Legislature(1995 - 1996)
04/19/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 19, 1996
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 191(STA)
"An Act relating to election campaigns, election campaign
financing, the oversight and regulation of election campaigns by
the Alaska Public Offices Commission, the activities of lobbyists
that relate to election campaigns, the definitions of offenses of
campaign misconduct, and to the use of the net proceeds of
charitable gaming activities in election campaigns; and providing
for an effective date."
CS FOR HOUSE BILL NO. 341(FIN)
"An Act relating to administrative adjudication and judicial
appeals and to the informal resolution of certain factual disputes
between taxpayers and the Department of Revenue; establishing the
office of tax appeals as a quasi-judicial agency in the Department
of Administration; revising the procedures for hearing certain tax
appeals, including appeals regarding seafood marketing assessments;
relating to consideration and determination by the superior court
of disputes involving certain taxes and penalties due, and amending
provisions relating to the assessment, levy, and collection of
taxes and penalties by the state and to the tax liability of
taxpayers; providing for the release of agency records relating to
formal administrative tax appeals; relating to litigation
disclosure of public records; clarifying administrative subpoena
power in certain tax matters; and providing for an effective date."
CS FOR HOUSE BILL NO. 314(JUD) am
"An Act relating to domestic violence and to crime victims and
witnesses; and amending Rule 613, Alaska Rules of Evidence."
PREVIOUS SENATE COMMITTEE ACTION
SB 191 - See State Affairs minutes dated 1/25/96, 3/12/96,
3/19/96 and Judiciary minutes dated 4/15/96.
HB 314 - See Judiciary minutes dated 4/15/96.
HB 341 - No previous Senate committee action.
WITNESS REGISTER
Susan Burke
424 North Franklin
Juneau, Alaska 99801
POSITION STATEMENT: Discussed SB 191
Jack Chenoweth
Legal Services
Legislative Affairs Agency
Alaska State Capitol
Juneau, Alaska 99811-1182
POSITION STATEMENT: Discussed SB 191
Deborah Vogt
Deputy Commissioner
Department of Revenue
P.O. Box 110400
Juneau, Alaska 99811-0400
POSITION STATEMENT: Supports HB 341
Jeff Logan
c/o Representative Joe Green
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for the sponsor of HB 341
Terry Carnes
Alaska Judicial Council
1029 W 3rd Ave., Suite 201
Anchorage, AK 99501
POSITION STATEMENT: Commented on HB 341
Richard Vitale
c/o Representative Sean Parnell
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for the sponsor of HB 314
Laurie Otto
Deputy Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supports HB 314
Lauree Hugonin
Executive Director
Alaska Council on Domestic Violence &
Sexual Assault
130 Seward St., Rm. 501
Juneau, AK 99801
POSITION STATEMENT: Supports HB 314
Jayne Andreen
Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Supports HB 314
Chris Christensen
Staff Counsel
Alaska Court System
303 K Street
Anchorage, AK 99501-2084
POSITION STATEMENT: Discussed a proposed amendment to HB 314
ACTION NARRATIVE
TAPE 96-40, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:37 p.m. Present were Senators Green, Miller and Taylor.
The first order of business before the committee was SB 191.
SB 191 ELECTION CAMPAIGN FINANCE REFORM
SENATOR MILLER moved to adopt CSSB 191(JUD) (version R), in lieu of
the original bill. There being no objection, version R was
adopted.
SENATOR ADAMS arrived at 1:38 p.m.
SUSAN BURKE, an attorney with the law firm of Gross and Burke,
explained her original involvement with SB 191 began when Senator
Kelly, on behalf of the Legislative Council, asked her to review
the campaign finance initiative and advise the Council about any
provisions in the initiative that might violate the Constitution.
She prepared an opinion for the Council, dated February 12, in
which she identified a number of sections which raise significant
issues. She believes some of the issues, if challenged, would be
found violative by the court, others are not as clear.
