Legislature(2005 - 2006)
05/08/2006 10:12 AM Joint 414
| Audio | Topic |
|---|---|
| Start | |
| HB414 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
CONFERENCE COMMITTEE ON HB 414
May 8, 2006
10:12 a.m.
MEMBERS PRESENT
Representative Pete Kott, Chair
Representative Lesil McGuire
Representative Max Gruenberg
Senator Ralph Seekins, Chair
Senator Hollis French
Senator Charlie Huggins
MEMBERS ABSENT
All members present
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 CCS HB 414 OUT OF COMMITTEE
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
04/11/06 (H) Moved CSHB 414(RLS) Out of Committee
04/11/06 (H) MINUTE(RLS)
04/12/06 (H) RLS RPT CS(RLS) 3DP 4NR
04/12/06 (H) DP: COGHILL, MCGUIRE, KOHRING;
04/12/06 (H) NR: BERKOWITZ, HARRIS, GUTTENBERG,
ROKEBERG
04/12/06 (H) RETURNED TO RLS COMMITTEE
04/24/06 (H) TRANSMITTED TO (S)
04/24/06 (H) VERSION: CSHB 414(RLS) AM
04/25/06 (S) READ THE FIRST TIME - REFERRALS
04/25/06 (S) JUD
04/27/06 (S) JUD AT 8:30 AM BUTROVICH 205
04/27/06 (S) Scheduled But Not Heard
04/28/06 (S) JUD AT 9:30 AM BUTROVICH 205
04/28/06 (S) Scheduled But Not Heard
05/02/06 (S) JUD RPT SCS 2DP 2NR NEW TITLE
05/02/06 (S) DP: SEEKINS, HUGGINS
05/02/06 (S) NR: FRENCH, GUESS
05/02/06 (S) JUD AT 8:30 AM BUTROVICH 205
05/02/06 (S) Moved SCS CSHB 414(JUD) Out of
Committee
05/02/06 (S) MINUTE(JUD)
05/04/06 (S) VERSION: SCS CSHB 414(JUD)
05/06/06 (H) CONFERENCE COMMITTEE APPOINTED
05/06/06 (H) KOTT (CHAIR), MCGUIRE, GRUENBERG
05/07/06 (S) RECEDE MESSAGE READ AND HELD
05/07/06 (S) CONFERENCE COMMITTEE APPOINTED
05/07/06 (S) SEEKINS (CHAIR), HUGGINS, FRENCH
05/08/06 (H) 414 AT 9:30 AM BELTZ 211
WITNESS REGISTER
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 414.
ACTION NARRATIVE
CHAIR PETE KOTT called the Conference Committee on HB 414
meeting to order at 10:12:41 AM. Representatives Gruenberg,
McGuire, and Kott and Senators Huggins, French, and Seekins were
present at the call to order.
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS
10:12:41 AM
CHAIR KOTT announced that the only order of business would be CS
FOR HOUSE BILL NO. 414(RLS)am, "An Act relating to the
interception of the private communications of a minor."
CHAIR KOTT stated that three sections of the bill would be
addressed for concurrence by the Conference Committee. He
directed attention to the working documents before the
committee, which were: CSHB 414(RLS)am, Version 24-LS1565\P.A,
and SCS CSHB 414(JUD), Version 24-LS1565\R, as well as blank
CSHB 414, Version 24-LS1565\U, Wayne, 5/7/06.
10:13:06 AM
CHAIR KOTT moved that the committee adopt the language on page
3, lines 24-26, of SCS CSHB 414(JUD), Version 24-LS1565\R.
There being no objection, page 3, lines 24-26, of Version R were
adopted.
CHAIR KOTT introduced Section 1, of both bills, and pointed out
that the Senate version removes the language specifying probable
cause.
SENATOR SEEKINS asked for an explanation for the inclusion of
the language stipulating probable cause [page 1, lines 10-15,
and page 2, lines 1 and 2, Version P.A].
