Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/11/2011 01:30 PM JUDICIARY
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* first hearing in first committee of referral
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SB 86-PROTECTION OF VULNERABLE ADULTS/MINORS 1:34:46 PM CHAIR FRENCH announced the consideration of SB 86 and asked for a motion to adopt the new work draft committee substitute (CS). SENATOR WIELECHOWSKI moved to adopt CS for SB 86, version 27- GS1722\X, as the working document. 1:35:03 PM CHAIR FRENCH objected for the purpose of an explanation. He directed attention to a memorandum from his office, which outlined the basic changes between the previous version B and the current version X, and noted that each change was carefully examined at the last hearing. First, the CS clarifies the references to the three types of protective orders: 1) ex parte, 2) six-month, and 3) permanent. Some of the language in [Sec. 13.26.209] was redrafted to correspond to similar provisions for modifications in the domestic violence [protective order] statutes. The second change removed the seemingly redundant phrase, "at the earliest opportunity," from the reporting requirements [in AS 47.24.010(e)], because there is a clear 24- hour deadline for [police officers or village public safety officers to notify the department] when a report of harm is received. It's a potentially chargeable offense for police officers who fail to do this. Finally, the CS clarifies that the September effective date applies only to Sections 16 and 20 of the bill. CHAIR FRENCH removed his objection and announced that without further objection, version X was before the committee. He noted that Elizabeth Russo and Scott Sterling, with the Office of Public Advocacy, and Brenda Mahlatini, with Adult Protective Services, were available to provide information and answer questions. 1:36:42 PM ELIZABETH RUSSO, Supervising Attorney, Public Guardian Section, Office of Public Advocacy (OPA), Department of Administration (DOA), stated that SB 86 would be a great help to their clients and people who would become their clients. 1:37:43 PM SCOTT STERLING, Supervising Attorney, Elder Fraud and Assistance, Department of Administration (DOA), stated support for the changes reflected in version X, CS for SB 86. CHAIR FRENCH closed public testimony and announced that further testimony would be by invitation. He asked Ms. Henriksen to discuss the remaining housekeeping issue. 1:38:24 PM KELLY HENRIKSEN, Assistant Attorney General, Civil Division, Department of Law (DOL) informed the committee that she represents Health and Social Services (DHSS). Directing attention to the span site on page 6, line 11, she suggested that it would avoid conflict to narrow the citation to include just the new protective order rules, Sec. 13.26.207 - 209. Including the existing AS 13.26.165 would cause confusion because it relates to protective orders for conservatorships, she said. CHAIR FRENCH recapped the suggestion and noted that the span site appears in a number of other locations after the initial reference on page 6, line 11. 1:40:27 PM CHAIR FRENCH offered Conceptual Amendment 1. Replace the span site citation AS 13.26.165 - 13.26.209 with AS 13.26.207 - 13.26.209 in conformity with the discussion about referring to ex parte, six- month and permanent protective orders. SENATOR WIELECHOWSKI objected. He noted that page 6, line 16, refers to AS 13.26.185, which is outside the span site. That may or may not be an issue. MS. HENRIKSEN said that particular provision deals with notice, and she isn't suggesting a change to that citation. SENATOR WIELECHOWSKI noted additional references to AS 13.26.165 on page 7, including a reference in the definitions section. CHAIR FRENCH asked Ms. Henriksen if she intended to change the reference on page 7, line 16. MS. HENRIKSEN answered yes, and added that she would suggest a change anywhere it occurs in AS 13.26.209. SENATOR WIELECHOWSKI pointed out that the same issue occurs on page 8, line 16, and page 8, line 23. CHAIR FRENCH asked Ms. Henriksen if she was seeking to change those references. MS. HENRIKSEN answered yes. 1:42:49 PM SENATOR PASKVAN referenced page 8, line 16 that talks about a central registry, and asked if she wanted the Department of Public Safety (DPS) to maintain a central registry of protective orders for any statutes between AS 13.26.165 and 207. MS. HENRIKSEN answered no. SENATOR FRENCH cited eight references to AS 13.26.165 on page 6, lines 1 and 31; page 7, lines 3, 4, 8, 16; page 8, lines 16 and 23 and noted that there were potentially others. 