Legislature(2005 - 2006)BUTROVICH 205

05/02/2006 08:30 AM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 414 INTERCEPTION OF MINOR'S COMMUNICATIONS TELECONFERENCED
Moved SCS CSHB 414(JUD) Out of Committee
+= HB 190 REQUIRED ID FOR PURCHASING ALCOHOL TELECONFERENCED
Heard & Held
+ HB 258 SEXUAL ASSAULT BY PERSON WITH HIV/AIDS TELECONFERENCED
Moved SCS CSHB 258(JUD) Out of Committee
+= HB 442 HEALTH CARE DECISIONS TELECONFERENCED
Heard & Held
         HB 414-INTERCEPTION OF MINOR'S COMMUNICATIONS                                                                      
                                                                                                                                
8:46:57 AM                                                                                                                    
CHAIR  RALPH  SEEKINS  announced  CSHB  414(RLS)  to  be  up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
MICHAEL  O'HARE, Staff  to Representative  Pete Kott,  introduced                                                               
the bill.  It is a simple  bill that intends to  protect children                                                               
from  predators  by allowing  parents  to  monitor their  child's                                                               
conversations.  Parents   who  currently   listen  in   on  their                                                               
children's conversations are breaking the  law and are subject to                                                               
criminal prosecution. The  bill would allow for a  court to enter                                                               
into  an ex  parte  order to  authorize a  wiretap  if the  court                                                               
determines  probable cause.  Section 1  contains a  definition of                                                               
"probable  cause."  The  bill  would also  allow  the  parent  or                                                               
guardian of  a minor to  intercept private  communications except                                                               
for any communications between the  minor's attorney, guardian ad                                                               
litem, or child custody investigator.                                                                                           
                                                                                                                                
8:48:35 AM                                                                                                                    
The information  could be considered  as evidence by a  judge and                                                               
admitted  in an  official  proceeding  if it  is  found that  the                                                               
parent was acting in good faith  and had a reasonable belief that                                                               
the interception was necessary for the welfare of the minor.                                                                    
                                                                                                                                
8:49:44 AM                                                                                                                    
REPRESENTATIVE  PETE  KOTT,  bill   sponsor,  added  that  it  is                                                               
currently  illegal for  a  parent  to listen  in  on a  telephone                                                               
conversation  in  his   or  her  own  home.   He  emphasized  the                                                               
importance  of giving  parents tools  to  lawfully monitor  their                                                               
children for their own welfare.  The bill would "cut the mischief                                                               
off  at the  pass",  he  said, and  would  allow  the parents  to                                                               
monitor,  under  reasonable  situations, the  oral  conversations                                                               
between their minor child and another party.                                                                                    
                                                                                                                                
8:52:23 AM                                                                                                                    
SENATOR GUESS commented  that lines 10-15 on page 1  appear to be                                                               
out of sync with what the bill was trying to do.                                                                                
                                                                                                                                
MR.  O'HARE  responded  that the  paragraph  in  question  merely                                                               
defines "probable cause."                                                                                                       
                                                                                                                                
CHAIR SEEKINS asked how the bill would tie in with federal law.                                                                 
                                                                                                                                
REPRESENTATIVE  KOTT replied  it  would not  violate the  federal                                                               
eavesdropping statutes.                                                                                                         
                                                                                                                                
CHAIR  SEEKINS asked  whether the  definition of  parent includes                                                               
stepparents.                                                                                                                    
                                                                                                                                
MR.  O'HARE referred  to the  definition of  "parent" on  page 4,                                                               
line 12.                                                                                                                        
                                                                                                                                
CHAIR   SEEKINS  noted   that  the   definition  didn't   specify                                                               
stepparents.                                                                                                                    
                                                                                                                                
ANNIE CARPENETI,  Assistant Attorney  General, Department  of Law                                                               
(DOL),  testified  that  the  stepparent would  have  to  be  the                                                               
adoptive parent in order to be covered under the law.                                                                           
                                                                                                                                
8:56:36 AM                                                                                                                    
REPRESENTATIVE KOTT consented that  an adoptive stepparent should                                                               
be included in the definition of parent.                                                                                        
                                                                                                                                
SENATOR GRETCHEN GUESS  asked whether the bill could  be used for                                                               
one  parent to  gain  access  to a  child  talking  to the  other                                                               
parent.                                                                                                                         
                                                                                                                                
MS. CARPENETI  responded that  concern was  addressed on  page 3.                                                               
The bill  puts many  limitations on the  circumstances to  when a                                                               
parent  could put  a wiretap  on a  child. She  said the  DOL has                                                               
additional concerns that she would  like to address at the proper                                                               
time.                                                                                                                           
                                                                                                                                