REPRESENTATIVE GRUENBERG responded that the intent was to define
probable cause, as specified on [page 1] line 9, [Version P.A],
which the Senate Judiciary [Version R] fails to delineate. This
point for definition had created some concern in subsequent
House discussion. He explained that subparagraphs (A), (B), and
(C) list the probable cause sources as being communications by
"a person who in the past, ... currently, or in the future,
[has] either been a perpetrator, a victim, or a witness to a
felony or misdemeanor." Further, he said that page 2, line 2
[paragraph (2)], establishes the probable cause as being a
danger to the health or safety of the minor. Referring to page
2, line[s] 3[-5], he said:
The intent of the bill ... is to allow a finding of
probable cause solely on the fact that the minor's
parent had consented in good faith to the interception
of the communication, based upon the parent's
objectively reasonable belief that it was necessary
for the welfare of the minor, and was in the best
interest of the minor.
10:15:40 AM
SENATOR FRENCH pointed out that the language on page 2, line 3-
5, paragraph (3) [Version P.A], sets out the good faith intent,
and opined that it supersedes the need for the aforementioned
subparagraphs [(A),(B),(C)] and paragraph (2).
REPRESENTATIVE GRUENBERG explained that the referenced
subparagraphs and paragraph appropriately and necessarily
provide the specific and complete language for establishing the
conditions to show probable cause.
10:16:29 AM
SENATOR FRENCH directed the committee's attention to page 1,
line 11, [Version P.A], reading lines 10-12, he commented:
You could read it ... that any person that ever
committed a misdemeanor would be subject to a wiretap
by a parent.
REPRESENTATIVE GRUENBERG interjected that such would not be the
intent.
SENATOR FRENCH continued and said:
The court may enter the order if the court has
probable cause to believe that a party to the private
communication has committed a misdemeanor.
REPRESENTATIVE GRUENBERG stated support for allowing the
discretion of a presiding judge to determine what would serve
for admissibility of probable cause.
REPRESENTATIVE MCGUIRE opined that perhaps the House version
raises the threshold for proving probable cause too high, and
she reminded the committee that the intent of this amendment is
to address the issue of parental rights.
10:18:35 AM
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), commented that there is value to being specific as to
what constitutes probable cause; having specific criteria for a
court to follow is helpful. In regard to Senator French's point
as to whether in the House version "a door [has] been opened ...
wide", he opined that a court would apply "common sense to these
matters" and would issue an order only in good faith of an
actual crime being committed or suspicion of such.
REPRESENTATIVE MCGUIRE opined that the Senate version appears
broad, calling for a "good faith objectively reasonable belief,"
versus the narrowed focus of the House version which requires
"probable cause." She expressed support for the Senate version.
10:21:03 AM
SENATOR FRENCH said that this bill is to provide parents a
safety factor avenue. He asked for clarity as to what legally
constitutes eavesdropping versus wiretapping.
MR. GUANELI explained that eavesdropping is covertly listening-
in on an extension telephone line to a conversation, and would
include recording a specific conversation without an involved
party's knowledge. Wiretapping involves the co-opting of the
telephone companies equipment and intentionally creating a means
to tape record any conversation of a particular telephone line.
Additionally, he said, wiretapping is subject to federal
restrictions.
SENATOR FRENCH referenced page 1, lines 6 and 7, [Version P.A],
and asked what an authorized interception by ex parte order
would include: eavesdropping, wiretapping, or both.
10:24:05 AM
MR. GUANELI answered that this language is to amend AS
12.37.030, which are the wiretapping statutes. Wiretapping, he
expanded, requires a judicial order, involves law enforcement
personnel, and is an action established with the consent of, but
not undertaken unilaterally by, the parent. Eavesdropping,
however, is quintessential to being an observant parent and
discovering e-mail activity or over-hearing telephone
conversations which arouse concern or create suspicion.
10:25:08 AM
SENATOR FRENCH asked if current law prohibits a concerned parent
from eavesdropping and possibly recording his/her child's
telephone conversations.
MR. GUANELI opined that the purpose of this bill is to exempt
parental actions which would violate prohibitions on
eavesdropping.
SENATOR FRENCH directed attention to page 3, lines 20-27,
[Version P.A], and stated that this is the language providing
the aforementioned exemption. This language stipulates an
exception to take place without a court order and thus refers to
eavesdropping, home recording, or any other type of private
parental gathering of communications in which a minor has been
engaged.
