Legislature(1995 - 1996)
04/22/1995 11:12 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 22, 1995 11:12 a.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Con Bunde Representative Al Vezey Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT Representative Joe Green, Vice Chairman Representative Bettye Davis COMMITTEE CALENDAR HB 255: "An Act creating the crime of negligent vehicular homicide." PASSED OUT OF COMMITTEE SSSB 27: "An Act relating to child visitation rights of grandparents and other persons who are not the parents of the child." PASSED OUT OF COMMITTEE CSSB 85(JUD) am: "An Act making corrective amendments to the Alaska Statutes as recommended by the revisor of statutes; and providing for an effective date." PASSED OUT OF COMMITTEE SB 7: "An Act relating to bail after conviction for various felonies if the defendant has certain previous felony convictions." PASSED OUT OF COMMITTEE HB 293: "An Act relating to the use of force in defense of persons or property." HEARD AND HELD WITNESS REGISTER REPRESENTATIVE SCOTT OGAN Alaska State Legislature State Capitol, Room 409 Juneau, AK 99801-1182 Telephone: (907) 465-3878 POSITION STATEMENT: Sponsor of HB 255 MARGOT KNUTH, Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Provided information on HB 255 and SB 7 JAMES ARMSTRONG, Senate Researcher to Senator Dave Donley Alaska State Legislature State Capitol, Room 11 Juneau, AK 99801-1182 Telephone: (907) 465-3892 POSITION STATEMENT: Introduced SSSB 27 SHERRIE GOLL P.O. Box 22156 Juneau, AK 99801 Telephone: (907) 463-6744 POSITION STATEMENT: Testified in favor of SSSB 27 on behalf of Lauree Hugonin, Executive Director, Alaska Network on Domestic Violence and Sexual Assault MARLIS SCHMID, Grandparent 2513 Glenwood Anchorage, AK 99508 Telephone: (907) 276-3787 POSITION STATEMENT: Testified in favor of SSSB 27 PAMELA FINLEY, Assistant Revisor Legal Services Division Legislative Affairs Agency 130 Seward Street, Room 409 Juneau, AK 99801 Telephone: (907) 465-2450 POSITION STATEMENT: Provided information on CSSB 85 BRUCE RICHARDS, Administrative Assistant to Senator Judith E. Salo Alaska State Legislature State Capitol, Room 504 Juneau, AK 99801-1182 Telephone: (907) 465-4940 POSITION STATEMENT: Sponsored SB 7 JANE ANDREAN, Director Council on Domestic Violence and Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 Telephone: (907) 465-4356 POSITION STATEMENT: Provided information on SB 7 LAURIE OTTO, Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Opposed HB 293 DEL SMITH, Deputy Commissioner Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 Telephone: (907) 465-4322 POSITION STATEMENT: Opposed HB 293 SENATOR DAVE DONLEY Alaska State Legislature State Capitol, Room 11 Juneau, AK 99801-1182 Telephone: (907) 465-3892 POSITION STATEMENT: Sponsor of SSSB 27 PREVIOUS ACTION BILL: HB 255 SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE SPONSOR(S): REPRESENTATIVE(S) OGAN, Kohring, Bunde JRN-DATE JRN-PG ACTION 03/15/95 742 (H) READ THE FIRST TIME - REFERRAL(S) 03/15/95 742 (H) JUDICIARY, FINANCE 04/05/95 1039 (H) COSPONSOR(S): KOHRING, BUNDE 04/12/95 (H) JUD AT 01:00 PM CAPITOL 120 04/12/95 (H) MINUTE(JUD) 04/21/95 (H) JUD AT 01:00 PM CAPITOL 120 04/21/95 (H) MINUTE(JUD) 04/22/95 (H) JUD AT 11:00 AM CAPITOL 120 BILL: SB 27 SHORT TITLE: MISC. GRANDPARENT VISITATION RIGHTS SPONSOR(S): SENATOR(S) DONLEY, Ellis, Lincoln, Pearce; REPRESENTATIVE(S) Willis Robinson, Toohey, Ogan, Rokeberg, James JRN-DATE JRN-PG ACTION 01/13/95 21 (S) PREFILE RELEASED - 1/13/95 01/16/95 21 (S) READ THE FIRST TIME - REFERRAL(S) 01/16/95 21 (S) HES, JUD 02/02/95 146 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS 02/02/95 146 (S) HES, JUD 03/01/95 436 (S) HES RPT 3DP 2NR 03/01/95 436 (S) ZERO FISCAL NOTE (COURT) 03/01/95 (S) HES AT 09:00 AM BUTROVICH ROOM 205 03/01/95 (S) MINUTE(HES) 03/15/95 (S) JUD AT 02:30 PM BELTZ ROOM 211 03/17/95 (S) JUD AT 03:00 PM BELTZ ROOM 211 03/17/95 (S) MINUTE(JUD) 03/20/95 696 (S) JUD RPT 4DP 1NR 03/20/95 696 (S) PREVIOUS ZERO FN (COURT) 03/22/95 (S) RLS AT 12:30 PM FAHRENKAMP ROOM 203 03/22/95 (S) MINUTE(RLS) 03/23/95 766 (S) RULES TO CALENDAR 3/23/95 03/23/95 768 (S) READ THE SECOND TIME 03/23/95 768 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/23/95 768 (S) READ THE THIRD TIME SSSB 27 03/23/95 768 (S) COSPONSOR: PEARCE 03/23/95 768 (S) PASSED Y18 N- E2 03/23/95 772 (S) TRANSMITTED TO (H) 03/24/95 879 (H) READ THE FIRST TIME - REFERRAL(S) 03/24/95 879 (H) HES, JUDICIARY 03/24/95 920 (H) CROSS SPONSOR(S): WILLIS, ROBINSON 04/04/95 (H) HES AT 02:00 PM CAPITOL 106 04/04/95 (H) MINUTE(HES) 04/05/95 1022 (H) HES RPT 4DP 04/05/95 1022 (H) DP: BUNDE, TOOHEY, VEZEY, BRICE 04/05/95 1022 (H) SENATE ZERO FN (COURT) 3/1/95 04/10/95 1228 (H) COSPONSOR(S): TOOHEY 04/21/95 (H) JUD AT 01:00 PM CAPITOL 120 04/21/95 (H) MINUTE(JUD) 04/22/95 (H) JUD AT 11:00 AM CAPITOL 120 BILL: SB 85 SHORT TITLE: 1995 REVISOR BILL SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL JRN-DATE JRN-PG ACTION 02/14/95 269 (S) READ THE FIRST TIME - REFERRAL(S) 02/14/95 269 (S) STA, JUD 02/14/95 269 (S) SECTIONAL ANALYSIS - (S) JOURNAL SUPP #3 03/07/95 (S) STA AT 03:30 PM BELTZ ROOM 211 03/07/95 (S) MINUTE(STA) 03/08/95 536 (S) STA RPT CS 3DP SAME TITLE 03/08/95 536 (S) ZERO FISCAL NOTE (LAA/ALL DEPTS) 03/17/95 (S) JUD AT 03:00 PM BELTZ ROOM 211 03/17/95 (S) MINUTE(JUD) 03/22/95 (S) MINUTE(JUD) 03/23/95 764 (S) JUD RPT CS 5DP SAME TITLE 03/23/95 765 (S) PREVIOUS ZERO FN (LAA) 03/27/95 (S) RLS AT 11:35 AM FAHRENKAMP ROOM 203 03/27/95 (S) MINUTE(RLS) 03/30/95 845 (S) RULES TO CALENDAR 3/30/05 03/30/95 847 (S) READ THE SECOND TIME 03/30/95 848 (S) JUD CS ADOPTED UNAN CONSENT 03/30/95 848 (S) AM NO 1 ADOPTED UNAN CONSENT 03/30/95 848 (S) THIRD READING 4/5 CALENDAR 04/05/95 875 (S) READ THE THIRD TIME CSSB 85(JUD) AM 04/05/95 875 (S) PASSED Y17 N1 E2 04/05/95 875 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 04/05/95 879 (S) TRANSMITTED TO (H) 04/06/95 1046 (H) READ THE FIRST TIME - REFERRAL(S) 04/06/95 1046 (H) JUDICIARY 04/21/95 (H) JUD AT 01:00 PM CAPITOL 120 04/22/95 (H) JUD AT 11:00 AM CAPITOL 120 BILL: SB 7 SHORT TITLE: NO BAIL FOR FELONS W/PREVIOUS CONVICTIONS