Legislature(2005 - 2006)

05/08/2006 10:12 AM 414

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10:12:41 AM Start
10:12:41 AM HB414
03:08:26 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS                                                                               
10:12:41 AM                                                                                                                   
CHAIR KOTT announced that the only  order of business would be CS                                                               
FOR  HOUSE  BILL   NO.  414(RLS)am,  "An  Act   relating  to  the                                                               
interception of the private communications of a minor."                                                                         
CHAIR  KOTT stated  that  three  sections of  the  bill would  be                                                               
addressed  for  concurrence  by the  Conference  Committee.    He                                                               
directed   attention  to   the  working   documents  before   the                                                               
committee, which  were:  CSHB 414(RLS)am,  Version 24-LS1565\P.A,                                                               
and  SCS CSHB  414(JUD), Version  24-LS1565\R, as  well as  blank                                                               
CSHB 414, Version 24-LS1565\U, Wayne, 5/7/06.                                                                                   
10:13:06 AM                                                                                                                   
CHAIR KOTT  moved that the  committee adopt the language  on page                                                               
3,  lines  24-26,  of SCS  CSHB  414(JUD),  Version  24-LS1565\R.                                                               
There being no objection, page 3,  lines 24-26, of Version R were                                                               
CHAIR KOTT introduced  Section 1, of both bills,  and pointed out                                                               
that the Senate version removes  the language specifying probable                                                               
SENATOR SEEKINS  asked for  an explanation  for the  inclusion of                                                               
the  language stipulating  probable cause  [page 1,  lines 10-15,                                                               
and page 2, lines 1 and 2, Version P.A].                                                                                        
REPRESENTATIVE GRUENBERG responded that  the intent was to define                                                               
probable cause, as  specified on [page 1] line  9, [Version P.A],                                                               
which the Senate Judiciary [Version  R] fails to delineate.  This                                                               
point  for  definition had  created  some  concern in  subsequent                                                               
House discussion.  He explained  that subparagraphs (A), (B), and                                                               
(C) list  the probable cause  sources as being  communications by                                                               
"a  person who  in the  past, ...  currently, or  in the  future,                                                               
[has] either  been a  perpetrator, a  victim, or  a witness  to a                                                               
felony or  misdemeanor."  Further,  he said  that page 2,  line 2                                                               
[paragraph  (2)],  establishes  the  probable cause  as  being  a                                                               
danger to the  health or safety of the minor.   Referring to page                                                               
2, line[s] 3[-5], he said:                                                                                                      
     The intent  of the bill  ... is  to allow a  finding of                                                                    
     probable  cause solely  on the  fact  that the  minor's                                                                    
     parent had consented in good  faith to the interception                                                                    
     of   the  communication,   based   upon  the   parent's                                                                    
     objectively  reasonable belief  that  it was  necessary                                                                    
     for  the welfare  of the  minor,  and was  in the  best                                                                    
     interest of the minor.                                                                                                     
10:15:40 AM                                                                                                                   
SENATOR FRENCH pointed  out that the language on page  2, line 3-                                                               
5, paragraph (3)  [Version P.A], sets out the  good faith intent,                                                               
and opined  that it  supersedes the  need for  the aforementioned                                                               
subparagraphs [(A),(B),(C)] and paragraph (2).                                                                                  
REPRESENTATIVE   GRUENBERG   explained    that   the   referenced                                                               
subparagraphs   and  paragraph   appropriately  and   necessarily                                                               
provide the  specific and complete language  for establishing the                                                               
conditions to show probable cause.                                                                                              
10:16:29 AM                                                                                                                   
SENATOR  FRENCH directed  the committee's  attention  to page  1,                                                               
line 11, [Version P.A], reading lines 10-12, he commented:                                                                      
     You  could  read  it  ... that  any  person  that  ever                                                                    
     committed a  misdemeanor would be subject  to a wiretap                                                                    
     by a parent.                                                                                                               
REPRESENTATIVE GRUENBERG  interjected that such would  not be the                                                               
SENATOR FRENCH continued and said:                                                                                              
     The  court  may  enter  the  order  if  the  court  has                                                                    
     probable cause to  believe that a party  to the private                                                                    
     communication has committed a misdemeanor.                                                                                 
REPRESENTATIVE   GRUENBERG  stated   support  for   allowing  the                                                               
discretion of  a presiding  judge to  determine what  would serve                                                               
for admissibility of probable cause.                                                                                            
REPRESENTATIVE  MCGUIRE opined  that  perhaps  the House  version                                                               
raises the  threshold for  proving probable  cause too  high, and                                                               
she reminded the  committee that the intent of  this amendment is                                                               
to address the issue of parental rights.                                                                                        
10:18:35 AM                                                                                                                   
DEAN  J.   GUANELI,  Chief  Assistant  Attorney   General,  Legal                                                               
Services  Section-Juneau, Criminal  Division,  Department of  Law                                                               
(DOL),  commented that  there is  value to  being specific  as to                                                               
what constitutes  probable cause; having specific  criteria for a                                                               
