Legislature(2017 - 2018)BELTZ 105 (TSBldg)

04/14/2017 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 8 ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled: TELECONFERENCED
+= SB 29 REPEAL WORKERS' COMP APPEALS COMMISSION TELECONFERENCED
Heard & Held
-- Public Testimony --
        HB   8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS                                                                     
                                                                                                                                
1:33:56 PM                                                                                                                    
CHAIR  COGHILL  announced the  consideration  of  HB 8.  [SCS  HB                                                               
8(CRA) was before the committee.]                                                                                               
                                                                                                                                
1:34:16 PM                                                                                                                    
TIM  CLARK,  Staff,  Representative Bryce  Edgmon,  Alaska  State                                                               
Legislature, introduced  HB 8 speaking  to the  following sponsor                                                               
statement:                                                                                                                      
                                                                                                                                
     In 2014,  a bill sponsored  by Sen. Lisa  Murkowski and                                                                    
     former   Sen.  Mark   Begich  eliminated   the  "Alaska                                                                    
     Exemption" from the Violence  Against Women Act (VAWA).                                                                    
     This  brought attention  to the  state's obligation  to                                                                    
     enforce    protection    orders   issued    by    other                                                                    
     jurisdictions, including  other state,  territorial, or                                                                    
     tribal courts.                                                                                                             
                                                                                                                                
     As  current statutes  are written,  law enforcement  is                                                                    
     only compelled  to enforce a tribal  or another state's                                                                    
     protection  order  if  it  has  been  filed  (that  is,                                                                    
     registered) in  an Alaska  court. However,  with Alaska                                                                    
     subject to the  VAWA, the state is  required to enforce                                                                    
     protection orders  issued in another  jurisdiction even                                                                    
     if the order has not been registered.                                                                                      
                                                                                                                                
     SCS  HB  8(CRA)  follows   the  recommendation  of  the                                                                    
     Department of  Law to amend conflicting  state statutes                                                                    
     in  order  to bring  Alaska  into  compliance with  the                                                                    
     federal law.  SCS HB 8(CRA)  will not only  clarify the                                                                    
     duties  of  law  enforcement but  also  will  eliminate                                                                    
     potential for complications  in prosecutions that could                                                                    
     stem from  the contradictions currently found  in state                                                                    
     statutes.                                                                                                                  
                                                                                                                                
     Additionally, the  bill adds a presumption  of validity                                                                    
     on the part of state  law enforcement, so that they are                                                                    
     required  to  enforce  a  protective  order  issued  in                                                                    
     another jurisdiction  so long  as it  appears authentic                                                                    
     on its face. SCS HB  8(CRA) also more clearly specifies                                                                    
     in   statute    that   "other   states"    and   "other                                                                    
     jurisdictions"  include  courts  of  another  state  or                                                                    
     territory,  United   States  military   tribunals,  and                                                                    
     tribal courts.                                                                                                             
                                                                                                                                
     It's important to note that  the state still encourages                                                                    
     registration   of   protection    orders   from   other                                                                    
     jurisdictions. As the Department  of Law has noted, the                                                                    
     state's  central  registry  "gives officers  access  to                                                                    
     tribal  and  foreign   protection  orders  anywhere  in                                                                    
     Alaska, even if the victim does  not have a copy of the                                                                    
     order at hand."                                                                                                            
                                                                                                                                
MR. CLARK advised that the  Senate Community and Regional Affairs                                                               
Committee  amended the  bill prohibiting  online publishing  of a                                                               
protective  order, restraining  order,  or injunction  in a  case                                                               
involving  domestic  violence,  stalking, or  sexual  assault  if                                                               
doing  so would  likely reveal  the identity  or location  of the                                                               
individual  protected under  the order.  According to  the Alaska                                                               
Court System,  this will  result in  all information  relating to                                                               
protective orders being removed from CourtView.                                                                                 
                                                                                                                                
1:38:32 PM                                                                                                                    
SENATOR WIELECHOWSKI asked how many  tribal protection orders are                                                               
issued per year.                                                                                                                
                                                                                                                                
MR. CLARK deferred the question to Nancy Meade.                                                                                 
                                                                                                                                
CHAIR COGHILL asked if the  various jurisdictions include foreign                                                               
governments.                                                                                                                    
                                                                                                                                
MR. CLARK  clarified that  the term  "foreign" is  legal parlance                                                               
that refers  to other U.S.  states, U.S. territories,  and tribal                                                               
courts.                                                                                                                         
                                                                                                                                