SPONSOR(S): SENATOR(S) SALO, Halford, Green, Taylor, Miller, Leman, Kelly, Donley, R.Phillips, Pearce; REPRESENTATIVE(S) Navarre JRN-DATE JRN-PG ACTION 01/06/95 14 (S) PREFILE RELEASED - 1/6/95 01/16/95 14 (S) READ THE FIRST TIME - REFERRAL(S) 01/16/95 14 (S) STA,JUD, FIN 01/23/95 73 (S) STA REFERRAL WAIVED 03/08/95 (S) JUD AT 01:30 PM BELTZ ROOM 211 03/08/95 (S) MINUTE(JUD) 03/09/95 553 (S) JUD RPT 4DP 1NR 03/09/95 553 (S) ZERO FISCAL NOTES (ADM, DPS-2, 03/23/95 (S) FIN AT 09:00 AM SENATE FINANCE 532 03/23/95 (S) MINUTE(FIN) 03/24/95 553 (S) LAW, CORR) 03/23/95 764 (S) FIN RPT 5DP 2NR 03/23/95 764 (S) PREVIOUS ZERO FNS (ADM, DPS-2, 03/24/95 764 (S) LAW, CORR) 03/27/95 (S) RLS AT 11:35 AM FAHRENKAMP ROOM 203 03/27/95 (S) MINUTE(RLS) 03/30/95 845 (S) RULES TO CALENDAR 3/30/95 03/30/95 847 (S) READ THE SECOND TIME 03/30/95 847 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/30/95 847 (S) COSPONSOR(S): HALFORD, GREEN, TAYLOR, MILLER, LEMAN, KELLY, DONLEY, PHILLIPS, PEARCE 03/30/95 847 (S) READ THE THIRD TIME SB 7 03/30/95 847 (S) PASSED Y20 N- 03/30/95 850 (S) TRANSMITTED TO (H) 04/05/95 1014 (H) READ THE FIRST TIME - REFERRAL(S) 04/05/95 1015 (H) JUDICIARY, FINANCE 04/05/95 1040 (H) CROSS SPONSOR(S): NAVARRE 04/21/95 (H) JUD AT 01:00 PM CAPITOL 120 04/21/95 (H) MINUTE(JUD) BILL: HB 293 SHORT TITLE: USE OF FORCE DEFENDING PERSON OR PROPERTY SPONSOR(S): REPRESENTATIVE(S) VEZEY JRN-DATE JRN-PG ACTION 04/05/95 1026 (H) READ THE FIRST TIME - REFERRAL(S) 04/05/95 1026 (H) JUDICIARY 04/21/95 (H) JUD AT 01:00 PM CAPITOL 120 04/21/95 (H) MINUTE(JUD) ACTION NARRATIVE TAPE 95-49, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 11:12 a.m. on Saturday, April 22, 1995. A quorum was present. Representatives Green and Davis were absent. All other members were present. CHAIRMAN BRIAN PORTER stated that the following bills would be heard: HB 255, SSSB 27, CSSB 85(JUD) am, SB 7, and HB 293. HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE REPRESENTATIVE SCOTT OGAN, bill sponsor, explained that he had worked out a compromise with the Department of Law. The title also needs to be amended, for the record. We are not creating the crime of criminally negligent homicide, but Margot Knuth can adequately address the change. The writer of the committee substitute (CS) missed that one. The Department of Law took a look at the statutes surrounding deaths involving automobiles and indicated they would like criminally negligent homicide upgraded from a class C to a class B felony. To address our concerns about the possibility of the act we were trying to create before being included in a lesser included offense, we settled for adding negligent driving to a type of conviction that would mean grounds for revocation of a driver's license. The charges brought against the driver who killed the Campbell and Richardson boys was negligent driving. The judge did not have the latitude to revoke the license. This would not compromise in any way, the criminally negligent homicide convictions and we feel this CS is an acceptable alternative. There is a zero fiscal note attached. Number 080 MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, explained that this bill now does two different things. The first is to raise criminally negligent homicide from a class C to a class B felony, and the reason for that is that last time we were discussing this bill we were talking about lesser included offenses. Criminally negligent homicide is a lesser included offense of manslaughter, which is a class A felony. The Department of Law has long felt that the gap between the A felony of manslaughter and the C felony of criminally negligent homicide is too great, and they ought to be right next to each other. In situations that were the motivation for this bill, if alcohol were involved, or if the conduct was more culpable, it would constitute this offense, and a class B felony is appropriate in that instance. MS. KNUTH explained that the second thing this CS does is to amend AS 21.15.181 so that driving privileges may be revoked in the discretion of the court for the offense violation of negligent driving. This is done by simply adding it to the list in AS 28.15.181. There is no mandatory minimum period of revocation. It would be within the judge's discretion. In those instances where it does not seem appropriate at all, it will not happen; but in aggravated circumstances it will become an available option. There are two minor problems with the work draft. One was eluded to already, the title. Instead of an act creating the crime of criminally negligent homicide, it probably should read, "An Act raising the penalty for the crime of criminally negligent homicide." The second matter is that there is a statute that says you cannot revoke driving privileges for violations. That is AS 28.40.050(D). What is appropriate to do, is to add "except as provided in AS 28.15.181." REPRESENTATIVE CYNTHIA TOOHEY asked if they could make that a friendly amendment which would do as Ms. Knuth described. CHAIRMAN PORTER said they could do so. REPRESENTATIVE DAVID FINKELSTEIN referred to the second page where it refers to negligent driving and asked what would be the affect if you said, "negligent driving resulting in serious bodily injury?" This would be trying to get back to what the original intent of the bill was. MS. KNUTH had a concern about adding those words. She said that would be an additional burden of what needs to be established in the case. She did not feel the discretion was likely to be abused in these cases. REPRESENTATIVE TOOHEY also believed it would read more clearly if we added, "resulted in physical injury." MS. KNUTH said if we did that, it would put us back into a lesser included offense situation which we would rather not do. REPRESENTATIVE AL VEZEY wanted to know what the difference was between reckless and negligent driving. MS. KNUTH answered that the criminal code gives you definitions for those. The distinction has to do with the level of disregard. Recklessness is usually a gross disregard, and negligence is a simple disregard. Reckless driving is a misdemeanor. Negligent driving is a violation. In terms of seriousness, recklessness is above negligence. REPRESENTATIVE CON BUNDE moved to adopt the CS for HB 