court to follow is helpful.   In regard to Senator French's point                                                               
as to whether in the House  version "a door [has] been opened ...                                                               
wide", he opined that a court  would apply "common sense to these                                                               
matters"  and would  issue  an order  only in  good  faith of  an                                                               
actual crime being committed or suspicion of such.                                                                              
REPRESENTATIVE  MCGUIRE opined  that the  Senate version  appears                                                               
broad, calling for a "good  faith objectively reasonable belief,"                                                               
versus the  narrowed focus  of the  House version  which requires                                                               
"probable cause."  She expressed support for the Senate version.                                                                
10:21:03 AM                                                                                                                   
SENATOR  FRENCH said  that  this  bill is  to  provide parents  a                                                               
safety factor  avenue.  He asked  for clarity as to  what legally                                                               
constitutes eavesdropping versus wiretapping.                                                                                   
MR. GUANELI explained that eavesdropping is covertly listening-                                                                 
in on  an extension telephone  line to a conversation,  and would                                                               
include  recording a  specific conversation  without an  involved                                                               
party's  knowledge.   Wiretapping involves  the co-opting  of the                                                               
telephone companies equipment and  intentionally creating a means                                                               
to tape record  any conversation of a  particular telephone line.                                                               
Additionally,  he   said,  wiretapping  is  subject   to  federal                                                               
SENATOR FRENCH referenced  page 1, lines 6 and  7, [Version P.A],                                                               
and  asked what  an  authorized interception  by  ex parte  order                                                               
would include:  eavesdropping, wiretapping, or both.                                                                            
10:24:05 AM                                                                                                                   
MR.  GUANELI  answered   that  this  language  is   to  amend  AS                                                               
12.37.030, which  are the wiretapping statutes.   Wiretapping, he                                                               
expanded,  requires a  judicial order,  involves law  enforcement                                                               
personnel, and is an action  established with the consent of, but                                                               
not  undertaken  unilaterally  by, the  parent.    Eavesdropping,                                                               
however,  is  quintessential to  being  an  observant parent  and                                                               
discovering   e-mail    activity   or    over-hearing   telephone                                                               
conversations which arouse concern or create suspicion.                                                                         
10:25:08 AM                                                                                                                   
SENATOR FRENCH asked if current  law prohibits a concerned parent                                                               
from  eavesdropping   and  possibly  recording   his/her  child's                                                               
telephone conversations.                                                                                                        
MR. GUANELI  opined that the  purpose of  this bill is  to exempt                                                               
parental   actions   which    would   violate   prohibitions   on                                                               
SENATOR  FRENCH  directed  attention  to  page  3,  lines  20-27,                                                               
[Version P.A],  and stated  that this  is the  language providing                                                               
the  aforementioned  exemption.    This  language  stipulates  an                                                               
exception to take place without a  court order and thus refers to                                                               
eavesdropping,  home  recording, or  any  other  type of  private                                                               
parental gathering  of communications in  which a minor  has been                                                               
MR. GUANELI  agreed that the  referenced exception occurs  in the                                                               
eavesdropping  statutes regarding  actions  that  a parent  could                                                               
easily undertake  in the  context of monitoring  what goes  on in                                                               
the privacy of his/her home.                                                                                                    
SENATOR FRENCH  reiterated for clarity,  that currently  a parent                                                               
could be subject to potential  prosecution for eavesdropping on a                                                               
minor's communication.                                                                                                          
10:27:07 AM                                                                                                                   
SENATOR SEEKINS delineated that  "interception," page 3, line 20,                                                               
Version  P.A,  serves to  allow  a  parent to  legally  undertake                                                               
actions  of:   printing  e-mail, placing  an automatic  recording                                                               
device  on   the  home  telephone,  intercepting   and  retaining                                                               
communications,  and introducing  the information  garnered in  a                                                               
court,  provided that  it is  deemed  to have  been gathered  and                                                               
presented in the best interest of the child.                                                                                    
10:27:37 AM                                                                                                                   
MR. GUANELI added that in  this instance the phrase "interception                                                               
of communication" is  used synonymously in statute  with the term                                                               
eavesdropping,  and he  provided  that  existing statute  defines                                                               
wire, oral, and electronic communications.                                                                                      
10:28:06 AM                                                                                                                   
SENATOR  SEEKINS inquired  whether  law would  prohibit a  parent                                                               
from recording a conversation.                                                                                                  
MR. GUANELI responded  that state law prohibits  the recording of                                                               
a  conversation  when it  occurs  without  the involved  parties'                                                               
10:28:32 AM                                                                                                                   
REPRESENTATIVE GRUENBERG  stated his understanding that  if there                                                               
is such  a prohibition, it would  be covered in AS  42.20.320 and                                                               
only apply to wire communications.   He asked what the parameters                                                               