1:43:46 PM SENATOR WIELECHOWSKI pointed out an additional reference on page 2, lines 18 and 23. CHAIR FRENCH observed that there were at least 10 references, and potentially more, for the drafter to change. SENATOR WIELECHOWSKI asked if these deletions would be a simple drafting issue or a substantive change. MS. HENRIKSEN replied the change is substantive in effect, because it removes substantive provisions from applying to AS 13.26.165. SENATOR COGHILL noted that the definition of "protective services" includes a reference to AS 13.26.165 under AS 47.24.900(11)(E) on page 19. He asked if the intention was to remove 165 from the petition for protective orders under that definition. MS. HENRIKSEN said no; Sec. 47.24 deals with the protection of vulnerable adults, and is different than a protective order under the conservatorship statutes. SENATOR COGHILL pointed out that it can't be a bill-wide amendment, because Title 18 and Title 47 are different than Title 11 in that regard. SENATOR PASKVAN asked for confirmation that the reference to AS 13.26.165, on page 19, line 18, should be retained. MS. HENRIKSEN replied it's appropriate to include AS 13.26.165 in the span site in that location. 1:46:17 PM SENATOR WIELECHOWSKI suggested the committee get a clean draft before moving the bill. CHAIR FRENCH said he'd hold that thought until the motion on the conceptual amendment to fix the span sites was complete. SENATOR COGHILL asked if separate motions would be necessary since the span sites appear in more than Title 13. 1:47:55 PM SENATOR WIELECHOWSKI reiterated that he would be more comfortable if the drafter were to prepare a new CS. CHAIR FRENCH agreed it was appropriate to get a clean CS that incorporates the changes that the committee made. SENATOR WIELECHOWSKI commented that, at this point, he wasn't sure what the amendment includes. 1:48:29 PM CHAIR FRENCH asked Ms. Henriksen to state the basic idea of the amendment. MS. HENRIKSEN said the basic idea is to consider a change anyplace a span site includes AS 13.26.165 because that section of statute deals just with protective orders in conservatorships. Those are a different type than the new 20-day and six-month protective orders that the bill seeks to address. She offered to walk through the bill. CHAIR FRENCH said he understood, but he wanted to make sure that the committee members do too. 1:50:01 PM SENATOR COGHILL said it would be helpful to understand the context for 209 under Title 13 as opposed to Title 18. SENATOR COGHILL moved an amendment to Conceptual Amendment 1 to take up amendments for just Sec. 13.26.209 on pages 6 and 7. CHAIR FRENCH said he'd accept that as a friendly amendment to Conceptual Amendment 1. Finding no objection, he announced that the committee would consider just the span site changes within Sec. 13.26.209 located on pages 6 and 7. He noted that there was still a motion to change the initial citation from Sec. 13.26.165 to 207. SENATOR COGHILL said his understanding was that this is a compliance form dealing with protective orders that do not relate primarily to conservatorships. MS. HENRIKSEN said that's correct. SENATOR COGHILL said he had no objection. CHAIR FRENCH asked if there was further discussion or debate on the proposed amendment. MS. HENRIKSEN added that any changes to Title 18 that include that span site would need to be amended because those only apply to the 20-day or six-month protective orders. 1:52:21 PM CHAIR FRENCH acknowledged the suggestion and announced that without further objection, Conceptual Amendment 1, [as amended] was adopted. CHAIR FRENCH directed attention to Sections 13 and 14 on page 8, that amend Title 18. He asked Ms. Henriksen if the same span site reference, [AS 13.25.165] was inappropriate with respect to the types of protective orders that should be maintained within the central registry. MS. HENRIKSEN answered yes. SENATOR COGHILL asked what the title heading is for AS 18.65.540(a) and (b). 