Legislature(2019 - 2020)GRUENBERG 120
03/18/2019 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB12 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 12 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 12-PROTECTIVE ORDERS
1:32:45 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 12 "An Act relating to protective orders."
1:33:15 PM
REPRESENTATIVE KOPP, introducing HB 12 as prime sponsor, stated
that it relates to protective orders and addresses the 2018
Alaska Supreme Court ruling in Whalen v. Whalen. He said the
court found in Whalen v. Whalen that it was unable to grant an
extension or a renewal of a domestic violence protective order
because the law was unclear regarding whether or not someone had
to be a victim again of domestic violence after the reason for
the initial order had already been adjudicated. He expressed
concern for victims of assault whose protective orders expire
around the time their abusers are released from jail. He noted
that it is common for abusers to threaten to retaliate against
victims prior to incarceration. He said this, in addition to
the initial assault, is a very real reason for a victim to be
fearful of his/her abuser. He stated that HB 12 would make it
clear that a person does not have to be a victim a second time
to get a protective order extended or renewed.
1:35:07 PM
KEN TRUITT, Staff, Representative Chuck Kopp, Alaska State
Legislature, said HB 12 is very simple. He addressed section 1,
which he said deliberately and carefully amends AS 18.65.850,
which relates to sexual assault and stalking protective orders,
to add the concept of stalking to language detailing court
prohibitions. He said the operative fix to the problem
identified in Whalen v. Whalen can be found in [section 1, lines
7-8]. He said this, in conjunction with the language "or
extended under this section" in section 2, would create a
statutory fix deemed necessary by the Alaska Supreme Court in
the Whalen decision. He pointed to new language found in lines
9 and 10 on page 1 and stated that, without this language, the
"Whalen problem" would extend to the circumstances described in
paragraph 3.
MR. TRUITT addressed section 2, which he said represents the
process and the procedure by which the petitioner and the
respondent can respond. He said this would still be within the
court's discretion. He added that nothing in HB 12 would
address the burden of proof that the petitioner must meet either
in the original petition for the protective order or in the
request for an extension.
1:38:05 PM
REPRESENTATIVE KOPP noted that the Alaska Court System has
recommended adding some clarifying language to lines 9 and 10 on
page 1 so that it reads, "(3) a court previously found that the
petitioner was a victim of stalking or sexual assault but
declined to order relief under this section, and the petitioner
alleges a change in circumstance since the court's previous
ruling He said this edit refers to an instance where
something has changed since the court last heard a case that
would cause it to reevaluate the decision. He stated that he
agrees with the court system's recommendation.
CHAIR CLAMAN said there will be an opportunity to amend HB 12.
1:39:52 PM
MR. TRUITT addressed sections 3 and 4, which he said operate
similarly to sections 1 and 2 except they apply to the domestic
violence protective order statute, which is constructed
differently from the sexual assault and stalking protective
order statute. He specified an example in line 18 under section
4, which features language that would limit the extension option
only to the protective orders issued under AS 18.66.100(b)(2).
He explained that AS 18.66.100(b)(1) covers protective orders of
indeterminate length that can only be lifted by the court taking
an additional action.
1:41:09 PM
REPRESENTATIVE KOPP explained that the protective orders
referenced in AS 18.66.100(b)(1) would be exempted because the
court would never lift those orders. He said the protective
orders in AS 18.66.100(b)(2) have time limits that are more
prescriptive.
1:41:58 PM
REPRESENTATIVE EASTMAN asked if anything in HB 12 would limit
the court's ability to determine the length of a protective
order.
REPRESENTATIVE KOPP answered no. He distinguished between
six-month protective orders for victims of domestic violence and
one-year protective orders for victims of stalking and sexual
assault. He noted that the language in HB 12 carefully follows
current statutory language. He said HB 12 would identify
reasons that, by themselves, would not disqualify a person from
obtaining an extension. He added that this responds to concerns
voiced by the Alaska Supreme Court in Whalen v. Whalen.