are for tape recording a conversation.                                                                                          
MR.  GUANELI  clarified  that  a party  to  the  conversation  is                                                               
allowed recording rights.                                                                                                       
REPRESENTATIVE GRUENBERG  provided a  scenario of a  child having                                                               
an in-person conversation  with someone other than  a parent, and                                                               
the  parent,  although not  a  participant  in the  conversation,                                                               
makes a  tape recording.   He  asked if  that would  currently be                                                               
considered illegal.                                                                                                             
MR.  GUANELI responded  that  either version  of  the bill  would                                                               
exempt the parent from criminal status.                                                                                         
SENATOR SEEKINS  clarified that a  person may at any  time record                                                               
his/her own conversation.                                                                                                       
MR.    GUANELI    concurred    with    Representative    Seekins'                                                               
understanding, and  added that Alaska  is considered a  one party                                                               
consent  state   and  said,  "As   long  as  one  party   of  the                                                               
conversation consents that is sufficient."                                                                                      
REPRESENTATIVE  GRUENBERG  stated   his  understanding  that  the                                                               
Fourth  Amendment is  only applicable  to governmental  activity,                                                               
and said:   "If it  is a solely private  person, and there  is no                                                               
wire ... is there a statute or something that says I can't ...."                                                                
MR. GUANELI  cited Title  42 as the  statute that  disallows such                                                               
activity.  He said that the  issue with which the courts struggle                                                               
is whether  this statute  was intended to  apply to  parents, and                                                               
this bill will establish that clarity.                                                                                          
REPRESENTATIVE  GRUENBERG  stated  his  understanding  that  this                                                               
statute would  only apply to electronic  types of communications.                                                               
He asked  for a  statement regarding  the scope  of eavesdropping                                                               
that the sponsor intended for this bill to encompass.                                                                           
SENATOR SEEKINS  stated that the intent  is to allow a  parent to                                                               
be legally allowed  to intercept any communication as  long as it                                                               
is in the best interest of the child.                                                                                           
10:31:59 AM                                                                                                                   
MR.  GUANELI  counseled that  either  bill  version will  provide                                                               
legality  to a  parent to  eavesdrop, but  the difference  is how                                                               
evidence may be garnered in  order to be considered admissible in                                                               
10:32:27 AM                                                                                                                   
CHAIR KOTT requested  that the two sections, of  each version, be                                                               
considered separately,  and he asked  for the committee  to focus                                                               
attention on the probable cause aspect of the bill.                                                                             
SENATOR  HUGGINS suggested  dispensing  with  the probable  cause                                                               
REPRESENTATIVE  MCGUIRE  pointed  out  the  need  to  consider  a                                                               
situation  in which  a parent  would be  directly pitted  against                                                               
his/her  child,  or   a  case  of  an  abusive   parent  with  an                                                               
alternative motivation  who would  not be  acting in  good faith.                                                               
She  reiterated her  concern  for the  "threshold  being set  too                                                               
10:34:24 AM                                                                                                                   
CHAIR  KOTT reminded  the committee  that the  ex parte  order is                                                               
"governmental directed".                                                                                                        
MR. GUANELI explained that a wiretap  is a type of search warrant                                                               
and as  such the court would  apply a probable cause  standard in                                                               
order to  approve a Fourth  Amendment search.  He  suggested that                                                               
the question  to be  addressed is  how much  legislative guidance                                                               
will be provided to the courts  to specify what factors are to be                                                               
considered as  probable cause.   To that  extent, he  opined, the                                                               
House  language provides  appropriate guidance  in setting  out a                                                               
number of factors for the court to consider as probable cause.                                                                  
10:36:52 AM                                                                                                                   
SENATOR SEEKINS  described a domestic scenario  to illustrate why                                                               
he is  not concerned with the  language as written in  Section 1,                                                               
[Version P.A].   He opined that it provides a  nexus for a parent                                                               
to  take  appropriate  action,  and   allows  the  court  to  use                                                               
discretion for evidentiary purposes.                                                                                            
REPRESENTATIVE  GRUENBERG inquired  about  a pertinent  statutory                                                               
subsection, which  specifies the  relevancy of  evidence obtained                                                               
or sought to be obtained  from a search/wiretap for prosecutorial                                                               
purposes.  He opined that if  that subsection exists and needs to                                                               
be written into this bill perhaps it could be identified.                                                                       
MR. GUANELI responded that the  evidence rules of the court would                                                               
apply  to  communications  intercepted in  accordance  with  this                                                               
bill.   Further,  he concurred  with Senator  Seekins that  there                                                               
does need  to be a nexus  between the possible crime  and the act                                                               
of securing evidence.  The court  will look at the probable cause                                                               
presented,  and  other relevant  issues  prior  to authorizing  a                                                               