CHAIR COGHILL  asked Mr.  Clark to go  through a  brief sectional                                                               
analysis of HB 8.                                                                                                               
                                                                                                                                
1:39:49 PM                                                                                                                    
MR.  CLARK stated  that the  best way  to summarized  HB 8  is to                                                               
first look at Sections 5 and 6. He read the following:                                                                          
                                                                                                                                
     Section 5 adds a new  section to statute, AS 18.65.867,                                                                  
     regarding   the   enforcement    and   recognition   of                                                                    
     protective  orders issued  in other  jurisdictions that                                                                    
     have  to do  with stalking  or sexual  assault but  not                                                                    
     with domestic violence.                                                                                                    
                                                                                                                                
     A  protective  order  related  to  stalking  or  sexual                                                                    
     assault  issued "by  a court  of the  United States,  a                                                                    
     court of  another state or  territory, a  United States                                                                    
     military  tribunal, or  a tribal  court"  has the  same                                                                    
     effect and must be recognized  and enforced in the same                                                                    
     manner as a protective order  issued by an Alaska state                                                                    
     court.                                                                                                                     
                                                                                                                                
     This section  also cites United  States Code  Title 18,                                                                    
     Chapter  2265,  which  is  the  part  of  the  Violence                                                                    
     Against  Women  Act  that addresses  protection  orders                                                                    
     originating  in   other  jurisdictions.   Chapter  2265                                                                    
     expressly   states   that   orders  issued   in   other                                                                    
     jurisdictions do  not have to be  filed (registered) in                                                                    
     an Alaska  state court  in order  to be  enforced here.                                                                    
     Chapter  2265  also   describes  certain  criteria  the                                                                    
     issuing  jurisdiction needs  to meet  in order  for its                                                                    
     protection order to be given full faith and credit by                                                                      
     another jurisdiction.                                                                                                      
                                                                                                                                
     Section  5 further  instructs  law  enforcement that  a                                                                    
     stalking-  or  sexual-assault-related protection  order                                                                    
     issued in  another jurisdiction that  appears authentic                                                                    
     on its  face should be  presumed valid. (This  might be                                                                    
     characterized as erring on the  side of caution when it                                                                    
     comes to those in need of protection.)                                                                                     
                                                                                                                                
1:41:01 PM                                                                                                                    
SENATOR  WIELECHOWSKI offered  his understanding  that under  the                                                               
Violence Against Women  Act, the state is obligated  to enforce a                                                               
protective order  issued in another  state. He asked if  the bill                                                               
changes or clarifies that.                                                                                                      
                                                                                                                                
MR.  CLARK  replied  that  law  enforcement  has  been  enforcing                                                               
protective orders from  other states since the  Department of Law                                                               
issued an opinion in 2015. State  statute is in conflict with the                                                               
superseding federal law.                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if there  has been  a constitutional                                                               
challenge to the existing law.                                                                                                  
                                                                                                                                
MR. CLARK  said his understanding  is that  the state is  able to                                                               
prosecute the violation  of a protective order  issued in another                                                               
state  because  of  the superseding  federal  law.  However,  the                                                               
Department of Law did warn that  the conflict in state statute is                                                               
a potential liability in the event of litigation.                                                                               
                                                                                                                                
CHAIR   COGHILL   suggested   Mary   Lundquist   supplement   the                                                               
explanation.                                                                                                                    
                                                                                                                                
1:44:40 PM                                                                                                                    
MARY   LUNDQUIST,  Senior   Assistant  Attorney   General,  Civil                                                               
Division,  Opinions,  Appeals &  Ethics  Section,  Office of  the                                                               
Attorney General, Department of  Law, Fairbanks, Alaska, said she                                                               
is not aware  of a constitutional challenge to  the existing law.                                                               
She agreed  with Mr. Clark  that the federal law  overrides state                                                               
law,  so  there could  be  a  prosecution  of  a violation  of  a                                                               
protective order.  HB 8 will  clarify that a foreign  order would                                                               
not need to be registered with the Court System to be enforced.                                                                 
                                                                                                                                
CHAIR COGHILL asked  if tribal orders were included as  an MOU or                                                               
as a matter of course.                                                                                                          
                                                                                                                                
MS. LUNDQUIST  replied tribal orders  are recognized  under VAWA;                                                               
it requires  the state to  give full  faith and credit  to tribal                                                               
protection orders.                                                                                                              
                                                                                                                                
1:46:06 PM                                                                                                                    
MR. CLARK continued to read Section 6:                                                                                          
                                                                                                                                