MR. GUANELI agreed that the referenced exception occurs in the
eavesdropping statutes regarding actions that a parent could
easily undertake in the context of monitoring what goes on in
the privacy of his/her home.
SENATOR FRENCH reiterated for clarity, that currently a parent
could be subject to potential prosecution for eavesdropping on a
minor's communication.
10:27:07 AM
SENATOR SEEKINS delineated that "interception," page 3, line 20,
Version P.A, serves to allow a parent to legally undertake
actions of: printing e-mail, placing an automatic recording
device on the home telephone, intercepting and retaining
communications, and introducing the information garnered in a
court, provided that it is deemed to have been gathered and
presented in the best interest of the child.
10:27:37 AM
MR. GUANELI added that in this instance the phrase "interception
of communication" is used synonymously in statute with the term
eavesdropping, and he provided that existing statute defines
wire, oral, and electronic communications.
10:28:06 AM
SENATOR SEEKINS inquired whether law would prohibit a parent
from recording a conversation.
MR. GUANELI responded that state law prohibits the recording of
a conversation when it occurs without the involved parties'
consent.
10:28:32 AM
REPRESENTATIVE GRUENBERG stated his understanding that if there
is such a prohibition, it would be covered in AS 42.20.320 and
only apply to wire communications. He asked what the parameters
are for tape recording a conversation.
MR. GUANELI clarified that a party to the conversation is
allowed recording rights.
REPRESENTATIVE GRUENBERG provided a scenario of a child having
an in-person conversation with someone other than a parent, and
the parent, although not a participant in the conversation,
makes a tape recording. He asked if that would currently be
considered illegal.
MR. GUANELI responded that either version of the bill would
exempt the parent from criminal status.
SENATOR SEEKINS clarified that a person may at any time record
his/her own conversation.
MR. GUANELI concurred with Representative Seekins'
understanding, and added that Alaska is considered a one party
consent state and said, "As long as one party of the
conversation consents that is sufficient."
REPRESENTATIVE GRUENBERG stated his understanding that the
Fourth Amendment is only applicable to governmental activity,
and said: "If it is a solely private person, and there is no
wire ... is there a statute or something that says I can't ...."
MR. GUANELI cited Title 42 as the statute that disallows such
activity. He said that the issue with which the courts struggle
is whether this statute was intended to apply to parents, and
this bill will establish that clarity.
REPRESENTATIVE GRUENBERG stated his understanding that this
statute would only apply to electronic types of communications.
He asked for a statement regarding the scope of eavesdropping
that the sponsor intended for this bill to encompass.
SENATOR SEEKINS stated that the intent is to allow a parent to
be legally allowed to intercept any communication as long as it
is in the best interest of the child.
10:31:59 AM
MR. GUANELI counseled that either bill version will provide
legality to a parent to eavesdrop, but the difference is how
evidence may be garnered in order to be considered admissible in
court.
10:32:27 AM
CHAIR KOTT requested that the two sections, of each version, be
considered separately, and he asked for the committee to focus
attention on the probable cause aspect of the bill.
SENATOR HUGGINS suggested dispensing with the probable cause
language.
REPRESENTATIVE MCGUIRE pointed out the need to consider a
situation in which a parent would be directly pitted against
his/her child, or a case of an abusive parent with an
alternative motivation who would not be acting in good faith.
She reiterated her concern for the "threshold being set too
high."
10:34:24 AM
CHAIR KOTT reminded the committee that the ex parte order is
"governmental directed".
MR. GUANELI explained that a wiretap is a type of search warrant
and as such the court would apply a probable cause standard in
order to approve a Fourth Amendment search. He suggested that
the question to be addressed is how much legislative guidance
will be provided to the courts to specify what factors are to be
considered as probable cause. To that extent, he opined, the
House language provides appropriate guidance in setting out a
number of factors for the court to consider as probable cause.
10:36:52 AM
SENATOR SEEKINS described a domestic scenario to illustrate why
he is not concerned with the language as written in Section 1,
[Version P.A]. He opined that it provides a nexus for a parent
to take appropriate action, and allows the court to use
discretion for evidentiary purposes.
REPRESENTATIVE GRUENBERG inquired about a pertinent statutory
subsection, which specifies the relevancy of evidence obtained
or sought to be obtained from a search/wiretap for prosecutorial
purposes. He opined that if that subsection exists and needs to
be written into this bill perhaps it could be identified.