CHAIRMAN TAYLOR questioned whether the issues are questionable only
on constitutional grounds. MS. BURKE believed most of the
provisions might violate the First Amendment.
MS. BURKE informed committee members she identified the sections of
the Senate State Affairs committee substitute that are virtually
certain to be found invalid if challenged in court at Senator
Taylor's request. In her personal view, when dealing with First
Amendment rights, it is not good public policy to enact statutes
that violate those rights, and then require citizens to go to the
expense and trouble of filing a lawsuit in order to vindicate those
rights. When conducting the review of the bill, she also kept in
mind that the legislature was required to enact a substantially
similar measure to the initiative. The Alaska Supreme Court has
decided only one case interpreting the substantially similar
provision of the Constitution. In that decision, the Supreme Court
determined if the legislature enacts a measure that is
substantially similar to an initiative that is scheduled to go on
the ballot, the initiative would be removed from the ballot and the
law would take effect. In that case, the Supreme Court gave the
legislature a lot of discretion, particularly in legislation of
this nature, to make changes and fine tune the provisions. In her
opinion the bill in its current form is still substantially similar
to the initiative.
MS. BURKE discussed the provisions most vulnerable to
constitutional attack, and as a result no longer appear in version
R. The initiative contained different amounts of contribution
limitations for individuals and groups. The individual limit was
$500; the group limit was $250. The only basis the courts have
ever found for upholding limits on the amounts that can be
contributed to a candidate is to avoid corruption or the appearance
of corruption which allows the federal and state governments to
place limits on contribution amounts. In her opinion, it is no
more corrupt for a group to contribute to a candidate than for an
individual to contribute to a candidate, therefore there is no
justification for a difference in the amounts. Rather than reduce
the individual contributions to $250 to keep them equal, version R
raises the group limit to $500. Additionally, cases from other
jurisdictions suggest that at some point, campaign contributions
can be set so low that the limits have no rational relationship
between preventing corruption or the appearance of corruption and
very low limits have been thrown out on that basis.
MS. BURKE explained a second provision which prohibited certain
business entities, other than corporations and labor unions, from
making contributions. The U.S. Supreme Court has upheld
prohibitions against corporate contributions and labor union
contributions, but there is no case that has upheld limitations on
other forms of business entities. Version R clarifies that other
kinds of business entities, other than corporations or labor
unions, can contribute to candidates.
CHAIRMAN TAYLOR asked how much those entities can contribute. MS.
BURKE replied the same amount as individuals. CHAIRMAN TAYLOR
asked if all entities, including individuals, groups, and
businesses, would have the same limitation, and whether the only
exception would be political parties.
MS. BURKE clarified that she was previously referring to the amount
that can be contributed to a group is $250 but the same idea
applies. If an individual contributes to a group, that individual
is one step removed from contributing directly to a candidate.
MS. BURKE explained the initiative had a provision which banned
non-resident contributions. The State Affairs Committee placed
limits on the dollar amounts that candidates could accept from non-
residents. That provision raises two constitutional questions: the
first being the First Amendment rights of non-residents to engage
in political activity. There are non-residents who have every bit
as much interest in political activity in Alaska as residents. The
fact that someone is a non-resident raises the privileges and
immunities clause. The fact that non-residents do not have the
right to vote is insufficient reason to limit the amount they can
contribute, other than to hold them to the same limitation as
residents. A federal district court case in Oregon held people
cannot be prohibited from making contributions to people in
election districts outside of the district in which they reside.
CHAIRMAN TAYLOR noted as the committee substitute existed, if a
person lived within a given House District in Anchorage, under the
initiative, he/she would have been precluded from contributing to
a candidate who lived across the street but was in a different
district.
SENATOR ADAMS commented that a person who could not contribute to
another candidate could contribute to the candidate's political
party, who could then contribute to the candidate. MS. BURKE
agreed, but noted the group would have been limited to contributing
$1,000.