255, version C. Hearing no objection, the CSHB 255(JUD) was adopted. He then made a motion to adopt Amendment Number 1, which would change the title to, "An Act raising the penalties for the crime of negligent vehicular homicide." Hearing no objection, it was so ordered. REPRESENTATIVE BUNDE moved Amendment Number 2 be adopted which would create a Section 3 that would read, after "AS 28.40.050(d)," "except as provided in AS 28.15.181(a). Hearing no objection, Amendment Number 2 was adopted. REPRESENTATIVE BUNDE made a motion to move CSHB 255(JUD) out of committee with individual recommendations and attached fiscal notes. Hearing no objection, it was so ordered. Number 400 SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS JAMES ARMSTRONG, Senate Researcher to Senator Dave Donley, bill sponsor, gave the sponsor statement for SSSB 27. SSSB 27 would give grandparents the legal status to petition the court for visitation rights with their grandchildren. Under existing law, the court can grant an order that provides for visitation by grandparents in divorce and separation proceedings in cases where one or both of the parents have died. Grandparents themselves are not allowed to initiate such an action. SSSB 27 would give grandparents this standing to ask for those visitation rights if they were not initially provided for by the court. SSSB 27 does not require that visitation rights be given. It is completely up to the discretion of the judge, with the best interests of the child being the primary factor for granting such rights. REPRESENTATIVE CYNTHIA TOOHEY said she had been contacted by Lauree Hugonin from Alaska Network on Domestic Violence and Sexual Assault, and her concern was that the judge is not going to be filled in on all information pertaining to violence committed by the parents. The judge would possibly be granting these visitation rights without having the knowledge. That was a concern raised, but Representative Toohey did not believe that to be true. She believed that in determining the best interests of the child, the court should consider all relevant factors. She felt the bill was fine. MR. ARMSTRONG said that the terms for the best interests of the child is laid out in AS 25.24.150, Section (c)(9), which also lists other factors that the court finds pertinent. The judge does not have to grant the privilege. SHERRIE GOLL, read the position paper written by Lauree Hugonin, Executive Director of Alaska Network on Domestic Violence and Sexual Assault, into the record: "The Network supports the ability of grandparents or other relatives to keep healthy, established, ongoing relationships with children. We support the goal of allowing grandparents and others to petition for visitation. We do have a concern for children's safety when the perpetrator of domestic violence has access to the child during grandparent visitation. Often in domestic violence situations, the parents of the perpetrator, the grandparents, and other family members provide opportunities for him to see the children while the children are with them. This happens in many cases even when the judge has ruled that the perpetrator is not to have custody of or visitation with the children. Sometimes this access allows the perpetrator to get the children, take them away from their grandparents, and use them against the victim. "The grandparents can also be at risk if the perpetrator perceives them as colluding with the victim or with the court system. Many people, judges included, perceive domestic violence as a private matter between the perpetrator and the victim. Domestic violence impacts the children and the extended family members as well, and can put them all in danger. "The Network's concern applies to the first section of the bill where it says the court shall provide for visitation if it is in the best interests of the child. In determining the best interests of the child for custody, the court uses a list of criteria found in AS 25.24.150(c). Item 7 states that in determining the best interests of the child, the court shall consider any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household, or history of violence between the parents. "The Network believes in determining the best interests of the child for visitation, the court should give heightened judicial scrutiny to AS 25.24.150 (c)(7). Heightened scrutiny of this particular item will add a layer of protection for children and cause judges to carefully explore the potential for further danger to the child." MS. GOLL explained that the Network is concerned that this bill is saying that the court SHALL, unless they can find that to do so would not be in the best interests of the child. She is suggesting that in cases where in the original custody decision, the court has had to refer to AS 25.24.150(c)(7), because domestic violence or child abuse was an issue in the original custody decision. Then when grandparents or other persons are petitioning for visitation, the court needs to add heightened scrutiny to the case, based on the actual problems that people have while other people have had visitation with the children and allow the person who is not permitted to have visitation with the children to have access to the children in that way. REPRESENTATIVE TOOHEY asked if this had been discussed with Senator Donley. MS. GOLL answered that yes, as James inferred, Lauree did have an opportunity to speak to James and to the senator, and the senator did not agree with the logic of this, but she still wished the committee to understand her concerns. REPRESENTATIVE TOOHEY Ms. Goll if she did not believe the words "in the best interests of the child" would be sufficient. MS. GOLL answered that no, she did not. When changes were made to divorce and dissolution laws several years ago, one of the things that was introduced into dissolutions was the concept of heightened scrutiny. Custody and divorce cases take up a lot of court time. The court could place some parameters on the visitation rights in order to protect the child better in situations where domestic violence or child abuse has been an issue in the original custody decision. CHAIRMAN PORTER asked Ms. Goll if what she was saying is