1:43:56 PM
REPRESENTATIVE EASTMAN asked how extensions were handled prior
to the Whalen ruling. He asked what has changed.
REPRESENTATIVE KOPP explained that the petitioner in Whalen v.
Whalen had a protective order which had expired and wanted it
renewed because she was still afraid of [her ex-husband]. He
said the Alaska Supreme Court decided it was unclear whether
there was legislative intent to issue another order unless
another act of domestic violence, sexual assault, or stalking
was committed against her. He explained that this is
problematic because victims are often still in fear of their
abuser when that person gets out of jail, returns to the state,
or otherwise regains access to the victim. He said the intent
of HB 12 is to enable the court system to renew or extend an
order within 30 days of expiration or 60 days after expiration,
without the victim having to be revictimized. He said this
would provide more protection to victims.
1:45:30 PM
REPRESENTATIVE EASTMAN asked how these types of situations were
handled previous to the Whalen ruling. He asked if the
ambiguities in the law were previously overlooked or ignored.
REPRESENTATIVE KOPP said the courts decided based on how they
read the law. He said the Whalen decision was the result of an
appeal based on an argument of how the law should be read. He
said the fix offered in HB 12 would make things clearer going
forward.
1:46:20 PM
REPRESENTATIVE STUTES asked Mr. Truitt to repeat the clarifying
language recommended by the court system to be added to line 10
on page 1.
MR. TRUITT read, "a court previously found that the petitioner
was a victim of stalking or sexual assault but declined to order
relief under this section." He said the clarifying language
would be added so that the next words would be "and the petition
alleges a change in circumstance since the court's previous
finding."
1:47:23 PM
REPRESENTATIVE STUTES asked Mr. Truitt to explain section 5.
MR. TRUITT apologized for not addressing section 5 during his
initial walkthrough of the bill. He said section 5 is
prospective looking forward and also covers every order that has
been issued. He clarified that every current protective order
at the time HB 12 becomes law would be affected.
1:48:32 PM
REPRESENTATIVE STUTES asked if that means section 5 would
establish a retroactivity for any previously issued protective
orders.
REPRESENTATIVE KOPP answered "yes, any protective order that is
current."
1:48:59 PM
REPRESENTATIVE EASTMAN asked how HB 12 would affect a person who
was previously denied an extension or renewal for one of the
reasons included in the bill. He asked if the intent of HB 12
is to allow those previously denied to "start with a fresh
slate."
REPRESENTATIVE KOPP said that because a person has applied and
been denied would not prohibit him/her from reapplying. He
spoke to the importance of the to-be-added clarifying language
for line 10 on page 1 that would reinforce this. He said HB 12
would not stop people from returning to the court to ask again
for an extension or renewal.
1:50:43 PM
REPRESENTATIVE EASTMAN established a hypothetical scenario in
which a court denies a request because it determines the timing
of the filing "had something to do with the intent for which it
was filed." He said perhaps the person making the request was
found to be abusing the process in an attempt to sabotage a
former spouse's professional ambitions. He asked how HB 12
would affect that sort of scenario.
REPRESENTATIVE KOPP said the court can decide that a protective
order request is meritless on its face. He said HB 12 would not
change that at all.
1:51:50 PM
REPRESENTATIVE LEDOUX asked for an example in which the court
might find that the petitioner was the victim of stalking or
sexual assault but decline to order relief. She asked if this
is what HB 12 would address.
REPRESENTATIVE KOPP said those situations come up less
frequently. He gave an example in which a protective order
matter happens simultaneously with a family law matter like a
child custody dispute. He said the court could find that
domestic violence occurred but determine that it was related to
the custody issue. He said that, in this case, the court might
make a ruling on the family law matter but not on the protective
order matter. He offered another example in which both members
of a couple are petitioners. In this example, a wife has a
petition for domestic violence that is in effect against her
husband. The husband then asks for a protective order against
his wife suggesting she attacked him. The court could decide
that the attack happened but deny a protective order because the
husband is about to leave the country for six months for work.