MS. BURKE stated the Senate State Affairs Committee raised the
limit that groups could contribute to candidates from $500 to
$1000. She believed the amount individuals can contribute to
groups should be the same as the amount groups can contribute,
based on her previous argument. She asked the committee to review
that issue. In response to Senator Adams' comment, she stated did
not think it is possible to close every loophole, but the bill can
set reasonable limits that are enforceable, and contain reporting
requirements.
Number 278
SENATOR ADAMS commented that many legislators have to travel around
their districts via airplane, which is expensive. He said he would
prefer to have a geographical difference provision contained in the
bill for those legislators.
MS. BURKE responded that one solution is to raise the contribution
limit from $500 to $750. If that is the legislature's considered
judgment, the court might well give the legislature the benefit of
the doubt in terms of substantial similarity.
CHAIRMAN TAYLOR emphasized that is has been his concern throughout
the deliberations on this bill, to maintain as much of the original
integrity of the initiative as possible, even though he may
personally disagree with the purpose, thrust and overall intent of
the initiative. If the legislature is going to create a vehicle
which is substantially similar to the initiative, it must truly be
very similar. His primary concern is that by adhering to the
intent of the initiative, the legislature not defraud the public as
it would be fraudulent to take an unconstitutional issue, place it
before the voters, knowing full well it is patently
unconstitutional, and then through bumper sticker politics to
convince people this is a saving grace called "campaign finance
reform." The legislature's role in this process is not to make
substantive changes from the initiative, but to ensure that the
legislation is not patently unconstitutional.
MS. BURKE felt the legislature has broader discretion according to
the Alaska Supreme Court decision on the phrase "substantially
similar." CHAIRMAN TAYLOR stated he appreciates the fact the
legislature could go further than that, but to do so would do a
disservice to what the petitioners were requesting. They have the
right to have the policy matters heard in a public forum, not the
legislative forum. He repeated the legislature should be doing the
cleanup that is ethically required, not take positions on matters
of policy. In his opinion, there are many disagreeable things
within the initiative, yet it was foisted on the public as an all-
encompassing solution to a perceived problem that does not exist.
MS. BURKE commented that in performing the exercise she was hired
to do she did only what was requested which was to address the
constitutional issues. The substantial similarity issue is for the
legislature to decide.
MS. BURKE discussed the prohibition against lobbyists making cross-
district contributions which was deleted from version R. There are
cases out of California that suggest that restrictions on
lobbyists' contributions cannot be any greater than on anyone else.
Although there are restrictions that can be placed on lobbyists
activities, the contribution prohibition crosses the line. Also,
the initiative contains a prohibition on the use of campaign funds
to make contributions to other candidates. A Ninth Circuit Court
of Appeals case ruled candidates cannot be prohibited from using
campaign funds to make contributions to other candidates, subject
to the same dollar limits as everyone else.
CHAIRMAN TAYLOR clarified if he wished to contribute funds from his
campaign to another candidate, he could do so, but would be limited
to the same amount as anyone else. MS. BURKE replied yes, and
added he could write a personal check or write a check from his
campaign funds, but could not do both. The State Affairs committee
substitute, contained a time limitation on contributions by
candidates for governor or lieutenant governor. It effectively
prohibits a candidate for governor or lieutenant governor from
contributing to any other candidate. Based on the same Ninth
Circuit case, it would most likely be found to be unconstitutional.
CHAIRMAN TAYLOR asked if the same amount limitation would apply to
the governor and lieutenant governor. MS. BURKE replied
affirmatively.
MS. BURKE explained the final section that should be deleted
relates to the remedy provision in the initiative. That provision
provides that campaign violations dealt with purely
administratively (by the APOC) would have one set of penalties
imposed. If, however, the complainant takes the candidate to
Superior Court, the penalties and fines are tripled. That
provision would not withstand equal protection scrutiny as there is
no rational basis for it. There is also a provision that deals
with reasonable attorneys' fees. That provision may involve a
court rule change which cannot be done by initiative.
