Legislature(2019 - 2020)GRUENBERG 120
03/27/2019 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Alaska Recidivism & Reentry by Laura Brooks, Deputy Director, Health & Rehabilitative Services, Department of Corrections | |
| Presentation: Alaska Doc Sanctions & Incentives by Michael Matthews, Research Analyst, Research & Records, Department of Corrections | |
| HB12 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 12 | TELECONFERENCED | |
| += | HB 49 | TELECONFERENCED | |
HB 12-PROTECTIVE ORDERS
2:18:16 PM
CHAIR CLAMAN announced that the next order of business would be
HOUSE BILL NO. 12 "An Act relating to protective orders."
[Before the committee was CSHB 12(STA), version 31-LS0103\K.]
He announced that the committee would take up amendments. He
stated for the record that Legislative Legal Services has
permission to make any technical and conforming changes to the
bill.
2:19:26 PM
REPRESENTATIVE KOPP moved to adopt Amendment 1, labeled 31-
LS0103\K.2, Radford, 3/18/19, which read as follows:
Page 1, line 10, following "section":
Insert ", if the petition alleges a change in
circumstances since the court's previous finding"
Page 2, line 15, following "section":
Insert ", if the petition alleges a change in
circumstances since the court's previous finding"
REPRESENTATIVE LEDOUX objected for purposes of discussion.
2:20:00 PM
REPRESENTATIVE KOPP explained that Amendment 1 addresses a
concern raised by the court system. He said Amendment 1 relates
to the issue of a person denied a protective order renewal
returning immediately to the court to request reconsideration.
He explained that the petitioner would have to allege a change
of circumstance since the court's previous finding.
2:21:02 PM
REPRESENTATIVE EASTMAN asked if the passage of HB 12 would
qualify as "a sufficient change in circumstance" for purposes of
this type of request. He clarified that changes in law could be
construed as a changing circumstance.
REPRESENTATIVE KOPP answered that it is conceivable, but he does
not know if it is possible. He noted that the petitioner,
regardless of whether his/her order has expired, would still
need to establish to the court that a protective order is
necessary.
CHAIR CLAMAN said Representative Eastman's query raises an
interesting question about for whom the new law would qualify as
a change in circumstances. He established a hypothetical in
which two people one whose protective order expired many
months prior and another whose order expired a few days prior -
claim the newly passed law as a change in circumstances.
2:24:11 PM
KEN TRUITT, Staff, Representative Chuck Kopp, Alaska State
Legislature, said one concrete answer to that question can be
found in HB 12's applicability clause on page 2 starting at line
28. He said it stipulates that, should HB 12 become law, its
provisions would apply to all protective orders in effect on the
date of passage and all those issued after the date of passage.
He clarified that qualifying protective orders would be those
within 30 days of lapsing or those that have lapsed in the past
60 days. He addressed the hypothetical scenario in which HB 12
becomes law the day after a petitioner is denied a protective
order, and the petitioner returns the day after to request
reconsideration. He said a solution to that situation would
likely be at the discretion of the judge.
2:25:52 PM
REPRESENTATIVE LEDOUX withdrew her objection. There being no
further objection, Amendment 1 was adopted.
2:26:48 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 2, labeled 31-
LS0103\K.3, Radford, 3/26/19, which read as follows:
Page 1, line 8:
Delete "or"
Page 1, line 10, following "section":
Insert "; or
(4) the petitioner appears telephonically at the
protective order hearing"
REPRESENTATIVE LEDOUX objected for purposes of discussion.
REPRESENTATIVE EASTMAN said Amendment 2 would clarify that the
fact a petitioner is calling in telephonically is not a reason
to deny a protective order. He shared a personal experience in
which he accompanied a friend to a courthouse to deal with a
protective order issue. He said his friend was told by the
court clerk that her request would not be accepted if she was
not present in the courtroom to sign the necessary documents.
He explained that his friend, not wanting to confront her
abuser, left without being issued a protective order. He said
that people who are not able to or do not wish to confront their
abuser or attorney should not be disqualified from obtaining a
protective order.
2:28:34 PM
REPRESENTATIVE KOPP shared that he has personally helped many
people obtain protective orders over the phone. He said he
believes there is nothing in Alaska law that prevents or
discourages telephonic applications. He noted that emergency
protective orders are almost always done over the phone. He
stated it is his understanding that ex parte orders, which are
for 20 days, are also routinely handled telephonically. He
called the amendment unnecessary.
CHAIR CLAMAN asked Representative Eastman about the protective
order his friend was pursuing. He asked what kind of order it
was.
REPRESENTATIVE EASTMAN answered that it was a long-term order.
CHAIR CLAMAN said he is confused by Representative Eastman's
anecdote because the first protective order is typically an ex
parte order and requires no confrontation with the accuser.
REPRESENTATIVE EASTMAN clarified that the situation he was
referring to was "a follow-up."
CHAIR CLAMAN said that there would typically be no new documents
to sign for a long-term protective order because those documents
get signed upon the granting of the ex parte order.