Representative Kopp said there many possible situations where a
judge could find that something had happened yet not award a
protective order.
REPRESENTATIVE LEDOUX requested additional details from the
court system.
1:54:47 PM
NANCY MEADE, General Counsel, Alaska Court System, addressed
Representative LeDoux's question pertaining to why the court,
having found that domestic violence occurred, would not grant a
petition for a protective order. She said there are two things
the court must find to issue a protective order: that the
petitioner was the victim of a crime of domestic violence and
that the protective order is necessary to protect the person
from future harm. She said a common example in which the court
might find a protective order to be unnecessary is if the
respondent lives out of state and the court cannot find that
there is a threat of the petitioner's future harm.
REPRESENTATIVE LEDOUX asked about the likelihood a protective
order would not be issued because the respondent is going to
prison.
MS. MEADE said that would be another reason why a protective
order could be found unnecessary.
1:56:11 PM
CHAIR CLAMAN opened public testimony on HB 12.
1:57:00 PM
MAGGIE HUMM, Supervising Attorney, Alaska Legal Services
Corporation, also addressed Representative LeDoux's question
pertaining to why the court, having found that domestic violence
occurred, would not grant the petition for a protective order.
She said most of the common scenarios have already been
mentioned. She emphasized that the court has discretion whether
to issue a protective order even if it finds that an act of
domestic violence has occurred. She said an amended HB 12 would
allow the court to reconsider extending a protective order in
the event of a change in circumstance.
1:59:13 PM
KATY SODEN, Senior Staff Attorney, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), stated that ANDVSA
supports HB 12. She said domestic violence, sexual assault, and
stalking are often a part of a "cycle of behavior" that can go
on for years and escalate over time. Because of this, she
argued, survivors often need protection from abuse for more than
6 or 12 months, which is all currently available to them
following Whalen v. Whalen. She said ANDVSA supports HB 12
because it would give discretion to the courts to determine if a
survivor still needs safety after 6 or 12 months.
MS. SODEN discussed a client whose protective orders have
expired but is still fearful of a former abuser who has returned
to the state after three years. She said the former abuser
knows where her client lives, and that the client believes to
have seen him near her house. Ms. Soden stated that her client
is unable to obtain a new protective order because no new crime
has been committed.
MS. SODEN discussed a different client who had a long-term
domestic violence protective order against her ex-husband. She
detailed some of the ex-husband's aggressive and violent acts
and behaviors. She said the ex-husband did not violate the
protective order while it was active but has since contacted and
threatened her client. Ms. Soden said her client desperately
wants a new protective order but cannot obtain one as it is not
clear that her ex-husband has committed a new crime of domestic
violence.
MS. SODEN said the current law does not protect women like these
until they are revictimized. She opined that this is not how
the protective order statutes should work. She said ending
domestic violence and sexual assault requires strong and
flexible civil protective orders.
2:03:08 PM
TERYN BIRD, Attorney, Interior Alaska Center for Non Violent
Living (IACNVL), said she represents victims of domestic
violence, sexual assault, and stalking in protective order and
family law matters. She stated her support for HB 12 on behalf
of IACNVL and "countless victims." She said the Whalen decision
has had a devastating effect on men, women, and children in the
Interior seeking protection from potentially lethal perpetrators
of domestic violence. She added that she is aware of over 50
victims impacted by the Whalen decision. She said the Whalen
decision leaves victims of egregious crimes without protection
unless they have been revictimized in a way that is recognized
as a crime. She stated that protective orders prevent
escalation and protect victims from further harm, serious
injury, or death. She added that one year is not sufficient
time for every perpetrator of domestic violence to either "cool
down," move on, or rehabilitate.