SENATOR  GENE  THERRIAULT  referred  to   page  3,  line  21  and                                                               
questioned the meaning of "acting in good faith."                                                                               
                                                                                                                                
8:58:57 AM                                                                                                                    
REPRESENTATIVE  KOTT replied  the court  would have  to determine                                                               
what  that means.  After review  of all  the evidence,  the judge                                                               
will have to determine whether the  parent acted on good faith in                                                               
behalf of the  minor. The parents would have  to legitimize their                                                               
claim.                                                                                                                          
                                                                                                                                
MS. CARPENETI  added that was  also a concern  of the DOL.  It is                                                               
not a very clear hurdle.                                                                                                        
                                                                                                                                
SENATOR GUESS referred to page 2,  line 4 and asked Ms. Carpeneti                                                               
to define the term "objectively reasonable belief."                                                                             
                                                                                                                                
MS.  CARPENETI explained  "objectively reasonable  person" is  an                                                               
often-used  term   in  legal  interpretations  and   it  means  a                                                               
reasonable  person's standard  and not  necessarily a  subjective                                                               
belief.                                                                                                                         
                                                                                                                                
CHAIR SEEKINS asked  Ms. Carpeneti to describe  the concerns that                                                               
the DOL has with the bill.                                                                                                      
                                                                                                                                
MS. CARPENETI  said the criminal  division supported the  bill in                                                               
its  process  through  the  House  Judiciary  version,  but  were                                                               
concerned  with the  House Rules  Committee Substitute  (CS) that                                                               
was amended during the House Floor Session.                                                                                     
                                                                                                                                
9:02:20 AM                                                                                                                    
MS. CARPENETI stated the main  concerns are with the subjectivity                                                               
of the phrase "acting in good  faith" and in the limits placed on                                                               
the provision  of when it  is allowable  to wiretap a  child. She                                                               
posed an example of a parent who  has a hunch that their child is                                                               
in danger  and wants to overhear  a conversation. She said  it is                                                               
in everyone's best interest that the  parent be able to listen to                                                               
that telephone conversation on less  than probable cause and that                                                               
the  evidence  should  be  admissible   in  a  court  of  law  if                                                               
necessary. Short  of probable cause,  it is the parent's  duty to                                                               
interfere when a person is preying on their child, she said.                                                                    
                                                                                                                                
MS.  CARPENETI  reiterated  the  Department's  concern  with  the                                                               
limits  placed on  the provision.  "Whatever evidence  the parent                                                               
gathers ought to be admissible in court", she said.                                                                             
                                                                                                                                
CHAIR  SEEKINS  asked  the  reason   behind  the  amendment  that                                                               
incorporated the strict limitations.                                                                                            
                                                                                                                                
REPRESENTATIVE KOTT  informed the  committee it was  an amendment                                                               
by Representative Max Gruenberg  and his argument was "vehemently                                                               
persuasive."                                                                                                                    
                                                                                                                                
CHAIR SEEKINS  asked Representative Kott  how he would  amend the                                                               
bill.                                                                                                                           
                                                                                                                                
REPRESENTATIVE KOTT deferred to Ms. Carpeneti.                                                                                  
                                                                                                                                
MS.  CARPENETI said  the  DOL  would like  to  go  back to  House                                                               
Judiciary version and then add the stepparent in.                                                                               
                                                                                                                                
CHAIR SEEKINS called a brief at ease at 9:04:53 AM.                                                                           
                                                                                                                                
9:08:16 AM                                                                                                                    
CHAIR  SEEKINS called  the meeting  back to  order and  asked Mr.                                                               
O'Hare to  describe the differences  between the  House Judiciary                                                               
Committee version and the amended House Rules Committee version.                                                                
                                                                                                                                
MR. O'HARE advised  that Section 1 in version L  does not contain                                                               
the probable  cause definitions.  The ninth  exception on  page 3                                                               
does not  include the  evidentiary definitions  nor does  it have                                                               
the inclusion of a child custody investigator.                                                                                  
                                                                                                                                
9:10:02 AM                                                                                                                    
SENATOR GUESS asked  Ms. Carpeneti whether there was  a reason to                                                               
state the definition of "probable cause" in the bill.                                                                           
                                                                                                                                
MS. CARPENETI informed  her that it is a very  common standard in                                                               
the courts and indicated that it didn't need to be defined.                                                                     
                                                                                                                                
CHAIR SEEKINS  expressed a  preference to  work from  version 24-                                                               
LS1565\L.                                                                                                                       
                                                                                                                                
SENATOR  CHARLIE  HUGGINS made  a  motion  to move  the  language                                                               
contained  in  version L  to  be  considered a  Senate  Judiciary                                                               
Standing  Committee Substitute  and  to be  the working  document                                                               
before the committee. Hearing no objections, the motion carried.                                                                
                                                                                                                                