CHAIRMAN TAYLOR asked if that provision was deleted from version R.
MS. BURKE replied that is correct.
CHAIRMAN TAYLOR commented if the proponents of this initiative
wished to be fair at all, along with their headhunter provision,
the least they could have done was to have provided that if a
specious complaint was brought, the person bringing the complaint
could have been subjected to three times the defendant's costs and
to give the defendant the opportunity to file suit against the
complainant personally. MS. BURKE noted that would have been
symmetrical.
MS. BURKE informed the committee the initiative contains a
provision that allows a private person who goes to Superior Court
to be fined one-half. She and Mr. Chenoweth agreed that would
dedicate the prohibition against either dedicated funds or the
requirement that state funds must be appropriated by the
legislature before they can be spent by anyone therefore it was
removed from version R.
MS. BURKE concluded by saying in her review of the State Affairs
committee substitute, she deleted provisions that were clearly
unconstitutional. If the question was a close one, the provision
was left in the bill.
Number 435
JACK CHENOWETH, Division of Legal Services, emphasized the starting
point of this project was an effort to take the State Affairs
committee substitute and move it back toward the last version on
the House side. The changes made were based on the removal of any
provisions in which a serious constitutional violation could be
asserted. Conforming changes were also made. The initiative, and
other versions of the bill, make use of the terms "proposition" and
"question" as those terms are defined in the election code already.
In the context of the last U.S. Supreme Court decision in this area
covering the anonymous contributions in the "paid for by"
requirement, "proposition" was confined to things that were in the
nature of submissions to the electorate that some would regard as
issue-related rather than candidate-related. Candidate-related
issues, such as retention of judges, were not included. Because
that change implicated how municipalities might adapt their laws,
that approach was taken toward the changes that affect
municipalities.
SENATOR ADAMS asked if Sections 1 - 29 fit right under the subject
of election campaign laws. MR. CHENOWETH replied the decision as
to whether the bill is substantially similar to the initiative will
be decided by the Lieutenant Governor.
SENATOR ADAMS asked if it would be to the legislature's advantage
to make the legislation substantially similar to the initiative so
that the initiative is not put on the ballot. MR. CHENOWETH
replied that is a policy call on the part of the legislature. To
this point, previous committees have added material to the
initiative.
CHAIRMAN TAYLOR indicated the it is his intention to make the
legislation as close to the initiative as possible. If the odds of
a provision being found constitutional were 60:40, it was retained
in the legislation, but if the odds were close to zero, that
provision was removed. The initiative was rather vague on given
subjects and did not address specific instances. To that extent,
the bill only includes cleanup language sufficient to define what
needs to be reported.
MS. BURKE believed one good example to be the provisions in version
R that limit the window of campaigning. That provision goes well
beyond the reform specified in the initiative.
CHAIRMAN TAYLOR asked what amount a candidate can carry forward
from one campaign to the next. MS. BURKE replied this is another
area that is unclear constitutionally. There is a Ninth Circuit
case and an Eighth Circuit case that say a candidate cannot be
prohibited from using money collected in one campaign on another
campaign. This provision does not prohibit the use of those funds,
but contains a limitation on the dollar amount.
CHAIRMAN TAYLOR asked what the initiative contained. MS. BURKE
recalled the initiative had an outright prohibition which is
unconstitutional. CHAIRMAN TAYLOR indicated the language in
version R remains as similar as possible to the initiative on this
issue by removing the prohibition but limiting the dollar amount.
MS. BURKE felt that although that section raises constitutional
issues, it is not clearly unconstitutional so she recommended it be
left in.
CHAIRMAN TAYLOR believed the actual amounts would be less than 10
percent of an average campaign race.
Number 556
SENATOR GREEN found it to be ironic that the findings and purpose
section of the bill states that highly qualified citizens are
dissuaded from running for public office due to the high cost of
election campaigns, yet the remainder of the bill reduces access to
funds.
