistance from law
enforcement. That assistance would occur even though the person
had not yet taken the time to register the protective order, or
were unaware their protective order should have been registered
with the state, he said.
2:55:20 PM
REPRESENTATIVE EASTMAN noted that he could think of situations
wherein protective orders are filed with good reason and then
perhaps with less good reason, a reciprocity is filed against
the person who filed the protective order. In that case there
are protective orders going both ways. He asked whether there
is a safety measure here so, in the event there is a state with
less than ideal laws, that Alaska doesn't find itself enforcing
something that is not a good idea. He commented that it would
appear the assumption can go to a perceived victim who is filing
the protective order, but then if orders are going both ways and
the perpetrator is filing a protective order ... he does not
want to see Alaskans hemmed up because of that.
MR. CLARK suggested that Representative Eastman may be referring
to a protective order that could be construed as frivolous or
unjust in some manner. He advised there is specific criteria in
Section 2265, of the Violence Against Women Act, that specifies
certain protective orders from other jurisdictions must meet,
and paraphrased the following:
The issue in court must have jurisdiction and parties
and the matter under the laws of the state, territory,
or tribe, and the issue in court must give reasonable
notice and opportunity to the person against whom that
order is sought in order for that person's due process
to be protected.
MR. CLARK opined that it goes a long way toward eliminating the
possibility of frivolousness. He deferred to Ms. Lundquist.
2:57:44 PM
MS. LUNDQUIST added that the protective order must appear valid
on its face for law enforcement to enforce it. In addition to
the protection, there must be a consistent order, that the
issuing entity had jurisdiction, and due process was recognized.
Although, she related, those issues are not looked at up front,
the person against whom the violation of the protective order is
brought has an opportunity to object in court as to whether
there was jurisdiction in the issuing court, personal
jurisdiction, subject matter jurisdiction, and whether they were
given due process. Therefore, she said, there will be a ready
opportunity to challenge a protective order once it's in court.
2:58:42 PM
REPRESENTATIVE EASTMAN asked whether any sort of recent analysis
had been performed as to how those laws differ in other states,
because he would like to identify the most restrictive state and
its dealings with protective orders to get a better handle on
how it might apply to Alaskans, particularly in a case where it
was frivolous. He said he understands that courts are not
always able to make that determination immediately, and often
the tie does go to the person filing for an order and the
details are sorted out later. He reiterated his question and
asked what analysis had been done of other states, and whether
there are any outliers of states handling these in a
particularly extreme manner.
MS. LUNQUIST responded that the Violence Against Women Act
(VAWA) requires the state to enforce a protective order as if it
was an order of the enforcing state. Therefore, Alaska would
enforce the protective order as if it was a state order, and
that would improve the State of Alaska's arrests for violations
of a protective order. The DOL has not performed an in-depth
review of protective order statutes in other states because
Alaska is required to enforce protective orders from other
states, and other tribes under VAWA.
3:00:51 PM
CHAIR CLAMAN noted that related to full faith and credit
provisions in the Constitution of the United States, it
recognizes that Alaska's job is not to second guess the courts
of other states, and that Alaska is to treat it as a valid
judgement of that particular jurisdiction.
3:01:49 PM
REPRESENTATIVE REINBOLD noted several deletions in the bill,
including the deletion of "filed in court" replaced with
"recognized in another jurisdiction." She requested a deep
explanation as to whether specific jurisdiction need to be
defined, and if not, what exactly is the jurisdiction, and
whether it impacts tribal courts.
MR. CLARK answered that the best way to understand the actual
mechanics of the bill is to read Sec. 5 and 6 first [beginning
page 3], and that the language inserted or deleted in other
sections of the bill will become clear. He offered to walk the
committee through Sec. 5 and 6, if it would be helpful.
REPRESENTATIVE REINBOLD asked whether that is necessary before
Mr. Clark can answer the question of why "filed in court" is
being deleted and "recognized in another jurisdiction" inserted.
MR. CLARK replied that the language accomplishes the purpose of
the bill, to eliminate the requirement for a protective order
from another jurisdiction being filed in an Alaska court before
enforcement can act on it.
3:03:48 PM
REPRESENTATIVE REINBOLD asked Mr. Clark to go through Sec. 5 and
6.
MR. CLARK referred to the [Sectional Summary], Sec. 5 and 6,
[page 1, paragraphs 5-7, and page 2, paragraphs 1-2] and
paraphrased as follows [original punctuation provided]:
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 (HB 8 Sectional Summary, Page 2
of 3.) presumed valid. (This might be characterized as
erring on the side of caution when it comes to those
in need of protection.)