2:30:42 PM
REPRESENTATIVE EASTMAN, to Representative Kopp's comment, said
he would agree with Representative Kopp's assessment of
Amendment 2 if HB 12 dealt solely with ex parte protective
orders. He remarked that the broader nature of HB 12 may
require such an amendment.
CHAIR CLAMAN noted that telephonic appearances are allowed by
the Alaska Rules of Court. He said he shares Representative
Kopp's assessment that Amendment 2 is unnecessary.
REPRESENTATIVE KOPP said he would support the amendment if he
felt it would do good or "enhance the process." He stated the
court system currently permits telephonic appearances for
emergency protective, ex parte protective orders, and long-term
protective orders.
REPRESENTATIVE WOOL requested confirmation from the Alaska Court
System that the amendment is not needed.
2:32:27 PM
NANCY MEADE, General Counsel, Alaska Court System, said
Representative Kopp is correct that the court system routinely
hears and grants protective orders through telephonic hearings.
REPRESENTATIVE EASTMAN asked, as HB 12 stands now, if the court
could deny a protective order based on the circumstance of a
telephonic appearance.
MS. MEADE answered that the court cannot deny a protective order
just because the petitioner is appearing telephonically and not
in person.
2:33:33 PM
CHAIR CLAMAN suggested that not allowing the respondent to
appear at a long-term domestic violence protective order would
run into constitutional issues about the confrontation clause.
MS. MEADE confirmed that the respondent is present at a long-
term order hearing for due process reasons.
REPRESENTATIVE EASTMAN asked if a telephonic appearance would
not be permitted for a long-term order hearing.
MS. MEADE said a respondent could appear telephonically; he/she
has the right to appear. She noted that respondents sometimes
do not appear at all. Similarly, she added, the petitioner can
also appear telephonically at any hearing.
2:34:53 PM
REPRESENTATIVE LEDOUX said she is confused about telephonic
allowances and requested clarification.
MS. MEADE apologized. She clarified that petitioners have the
right to appear telephonically at any hearing for any protective
order. She said respondents those accused of committing
domestic violence, stalking, or sexual assault are not
typically notified about 72-hour or short-term protective order
hearings. She said respondents have a right to be "present" for
long-term protective order hearings and thus receive notice
because of due process requirements. She said respondents can
choose to be present telephonically. She noted that respondents
have the constitutional right to know a proceeding is occurring
against them because it could result in a grave consequence
against them.
2:36:30 PM
REPRESENTATIVE LEDOUX considered that respondents do not have
the right in a long-term protective order case to confront their
accusers in person, as they would in a criminal case.
MS. MEADE answered correct. She said a protective order hearing
is not a criminal proceeding where the respondent is a criminal
defendant, so different protections apply. She clarified that
these hearings are civil proceedings. She added that due
process rights apply [for the long-term order hearings] and
respondents can opt to come and defend themselves. She noted
that respondents can do this by telephone. She said the
respondent does not have the right to insist the petitioner
appear for cross-examination.
2:37:43 PM
REPRESENTATIVE EASTMAN said he feels Amendment 2 is necessary
because the language is of use to the public. He said it would
reassure and encourage people who may not be able to apply for
an order in person to still file the request.
2:38:40 PM
A roll call vote was taken. Representative Eastman voted in
favor of Amendment 2. Representatives LeDoux, Wool, Shaw, Kopp,
and Claman voted against it. Therefore, Amendment 2 was not
adopted by a vote of 1-5.
2:39:11 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 3, labeled 31-
LS0103\K.4, Radford, 3/26/19, which read as follows:
Page 1, line 7:
Delete "for"
Insert "of or a contributing factor for granting"
Page 1, line 8:
Delete "or"
Page 1, line 10, following "section":
Insert "; or
(4) the petitioner appears telephonically at the
protective order hearing"
REPRESENTATIVE WOOL objected for purposes of discussion.
REPRESENTATIVE EASTMAN explained that the amendment would expand
the language of HB 12 so that if an act of stalking or sexual
assault was a contributing portion of the basis for a previous
protective order, that [an extension] could not be denied on
those grounds." He said the amendment would further protect
those in need of protective orders.
2:40:16 PM
REPRESENTATIVE KOPP opined that the amendment only adds
confusion. He noted that a protective order cannot be issued
without a probable cause finding that an act of stalking or
sexual assault has occurred. He pointed to the murkiness of the
amendment's language.
REPRESENTATIVE SHAW said, "I read [the amendment] five times and
then I got an interpretation of it, and I'm still confused."
MS. MEADE echoed the previous representatives' confusion about
the intent of the amendment.
CHAIR CLAMAN asked Representative Eastman to clarify the
amendment.
REPRESENTATIVE EASTMAN said he is concerned that the court could
potentially deny a protective order because an act of domestic
violence or stalking was a contributing factor rather than the
primary factor. He clarified that the amendment essentially
replaces the definite article "the" with the indefinite article
2:44:19 PM
MS. MEADE restated that protective orders get issued because a
court found there was "an incident" and there was "an act" of
domestic violence, sexual assault, or stalking. She said the
court identifies the incident that was the impetus for issuing
the protective order. She said she is still unclear about what
might be considered "a contributing factor."