MR. GUANELI responded that the evidence rules of the court would
apply to communications intercepted in accordance with this
bill. Further, he concurred with Senator Seekins that there
does need to be a nexus between the possible crime and the act
of securing evidence. The court will look at the probable cause
presented, and other relevant issues prior to authorizing a
wiretap. He reminded the committee that a wiretap carries
significant legal weight and that there are many layers of
protection and restrictions put in place for providing such an
authorization.
SENATOR SEEKINS referenced page 2, line[s] [2]-5, paragraphs (2)
and (3), and explained that the primary concern for the Senate
version was to preserve this aspect of the House Judiciary
version, which refers to taking action based on concern for the
health, safety, welfare, and in the best interest of a minor.
10:42:34 AM
REPRESENTATIVE GRUENBERG stated that his reason for suggesting
the first subsection was because, although not common, it has
occurred that a minor would be a witness to a crime. He cited a
case [McMaster v. State, 512 P.2d 879 (Alaska 1973)] in
which the primary witness to a murder(s) was a five-year-old
child, and the court held she was not too young to testify; they
affirmed. He said:
So it might be a circumstance where a child was a
witness, or the other person on the line was a witness
and discussing it with the child, or it's conceivable
that one of them was a perpetrator. Not having
anything to do necessarily with the child's welfare.
... A court might very well, because of the age of the
child, prefer to admit the tape ... [thus] the child
would be kept off the stand.
10:44:34 AM
The committee took an at-ease from 10:44:34 AM to 10:46:30 AM.
10:46:30 AM
SENATOR SEEKINS directed attention to "only", page 1, line 7,
[Version P.A], and he stated a preference to have it deleted
from the text, thus allowing the language to be permissive
rather than restrictive.
REPRESENTATIVE GRUENBERG explained that "only" was included to
ensure that the court would find probable cause prior to issuing
a warrant.
REPRESENTATIVE MCGUIRE agreed with Senator Seekins' concern
regarding the inclusion of "only", in this context, and asked
"[but] are we splitting hairs," provided the high threshold
delineated for establishing probable cause.
MR. GUANELI pointed out that "only" appears in both versions of
the bill. He opined that this particular phrase may not be of
significance to the court, where the focus would be to identify
the findings set out in subparagraphs (A), (B), and (C) [page 1,
Version P.A], in making a determination for a court order.
REPRESENTATIVE MCGUIRE reiterated her concern for including the
term "only", as well as the high threshold placed on determining
probable cause. However, she said perhaps we can revisit this
in the years to come, if necessary.
10:51:12 AM
CHAIR KOTT moved that the committee adopt the language of
Section 1, CSHB 414(RLS)am, Version 24-LS1565\P.A. There being
no objection, Section 1 of Version P.A was adopted.
10:51:37 AM
CHAIR KOTT announced that the final area of the bill to be
addressed would be Section 2, addressing the evidentiary aspect
of allowing information garnered to be entered into court.
10:52:05 AM
MR. GUANELI acknowledged that this section is difficult due to
the acrimonious and emotional nature that often surrounds
matters of divorce and child custody. He provided a description
of why a court may decide to suppress evidence, thus not basing
its judiciary findings on the sum of the relevant evidence.
This is allowed because of the exclusionary rule, which serves
primarily to enforce appropriate police conduct and encourage
officers to follow due process; protecting against the abuse of
an individual's constitutional rights. He stated support for
the Senate's version of this section, and opined that the House
version may cause evidence to be suppressed because a private
party in an acrimonious situation did not follow the specific
language of the bill to garner otherwise relevant evidence. The
language, he pointed out, does not allow the parent room for
error and hence evidence of a criminal act may be suppressed.
He asked why the state should prohibit the court from
considering any information gathered by a parent, and suggested
that the court would be able to consider whether to allow such
information as relevant and in the best interest of the child.
