Legislature(2005 - 2006)CAPITOL 106
04/11/2006 01:30 PM House RULES
| Audio | Topic |
|---|---|
| Start | |
| HB414 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HB 414 | |||
| HJR 27 | |||
ALASKA STATE LEGISLATURE
HOUSE RULES STANDING COMMITTEE
April 11, 2006
1:36 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative John Coghill
Representative John Harris
Representative Vic Kohring
Representative Lesil McGuire
Representative Ethan Berkowitz
Representative David Guttenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 414
"An Act relating to allowing a parent or guardian of a minor to
intercept the private communications of the minor and to consent
to an order authorizing law enforcement to intercept the private
communications of the minor."
- MOVED CSHB 414(RLS) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 27
Urging the United States Congress to pass legislation amending
the Alaska Native Vietnam Veterans Allotment Act to allow
deserving veterans to obtain allotments of vacant land within
the State of Alaska; and to reopen and legislatively approve
allotments in the Tongass National Forest.
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 414
SHORT TITLE: INTERCEPTION OF MINOR'S COMMUNICATIONS
SPONSOR(s): REPRESENTATIVE(s) KOTT
02/01/06 (H) READ THE FIRST TIME - REFERRALS
02/01/06 (H) HES, JUD
02/14/06 (H) HES AT 3:00 PM CAPITOL 106
02/14/06 (H) Moved CSHB 414(HES) Out of Committee
02/14/06 (H) MINUTE(HES)
02/17/06 (H) HES RPT CS(HES) 4DP 1NR 2AM
02/17/06 (H) DP: GARDNER, KOHRING, SEATON, WILSON;
02/17/06 (H) NR: CISSNA;
02/17/06 (H) AM: ANDERSON, GATTO
02/23/06 (H) JUD AT 10:00 AM CAPITOL 120
02/23/06 (H) Scheduled But Not Heard
02/24/06 (H) JUD AT 2:00 PM CAPITOL 120
02/24/06 (H) Heard & Held
02/24/06 (H) MINUTE(JUD)
03/15/06 (H) JUD AT 1:00 PM CAPITOL 120
03/15/06 (H) -- Meeting Canceled --
03/20/06 (H) JUD AT 1:00 PM CAPITOL 120
03/20/06 (H) -- Meeting Canceled --
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
03/22/06 (H) Moved CSHB 414(JUD) Out of Committee
03/22/06 (H) MINUTE(JUD)
03/28/06 (H) JUD RPT CS(JUD) 3DP 2NR 2AM
03/28/06 (H) DP: KOTT, ANDERSON, MCGUIRE;
03/28/06 (H) NR: GARA, COGHILL;
03/28/06 (H) AM: WILSON, GRUENBERG
04/11/06 (H) RLS AT 1:30 PM CAPITOL 106
WITNESS REGISTER
MICHAEL O'HARE, Staff
to Representative Pete Kott
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 414 on behalf of the sponsor,
Representative Kott.
REPRESENTATIVE MAX GRUENBERG
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 414, assisted with
the presentation of the proposed committee substitute (CS),
Version C, and suggested a change.
ACTION NARRATIVE
CHAIR NORMAN ROKEBERG called the House Rules Standing Committee
meeting to order at 1:36:12 PM. Representatives Rokeberg,
Coghill, Kohring, McGuire, Berkowitz, and Guttenberg were
present at the call to order. Representative Harris arrived as
the meeting was in progress. Representative Kott was also in
attendance.
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS
1:36:27 PM
CHAIR ROKEBERG announced that the only order of business would
be HOUSE BILL NO. 414, "An Act relating to allowing a parent or
guardian of a minor to intercept the private communications of
the minor and to consent to an order authorizing law enforcement
to intercept the private communications of the minor." [Before
the committee was CSHB 414(JUD).]
1:36:39 PM
REPRESENTATIVE COGHILL moved to adopt the proposed committee
substitute (CS) for HB 414, Version 24-LS1565\C, Wayne, 4/10/06,
as the working document.
REPRESENTATIVE BERKOWITZ objected for the purpose of discussion.
REPRESENTATIVE BERKOWITZ withdrew his objection.
CHAIR ROKEBERG, upon determining there was no further objection,
announced that Version C was before the committee.