CHAIR CLAMAN opined that Representative Eastman has "done little
to lift the confusion."
REPRESENTATIVE EASTMAN reframed his explanation around a
hypothetical person coming to the court to fill out a request
for a protective order. He asked if that person is restricted
to listing just one incident on the form, or whether the person
has the right to list multiple reasons and incidences that may
have piled up.
MR. MEADE said she is beginning to understand his intent. She
confirmed that petitioners often list multiple incidents that
they want to rely upon at the hearing. She explained that
court-issued orders include checkboxes for each crime committed
by the respondent. If more than one box is checked, which is to
say there are multiple crimes that have provided the impetus for
the order, each would be treated as a basis for the order rather
than as "a contributing factor." She said the language of HB 12
as written already covers this situation.
REPRESENTATIVE EASTMAN withdrew the motion to adopt Amendment 3.
2:47:13 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 4, labeled 31-
LS0103\K.5, Radford, 3/26/19, which read as follows:
Page 1, line 7:
Delete "for"
Insert "of or a contributing factor for granting"
Page 1, line 8:
Delete "or"
Page 1, line 10, following "section":
Insert "; or
(4) the petitioner appears telephonically at the
protective order hearing"
Page 2, line 11:
Delete "for"
Insert "of or a contributing factor for granting"
Page 2, line 12:
Delete "or"
Page 2, line 15, following "section":
Insert "; or
(4) the petitioner appears telephonically at the
protective order hearing"
REPRESENTATIVE LEDOUX objected for purposes of discussion.
REPRESENTATIVE EASTMAN said Amendment 4 combines Amendments 2
and 3 and makes them applicable to each of the protective order
classes. He withdrew his motion to adopt Amendment 4, citing
the committee's reluctance to adopt Amendments 2 and 3.
2:47:44 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 5, labeled 31-
LS0103\K.6, Radford, 3/26/19, which read as follows:
Page 1, line 7:
Delete "for"
Insert "of or a contributing factor for granting"
Page 1, line 8:
Delete "or"
Page 1, line 10, following "section":
Insert ";
(4) the petitioner appears telephonically at the
protective order hearing; or
(5) of the current geographic location of the
respondent"
Page 2, line 11:
Delete "for"
Insert "of or a contributing factor for granting"
Page 2, line 12:
Delete "or"
Page 2, line 15, following "section":
Insert ";
(4) the petitioner appears telephonically at the
protective order hearing; or
(5) of the current geographic location of the
respondent"
REPRESENTATIVE LEDOUX objected for purposes of discussion.
REPRESENTATIVE EASTMAN said the language of Amendment 5 deals
with geography. He established a scenario in which a petitioner
is denied a protective order because the court believes the
respondent, who has left the state, does not pose enough of a
risk. He argued that, given the ease with which the respondent
could travel from out of state to confront the petitioner, it is
important to clarify to the court that the respondent's
geographic location is not a reason to deny a protective order.
2:49:45 PM
CHAIR CLAMAN established a scenario in which a petitioner
requests a 6-month protective order against a respondent who is
imprisoned out of state and will continue to be incarcerated for
the next year. He asked why the court should not be able to
deny the request based on a lack of geographic risk.
REPRESENTATIVE EASTMAN said the amendment would not limit that
situation because of the element of incarceration. He noted
that the reason for the denial would not be because the
respondent is out of state, but because the respondent is
incarcerated. He said courts would continue to be able to deny
orders for that reason.
REPRESENTATIVE KOPP characterized the amendment as "a solution
in search of a problem. He noted that, to grant a protective
order, the court must establish that an order is necessary to
protect the safety of the petitioner. He said the court weighs
factors such as the type of crime committed, the identity of the
respondent, the respondent's location, and whether there is
currently an investigation. He validated Representative
Eastman's concerns about "a mobile society," but stressed that
the court is always tasked with determining the probability of
the petitioner being hurt. He suggested that the language in
Amendment 5 could confuse the court and interfere with its
"common sense application" of making causal determinations about
a petitioner's risk status. He opined that the amendment is
unnecessary.
2:52:40 PM
REPRESENTATIVE EASTMAN said if the argument holds that the court
can come up with its own justification based on common sense and
that it does not need the legislature to list out particulars,
then there is no purpose to supporting HB 12. He insisted that
there is value to putting this sort of language into statute to
encourage and inform people who may pursue protective orders.
2:53:59 PM
A roll call vote was taken. Representative Eastman voted in
favor of adopting Amendment 5. Representatives LeDoux, Wool,
Shaw, Kopp, and Claman voted against it. Therefore, Amendment 5
was not adopted by a vote of 1-5.
2:55:45 PM
REPRESENTATIVE LEDOUX moved to report HB 12 as amended out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 12(JUD) was
reported out of the House Judiciary Standing Committee.