Legislature(2005 - 2006)CAPITOL 106

04/11/2006 01:30 PM RULES

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01:36:12 PM Start
01:36:27 PM HB414
02:07:37 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time & Location Change --
Moved CSHB 414(RLS) Out of Committee
<Bill Hearing Canceled>
Bills Previously Heard/Scheduled
                    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                                                               
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                                                               
     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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                               
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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