Legislature(2005 - 2006)BUTROVICH 205
05/02/2006 08:30 AM JUDICIARY
Download Mp3. <- Right click and save file as
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.