1:53:36 PM CHAIR FRENCH reviewed the statutes and reported that Sec. 18.65.540 is entitled "Central registry of protective orders." He asked Ms. Henriksen why the protective orders in AS 13.26.165 shouldn't be included in the central registry. MS. HENRIKSEN replied that is existing law on conservatorships, and it's not clear how "protective order" is defined in AS 13.26.165 in terms of context, but it talks about having a conservator appointed or a single order from the court to have a trustee changed. It's substantively different than what would be in either the 20-day or six-month protective orders. CHAIR FRENCH stated that when he read AS 13.26.165 he wondered why the idea of a protective order shouldn't be removed from that section altogether. It doesn't seem to be the right concept for what's happening as opposed to what the bill does in Sec. 207 - 209. SENATOR COGHILL said that was his thought as well. CHAIR FRENCH asked if, in part, it's because violation of some protective orders don't rise to the level of a crime. MS. HENRIKSEN said she believes so, but it's doesn't necessarily involve a third party committing fraud against someone who is the subject of a petition. It's much broader than that, and would change the intent of these particular changes to Sec. 13.26, she said. 1:56:08 PM SENATOR PASKVAN asked if the idea is to keep someone's name out of the central registry if the protective order is related to becoming a trustee or conservator as compared to the protective orders issued under AS 13.26.207 - 209. MS. HENRIKSEN reiterated that the subject, intent and context of the protective order under AS 13.26.165 are completely different. The registry is intended to keeping a bad actor from harming someone who is the subject of a petition, which is similar to a domestic violence protective order. SENATOR PASKVAN asked if the intent of the registry set out on page 8, lines 16-17, is that law enforcement can know who is potentially violating a court-ordered protective order. MS. HENRIKSEN said she believes that is the intent. 1:57:57 PM CHAIR FRENCH called an at-ease from 1:57 p.m. to 2:01 p.m. to do some research on protective orders. 2:01:55 PM CHAIR FRENCH moved Conceptual Amendment 2. Page 8, lines 16 and 17: Replace the span site AS 13.26.165 - 209 with Sec. 13.26.207 - 209. Page 8, line : Replace AS 13.26.165 - 208 with Sec. 13.26.207 - 208 Narrow the span site throughout the rest of the bill where appropriate. 2:02:48 PM MS. HENRIKSEN asked if the motion is to narrow the span site anywhere it occurs. CHAIR FRENCH replied the intent of the amendment is to change the citation where it's appropriate in order to confine prosecutions to just the new references, Sec. 13.26.207 - 209. MS. HENRIKSEN asked for confirmation that it wouldn't include the reference on page 19, [lines 18-19]. CHAIR FRENCH said that's correct, it would not include that citation. The amendment would pick up the references that appear in court rule changes. He noted that the court rule changes on pages 22 and 23 look correct. MS. HENRIKSEN said she would possibly have a conversation with the drafter. CHAIR FRENCH found no objection and announced that Conceptual Amendment 2 was adopted. 2:04:03 PM SENATOR WIELECHOWSKI asked for some discussion of the legislative reason, in Section 46 on pages 21-22, for addressing advanced age or extreme youth. MS. HENRIKSEN deferred to Ms. Carpeneti. 2:04:43 PM ANNE CARPENETI, Assistant Attorney General, Civil Division, Department of Law (DOL), recalled that the discussion centered on the notion that the very old and the very young are particularly sensitive to time. The provision asks the court to give consideration to a victim's circumstances in every case, and to give special consideration to a very old or very young victim, because of the effect that a continuance or delay of trial would have on a person in those age groups. SENATOR WIELECHOWSKI asked if the rationale for including a victim of extreme youth is to wait until the individual is old enough to verbalize his or her testimony. MS. CARPENETI replied the rationale is to take age into account and set the trial earlier rather than later. Time is different for children than for adults and a bad situation has a much stronger effect on a young person, she stated. SENATOR WIELECHOWSKI said that's what he wanted to hear; a case involving a child in a bad situation would be heard more quickly. MS. CARPENETI confirmed that is the intent. 2:07:33 PM CHAIR FRENCH announced he would hold SB 86 in committee awaiting a new CS that incorporates the conceptual amendments.