that on page 1, she would suggest that they add something to the effect, "In determining the best interests of the child, the court shall consider all relevant factors including those factors enumerated in AS 25.24.150(c) with heightened scrutiny of (c)(7)." MS. GOLL answered that was the basic concept. She would have it say, "If in the custody decision, Item (c)(7) was an issue, then the court would give heightened scrutiny to this determination about the other person's visitation." Number 550 CHAIRMAN PORTER said they could consider that when looking at amendments. MARLIS SCHMID, testified via teleconference. She is the grandmother of two children, ages eight and ten. The children want to see her but are not allowed since the stepfather is in the life of her daughter. The stepfather adopted the children a year after her daughter married him, and that she can prove was fraud. The children's father has always been in contact with the children on her telephone. She had raised these children and had them 70 percent of the time, because her daughter was working. The children's father called her number, since the telephone was hung up on him if her daughter was home, by her (at that time) boyfriend. Her daughter went to court, claiming that the father had no contact with the children. She asked her daughter at that time, "Tanya, how can you say that? You know this is not true." She said she did not want to hear about it. The father had always been in contact with the children, but her daughter did not want to hear about it. That is how the stepfather was allowed to adopt the children. She could not locate the father at the time before the adoption was final. She is being punished now. It has been two years in June since she has been allowed to see her grandchildren. The father always stayed in touch with his children. He wanted to see them. She kept her mouth shut. He came up from Oregon and she took the children to Soldotna to spend a week with their father, and she was there too. When she brought the children home, (indisc.) her own daughter came to her house and beat the heck out of her. Ever since then, she is being punished not to see the children. She has had the children overnight once. She is not even allowed to have phone contact. She feels that the children are being verbally abused by their stepfather. They hear her voice on the record-a-phone, but are not allowed to pick up the phone and talk to her. He laughs at them instead, and says, "Ha Ha, what are you going to do about it?" This kind of abuse is constant. She told them to tell her mother, and they say they do, but she tells them she does not want to hear about it. Her court order has been temporarily denied, and she cannot see her grandchildren. Her contact with them is limited to the telephone. She does not know what to do anymore, and hopes the Legislature can help her. Her grandchildren need to see her, she raised them and they know they are her number one. Number 665 CHAIRMAN PORTER thought if this bill were passed into law, she would have the opportunity, not a guarantee, to visit her grandchildren. If they are now out of state, that would probably further complicate it, but, this bill certainly would not hurt. He then asked Mr. Armstrong about Section 1, which seems to set up a standard of "in the best interests". Section 2 adds that the grandparent has established or attempted to established ongoing personal contact, and "in the best interests." MR. ARMSTRONG stated that currently the judge has the authority to put a qualifier on it, in Section 9, where it says, "This parent has committed domestic violence or assault." The judge can look at other pertinent information, other factors. REPRESENTATIVE CON BUNDE assumed a judge would be wise enough to look at the whole record before determining what is in the best interests of the child. CHAIRMAN PORTER asked about Section (b) on page 2, which adds to the proceedings that a grandparent may petition to join the adoption. Are you assuming the standards are going to be the same for the judge's determination during that proceeding as they were in the divorce proceedings? MR. ARMSTRONG answered that it sort of gives a general provision in other states and judging by the way section (2) was explained to him, Chairman Porter's assumption would be correct. Section 3 adds dissolutions. CHAIRMAN PORTER said he would like to ask the Senator about the adoption hearing, which is a new addition, but the Senator had to step out. He asked Mr. Armstrong if the established standards for a judge's decision in grandparent rights for divorces and custody hearings attach to adoption procedures? MR. ARMSTRONG answered that it seems to read that way, but he could not say for sure. Number 740 CHAIRMAN PORTER said that Subsection (b) is the one that adds the ability to intercede in an adoption procedure, and his concern is that unless we specifically mention it, that the standards to be used by the court to establish the best interests of the child, are not necessarily there. REPRESENTATIVE FINKELSTEIN understood Subsection (b) as just a limitation, not adding anything additional, but just to say that you cannot go and petition if you have already tried to request the court to do it previously, you cannot go and do it again, unless there has been a change in circumstances. CHAIRMAN PORTER clarified that Section 1 deals only with custody determinations. Is an adoption a custody determination? REPRESENTATIVE CON BUNDE said indeed it talks about relating to child custody and relating to adoption. That lead him to believe that they are two separate things. MR. ARMSTRONG said that in AS 25.24.150, is your concern as to whether there is a "best interests of the child" clause? CHAIRMAN PORTER answered yes. MR. ARMSTRONG assured him that AS 24.25.150 contains the whole list of what the judge should look at in determining the "best interests of the child." CHAIRMAN PORTER'S concern was that those were separated by an "or." That is the problem. He stated the committee would set this aside, and ask the Senator about that, and then come back to SSSB 27 before the meeting ends. MR. ARMSTRONG agreed to do that. CHAIRMAN PORTER noted that the language