wiretap.    He reminded  the  committee  that a  wiretap  carries                                                               
significant  legal  weight and  that  there  are many  layers  of                                                               
protection and  restrictions put in  place for providing  such an                                                               
SENATOR SEEKINS referenced page  2, line[s] [2]-5, paragraphs (2)                                                               
and (3),  and explained that  the primary concern for  the Senate                                                               
version  was  to preserve  this  aspect  of the  House  Judiciary                                                               
version, which refers  to taking action based on  concern for the                                                               
health, safety, welfare, and in the best interest of a minor.                                                                   
10:42:34 AM                                                                                                                   
REPRESENTATIVE GRUENBERG  stated that  his reason  for suggesting                                                               
the first  subsection was  because, although  not common,  it has                                                               
occurred that a minor would be a  witness to a crime.  He cited a                                                               
case [McMaster   v.   State,  512   P.2d   879 (Alaska  1973)] in                                                             
which  the primary  witness to  a murder(s)  was a  five-year-old                                                               
child, and the court held she  was not too young to testify; they                                                               
affirmed.  He said:                                                                                                             
     So  it might  be a  circumstance  where a  child was  a                                                                    
     witness, or the other person  on the line was a witness                                                                    
     and discussing  it with the child,  or it's conceivable                                                                    
     that  one  of  them  was a  perpetrator.    Not  having                                                                    
     anything to  do necessarily  with the  child's welfare.                                                                    
     ... A court might very well,  because of the age of the                                                                    
     child, prefer  to admit the  tape ... [thus]  the child                                                                    
     would be kept off the stand.                                                                                               
10:44:34 AM                                                                                                                   
The committee took an at-ease from 10:44:34 AM to 10:46:30 AM.                                                              
10:46:30 AM                                                                                                                   
SENATOR SEEKINS  directed attention  to "only",  page 1,  line 7,                                                               
[Version  P.A], and  he stated  a preference  to have  it deleted                                                               
from  the  text, thus  allowing  the  language to  be  permissive                                                               
rather than restrictive.                                                                                                        
REPRESENTATIVE GRUENBERG  explained that  "only" was  included to                                                               
ensure that the court would  find probable cause prior to issuing                                                               
a warrant.                                                                                                                      
REPRESENTATIVE  MCGUIRE  agreed  with  Senator  Seekins'  concern                                                               
regarding the  inclusion of  "only", in  this context,  and asked                                                               
"[but]  are  we splitting  hairs,"  provided  the high  threshold                                                               
delineated for establishing probable cause.                                                                                     
MR. GUANELI pointed  out that "only" appears in  both versions of                                                               
the bill.   He opined that  this particular phrase may  not be of                                                               
significance to the  court, where the focus would  be to identify                                                               
the findings set out in subparagraphs  (A), (B), and (C) [page 1,                                                               
Version P.A], in making a determination for a court order.                                                                      
REPRESENTATIVE MCGUIRE  reiterated her concern for  including the                                                               
term "only", as well as  the high threshold placed on determining                                                               
probable cause.   However, she  said perhaps we can  revisit this                                                               
in the years to come, if necessary.                                                                                             
10:51:12 AM                                                                                                                   
CHAIR  KOTT  moved  that  the committee  adopt  the  language  of                                                               
Section 1,  CSHB 414(RLS)am, Version 24-LS1565\P.A.   There being                                                               
no objection, Section 1 of Version P.A was adopted.                                                                             
10:51:37 AM                                                                                                                   
CHAIR  KOTT announced  that  the final  area of  the  bill to  be                                                               
addressed would  be Section 2, addressing  the evidentiary aspect                                                               
of allowing information garnered to be entered into court.                                                                      
10:52:05 AM                                                                                                                   
MR. GUANELI  acknowledged that this  section is difficult  due to                                                               
the  acrimonious  and  emotional   nature  that  often  surrounds                                                               
matters of divorce and child  custody.  He provided a description                                                               
of why a  court may decide to suppress evidence,  thus not basing                                                               
its  judiciary findings  on  the sum  of  the relevant  evidence.                                                               
This is  allowed because of  the exclusionary rule,  which serves                                                               
primarily  to enforce  appropriate police  conduct and  encourage                                                               
officers to follow  due process; protecting against  the abuse of                                                               
an  individual's constitutional  rights.   He stated  support for                                                               
the Senate's version  of this section, and opined  that the House                                                               
version may  cause evidence  to be  suppressed because  a private                                                               
party in  an acrimonious  situation did  not follow  the specific                                                               
language of the bill to  garner otherwise relevant evidence.  The                                                               
language,  he pointed  out, does  not allow  the parent  room for                                                               
error and  hence evidence  of a criminal  act may  be suppressed.                                                               
He  asked   why  the  state   should  prohibit  the   court  from                                                               
considering any  information gathered by a  parent, and suggested                                                               