     Section  6  addresses  protective  orders  relating  to                                                                  
     domestic violence. It amends AS                                                                                            
     18.66.140  to  state  that  (just  as  with  protective                                                                    
     orders relating  to stalking and sexual  assault in the                                                                    
     absence of  domestic violence, addressed in  Section 5)                                                                    
     a protection order related  to domestic violence issued                                                                    
     in   another  jurisdiction   must  be   recognized  and                                                                    
     enforced  just  as if  it  were  issued by  an  Alaskan                                                                    
     court, regardless  of whether the protection  order has                                                                    
     been filed (registered) with an Alaskan court.                                                                             
                                                                                                                                
     This section  also cites United  States Code  Title 18,                                                                    
     Chapter  2265,  which  includes  certain  criteria  the                                                                    
     issuing  jurisdiction needs  to meet  in order  for its                                                                    
     protection order to be given full faith and credit.                                                                        
                                                                                                                                
CHAIR COGHILL referenced  Section 7 and asked if  the language in                                                               
the new subsection, [AS 18.66.140(d)],  is unique. It says that a                                                               
protection  order issued  in  another  jurisdiction that  appears                                                               
authentic on its  face should be presumed valid.  He asked, "What                                                               
caused this to have to be in here?"                                                                                             
                                                                                                                                
MR.  CLARK said  that language  exists in  laws in  other states.                                                               
Including it here is an effort to  err on the side of caution and                                                               
protect the person who is holding the order.                                                                                    
                                                                                                                                
1:48:09 PM                                                                                                                    
MR.  CLARK   continued  reading  from  the   following  sectional                                                               
analysis for HB 8.                                                                                                              
                                                                                                                                
     Section 1 addresses  statutes defining what constitutes                                                                  
     the crime of violating a  protective order. HB 8 amends                                                                    
     AS 11.56.740(a) to add  language to include recognition                                                                    
     of  protection orders  issued by  another jurisdiction,                                                                    
     in accordance with the  provisions outlined in Sections                                                                    
     5 and 6 of the bill.                                                                                                       
                                                                                                                                
     Section  2 further  amends AS  11.56.740, in  paragraph                                                                  
     (c), to conform to Sections 5 and 6 of the bill.                                                                           
                                                                                                                                
     Section  3 relates  to release  conditions of  a person                                                                  
     charged  with   or  convicted  of  a   crime  involving                                                                    
     domestic violence.                                                                                                         
                                                                                                                                
     It amends AS 12.30.027(b)  to make sure that protective                                                                    
     orders issued by other  jurisdictions are recognized in                                                                    
     cases  where  a  judicial  officer   may  not  allow  a                                                                    
     released person to return to  the residence or place of                                                                    
     employment of  someone who has  taken out  a protective                                                                    
     order against them.                                                                                                        
                                                                                                                                
     Section   4   addresses   statutes   related   to   the                                                                  
     requirement  that  the   Child  Fatality  Review  Team,                                                                    
     housed  in   the  Department   of  Health   and  Social                                                                    
     Services, reviews  a report  of a death  of a  child if                                                                    
     anyone  in  the  child's   immediate  household  was  a                                                                    
     petitioner or  respondent of a protection  order within                                                                    
     the   previous  year.   Specifically,   it  amends   AS                                                                    
     12.65.130(c) to conform to Section 6 of the bill.                                                                          
                                                                                                                                
MR. CLARK noted that Section 7 was discussed previously.                                                                        
                                                                                                                                
     Section 8 amends AS  22.35.030, statutes detailing what                                                                  
     the  Court System  is prohibited  from publishing  on a                                                                    
     publically  available  website.   At  AS  22.35.030(2),                                                                    
     section  8 adds  a prohibition  against publishing  "…a                                                                    
     protection order  under AS 18.65.850 -  AS 18.65.870 or                                                                    
     AS  18.66.100 -  AS  18.66.180,  restraining order,  or                                                                    
     injunction  in  a  case  involving  domestic  violence,                                                                    
     stalking, or  sexual assault  if the  publication would                                                                    
     likely  reveal the  identity or  location of  the party                                                                    
     protected under the order."                                                                                                
                                                                                                                                
     According to the Alaska Court  System, this will result                                                                    
     in all information relating  to protection orders being                                                                    
     removed from  CourtView, the  system's online  index of                                                                    
     trial court cases.  This includes both the  name of the                                                                    
     person  being protected  as  well as  the  name of  the                                                                    
     person from whom protection is sought.                                                                                     
                                                                                                                                