10:59:38 AM
REPRESENTATIVE GRUENBERG stated:
The instance where this would become a key issue in a
criminal case, ... is fairly rare. It would become an
issue in ... a fair number of custody cases on a
regular basis because people would be listening-in, in
the context of a divorce or a custody, to get
information that they could use against the other
parent in a court. I don't have any problem with
parents legitimately listening-in on ... telephone
conversations of the children as part of the normal
parents' duty. ... [However], the practice would be
for good divorce lawyers ... to suggest to their
clients ... to tap the phone or listen-in, ... because
the fear would be the other side is doing it, and they
will selectively try to introduce evidence of those
calls. The issue that this would be used more often
than not has nothing to do with criminal law. The
statute for custody in the divorce ... says that the
court must look at the love and affection existing
between the child and the one parent, and another
factor is the other parent's willingness to foster an
open, ... loving, [and] frequent relationship with the
other parent and the child. ... The purpose of these
calls would be to gather information on ... whether
one parent was trying to influence the child against
the other parent, and it would become ... a weapon to
be used in the court. [It] would [serve to] put the
[unwitting] child in ... the middle of these cases
.... ... That's ... why they don't, in this state have
children testify in court; why they don't interview
children in chambers; why they use custody
investigators and guardians ad litem to take the kids
out of this. ... The admission of evidence in court is
discretionary, and whether the trial judge admits a
piece of evidence or denies its admission will not be
overturned unless an abuse of discretion is found, and
that means that there is a definite and firm
conviction that a mistake has been made. This doesn't
amend the rules of evidence, so the discretionary
nature of the admission is ... ultimately the court's
decision. This simply provides guidance, and it
requires that before the evidence is admitted one
party may object; and if that person raises an
objection the court must rule that it is admissible.
And these are the factors the court can consider.
11:04:59 AM
SENATOR SEEKINS paraphrased from the referenced statute
[original punctuation provided]:
Sec. 42.20.310. Eavesdropping.
(a) A person may not
(1) use an eavesdropping device to hear or record
all or any part of an oral conversation without the
consent of a party to the conversation;
SENATOR SEEKINS interjected that without the consent of a party
the single party rules. He then continued paraphrasing from AS
42.20.310:
(b) In this section "eavesdropping device" means
any device capable of being used to hear or record
oral conversation whether the conversation is
conducted in person, by telephone, or by any other
means; provided that this definition does not include
devices used for the restoration of the deaf or hard-
of-hearing to normal or partial hearing.
SENATOR SEEKINS stated that AS 42.20.390 provides a different
more expansive definition. However, he related his
understanding from AS 42.20.310 that an extension telephone
would be considered "any instrument." Hence, if a parent
listens-in on an extension line, he/she will have violated the
law. Stressing his concern on this point, he said that the
language in the Senate version allows a more unimpeded means to
intercept conversations with fewer "hoops" for a parent to step
through. For the benefit of the child it would be prudent to
allow a parent the more lenient means to gather critical
information.
11:07:34 AM
REPRESENTATIVE MCGUIRE opined that the discretion of the judge
could go both ways, and expressed trust that a judge would act
appropriately. She stated support for the Senate version of the
bill, maintaining her initial concern that the House version is
too restrictive for parents. Responding to Representative
Gruenberg's point that divorce attorneys may encourage clients
to record telephone conversations, she suggested that such
action could be addressed by the family law bar as an ethics
issue.
REPRESENTATIVE GRUENBERG explained how this is currently
addressed in court, and said that cases with these types of
arguments often rise to the circuit court level. He maintained
that the Senate version allows for recorded messages to be
routinely used as evidence in family court cases.
11:12:18 AM
SENATOR FRENCH stated:
I see that the Conference version [P.A] would exclude
inadvertent evidence; evidence where a parent just
picks up a telephone and happens to hear something
terrible. Whereas, the Senate version would allow the
inclusion or the admission of evidence gathered in bad
faith.
REPRESENTATIVE GRUENBERG interjected, "I didn't intend that."
SENATOR FRENCH continued:
I understood you to say that the Senate version,
without the hoops of the Conference version [P.A],
would allow the admission into evidence that evidence
gathered in bad faith. Either way the parent gets the
evidence, if you're really worried about a predator or
something terrible [that's] happened. Once the parent
learns of it, no matter how he or she learns of it,
... they will take the steps necessary to safe out the
situation.
11:14:23 AM
REPRESENTATIVE GRUENBERG suggested that it might be necessary to
broaden the powers of the committee, and said that additional
language might need to be crafted to address this unintended,
inadvertent aspect of evidentiary discovery.