in Section 1 allows a grandparent or other person to intercede. He wondered what was implied by the other person, but this "other person" language does not follow into the other section. Is that intentional? MR. ARMSTRONG asked if he was referring to Section 2. CHAIRMAN PORTER answered yes. Getting back to the concern about domestic violence situations, he did not feel it would be offensive to the bill to add that language. REPRESENTATIVE CYNTHIA TOOHEY did not think so either. CHAIRMAN PORTER suggested on line 9, after AS 25.24.150 (c) that an amendment could be made to eliminate the period and add "with heightened scrutiny of (c)(7) if appropriate." MR. ARMSTRONG noted that he did have an amendment that addresses those concerns. CHAIRMAN PORTER asked Mr. Armstrong to first go get the answers to those two questions, and then the committee could deal with the amendment when Mr. Armstrong returned. Number 800 SB 85 - 1995 REVISOR BILL PAMELA FINLEY, Assistant Revisor, Legal Services Division, Legislative Affairs Agency, explained that SB 85 is of very little of importance to anybody, but it does clean up the statute to deal with a few errors they have caught. She did not want to go through it section by section since it is so boring, but was happy to answer questions. REPRESENTATIVE TOOHEY asked if there was a fiscal note. MS. FINLEY believed there was not, or it was zero. REPRESENTATIVE FINKELSTEIN asked if there would be anyone in the House to answer questions when it comes up on the floor. He would like to bring something up there. MS. FINLEY said she could certainly be there on the House floor, as she was for the Senate. REPRESENTATIVE FINKELSTEIN made a motion to move the revisor bill, CSSB 85(JUD) am, out of committee with individual recommendations and the zero fiscal note. Seeing no objection, it was so ordered. Number 830 SB 7 - NO BAIL FOR FELONS W/ PREVIOUS CONVICTIONS BRUCE RICHARDS, Administrative Assistant to Senator Judith E. Salo, bill sponsor, introduced SB 7. This bill says that if you are convicted of a class B or class C felony, and prior to this conviction you have been convicted of an unclassified or class A felony, stalking in the first degree, sexual assault in the second or third degree, or sexual abuse of a minor in the second and third degree, you will not be eligible for bail. Included in your packets is information about a man who was convicted in 1993 of a felony drug charge. He had a previous record, and a very long sentence. He had been convicted of three rapes, several grand theft auto charges, concealed weapon assaults, and upon conviction of this felony drug charge, was released on bail for $5,000. TAPE 95-49, SIDE B Number 000 MR. RICHARDS continued. He said Senator Salo felt that since this man had already been convicted, he should have been held in jail. Many times a judge will not let these types of people out of jail, but she felt that once was one too many times. That is why we have this bill before you. JANE ANDREAN, Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, supported the bill. What they really like to look back at is prior convictions for class B and C in sexual assault, child sexual abuse, and stalking cases. This bill will do two things. It will protect future victims, as well as send a very clear statement that these types of crimes are not okay. REPRESENTATIVE BUNDE asked Ms. Knuth if the Department of Law would have concerns about unequal protection. MS. KNUTH answered that no, not in that regard, considering that we already deny bail upon conviction for class A and unclassified felony offenses, this is simply extending it for a person who has a prior class A or unclassified felony offense, even if they are now before the court, being convicted of a class B or class C felony offense. REPRESENTATIVE TOOHEY asked where the sexual predator law would fit into this. MS. KNUTH answered that we do not have the sexual predator law yet. We do have the stalking offense, but sexual predator has not passed. REPRESENTATIVE TOOHEY asked if it is floating around in our system somewhere. MS. KNUTH answered that Representative Parnell has introduced it and not moved on it this session. She expected we would see it next session. REPRESENTATIVE BUNDE made a motion to move SB 7 out of committee with individual recommendations and fiscal notes as attached. Hearing no objection, SB 7 moved. Number 200 HB 293 - USE OF FORCE DEFENDING PERSON OR PROPERTY REPRESENTATIVE VEZEY, bill sponsor, introduced HB 293. It is intended to change a tendency we are seeing in the direction the law is going. It has been a premise in this country for many years, that a person's home is their castle, and that a person has the right to feel safe and secure in their home. There have been an increasing number of court decisions which have limited a home owner, or a rightful occupant of a home the right to protect themselves in their home, to the point where in some court rulings, you virtually have to avoid confrontation if it is at all possible, which puts an extreme burden of proof on the rightful occupant of a home, if they are facing an intruder. It is the intent of this bill to clarify that a person has a right to defend themselves, their family and their home. The burden of proof in this would shift to the intruder having to prove that the use of force or deadly force was just not justified. We do not have a Supreme Court decision in the State of Alaska that is contrary to this. We have had a lower court ruling that was contrary to that. In many states, we are seeing the law evolve more toward the rightful occupant having to avoid the use of force if it is at all possible. This puts a tremendous burden of proof upon the rightful occupant of a home. He felt the burden of proof ought to be on the person who is not rightfully there. He felt the rightful occupant of a home should have the right to exceed the right of the intruder who is violating the law. REPRESENTATIVE FINKELSTEIN was not real familiar with the current rules we operate under, and would like the Department to explain those. What is an example of a particular circumstance that is not covered under existing law? REPRESENTATIVE VEZEY did not feel