CHAIR SEEKINS  posed a hypothetical  example of a  stepparent who                                                               
believed his stepchild was in danger  and said he should have the                                                               
opportunity to protect that child and be covered by the law.                                                                    
                                                                                                                                
SENATOR GUESS  said part  of her  supports that  and part  of her                                                               
does  not since  those situations  tend to  be very  delicate and                                                               
complex.                                                                                                                        
                                                                                                                                
9:14:03 AM                                                                                                                    
SENATOR HOLLIS  FRENCH shared Senator Guess's  concern but stated                                                               
so long  as the  stepparent was  living in the  same home  as the                                                               
natural parent and  the child he was agreeable to  it. He said he                                                               
sees this as a defensive measure and not offensive.                                                                             
                                                                                                                                
SENATOR  FRENCH moved  Amendment 1.  Include "stepparent"  in the                                                               
definition of  "parent." Hearing  no objections, Amendment  1 was                                                               
adopted.                                                                                                                        
                                                                                                                                
REPRESENTATIVE KOTT  noted that  page 3  lists exceptions  and he                                                               
suggested  adding "child  custody investigator"  to that  list of                                                               
exceptions.                                                                                                                     
                                                                                                                                
SENATOR  FRENCH moved  Amendment 2.  Page 3,  line 15,  after the                                                               
word "attorney"  insert "child custody investigator."  Hearing no                                                               
objections, Amendment 2 was adopted.                                                                                            
                                                                                                                                
9:16:36 AM                                                                                                                    
SENATOR  FRENCH  asked  whether  the  bill  would  protect  older                                                               
brothers and sisters who eavesdropped.                                                                                          
                                                                                                                                
MS.  CARPENETI said  it would  depend on  the circumstances.  She                                                               
said,  "This is  a private  over-hearing of  conversations and  I                                                               
think it would  be addressed based on the  circumstances. I think                                                               
it would be admissible if it were a brother."                                                                                   
                                                                                                                                
SENATOR FRENCH  asked whether the  older brother or  sister would                                                               
be allowed to testify in court.                                                                                                 
                                                                                                                                
MS.  CARPENETI  believed so.  She  said  evidence gathered  by  a                                                               
private person  is not  subject to the  Fourth Amendment  [of the                                                               
United States  Constitution] and depending on  the circumstances,                                                               
should be admissible.                                                                                                           
                                                                                                                                
SENATOR  FRENCH  clarified  that  the  bill  would  allow  for  a                                                               
listening device  to be  put on  a telephone  to capture  all the                                                               
conversations of a minor child.                                                                                                 
                                                                                                                                
MS. CARPENETI added  that it would also allow for  taping of cell                                                               
phone conversations as well, provided the parent had a warrant.                                                                 
                                                                                                                                
9:19:16 AM                                                                                                                    
MS. CARPENETI  commented that the  House Rules  Committee version                                                               
restricted when  the law  could be  used and  said that  with the                                                               
working version, anything overheard  could be admissible in court                                                               
so long as the police weren't involved.                                                                                         
                                                                                                                                
SENATOR  FRENCH  asked Ms.  Carpeneti  whether  the bill  was  in                                                               
conformity with federal law.                                                                                                    
                                                                                                                                
MS. CARPENETI deferred to the  chairman but said she would assume                                                               
that all Title 42 wiretap exceptions do comply.                                                                                 
                                                                                                                                
REPRESENTATIVE KOTT asserted the bill was in compliance.                                                                        
                                                                                                                                
9:22:16 AM                                                                                                                    
SENATOR  HUGGINS asked  Ms. Carpeneti  to  explain the  amendment                                                               
that Representative Gruenberg added  to the House Rules Committee                                                               
version.                                                                                                                        
                                                                                                                                
MS.  CARPENETI said  she was  not present  and did  not know  his                                                               
stated intentions but  his words limit the  interception and made                                                               
for reasonable  belief that  the child was  in danger.  The DOL's                                                               
position was  that a parent should  be able to act  on "less than                                                               
probable cause." They  should be able to act on  a suspicion or a                                                               
hunch that  their child is  in danger. The amendment  limited the                                                               
circumstances  under   which  the  evidence  gathered   would  be                                                               
admissible  in a  court of  law. The  DOL's response  is that  it                                                               
seems reasonable that  when a parent stumbles  over evidence that                                                               
their child is  potentially in danger, that evidence  ought to be                                                               
admissible.                                                                                                                     
                                                                                                                                
9:24:58 AM                                                                                                                    
SENATOR  HUGGINS  moved SCS  CSHB  414(JUD)  from committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         

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