1:37:30 PM
MICHAEL O'HARE, Staff to Representative Pete Kott, Alaska State
Legislature, spoke on behalf of the sponsor, Representative
Kott. Mr. O'Hare relayed that HB 414 is intended to protect
children from predators. He highlighted that today children are
more sophisticated and communicate via the Internet, chat lines,
telephones, and cell phones. Currently, it is legal for a
member of a party talking on the phone to record the
conversation. However, it's currently illegal for a parent who
suspects his/her child is in danger to intercept communications
in order to protect the child. This legislation allows the
court to enter into an ex parte order upon determining there is
probable cause, which may include a finding that a parent of a
minor has consented in good faith to intercept communications
when it's in the welfare and best interest of the minor to
authorize law enforcement to intercept communications. This
legislation also allows a parent or guardian of a minor to
intercept private communication of that minor if the parent is
also acting in good faith and reasonably believes that he/she is
doing what is in the best interest of the child.
MR. O'HARE noted that the sponsor worked with Representative
Gruenberg, who had concerns regarding circumstances in using
this information in family law issues, divorce proceedings, and
child custody proceedings. The aforementioned has resulted in
Version C, which allows parents to intercept the communications
of the minor unless the communication is between the minor and
his/her attorney, guardian ad litem, or the child custody
investigator. Version C also states that evidence obtained may
be considered by a guardian ad litem, child custody
investigator, or judge based on the fact that the parents have
met the requirements specified in the legislation. Mr. O'Hare
related that although the sponsor recognizes the potential
issues with regard to the right to privacy, the sponsor contends
that it's not an absolute right. The sponsor further contends,
Mr. O'Hare relayed, that children need to be protected.
1:40:38 PM
REPRESENTATIVE COGHILL inquired as to the current process to go
before the court for an ex parte order.
1:41:01 PM
REPRESENTATIVE MAX GRUENBERG, Alaska State Legislature, relayed
that an ex parte order is one that can be issued without notice
to the [opposing] side.
REPRESENTATIVE COGHILL clarified that he is interested in the
difference between CSHB 414(JUD) and Version C.
1:42:13 PM
REPRESENTATIVE GRUENBERG relayed that Version C should have had
an amendment on page 1, line 10, such that "include" be replaced
with "be based upon". He related that in the House Judiciary
Standing Committee it was made clear that the judge could find
probable cause based solely on a finding that the parent had
consented in good faith to the interception based on the
parent's objective reasonable belief that it was necessary for
the welfare of the minor and in the minor's best interest.
MR. O'HARE noted that the sponsor is amenable to that change.
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1, as
follows:
Page 1, line 10:
Delete "include"
Insert "be based upon"
1:43:55 PM
REPRESENTATIVE McGUIRE asked if Representative Gruenberg wanted
to include the term "solely" also.
REPRESENTATIVE GRUENBERG answered that although he would have no
problem with that, he was concerned that if the term "solely"
was included, then it couldn't be based on anything else.
Therefore, he said he prefers to leave Amendment 1 as stated.
CHAIR ROKEBERG objected to the motion to adopt Amendment 1.
CHAIR ROKEBERG withdrew his objection to Amendment 1. There
being no further objections, Amendment 1 was adopted.
1:45:09 PM
REPRESENTATIVE GRUENBERG, turning to Representative Coghill's
earlier question, pointed out that the changes on page 3 specify
that the interception can occur if the parent is acting in good
faith and has an objectively reasonable belief that the
interception is necessary for the welfare of the minor and is in
the best interest of the minor. Representative Gruenberg
clarified that as long as the aforementioned [requirements have
been met] a court order of any kind is not required and the
parent is not violating the law.
REPRESENTATIVE GRUENBERG, in response to Representative
Berkowitz, confirmed that HB 414 is addressing the current
situation in which a parent isn't allowed to listen to his/her
child's conversations.
1:46:58 PM
REPRESENTATIVE GRUENBERG explained that the remainder of the new
language on page 3 of Version C doesn't allow an interception
between the child and his/her attorney, guardian ad litem, or
child custody investigator.