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.
3:06:50 PM
MR. CLARK advised that when turning to other sections of the
bill, the changes found bring those various sections into line
with what was established in Sec. 5 and 6, in terms of the
registration requirement or lack thereof in this case.
3:07:22 PM
REPRESENTATIVE REINBOLD stated that her question was whether
jurisdiction needed to be defined, whether it was clearly
defined enough there, and how it impacts tribal [courts].
MR. CLARK offered that it does not necessarily impact tribal
courts, and it could be construed as a "welcomed further
legitimization of the tribal courts." Substantively, he said,
it accomplishes the removal of the requirement for the tribal
court protections order to be registered with the state before
enforcement can take place.
3:08:21 PM
REPRESENTATIVE REINBOLD surmised that his testimony was that it
increased legitimation of the tribal courts, and asked how
tribal courts are funded.
MR. CLARK responded that he does not feel qualified to answer
that question thoroughly.
MR. CLARK, in response to Chair Claman, agreed that he is
certainly not an expert in tribal court funding. Although, for
example, the Civil Legal Services, Corp. in Alaska works to
assist tribal courts to build and strengthen its institutions.
He offered that the Alaska Court System is in greater
collaboration with tribal courts and is undertaking the same
activities in terms of building and fortifying its institutions.
CHAIR CLAMAN advised Representative Reinbold that it is fair to
say Mr. Clark can't really answer her question.
3:09:54 PM
REPRESENTATIVE REINBOLD asked that someone offer information
about tribal courts before the bill moves out of committee.
CHAIR CLAMAN asked that Mr. Clark locate an individual to offer
more insight as to how tribal courts are funded. Chair Claman
surmised that Representative Reinbold would like to know whether
funds from the state budget are directed to tribal courts,
including the court system and executive branch.
REPRESENTATIVE REINBOLD replied, "Yes, and more."
3:10:47 PM
REPRESENTATIVE KOPP encouraged the committee members to read the
detailed 7/30/2015 memo from Attorney General Richards, included
within their bill packet. He related that it answers 99.9
percent of the questions asked here today regarding reconciling
VAWA with Alaska statutes. He explained that a protective order
is not an arrest warrant, it protects people and allows Alaska
law enforcement to arrest if a protective order is violated, and
that due process is required for the orders to be valid. Law
enforcement's perspective is "if they're not in the registry it
is hard because different formats are used in many different
jurisdictions," and he encouraged registration of these orders
in the Central Alaska Public Safety Information Network.
3:12:37 PM
CHAIR CLAMAN noted that Congress decided to, and what this bill
incorporates to be in compliance with the federal law, is that
in terms of protecting women, in particular, "we want to error
on the side of protection." The reality is that someone hands
law enforcement a piece of paper that appears to be a duly
enacted court order, and asks law enforcement to enforce it. In
that situation, he explained, law enforcement, under federal
rules and this law, would be expected to follow that order, and
the purpose of registering the order is to give law enforcement
some degree of confidence. He described that the committee is
making a policy decision "to provide greater protection than
that allows," he said.
[HB 8 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB008 ver A 1.18.17.pdf |
HJUD 2/8/2017 1:30:00 PM |
|
| HB008 Sponsor Statement 1.20.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/13/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HB008 Sectional Analysis 1.20.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/13/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HB008 Additional Documentation-7.30.15 VAWA Enforcement Dept. of Law Opinion 1.20.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/13/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HB008 Additional Documentation-2014 Repeal of Alaska Exemption to VAWA 1.20.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/13/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HB008 Additional Documentation-USCODE Title 18 Chapter 2265--Full Faith and Credit 1.20.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/13/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HB008 Additional Documentation-18 USCA Section 2265 Full Faith and Credit Given to Protection Orders 2.7.17.pdf |
HJUD 2/8/2017 1:30:00 PM |
HB 8 |
| HB008 Fiscal Note LAW-CRIM 1.27.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HB008 Fiscal Note DPS-DET 1.27.17.pdf |
HCRA 1/31/2017 8:00:00 AM HJUD 2/8/2017 1:30:00 PM HJUD 2/13/2017 1:30:00 PM HJUD 2/15/2017 1:30:00 PM |
HB 8 |
| HCR001 Fiscal Note LEG-SESS 2.6.17.pdf |
HJUD 2/8/2017 1:30:00 PM |
HCR 1 |