Legislature(2005 - 2006)CAPITOL 120

02/24/2006 02:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time Change --
Moved Out of Committee
Moved CSHB 93(JUD) Out of Committee
Moved CSHB 446(JUD) Out of Committee
+= Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 329(JUD) Out of Committee
Heard & Held
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS                                                                               
2:49:51 PM                                                                                                                    
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE BILL  NO. 414,  "An Act  relating to  allowing a  parent or                                                               
guardian of  a minor to  intercept the private  communications of                                                               
the minor and to consent  to an order authorizing law enforcement                                                               
to intercept the  private communications of the  minor."  [Before                                                               
the committee was CSHB 414(HES).]                                                                                               
MICHAEL O'HARE,  Staff to Representative Pete  Kott, Alaska State                                                               
Legislature, sponsor, said on behalf  of Representative Kott that                                                               
HB  414  is  intended  to   protect  children  from  insalubrious                                                               
characters   and   predation.     Currently,   if   a  child   is                                                               
communicating  with  someone,  it  is illegal  for  a  parent  to                                                               
intercept that communication  and take that person to  court.  In                                                               
order to address this problem, HB  414 makes it legal for parents                                                               
of  a  minor  child  to   intercept  communications,  and  allows                                                               
parents, if acting in good faith  and in the best interest of the                                                               
child,  to  give  law  enforcement  officials  the  authority  to                                                               
intercept  the  child's  communications  via  court  order.    He                                                               
relayed that  while the  sponsor recognizes  that the  bill might                                                               
raise issues  regarding the right  of privacy, the  sponsor feels                                                               
that the state's  compelling interest in the  welfare of children                                                               
outweighs the right of privacy.                                                                                                 
MR.  O'HARE  explained  that  Section 1  allows  the  parents  or                                                               
guardians of a minor to petition  the court for an ex parte order                                                               
authorizing law enforcement to conduct  a wire tap if the parents                                                               
or guardians  are acting  in good faith  and with  an objectively                                                               
reasonable belief that  doing so is necessary for  the welfare of                                                               
the minor.   [Section  3] allows  the parents  or guardians  of a                                                               
minor to  intercept a communication  between a minor and  a third                                                               
party  unless  [that third  party  is]  the minor's  attorney  or                                                               
guardian ad litem.  [Section 4]  defines a minor as a child under                                                               
the age  of 18 who is  not emancipated.  He  mentioned that there                                                               
is  a proposed  amendment in  members'  packets that  will add  a                                                               
definition  of "parent"  to Section  4;  that proposed  amendment                                                               
read [original punctuation provided]:                                                                                           
     Page 4, after line 5, add:                                                                                                 
     (12)  "parent"  means  a  natural  person  who  is  not                                                                    
     prohibited by  court order from communicating  with the                                                                    
     minor and is the minor's  natural or adoptive parent of                                                                    
     the minor's  legally appointed guardian;  "parent" does                                                                    
     not include  a person whose parental  rights toward the                                                                    
     minor have been terminated by court order.                                                                                 
[Following was a  brief discussion regarding what  version of the                                                               
bill was before the committee.]                                                                                                 
2:53:28 PM                                                                                                                    
MR. O'HARE relayed  that while the sponsor  recognizes the impact                                                               
HB  414  may  have  on  divorce  proceedings  and  child  custody                                                               
proceedings, the sponsor feels that  taking good care of children                                                               
and  monitoring their  activities takes  precedence, particularly                                                               
given that parents are held  responsible for the actions of their                                                               
REPRESENTATIVE GARA  asked what  will happen in  situations where                                                               
one  parent wants  to listen  in  on conversations  the child  is                                                               
having with the other parent in  order to use that information in                                                               
a custody battle.                                                                                                               
MR.  O'HARE  referred  to  [proposed  AS  42.20.320(a)(9),  which                                                               
begins on page 3, line 30],  and suggested that adding the words,                                                               
"if it is  in good faith and based on  the objectively reasonable                                                               
belief that it is necessary for  the welfare of the minor", would                                                               
address such situations should they arise.                                                                                      
2:56:23 PM                                                                                                                    
REPRESENTATIVE  COGHILL   pondered  whether   the  aforementioned                                                               
proposed  amendment  should  also reference  "custodial  parent",                                                               
suggesting  that such  a change  might  address estranged  family                                                               