that the  court would be able  to consider whether to  allow such                                                               
information as relevant and in the best interest of the child.                                                                  
10:59:38 AM                                                                                                                   
REPRESENTATIVE GRUENBERG stated:                                                                                                
     The instance where  this would become a key  issue in a                                                                    
     criminal case, ... is fairly  rare.  It would become an                                                                    
     issue  in ...  a  fair  number of  custody  cases on  a                                                                    
     regular basis because people  would be listening-in, in                                                                    
     the  context  of  a  divorce   or  a  custody,  to  get                                                                    
     information  that  they  could use  against  the  other                                                                    
     parent  in a  court.   I  don't have  any problem  with                                                                    
     parents  legitimately  listening-in  on  ...  telephone                                                                    
     conversations  of the  children as  part of  the normal                                                                    
     parents'  duty. ...  [However], the  practice would  be                                                                    
     for  good  divorce  lawyers ...  to  suggest  to  their                                                                    
     clients ... to tap the  phone or listen-in, ... because                                                                    
     the fear would be the other  side is doing it, and they                                                                    
     will  selectively try  to introduce  evidence of  those                                                                    
     calls.   The issue that  this would be used  more often                                                                    
     than  not has  nothing to  do with  criminal law.   The                                                                    
     statute for  custody in the  divorce ... says  that the                                                                    
     court  must look  at the  love  and affection  existing                                                                    
     between  the  child and  the  one  parent, and  another                                                                    
     factor is  the other parent's willingness  to foster an                                                                    
     open, ... loving, [and]  frequent relationship with the                                                                    
     other parent and  the child.  ... The  purpose of these                                                                    
     calls  would be  to gather  information on  ... whether                                                                    
     one parent  was trying  to influence the  child against                                                                    
     the other parent,  and it would become ...  a weapon to                                                                    
     be used  in the court.   [It] would [serve to]  put the                                                                    
     [unwitting]  child in  ... the  middle  of these  cases                                                                    
     .... ... That's ... why  they don't, in this state have                                                                    
     children  testify in  court; why  they don't  interview                                                                    
     children   in   chambers;    why   they   use   custody                                                                    
     investigators and  guardians ad litem to  take the kids                                                                    
     out of this. ... The  admission of evidence in court is                                                                    
     discretionary,  and whether  the trial  judge admits  a                                                                    
     piece of evidence  or denies its admission  will not be                                                                    
     overturned unless an abuse of  discretion is found, and                                                                    
     that  means   that  there  is   a  definite   and  firm                                                                    
     conviction that a mistake has  been made.  This doesn't                                                                    
     amend  the  rules  of evidence,  so  the  discretionary                                                                    
     nature of  the admission is ...  ultimately the court's                                                                    
     decision.    This  simply  provides  guidance,  and  it                                                                    
     requires  that  before  the evidence  is  admitted  one                                                                    
     party  may  object;  and  if   that  person  raises  an                                                                    
     objection the  court must rule  that it  is admissible.                                                                    
     And these are the factors the court can consider.                                                                          
11:04:59 AM                                                                                                                   
SENATOR SEEKINS paraphrased from the referenced statute                                                                         
[original punctuation provided]:                                                                                                
     Sec. 42.20.310.  Eavesdropping.                                                                                            
          (a) A person may not                                                                                                  
          (1) use an eavesdropping device to hear or record                                                                     
     all or  any part  of an  oral conversation  without the                                                                    
     consent of a party to the conversation;                                                                                    
SENATOR SEEKINS interjected that without the consent of a party                                                                 
the single party rules.  He then continued paraphrasing from AS                                                                 
          (b) In this section "eavesdropping device" means                                                                      
     any  device capable  of being  used to  hear or  record                                                                    
     oral   conversation   whether   the   conversation   is                                                                    
     conducted  in person,  by telephone,  or  by any  other                                                                    
     means; provided  that this definition does  not include                                                                    
     devices used for  the restoration of the  deaf or hard-                                                                    
     of-hearing to normal or partial hearing.                                                                                   
SENATOR  SEEKINS stated  that AS  42.20.390 provides  a different                                                               
more   expansive   definition.      However,   he   related   his                                                               
understanding  from  AS  42.20.310 that  an  extension  telephone                                                               
would  be  considered  "any  instrument."   Hence,  if  a  parent                                                               
listens-in on  an extension line,  he/she will have  violated the                                                               
law.   Stressing  his concern  on this  point, he  said that  the                                                               
language in the  Senate version allows a more  unimpeded means to                                                               