MS. BIRD shared the story of one client who was abused in a
variety of ways including repeatedly raped in front of her
disabled children. She said the client obtained a one-year
protective order against her husband upon their separation.
According to Ms. Bird, it took the United States Army two years
to criminally prosecute the husband, who served only one year in
jail for his crimes. She said her client was not entitled to
further protection when the husband left jail. She mentioned
that the husband blamed her client for losing his career and
child custody. She stressed the danger her client faced and
reiterated that her client was unable to secure a new protective
order because she had already had one. Ms. Bird asked the
committee members to think about people like her client as they
weigh their decisions on HB 12.
2:06:10 PM
ROBIN MITCHELL testified in opposition to HB 12. She said HB 12
offers no protection for the falsely-accused. She explained
that she had two domestic violence restraining orders issued
against her despite the judge finding no domestic violence had
occurred. She stated she is disabled, and that the protective
orders made her homeless. She said she was denied medical and
dental care. She relayed that she has had six surgeries in
three weeks and is on daily intravenous drugs. She gave
additional details about the status of her case. She said the
Alaska Court System's website does not offer a Petition Wizard
feature for the falsely-accused victims of protective orders.
She said there is no victim advocate for people like her. She
noted that she cannot find a single case in which a person was
prosecuted for obtaining a protective order based on false
accusations. She levied a series of accusations against various
people. She listed additional details about her case. She said
she would send a detailed e-mail to the entire legislature.
2:08:59 PM
STACY WALKER testified in support of HB 12. She explained that
she is a lawyer who takes on pro bono cases through ANDVSA and
identified herself as the attorney who handled the Whalen case
at the trial level. She said previous to the Whalen decision
judges had the discretion to consider the course of conduct that
was the basis for the original protective order when deciding,
based on new conduct, whether a client was still in need of
protection. She described the Whalen case and shared examples
of erratic conduct by Mr. Whalen. She restated that the court's
interpretation of the law prevented Mrs. Whalen from acquiring a
subsequent restraining order.
MS. WALKER shared a personal experience in which she received a
call from the Alaska Psychiatric Institute about a man there who
had intended to kill her and a client. She said the call
revealed that the man had been stalking her and her client for
three months. She said she was able to get a stalking
protective order against him. She noted that, if he were to
come around her house again, that would not be enough to justify
a new protective order. She explained she would have to
establish a new pattern of stalking not based on what had
happened before. She said that, if she were still in fear of
this man, there would be "nowhere for [her] to go."
2:12:04 PM
ALLEN M. BAILEY identified himself as a family lawyer and a
former municipal prosecutor. He said he is a member of the
American Bar Association (ABA) Commission on Domestic & Sexual
Violence (CDSV), the former Chair of the ABA Section of Family
Law Domestic Violence Committee, and the co-author of House Bill
rd
385 [passed during the 23 Alaska State Legislature] which
related to awarding child custody.
MR. BAILEY said that, statistically, men are the vast majority
of intimate partner violence perpetrators. He discussed various
programs to rehabilitate abusive men. He noted that, despite
those efforts, research suggests no statistically significant
reduction in recidivism for men that batter. He noted that
abusive women, who he said tend to suffer from mental illness,
are also unlikely to change their behaviors.
MR. BAILEY argued that Whalen v. Whalen ignored what the Alaska
Supreme Court had previously recognized, which is the high
recidivism rate of people who abuse their partners. He cited
Lana C. vs. Cameron P. from 2005 which he said made note of the
high recidivism of batterers. He also cited State v. [indisc.]
from 1992 in which the court referenced the higher likelihood of
children being abused in the homes of people who have committed
domestic violence.
MR. BAILEY said he supports HB 12 because neither the trauma of
victims nor the behavior of abusers goes away after one year.
He said the first two years after separation are the most
dangerous time.