this legislation to be contrary to any decisions that have come down from the Supreme Court. It is contrary to some appeals court decisions, which establishes that force has to be avoided if at all possible. REPRESENTATIVE FINKELSTEIN asked for a hypothetical example where someone would now be possibly subject to prosecution for shooting an intruder, that this change would make it so that they would not be subject to prosecution. REPRESENTATIVE VEZEY said if you look at the sponsor statement, there are a number of nationwide cases that are cited. There was a case a court of appeals decision in the State of Alaska called Van Ha v. the State of Alaska, Alaska Court of Appeals, Op. No. 1400, March 31, 1995. In that case, the opinion stated that a defendant claiming self defense in justification for the use of force, must prove that he/she acted to avoid use of force. What this bill would do is to say that a rightful owner of a home would no longer have to prove anything. It would be up to the intruder to prove that the rightful occupant of the home was not justified in their actions. REPRESENTATIVE FINKELSTEIN was trying to recall the case where a Japanese student got shot because it was Halloween. REPRESENTATIVE VEZEY believed that case occurred in the State of Louisiana. CHAIRMAN PORTER did not believe the victim was inside the home. REPRESENTATIVE FINKELSTEIN remembered that they were on the doorstep, on the property, and they were shot because the person believed they were a danger but did not have a weapon, and this would take the burden and switch it from the home owner to the student, in this case. REPRESENTATIVE VEZEY said he could not give a hypothetical answer in that case, because those decisions were made by a jury. This bill requires an unlawful entry, so he did not feel that fact situation would be covered by this bill. CHAIRMAN PORTER said this bill requires unlawful entry, so he did not think that fact situation would be covered by this bill. We have someone from the Department of Law and also Public Safety to testify. LAURIE OTTO, Assistant Attorney General, Criminal Division, Department of Law, spoke in opposition to the bill. It would be very difficult to overstate their opposition to this bill, and in listening to the sponsor she felt that the bill goes far beyond what she hears the sponsor describing as his intent. The sponsor talked about what sounded to her like civil actions against the owner by a person who was shot by the owner or the family of the person who was shot by the owner. This bill applies in criminal prosecutions as well. The information the sponsor has been given, both about the Van Ha case, and about the burden of proof, is incorrect. Ms. OTTO described what occurred in the Van Ha case. It was a Dillingham case involving two Vietnamese fishermen. The guy who ended up getting killed went over to the house of the person who was eventually prosecuted. They were drinking together and got into a fight and the person who was killed beat up the person who ended up being the defendant, and then left. The defendant started thinking about this and thinking it was not right, and thinking that this guy should not have been able to beat him up, and thinking about threats that he had made to him. So the next day, the defendant got a shotgun and started stalking the person who had beat him up, tracked him down, shot him nine times in the back. This was many many hours after the altercation that started him thinking about killing the person. What the court said had nothing to do with being in the house or killing somebody in the home, or the burden of proof. The ruling in that case, said you cannot claim self defense when there is no eminent threat of harm. That is not something that would be changed in this bill, it is something that is inherent in the definition of force in our statutes, which requires that there be an eminent threat of harm. That case does not have anything to do with somebody being able to use self defense in their home. She felt if somebody told Representative Vezey that, he was given misinformation. MS. OTTO said this does not just address when you can use deadly force in the house. It talks about all of the circumstances under which you can use deadly force. She gave an example to make her point. Her great great grandfather was a sheriff at the height of the silver mining boom on the California Nevada border and ended up dying in the line of duty, and so in her family, they have a lot of stories about the code of the west, and how people were supposed to behave. She admitted her personal favorite author is Louis Lamour, but one of the things that was true of the code of the West was that if somebody threatens to hit you or punches you in the nose, and they are not armed, you cannot kill them. In the code of the West you do not kill an unarmed man. This bill, if you look at lines 8 through 13, right now under current law, you can use deadly force if you reasonably believe that the use of force is necessary to prevent any one of a number of serious crimes. What you see on line 9 is that this expands it to say that you can use deadly force against the threat of assault in any degree or any crime in AS 11.41. Section 3 is the section of the current statute that spells out when you have a duty to retreat. Under current law, if you are in your home, there is no duty to retreat, but under current law, if you are in a public place, and you can retreat with complete safety to yourself and to everybody else, you cannot use deadly force. Under this bill, as a result of these proposed changes, if you were standing outside of a police station with the doors unlocked where you could go in at any time and somebody walked up and said, "I am going to punch you in the nose," this would be fourth degree assault which provides that by words or other conduct, one places somebody in fear of physical injury, you can kill them. If somebody commits the crime of custodial interference, which is a crime against a person under 11.41, in other words, you have a divorced couple and the wife keeps the kids two hours past when she is supposed to turn them over to her husband, under a joint custody agreement, and