intercept conversations with  fewer "hoops" for a  parent to step                                                               
through.   For the benefit  of the child  it would be  prudent to                                                               
allow  a  parent  the  more  lenient  means  to  gather  critical                                                               
11:07:34 AM                                                                                                                   
REPRESENTATIVE MCGUIRE  opined that  the discretion of  the judge                                                               
could go  both ways, and expressed  trust that a judge  would act                                                               
appropriately.  She stated support  for the Senate version of the                                                               
bill, maintaining her  initial concern that the  House version is                                                               
too  restrictive  for  parents.    Responding  to  Representative                                                               
Gruenberg's point  that divorce  attorneys may  encourage clients                                                               
to  record  telephone  conversations,  she  suggested  that  such                                                               
action could  be addressed  by the  family law  bar as  an ethics                                                               
REPRESENTATIVE   GRUENBERG  explained   how  this   is  currently                                                               
addressed  in court,  and said  that  cases with  these types  of                                                               
arguments often rise  to the circuit court level.   He maintained                                                               
that  the  Senate version  allows  for  recorded messages  to  be                                                               
routinely used as evidence in family court cases.                                                                               
11:12:18 AM                                                                                                                   
SENATOR FRENCH stated:                                                                                                          
     I see  that the Conference version  [P.A] would exclude                                                                    
     inadvertent  evidence;  evidence  where a  parent  just                                                                    
     picks  up a  telephone  and happens  to hear  something                                                                    
     terrible.  Whereas, the Senate  version would allow the                                                                    
     inclusion or the admission of  evidence gathered in bad                                                                    
REPRESENTATIVE GRUENBERG interjected, "I didn't intend that."                                                                   
SENATOR FRENCH continued:                                                                                                       
     I  understood  you  to say  that  the  Senate  version,                                                                    
     without  the hoops  of  the  Conference version  [P.A],                                                                    
     would allow  the admission into evidence  that evidence                                                                    
     gathered in bad faith.   Either way the parent gets the                                                                    
     evidence, if you're really worried  about a predator or                                                                    
     something terrible [that's] happened.   Once the parent                                                                    
     learns of  it, no matter  how he  or she learns  of it,                                                                    
     ... they will take the  steps necessary to safe out the                                                                    
11:14:23 AM                                                                                                                   
REPRESENTATIVE GRUENBERG suggested that  it might be necessary to                                                               
broaden the  powers of  the committee,  and said  that additional                                                               
language might  need to  be crafted  to address  this unintended,                                                               
inadvertent aspect of evidentiary discovery.                                                                                    
REPRESENTATIVE MCGUIRE  stated her  understanding that  the issue                                                               
appears to  be a  case of  "all or nothing."   She  admitted that                                                               
this has been  a difficult issue throughout  the drafting process                                                               
of this bill.                                                                                                                   
11:16:02 AM                                                                                                                   
SENATOR  SEEKINS agreed  that parents  can  be manipulative,  and                                                               
disregard  the best  interest of  a child  when working  to align                                                               
that child on a particular side  or the other in a divorce action                                                               
or a custody dispute.  However,  he reiterated his concern that a                                                               
parent may,  in an inadvertent  instance, eavesdrop  and overhear                                                               
something which  may prove to  be critical evidence.   The parent                                                               
should be allowed  to document such a  conversation without being                                                               
hindered   by  requirements   of  prior   belief,  knowledge   or                                                               
suspicion, and  the information garnered should  be admissible in                                                               
court.  He asked:                                                                                                               
     "When, in good  faith, does a parent  have a reasonable                                                                    
     belief that it's  necessary to be able  to intercept [a                                                                    
     conversation],  and  [furthermore]  is  an  inadvertent                                                                    
     interception going to  be thrown out by  the court. ...                                                                    
     I don't want to see that happen."                                                                                          
REPRESENTATIVE  GRUENBERG  opined that  if  there  is a  criminal                                                               
situation in which a parent  overhears a reportable conversation,                                                               
the court  is going to  err on the  side of protecting  the child                                                               
and prosecute for  the crime; hence, such situations  will not be                                                               
a problem.   However, he  said the crime  would be a  child being                                                               
used disparagingly in a vicious  divorce situation, as previously                                                               
11:19:27 AM                                                                                                                   
REPRESENTATIVE MCGUIRE suggested:                                                                                               
     What if you were  to keep it the way that  we had it in                                                                    
     Judiciary,  in  both  Senate and  House  versions,  and                                                                    
     leave it  open without  the threshold[s] of  good faith                                                                    
     and objectively  reasonable belief.  ... Put in  an (A)                                                                    
     ...  that  related  specific  to  those  child  custody                                                                    
     cases.  ...  [Section  2, subparagraph](A)  would  then                                                                    