2:15:18 PM
CARMEN LOWRY, Executive Director, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), said ANDVSA supports HB
12. She noted that domestic violence protective orders are for
12 months while sexual assault and stalking protective orders
are for 6 months. She suggested an amendment that would make
both protective orders for 12 months.
2:16:44 PM
CHAIR CLAMAN, after ascertaining no one else wished to testify,
closed public testimony on HB 12.
2:17:15 PM
REPRESENTATIVE EASTMAN asked if any part of HB 12 would trigger
the court automatically reopening requests that had been
previously denied.
MS. MEADE answered that nothing in the bill would require
opening non-current or expired protective orders. She said a
person could come and petition for that.
2:18:00 PM
REPRESENTATIVE EASTMAN asked what impact HB 12 would have on
short-term, ex parte protective orders.
MS. MEADE said, by her reading, HB 12 would not affect short-
term orders. She explained that the statutes to be amended
refer only to long-term domestic violence protective orders and
long-term sexual assault and stalking protective orders.
2:18:37 PM
REPRESENTATIVE EASTMAN asked about the current justification
necessary for someone to receive a protective order. He asked
for confirmation that HB 12 would not change those criteria.
MS. MEADE said the standards for granting a protective order
would not be changed. She explained that to receive a
protective order for domestic violence, the court must find that
the petition establishes probable cause that a crime of domestic
violence has occurred, and it is necessary to protect the
petitioner from domestic violence in the future.
2:20:17 PM
REPRESENTATIVE LEDOUX asked Representative Kopp for his thoughts
on Ms. Lowry's comments.
REPRESENTATIVE KOPP said changing the length of sexual assault
and stalking protective orders is a policy call. He said sexual
assault and stalking protective orders are more recent than
domestic violence protective orders, which have been current
since the 1970s. He said he did not know the full history
behind the legislature's decision to make them for six months.
He said he did not know what implications could be incurred by
changing the length. He called it a fair question.
REPRESENTATIVE LEDOUX asked Representative Kopp if he thinks it
is a good idea to amend HB 12 to extend the length of sexual
assault and stalking protective orders.
REPRESENTATIVE KOPP said he is conflicted. He said he wants to
protect people as long as possible, but he also wants to avoid
violating liberty. He said he wants to read the legislative
history to understand why the legislature settled on six months.
He said he would report back at the next hearing.
REPRESENTATIVE LEDOUX thanked him.
CHAIR CLAMAN posited that there must have been a reason for the
orders to be only six months.
2:22:30 PM
REPRESENTATIVE EASTMAN asked if victims receive adequate
notification prior to their abuser being released from custody
so that they have the opportunity to petition for a new
protective order or for an extension to an existing one.
CHAIR CLAMAN noted that recent reform measures passed by the
legislature increased the notice rights of victims of crime. He
said the Department of Corrections (DOC) is obligated to inform
victims.
MS. MEADE said that victims of any crime can sign up with DOC
through its [Victim Information and Notification Everyday]
(VINE) program. She explained that victims can learn when their
offenders are to have a change in status including release from
prison. She added that the probation conditions of a domestic
violence sentence would include a no contact order enforced by a
probation officer.
2:25:06 PM
REPRESENTATIVE EASTMAN asked what the time period is for VINE
notifications.
MS. MEADE said she is unable to answer that, noting it is a
Department of Corrections program.
2:25:38 PM
CHAIR CLAMAN announced that HB 12 would be held for further
review.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB012 ver K 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Sponsor Statement 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Sectional Analysis ver K 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Explanation of Changes ver U to ver K 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Supporting Document-ALSC Letter 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Supporting Document-APOA Letter 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Additional Document-CPO Statute and Duration of Order 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Additional Document-Whalen v Whalen 2018 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Fiscal Note DPS-DET 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |
| HB012 Fiscal Note DPS-CJISP 3.18.19.pdf |
HJUD 3/18/2019 1:30:00 PM |
HB 12 |