REPRESENTATIVE MCGUIRE stated her understanding that the issue
appears to be a case of "all or nothing." She admitted that
this has been a difficult issue throughout the drafting process
of this bill.
11:16:02 AM
SENATOR SEEKINS agreed that parents can be manipulative, and
disregard the best interest of a child when working to align
that child on a particular side or the other in a divorce action
or a custody dispute. However, he reiterated his concern that a
parent may, in an inadvertent instance, eavesdrop and overhear
something which may prove to be critical evidence. The parent
should be allowed to document such a conversation without being
hindered by requirements of prior belief, knowledge or
suspicion, and the information garnered should be admissible in
court. He asked:
"When, in good faith, does a parent have a reasonable
belief that it's necessary to be able to intercept [a
conversation], and [furthermore] is an inadvertent
interception going to be thrown out by the court. ...
I don't want to see that happen."
REPRESENTATIVE GRUENBERG opined that if there is a criminal
situation in which a parent overhears a reportable conversation,
the court is going to err on the side of protecting the child
and prosecute for the crime; hence, such situations will not be
a problem. However, he said the crime would be a child being
used disparagingly in a vicious divorce situation, as previously
discussed.
11:19:27 AM
REPRESENTATIVE MCGUIRE suggested:
What if you were to keep it the way that we had it in
Judiciary, in both Senate and House versions, and
leave it open without the threshold[s] of good faith
and objectively reasonable belief. ... Put in an (A)
... that related specific to those child custody
cases. ... [Section 2, subparagraph](A) would then
read: "considered by a guardian ad litem or a child
custody investigator only if the guardian ad litem or
child custody investigator determines that the parent
acted in good faith and had an objectively reasonable
belief;"
REPRESENTATIVE MCGUIRE explained that the intent of both the
House and the Senate bill versions would be served by shifting
the objectively reasonable belief aspect to this area of the
bill.
11:20:44 AM
REPRESENTATIVE GRUENBERG stated: "That would be helpful."
SENATOR SEEKINS described a manipulative divorce situation, in
which a parent uses a child for leverage, and opined that such
behavior could be considered damaging to the child, possibly
constituting psychological abuse. He inquired whether reporting
this type of parental behavior to the court would not be in
keeping with the best interest and welfare of the child.
REPRESENTATIVE GRUENBERG opined that if that type of a
conversation were intercepted, it should be brought to the
court's attention, and could be provided the language suggested
by Representative McGuire [is included]. He maintained that the
judge should make the determination for admissibility.
SENATOR SEEKINS pointed out that a judge retains discretion
rights without the addition of Representative McGuire's
suggested language. He said: "I'm just not trying to put as
many handcuffs on that judge maybe as you are."
11:22:49 AM
REPRESENTATIVE GRUENBERG said that he wanted to eliminate the
possible judiciary interpretation that such evidence would be
required to be admissible.
SENATOR SEEKINS maintained that it would be important to err on
the side of protecting the child and not protect information
garnered by either party in a dispute from being considered by
the court.
REPRESENTATIVE GRUENBERG agreed and reiterated that the
suggested language by Representative McGuire would alleviate the
situation.
11:25:12 AM
SENATOR SEEKINS stated:
The broad brush fits me better than the narrow one.
... I do understand that there could be some abuse ...
and [divorce/custody cases] can get ugly. ... But my
primary concern is for that child, and the
interception of a private communication, to which that
minor is a party, by a parent should be exempt from
[AS 42.20.]310 and that's what my concern is .... How
the court treats that is another matter. I'm not
wanting to try to be able to restrict ... how the
court treats that information, I'm just wanting to
allow the parent under our definition to be able to
intercept that communication without breaking the law.
REPRESENTATIVE GRUENBERG suggested adopting the Senate language
along with the following addition: "The admission of this
evidence should be at the discretion of the court."
SENATOR SEEKINS pointed out that such language would be a
restatement of the already existing truism "that I'm depending
on."
REPRESENTATIVE GRUENBERG reiterated, "I don't want this language
to indicate that ... [such evidence] must be admitted."