     read:   "considered by a  guardian ad litem or  a child                                                                    
     custody investigator  only if the guardian  ad litem or                                                                    
     child custody  investigator determines that  the parent                                                                    
     acted in  good faith and had  an objectively reasonable                                                                    
REPRESENTATIVE  MCGUIRE explained  that  the intent  of both  the                                                               
House and  the Senate bill  versions would be served  by shifting                                                               
the  objectively reasonable  belief aspect  to this  area of  the                                                               
11:20:44 AM                                                                                                                   
REPRESENTATIVE GRUENBERG stated:  "That would be helpful."                                                                      
SENATOR SEEKINS  described a  manipulative divorce  situation, in                                                               
which a  parent uses a child  for leverage, and opined  that such                                                               
behavior  could be  considered damaging  to  the child,  possibly                                                               
constituting psychological abuse.   He inquired whether reporting                                                               
this  type of  parental behavior  to the  court would  not be  in                                                               
keeping with the best interest and welfare of the child.                                                                        
REPRESENTATIVE  GRUENBERG   opined  that   if  that  type   of  a                                                               
conversation  were  intercepted,  it  should be  brought  to  the                                                               
court's attention,  and could be provided  the language suggested                                                               
by Representative McGuire [is included].   He maintained that the                                                               
judge should make the determination for admissibility.                                                                          
SENATOR  SEEKINS  pointed out  that  a  judge retains  discretion                                                               
rights   without  the   addition   of  Representative   McGuire's                                                               
suggested language.   He said:   "I'm just  not trying to  put as                                                               
many handcuffs on that judge maybe as you are."                                                                                 
11:22:49 AM                                                                                                                   
REPRESENTATIVE  GRUENBERG said  that he  wanted to  eliminate the                                                               
possible  judiciary interpretation  that such  evidence would  be                                                               
required to be admissible.                                                                                                      
SENATOR SEEKINS maintained  that it would be important  to err on                                                               
the  side of  protecting the  child and  not protect  information                                                               
garnered by  either party in  a dispute from being  considered by                                                               
the court.                                                                                                                      
REPRESENTATIVE   GRUENBERG  agreed   and   reiterated  that   the                                                               
suggested language by Representative  McGuire would alleviate the                                                               
11:25:12 AM                                                                                                                   
SENATOR SEEKINS stated:                                                                                                         
     The broad  brush fits  me better  than the  narrow one.                                                                    
     ... I do understand that  there could be some abuse ...                                                                    
     and [divorce/custody  cases] can  get ugly. ...  But my                                                                    
     primary   concern   is   for  that   child,   and   the                                                                    
     interception of a private  communication, to which that                                                                    
     minor is  a party,  by a parent  should be  exempt from                                                                    
     [AS 42.20.]310 and that's what  my concern is ....  How                                                                    
     the  court treats  that  is another  matter.   I'm  not                                                                    
     wanting  to try  to be  able  to restrict  ... how  the                                                                    
     court  treats that  information,  I'm  just wanting  to                                                                    
     allow the  parent under  our definition  to be  able to                                                                    
     intercept that communication without breaking the law.                                                                     
REPRESENTATIVE GRUENBERG  suggested adopting the  Senate language                                                               
along  with  the following  addition:    "The admission  of  this                                                               
evidence should be at the discretion of the court."                                                                             
SENATOR  SEEKINS  pointed  out  that such  language  would  be  a                                                               
restatement of  the already existing  truism "that  I'm depending                                                               
REPRESENTATIVE GRUENBERG reiterated, "I  don't want this language                                                               
to indicate that ... [such evidence] must be admitted."                                                                         
SENATOR SEEKINS stated:                                                                                                         
     This bill ... is to  allow parents to legally intercept                                                                    
     communications  of  their  minor children.    How  [the                                                                    
     information] is  used ... is  a different  subject, ...                                                                    
     maybe for a different bill.                                                                                                
11:27:02 AM                                                                                                                   
SENATOR FRENCH suggested:                                                                                                       
     I  ... wonder  whether we  couldn't improve  the Senate                                                                    
     version  by simply  adding  that  the interception  was                                                                    
     made "in good  faith". ... It puts  some sideboards ...                                                                    
     on the ugly divorces  that Representative Gruenberg has                                                                    
     been bringing to our attention.                                                                                            
CHAIR KOTT agreed  to amend [page 3, line 13,  paragraph] (9), of                                                               
the Senate version, and suggested  the language include "the good                                                               
faith interception of".                                                                                                         
REPRESENTATIVE GRUENBERG clarified the suggested amendment.                                                                     
REPRESENTATIVE MCGUIRE concurred with the proposed change.                                                                      
CHAIR  KOTT moved  to adopt  Amendment 1,  to SCS  CSHB 414(JUD),                                                               