SENATOR MILLER moved CSSB 191(JUD) out of committee with individual
recommendations. SENATOR ADAMS objected, but removed his
objection, therefore the motion carried.
HB 341 TAX APPEALS/ASSESSMENT/LEVY/COLLECTION
CHAIRMAN TAYLOR announced a committee substitute has been prepared
that incorporates the amendments adopted at the last meeting,
however the working group, consisting of representatives from the
Administration, industry, and Representative Green's staff, have
come up with further amendments to present.
DEBORAH VOGT, Deputy Commissioner of the Department of Revenue,
explained the proposed amendments. The first amendment (work draft
D) would permit a very limited appeal directly to court, or
situations in which a taxpayer is challenging the validity of a
statute for specific reasons. An appeal would be prohibited if
there is a dispute of material fact that a factfinder would have to
develop if a factual record is necessary to decide the question of
law that is raised, if the development of a factual record will
render an appeal unnecessary to reach the question of law raised,
or if the taxpayer challenges the assessment of the tax on grounds
other than the validity of the statute. This procedure would be
used by the court system anyway.
Number 574
SENATOR ADAMS questioned whether the time limit for payment made on
page 3 is 30 or 60 days. MS. VOGT believed it should be 60 days
and is a drafting error. In the original bill the requirement was
30 days, but Paul Frankel recommended lengthening the time limit to
60 days.
CHAIRMAN TAYLOR noted the transitional provision has also been
changed. MS. VOGT agreed and explained amendment #2 provides that
if the taxpayer appeals after the effective date of the act, the
appeal goes to the new administrative law judge, rather then
staying within the department. Cases currently pending in the
department will remain so, until resolved, unless both parties
agree otherwise.
CHAIRMAN TAYLOR asked whether the prepay requirement, adopted at
Monday's meeting, will no longer be part of the transition
requirement. MS. VOGT stated that is correct.
CHAIRMAN TAYLOR questioned whether this transition amendment is
slightly different in that it no longer offers an opt-in, opt-out
provision. MS. VOGT clarified the option is no longer unilateral:
A taxpayer cannot opt out without the state's permission.
CHAIRMAN TAYLOR asked if the third and more significant change is
the change from a direct-to-court option to a more definitive
discussion of the subject matter that would be allowed to be argued
in Superior Court. That discussion has been narrowed to issues of
law, and not issues of fact or interpretation. MS. VOGT explained
the discussion would have to focus on issues of law that would
invalidate a statute. CHAIRMAN TAYLOR concluded the direct-to-
court option has been limited to summary judgment motions.
MS. VOGT explained, for the record, the group discussed the
prepayment provision which she was adamantly in favor of retaining,
but was later convinced that if a taxpayer is going to challenge
the validity of a statute, the fact that the taxpayer will have
already paid the undisputed amount of the tax is an appropriate
approach.
CHAIRMAN TAYLOR asked if the Administration supports the
legislation if these amendments are adopted. MS. VOGT replied
affirmatively.
JEFF LOGAN, legislative aide to Representative Joe Green, sponsor
of the measure, stated he appreciated the additional time given to
the bill. He informed committee members that Representative Green
spoke to Governor Knowles after Monday's meeting about the
amendments discussed by Ms. Vogt. He was disappointed that he
could not convince the Governor of his point of view, however he is
willing to accept the proposed changes which were the result of
another meeting with members of his administration and AOGA
members. Representative Green would have preferred an unlimited
option of going straight to court, or an option that requires
prepayment, but is willing to see how this approach works for one
or two years.
TERRY CARNES, Alaska Judicial Council, commented that if the
committee adopts the amendment regarding the appointment of
administrative law judges requiring the participation of the
Judicial Council, the Judicial Council concurs with that approach.