SENATOR SEEKINS stated:
This bill ... is to allow parents to legally intercept
communications of their minor children. How [the
information] is used ... is a different subject, ...
maybe for a different bill.
11:27:02 AM
SENATOR FRENCH suggested:
I ... wonder whether we couldn't improve the Senate
version by simply adding that the interception was
made "in good faith". ... It puts some sideboards ...
on the ugly divorces that Representative Gruenberg has
been bringing to our attention.
CHAIR KOTT agreed to amend [page 3, line 13, paragraph] (9), of
the Senate version, and suggested the language include "the good
faith interception of".
REPRESENTATIVE GRUENBERG clarified the suggested amendment.
REPRESENTATIVE MCGUIRE concurred with the proposed change.
CHAIR KOTT moved to adopt Amendment 1, to SCS CSHB 414(JUD),
Version 24-LS1565\R, to read as follows:
Page 3, line 13, following (9);
Insert "the good faith"
There being no objection, Amendment 1 was adopted.
11:29:46 AM
MR. GUANELI questioned how "good faith" would be defined for
application in this context. "Probable cause" for a search
warrant is clear, but he said "good faith" injects an uncertain
term, and a criminal defense attorney defending a father charged
with abuse of a child will be "arguing forever" whether the
mother intercepted a conversation "in good faith." He provided
some alternative suggestions for appropriate language.
11:31:54 AM
SENATOR SEEKINS stated his understanding that AS 42.20.310
charges a parent with a criminal offense for eavesdropping. He
maintained that his primary concern is to exempt that action as
a criminal offense, and how the information is used in court is
a subject for a different day.
REPRESENTATIVE GRUENBERG directed attention to page 1, line 7,
[Version P.A], and pointed out that this language stipulates the
requirements not for the interception of questionable
communications, but rather establishes the requirements for
garnered evidence to be admitted in court.
11:33:53 AM
SENATOR SEEKINS read page 2, line 9, [Version P.A]: "(a) The
following activities are exempt from the provisions of AS
42.20.300 and 42.20.310," and, he said that leads to the
language of paragraph (9) being invoked, thus the inadvertent
interception would have to be considered illegal.
REPRESENTATIVE GRUENBERG assured, "That was not the intent."
SENATOR SEEKINS maintained, "But I think it would be."
SENATOR FRENCH stated, "I beg to differ."
11:34:25 AM
MR. GUANELI suggested adopting the Senate version language of
paragraph (9), and following that paragraph with the following
two additional provisos:
Evidence intercepted under this subsection may only be
considered by a guardian ad litem, or child custody
investigator if in the best interest of the minor. ...
[Followed by:] Evidence intercepted under this
subsection may be admitted in a judicial proceedings
subject to the Alaska Rules of Evidence and in a
matter relating to custody of the minor only if in the
best interest of the minor.
MR. GUANELI explained that, with the addition of this language,
in criminal proceeding the rules of evidence would govern and
for civil child custody proceedings consideration would be given
to both the rules of evidence as well as what is in the best
interest of the minor. This eliminates the motivation of a
parent inappropriately intercepting communications.
11:35:54 AM
SENATOR SEEKINS said he would agree to language which
decriminalizes a parent who overhears a child's conversation.
SENATOR FRENCH called for a point of order.
CHAIR KOTT stated that a draft would need to be created to this
effect prior to the committee proceeding.
REPRESENTATIVE GRUENBERG agreed with the proposed language. He
said: "Then I would also suggest we use that same language
under the [subparagraph] (C) in the official proceeding, too."
11:36:44 AM
CHAIR KOTT announced that the committee would stand in recess to
a call of the chair.
3:07:53 PM
CHAIR KOTT called the Conference Committee on HB 414 back to
order at 3:07:53 PM. Representatives Gruenberg and Kott, and
Senators French and Huggins were present at the call to order.
CHAIR KOTT reported that the amendment being drafted meets the
satisfaction of all the members.
SENATOR HUGGINS moved to adopt [and report from committee] the
forthcoming CCS HB 414. There being no objection, CCS HB 414
was reported from the Conference Committee on HB 414.
3:08:26 PM
ADJOURNMENT
There being no further business before the committee, the
Conference Committee on HB 414 meeting was adjourned at 3:09
p.m.
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