REPRESENTATIVE GRUENBERG highlighted that an issue raised by
family law attorneys was in regard to whether the intercepted
conversation should be admissible in court. He explained that
if one wants to submit such as evidence, the court must rule and
find that the parent did act in good faith and have a
objectively reasonable belief that the interception was
necessary for the welfare of the child and in the best interest
of the minor. He noted that one doesn't have to make a motion
in advance; the aforementioned could be performed during the
course of the trial. This would be in addition to any other
objections that would be raised as hearsay. Version C was
expanded to include official proceedings, which are defined on
page 4 to include "legislative, judicial, administrative, or
other governmental body". "We didn't want them to be able to
'end run' the whole process by just feeding the information to a
GAL [guardian ad litem] or a custody investigator and so we had
the same standard there if the GAL or custody investigator
determined that the requirements of the paragraph have been
satisfied," he said.
1:49:45 PM
REPRESENTATIVE BERKOWITZ turned attention to subparagraph (B)
and surmised that evidence obtained from listening in could be
used in a proceeding that wasn't directly related to the child's
welfare.
REPRESENTATIVE GRUENBERG replied yes, but only if the
requirements of the statute are met.
REPRESENTATIVE BERKOWITZ surmised then that the threshold
requirement that the parent can listen to a minor's conversation
if the child's welfare is at issue doesn't limit the extent to
which the evidence obtained can be used in a subsequent judicial
proceeding. Therefore, he further surmised that such evidence
could be used in a criminal proceeding.
REPRESENTATIVE GRUENBERG specified that the aforementioned could
occur only if the other Rules of Evidence allow its use and only
if the court finds that when the parent [intercepted
communications] that he/she was acting in good faith and had an
objectively reasonable belief that the interception was
necessary for the welfare of the minor and in his/her best
interest. However, in a criminal case, one must go back to the
first section [of the bill]. He noted that a criminal
proceeding would fall under Title 12.
REPRESENTATIVE BERKOWITZ pointed out that the judicial
proceeding doesn't have to be related to a custody dispute or a
child in need of aid (CINA) case. Therefore, this offers
another opportunity to obtain evidence that is currently
inadmissible.
REPRESENTATIVE GRUENBERG replied that technically that's correct
because AS 42.23.028 normally precludes such from happening
unless one of the other subsections arise. However, it would
still have to be admissible under the Rules of Evidence. This
[legislation] provides an additional protection and allows the
court to do it.
1:52:39 PM
REPRESENTATIVE BERKOWITZ relayed that he is considering adding a
conceptual amendment to the provision such that on page 3, line
26, it would say "this paragraph has been satisfied and the
judicial proceeding directly involved the welfare of the child".
REPRESENTATIVE GRUENBERG opined that the House Judiciary
Standing Committee did not intend to limit the bill to custody
cases or those cases involving the welfare of the child. For
example, in a fraudulent transfer case in which a parent informs
his/her child of a transfer of bonds to the parent's partner in
order to avoid the Internal Revenue Service (IRS). In such a
situation, if the requirements of this statute are met, that
evidence and the Rules of Evidence are met. Therefore, the
evidence can come in at least under state law, although there
may be a prohibition at the federal level.
1:54:26 PM
REPRESENTATIVE BERKOWITZ opined that HB 414 is designed with a
narrow scope to protect the welfare of the children. Therefore,
it seems to be beyond the scope of the bill to specify that
evidence obtained can be used in a proceeding that doesn't
impact the child's welfare. He opined that the aforementioned
is broader than necessary to address the policy involved. For
example, parents who are listening in to a child's conversation
could hear the child admit to the commission of a crime. In
such a situation, he asked if that evidence could be used in a
criminal proceeding. Representative Berkowitz opined that the
situation is further complicated because Alaska doesn't have a
parent-child privilege.
REPRESENTATIVE GRUENBERG posed another hypothetical situation in
which a child is on trial in a delinquency case or waiver
situation during which the child makes an admission that would
be otherwise admissible. In such a case, the requirements of
both AS 42.30.320(a) and AS 12.30.030 would have to be met.
Therefore, there would probably have to be both a finding and
the ex parte order authorizing the interception because it's in
a criminal case. The criminal statute is broader than the Title
42 statute because it allows third parties to [intercept
communications] based on the parents' permission while [AS
12.30.030] speaks solely for a parent to intercept the child's
conversation.
The committee took an at-ease from 1:56 p.m. to 1:57 p.m.