Version 24-LS1565\R, to read as follows:                                                                                        
     Page 3, line 13, following (9);                                                                                            
          Insert "the good faith"                                                                                           
There being no objection, Amendment 1 was adopted.                                                                              
11:29:46 AM                                                                                                                   
MR.  GUANELI questioned  how "good  faith" would  be defined  for                                                               
application  in this  context.   "Probable  cause"  for a  search                                                               
warrant is clear,  but he said "good faith"  injects an uncertain                                                               
term, and a criminal defense  attorney defending a father charged                                                               
with  abuse of  a child  will  be "arguing  forever" whether  the                                                               
mother intercepted a  conversation "in good faith."   He provided                                                               
some alternative suggestions for appropriate language.                                                                          
11:31:54 AM                                                                                                                   
SENATOR  SEEKINS  stated  his  understanding  that  AS  42.20.310                                                               
charges a parent  with a criminal offense for  eavesdropping.  He                                                               
maintained that his  primary concern is to exempt  that action as                                                               
a criminal offense,  and how the information is used  in court is                                                               
a subject for a different day.                                                                                                  
REPRESENTATIVE GRUENBERG  directed attention  to page 1,  line 7,                                                               
[Version P.A], and pointed out  that this language stipulates the                                                               
requirements   not   for   the   interception   of   questionable                                                               
communications,  but  rather  establishes  the  requirements  for                                                               
garnered evidence to be admitted in court.                                                                                      
11:33:53 AM                                                                                                                   
SENATOR SEEKINS  read page 2,  line 9,  [Version P.A]:   "(a) The                                                               
following  activities  are  exempt  from  the  provisions  of  AS                                                               
42.20.300  and  42.20.310,"  and,  he  said  that  leads  to  the                                                               
language  of paragraph  (9) being  invoked, thus  the inadvertent                                                               
interception would have to be considered illegal.                                                                               
REPRESENTATIVE GRUENBERG assured, "That was not the intent."                                                                    
SENATOR SEEKINS maintained, "But I think it would be."                                                                          
SENATOR FRENCH stated, "I beg to differ."                                                                                       
11:34:25 AM                                                                                                                   
MR.  GUANELI suggested  adopting the  Senate version  language of                                                               
paragraph (9),  and following that  paragraph with  the following                                                               
two additional provisos:                                                                                                        
     Evidence intercepted under this  subsection may only be                                                                    
     considered  by a  guardian ad  litem, or  child custody                                                                    
     investigator if in the best  interest of the minor. ...                                                                    
     [Followed   by:]   Evidence  intercepted   under   this                                                                    
     subsection may  be admitted  in a  judicial proceedings                                                                    
     subject  to  the Alaska  Rules  of  Evidence and  in  a                                                                    
     matter relating to custody of  the minor only if in the                                                                    
     best interest of the minor.                                                                                                
MR. GUANELI explained  that, with the addition  of this language,                                                               
in criminal  proceeding the  rules of  evidence would  govern and                                                               
for civil child custody proceedings  consideration would be given                                                               
to both  the rules  of evidence as  well as what  is in  the best                                                               
interest  of the  minor.   This  eliminates the  motivation of  a                                                               
parent inappropriately intercepting communications.                                                                             
11:35:54 AM                                                                                                                   
SENATOR   SEEKINS  said   he  would   agree  to   language  which                                                               
decriminalizes a parent who overhears a child's conversation.                                                                   
SENATOR FRENCH called for a point of order.                                                                                     
CHAIR KOTT stated  that a draft would need to  be created to this                                                               
effect prior to the committee proceeding.                                                                                       
REPRESENTATIVE GRUENBERG  agreed with the proposed  language.  He                                                               
said:   "Then  I would  also suggest  we use  that same  language                                                               
under the [subparagraph] (C) in the official proceeding, too."                                                                  
11:36:44 AM                                                                                                                   
CHAIR KOTT announced that the  committee would stand in recess to                                                               
a call of the chair.                                                                                                            
3:07:53 PM                                                                                                                    
CHAIR  KOTT called  the Conference  Committee on  HB 414  back to                                                               
order at  3:07:53 PM.   Representatives  Gruenberg and  Kott, and                                                             
Senators French and Huggins were present at the call to order.                                                                  
CHAIR KOTT  reported that the  amendment being drafted  meets the                                                               
satisfaction of all the members.                                                                                                
SENATOR HUGGINS  moved to adopt  [and report from  committee] the                                                               
forthcoming CCS  HB 414.   There being  no objection, CCS  HB 414                                                               
was reported from the Conference Committee on HB 414.                                                                           
3:08:26 PM                                                                                                                    

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