REPRESENTATIVE  GRUENBERG  opined that  HB  414  will open  up  a                                                               
significant problem  in custody  cases and divorce  cases wherein                                                               
one parent wants to tape  record [the child's] conversations with                                                               
the other parent, and offered  his understanding that a number of                                                               
federal court of  appeals' decisions have addressed  the issue of                                                               
whether  the federal  wiretapping  Act  permits such  recordings,                                                               
with the majority  of federal courts permitting it  as a domestic                                                               
relations exception.  He pointed  out that he has been successful                                                               
in  getting a  transcript of  such  a recording  by arguing  that                                                               
regardless  of   whether  the  recording  was   illegal,  it  was                                                               
permissible [as  evidence] in that  particular proceeding.   Some                                                               
states are trying to get around  the federal issue by raising the                                                               
question of whether  such recordings should be  legal under state                                                               
law.   He predicted that  in the  majority of situations,  HB 414                                                               
will  be  used  by  warring  parents to  tape  record  a  child's                                                               
conversations  with the  other  parent, and  so  he is  concerned                                                               
because  any  good  divorce lawyer  will  simply  advise  his/her                                                               
client to  tape record every  single communication the  child has                                                               
with the other parent.                                                                                                          
REPRESENTATIVE  GRUENBERG  opined that  HB  414  will take  on  a                                                               
different  dimension  in  family  law cases,  and  expressed  his                                                               
belief that a child should be  able to freely talk privately with                                                               
his/her  parents  and siblings  unless  there  is a  really  good                                                               
reason for  not allowing  it.   He predicted  that at  some point                                                               
lawyers  will begin  advising a  child who  is the  subject of  a                                                               
custody battle to not say  anything that he/she doesn't want used                                                               
in court;  this will become  part of  the legal strategy  and the                                                               
child will be  put right in the middle of  the battle.  Currently                                                               
the courts generally  try to keep the child out  of the middle of                                                               
custody battles;  for example, the  courts don't ask  children to                                                               
testify or  speak to  them in  chamber.  Though  in one  case, he                                                               
recounted, the  child said  she wanted to  live with  her father,                                                               
and when the judge spoke to  the child in chamber the judge found                                                               
out that the reason the child  wanted to live with her father was                                                               
because he had promised her a pony.                                                                                             
REPRESENTATIVE  GRUENBERG  suggested  that the  sponsor  and  his                                                               
staff,  as well  as  the  committee, get  input  from family  law                                                               
practitioners,  the [American]  Bar Association's  (ABA's) Family                                                               
Law  section, and  the American  Academy  of Matrimonial  Lawyers                                                               
(AAML)  regarding HB  414.   "This  is not  primarily a  criminal                                                               
issue," he  stated, reiterating that  [the bill] will be  used by                                                               
warring parents.   He indicated that his main  concern centers on                                                               
[Section  3] though  he'd also  like to  ensure that  [Section 1]                                                               
will not be misused either.                                                                                                     
3:03:04 PM                                                                                                                    
MR. O'HARE  reiterated that  the sponsor's  intent is  to protect                                                               
children,  and so  although there  is the  possibility that  what                                                               
Representative Gruenberg  predicts will occur, the  sponsor still                                                               
feels that it  will be in the best interest  of Alaska's children                                                               
to  adopt  this  legislation.   Mr.  O'Hare  indicated  that  the                                                               
sponsor would be  amenable to inserting language  in [proposed AS                                                               
42.20.320(a)(9)] specifying  that the parents  must be  acting in                                                               
good faith.                                                                                                                     
CHAIR McGUIRE asked what prompted the introduction of HB 414.                                                                   
MR. O'HARE  said it was  a child  custody situation in  which one                                                               
parent discovered that the child  was being emotionally abused by                                                               
the other parent  and also discovered that  recording the child's                                                               
conversations  with  that other  parent  was  illegal.   For  the                                                               
sponsor,  this   prompted  the  question   of  what   happens  in                                                               
situations involving a  child who is having  conversations with a                                                               
third party who might be seeking  to harm the child or coerce the                                                               
child into doing something against the law.                                                                                     
CHAIR McGUIRE indicated  that [CSHB 414(HES)] would  be held over                                                               
in order  for the sponsor and  his staff to further  research the                                                               
issues raised and perhaps find solutions to members' concerns.                                                                  

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