1:57:43 PM
REPRESENTATIVE GRUENBERG said that he may not be correct and
said that he didn't believe parents have to meet the
requirements of AS 12.30.030. The only requirements that a
parent have to meet are specified in Section 2 of the bill,
which allow the judge to admit [evidence]. Representative
Gruenberg related his understanding that the admission of any
evidence is always discretionary with the court.
REPRESENTATIVE BERKOWITZ expressed concern that if one is going
to listen in and invade someone's privacy and use the evidence
gained from that, it should be limited to the narrow scope of
the legislation. Representative Berkowitz then offered the
following conceptual amendment:
Page 3, line 26, following "satisfied":
Insert "and the judicial proceeding directly
involves the welfare of the child"
CHAIR ROKEBERG objected for purposes of discussion.
1:59:26 PM
REPRESENTATIVE McGUIRE inquired as to what would happen if the
interception is based on the parent's good faith belief that the
child is interacting with an unsavory character. After
listening to a series of conversations, the parent overhears the
unsavory character admit to or describe a murder that he/she had
already committed. She acknowledged that a good defense
attorney could argue that it doesn't have a direct relationship
to the welfare of the child. She then asked if Representative
Berkowitz's conceptual amendment would prohibit the use of the
conversation in that case.
REPRESENTATIVE BERKOWITZ answered, "Through this provision." He
clarified that he is more concerned with a situation in which
law enforcement officials know that the parents are listening to
the child's conversation and the law enforcement official
approaches the parents and asks what was said in the
conversation.
2:00:44 PM
REPRESENTATIVE COGHILL referred to page 3, line 15, which says:
"reasonable belief that the interception is necessary for the
welfare of the minor" and Section 2(a)(9)(A)-(C) both of which
specify that evidence obtained in the interception may be
considered if the guardian ad litem or child custody
investigator, judicial officer, or presiding official find that
the requirements of the paragraph have been satisfied.
Therefore, Representative Coghill opined that the legislation
seems to be narrowly drafted.
2:01:23 PM
REPRESENTATIVE BERKOWITZ said that paragraph (9) establishes the
criteria by which a parent can intercept a communication while
subparagraph (B) specifies [in which circumstance] the
intercepted communication can be used. He explained that with
his amendment he is trying to limit when an intercepted
communication can be used. Representative Berkowitz opined that
he didn't want parents who are operating in the best interest of
the child to be compelled to be witnesses against the child.
REPRESENTATIVE GUTTENBERG asked if the language in the amendment
should refer to "a" child rather than "the" child in order to
address when the interception captures communications between
the child and other children.
REPRESENTATIVE BERKOWITZ opined that parents don't have a
parental responsibility to other children. He further opined
that he would like to protect the parent-child relationship as
much as possible. He then suggested that his amendment should
refer to the "minor" instead of "the child" in order to remain
consistent with the language of the legislation. He related his
belief that the amendment helps protect the parent-child
relationship because although the parent has the option of
disclosing the information, the parent shouldn't be compelled to
do so.
2:03:35 PM
REPRESENTATIVE McGUIRE turned attention to the language "the
welfare of the child" and opined that getting the child to "own
up to" or face state sanctions for a crime the child committed
may be in the best interest and welfare of the child. She
questioned whether separate legislation should be introduced to
create a parent-child privilege.
2:04:56 PM
REPRESENTATIVE COGHILL said that he tended to agree with
Representative Berkowitz with regard to what is intended and he
questioned whether that's already been done. Representative
Coghill related his understanding that under the criminal law
the court may enter into an ex parte order only if it determines
probable cause based on the parent of a minor consenting in good
faith with objectivity.
2:06:07 PM
REPRESENTATIVE GRUENBERG noted that the delinquency statutes are
based on a child's welfare and the court reviews the child's
welfare and rehabilitation much more than the penal system
would. He opined that the delinquency proceeding would meet the
criteria.
REPRESENTATIVE BERKOWITZ withdrew his amendment.
2:07:17 PM
REPRESENTATIVE BERKOWITZ moved to report the proposed CS for HB
414, Version 24-LS1565\C, Wayne, 4/10/06, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 414(RLS) was
reported from the House Rules Standing Committee.
ADJOURNMENT
2:07:37 PM
There being no further business before the committee, the House
Rules Standing Committee meeting was adjourned at 2:07 p.m.
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