he goes over to her house and says he wants the kids back and she says, "Let them finish watching Sesame Street," he can kill her. If you have a batterer situation, whoever is being battered can kill the other person. This is an invitation to legitimate, legal, justifiable homicide, in a vast array of circumstances that she just does not believe from reading the sponsor statement or from listening to the sponsor is what he intended. MS. OTTO went through the sections of the bill that directly deal with when you can use force in a dwelling. She gave another example of a circumstance where it would be perfectly legitimate to kill somebody under this bill. If a husband and a wife were married for ten years and they own the house together, they lived in it together and she got a domestic violence injunction against him, and he decided he wanted to get back in and get his clothing and waited until he saw her going to the store, and went in the house, and she came back, she could kill him. The reason she started by talking about Louis Lamour and the code of the West, and all that, is because in our society, once we organized into cities, and once we organized into states and into communities, what we did is design a set of laws to resolve disputes, and hire police officers to intervene to help solve disputes, and hire district attorneys so what we would not have is people just killing each other all the time because one of the things they found in the old west is that people got caught in the crossfire very frequently. If you make it legal to use guns, under a wide array of circumstances, she guaranteed there would be innocent bystanders being killed on a regular basis. MS. OTTO closed by talking about the burden of proof which very much concerned the sponsor. In criminal cases, once somebody raises the defense of self defense by even the most minimal amount of evidence, the state has the burden of proving beyond reasonable doubt that it was not self defense. In the sponsor statement the Paul case was cited. That was a case in which the court ruled that even if the judge does not believe that there was self defense, if the defendant raises it, he has to inspect the jury on self defense and the prosecutor has to bear the burden of proving that it was not self defense, and the prosecutor has to bear the burden of proving beyond a reasonable doubt that it was not self defense. She thought the burden of proof is in fact, not on the home owner in criminal cases. That is not the case in civil cases, and perhaps the sponsor's concern then is that the case related by Representative Finkelstein and some of the other cases around the country, from what she can see, are civil cases, where someone got shot, or their families and there was a lawsuit. Perhaps the way to address the issues is to try to do something in the civil arena, but in the criminal context, the Department is very, very opposed to this bill. REPRESENTATIVE BUNDE said he is very sympathetic to what Representative Vezey is trying to achieve. He has to agree that the Van Ha case, which he followed very closely because he knew some people on the jury and we discussed it only after it was over, he was not sure that was a good example, but on the other hand he has been in situations where he has been told by law enforcement officials, and he has been in situations where he has anticipated having to defend the lives of family and property, mostly family, and he said if you have to shoot someone, and they fall outside of the house, run outside and pull them in, and you better make sure that they are dead. Now that puts the burden of proof on the aggrieved person. Maybe it is the civil thing that needs to be addressed, but how do we protect people who are protecting themselves? MS. OTTO thinks the law does protect people that are protecting themselves. Because there is such intense interest in homicide cases on the part of both the community and family members, people tend to run them by her before they decline prosecution, and we do regularly decline prosecution on what would otherwise be homicide cases, because somebody is claiming self defense. As a result, it is the state's burden of proving that something was not self defense. Her feeling is that we do not have a problem in Alaska. Nobody has ever identified a case to her in which we did have a problem, or prosecuted somebody inappropriately. Our criminal law strikes a fair balance between the rights of the homeowner and the rights of society. REPRESENTATIVE BUNDE said he did not think the law enforcement officials that he has talked to would agree with her. MS. OTTO said she has actually heard those comments. The comments she has heard are tied to people being afraid of being sued, and not afraid of being prosecuted. Number 600 DEL SMITH, Deputy Commissioner, Department of Public Safety, spoke in opposition to HB 293. It seems to go far beyond what he hears the sponsor intending in a home to the extent that there are any number of misdemeanors, including assault that Ms. Otto referred to that would allow the use of deadly force, we are opposed to opening that up. A person claiming self defense and defending themselves against an arrest that they perceived, does concern hi, because there are circumstances where you could use non-deadly force to try to prevent an arrest, but this might open Pandora's box and allow deadly force. He would be concerned about that, though he has not done enough research to determine that exactly. He is not as eloquent as Ms. Otto was in this, but does oppose the bill as written, for the reasons stated. MR. SMITH added that he tried to arrange for the Anchorage Police Department to testify but the witness slipped out of his grasp. He had also indicated that they were opposed to this bill as currently written. He agreed with the sponsor relative to the home, but he feels that is adequately covered. In response to the comment about dragging the body inside, he really does believe that probably refers to a civil case, and making sure someone is dead so that they cannot sue. He is not exactly sure that is absolute professional advice, it may be frustration sometimes on the part of an officer who might