MR. CLARK reiterated that the prohibition against online                                                                        
publishing was added in the Senate Community and Regional                                                                       
Affairs Committee. It conforms to a section of VAWA.                                                                            
                                                                                                                                
     Sections  9   and  10  add  recognition   of  domestic-                                                                  
     violence-related  protection orders  issued by  another                                                                    
     jurisdiction  in statutes  concerned  with divorce  and                                                                    
     dissolution of marriage.                                                                                                   
                                                                                                                                
     In Section  8, under AS 25.24.210(e)(7)(D),  a petition                                                                    
     for  dissolution  of  a  marriage  must  state  whether                                                                    
     during  the  marriage  either  spouse  was  either  the                                                                    
     petitioner  or   respondent  of   a  domestic-violence-                                                                    
     related    protection   order    issued   in    another                                                                    
     jurisdiction. The  change in  Section 8  specifies that                                                                    
     the  protection order  in question  need not  have been                                                                    
     filed with a state court.                                                                                                  
                                                                                                                                
     In  Section  9,   a  court  is  instructed   to  use  a                                                                    
     heightened level of scrutiny  of agreements relating to                                                                    
     a dissolution  of marriage if  during the  marriage one                                                                    
     or  the  other  spouse  was either  the  petitioner  or                                                                    
     respondent  for a  domestic-violence-related protection                                                                    
     order  issued  in   another  jurisdiction.  Similar  to                                                                    
     Section  8, Section  9  specifies  that the  protection                                                                    
     order  issued in  another  jurisdiction  need not  have                                                                    
     been filed with a state court.                                                                                             
                                                                                                                                
CHAIR COGHILL asked Ms. Meade if  Section 7 is a new methodology.                                                               
It says  that a protection  order issued in  another jurisdiction                                                               
that appears authentic on its face should be presumed valid.                                                                    
                                                                                                                                
1:53:27 PM                                                                                                                    
NANCY MEADE,  General Counsel, Alaska Court  System, advised that                                                               
Section  7 uses  language in  existing statute  for stalking  and                                                               
sexual assault protective orders.  Law enforcement will enforce a                                                               
protective order somebody  presents, as long as  there is nothing                                                               
obviously wrong with it.                                                                                                        
                                                                                                                                
1:54:56 PM                                                                                                                    
SENATOR  COSTELLO  asked  how law  enforcement  handles  it  when                                                               
someone says they  have a protective order but it's  not on their                                                               
person.                                                                                                                         
                                                                                                                                
MS. MEADE deferred to the Department of Law.                                                                                    
                                                                                                                                
1:55:26 PM                                                                                                                    
MS. LUNDQUIST said that emphasizes  why a protective order should                                                               
be registered.  "Without a written protective  order, there would                                                               
be no full faith and credit to that protection order."                                                                          
                                                                                                                                
CHAIR COGHILL  offered his  understanding that  while it  is good                                                               
practice to register protective orders, it is not required.                                                                     
                                                                                                                                
MS. LUNDQUIST said that's correct.                                                                                              
                                                                                                                                
CHAIR COGHILL asked  Ms. Meade to discuss the  different kinds of                                                               
protective orders.                                                                                                              
                                                                                                                                
MS.  MEADE explained  that Title  18  allows for  three kinds  of                                                               
protective  orders:   stalking,  sexual  assault,   and  domestic                                                               
violence.  Domestic  violence  protective  orders  are  the  most                                                               
common. The first step to get  the order is for the petitioner to                                                               
file an  ex parte (one-sided) order  either in person or  at home                                                               
using the court's  petition wizard. The petitioner  would need to                                                               
show  that   they  currently   have  or   did  have   a  domestic                                                               
relationship,  allege  that that  a  crime  of domestic  violence                                                               
occurred, and  that protection is  necessary. If the  judge finds                                                               
probable cause  to believe that  domestic violence  has occurred,                                                               
the  ex parte  order  would  be issued.  That  order  can last  a                                                               
maximum of 20 days.                                                                                                             
                                                                                                                                
The  petitioner can  also ask  for a  long-term order,  which can                                                               
last up to  a year. In that circumstance, there  is a hearing and                                                               
the  respondent is  given  a  10-day notice  to  appear, with  or                                                               
without  an  attorney.  If  the   judicial  officer  finds  by  a                                                               
preponderance of the  evidence that a crime  of domestic violence                                                               
has occurred  and a protection  order is necessary, then  a long-                                                               
term protective violence order can be granted.                                                                                  
                                                                                                                                
2:00:30 PM                                                                                                                    
CHAIR COGHILL stated he would hold  HB 8 in committee for further                                                               
review.