state that, but he certainly understands it. REPRESENTATIVE BUNDE clarified that was not given to him on the record and as official advice. CHAIRMAN PORTER closed the public hearing on HB 293. REPRESENTATIVE VEZEY said this is the only committee hearing in the House, and is of course, the most appropriate committee. It is not his intention to rush this through. He did spend a respectable amount of time researching it and it is not intended to be a shell of a potential statute, but he does recognize there could be other facts that could be entering into this, and he asked if there could be a subcommittee assigned to the bill. CHAIRMAN PORTER said he would not be opposed to that idea, and asked Representative Bunde and Representative Finkelstein if they would be willing to look at it, with the sponsor most likely being the chairman of the subcommittee. They agreed to do so. Number 650 SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS (CONTINUED) CHAIRMAN PORTER held the bill for subcommittee referral. He then announced that they would continue the hearing on SSSB 27. SENATOR DAVE DONLEY, bill sponsor, came forward to address the committee's concerns. He understood there was a concern as to why the bill mentions other persons in the text, but not in the following section. The simple answer to that is because all through the statutes, other persons, as well as grandparents, can, not petition, but at the court's alone choice be granted visitation rights. But this bill does not give other persons the right to petition, it only gives grandparents the right to petition. While we only give grandparents the right to petition, every where we talk about what the court decides to do, we have to include other persons because the court already has the authority to give that to other persons, as well as grandparents. CHAIRMAN PORTER said the next question dealt with page 2, lines 6 and 7, where it seemed to be bringing in the ability to petition to be included in the hearing of an adoption for the first time, on page 2, line 7. The standards in the previous section, "the grandparent has established or attempted to establish ongoing contact." He asked Senator Donley if it was his interpretation that these standards would apply to this adoption. SENATOR DONLEY answered that it would only be "in the best interests of the child." That is the standard the judge should always use in order to grant the petition. We do not change that standard anywhere, that is real consistent in existing law. All this bill does is allow the grandparents the standing to ask for that for the first time. This is the same thing we have in every other state in the United States, it is just standing to ask. This bill does not affect the standard that the judge uses to determine whether he is going to grant that request from them. CHAIRMAN PORTER said his only concern is that it does not specifically say that is the standard when it deals with the adoption as it is stated in (b). 'After decree or final order relating to child custody is entered under those two statutes," then "OR relating to an adoption under AS 25.23, a grandparent may petition, only if," and then these are two other considerations. He understood that we want the ability to exclude that in an adoption if they have already petitioned and been denied at the original custody hearing. SENATOR DONLEY stated his staff had pointed out that in the adoption statutes, AS 25.23.125, it has a description of the interests of the minor to be adopted, and subsection (c) says the court may issue a protective order or other order that is in the best interests of the minor who is to be adopted. So clearly, the court could, if it was in the best interests of the minor, decline to allow visitation, or in fact issue an order to prevent visitation. He said his staff had prepared an amendment in case additional language was requested. His personal opinion was that it was just not needed. It is really doing something that is not addressed by this bill. It is really adding something that is very much a stand alone concern, because clearly, all that amendment does is create a new heightened scrutiny for the issue of potential dangers to the children from relatives, and that is clearly already provided for in the things the judge is supposed to look at in determining visitation, and would be or not be relevant with or without this bill because there are a lot of other people other than grandparents, and once again this does not change anything as far as the judge giving these visitation rights, or the standard the judge uses, it only says that grandparents may ask. He did not believe the amendment to be necessary, but if the committee feels this is something they really want to do, we went ahead and had the language prepared just to expedite the process. REPRESENTATIVE TOOHEY stated it was very clear to her that it is attributed to the grandparents' son or daughter, so you are flagging the possibility that the parents of a child who are accused of child abuse are going to come to the grandparents' house and abuse the child. It is not going to do anything except make it one step closer to safety for the child, and she would hate to be on the hot seat, saying that we did not do this, and this child was abused. She felt the amendment language would be the best way to go. She made a motion to adopt Amendment Number 1, which is as follows: Page 2, after line 13: Insert a new subsection to read: "(c) When determining whether to grant rights of visitation between a grandparent and grandchild under this section, AS 25.20.060, or AS 25.24, and when determining the terms and conditions to be attached to a right of grandparent visitation, the court shall consider whether there is a history of child abuse or domestic violence attributable to the grandparent's son or daughter who is a parent of the grandchild." Hearing no objection, the amendment was adopted. Number 730 REPRESENTATIVE TOOHEY made a motion to move HCS SSSB 27(JUD) out of committee with Amendment Number 1, individual recommendations and zero fiscal notes as attached. Hearing no objection, it was so ordered. ADJOURNMENT The House Judiciary Committee Adjourned at 12:30 p.m.