She submitted a $13,000 fiscal note which covers the expense of
appointing a single administrative judge. The Judicial Council
does believe it would be appropriate to conduct an in-house Bar
survey on the position, so the associated costs would cover a
meeting of the Judicial Council to interview the candidates and
make nominations, and to conduct a Bar survey.
CHAIRMAN TAYLOR commented the bill has a referral to the Senate
Finance Committee where the fiscal impact will be discussed. This
position will be weighing matters that are of greater significance
than normally seen in the Superior Courts. MS. CARNES believed it
is appropriate to go through a very detailed, thorough selection
process.
SENATOR GREEN moved the adoption of the proposed amendments
discussed by Ms. Vogt as one amendment to HB 341. There being no
objection, the motion carried.
There being no further discussion on the bill, SENATOR MILLER moved
HB 341 as amended out of committee with individual recommendations
with any accompanying fiscal notes. There being no objection, the
motion carried.
SENATOR ADAMS thanked the Chairman for making a bad bill good.
CHAIRMAN TAYLOR thanked everyone who worked on the bill as this
version is a much preferred product.
MS. VOGT noted the Department has prepared a draft fiscal note to
address the amendments that were adopted. CHAIRMAN TAYLOR asked
her to submit it to the committee so that it can travel with the
bill.
The committee recessed from 2:30 p.m. to 2:47 p.m. with Senators
Green, Miller, Taylor and Ellis in attendance.
HB 314 CRIME VICTIMS & WITNESSES & DOMESTIC VIOL
RICHARD VITALE, legislative aide to Representative Parnell, sponsor
of the measure, explained the packet before committee members
contains all amendments except ".10" and ".3" as they were
duplicative. He explained the proposed amendments as follows.
Amendment .1 contains technical changes the Department of Law and
Representative Parnell felt were necessary for purposes of word
clarification. Amendment .4 corrects a drafting error. Amendment
.7 deletes certain protective order provisions from the emergency
and ex parte orders. The Department of Law has some concerns about
amendment .7 The amendment deletes only those sections that
address deadly weapons and guns for ex parte and emergency orders.
Amendment .12 narrows the conditions under which protective orders
can be issued: it does not apply to ex parte or emergency orders.
It asks the courts to make a finding that the respondent used, or
threatened to use, a deadly weapon before ordering the seizure or
the confiscation of the weapons. Amendment .2 was previously
discussed by the committee on Monday. The last two provisions in
Amendment .2 were crossed out because they would be replaced by
Amendment .12. Amendment .2 covers a case where the abuser used,
possessed, or threatened to use a deadly weapon. Amendment .9 adds
language that would give the judge more direction on when a
protective order could be issued. Currently of the 16 provisions
in the bill, four contain protective orders with no time limits,
the remainder have one year time limits. Amendment .9 clarifies
that in the case of protective orders with one-year time limits,
the judge may deny, based on lapse of time, the issuance of those
orders. Amendment .8 deletes the alcohol provision from protective
orders, and adds the alcohol provision as part of the probation
requirement.
CHAIRMAN TAYLOR asked if Amendment .8 still gives the court the
authority to order the person to refrain from consumption of
alcohol. MR. VITALE replied the court can not make that order
directly in the protective order, but that authority would still be
there.
CHAIRMAN TAYLOR believed the court has authority to do so anyhow,
but this bill more specifically delineates that authority in the
probationary portion. MR. VITALE replied this amendment retains
that authority in the probationary portion.
CHAIRMAN TAYLOR noted the mixing of the civil and criminal aspects
has been of concern to the committee and thanked Mr. Vitale for the
clarification.
MR. VITALE explained Amendment .11 is new language clarifying what
police officers can do when they approach a domestic violence
situation, and when, and how, they can seize a weapon. Amendment
.11 incorporates Amendment .10 which was a simpler version.
Number 296
CHAIRMAN TAYLOR questioned whether an officer could seize all
deadly weapons in the home if the abuser was using one weapon
because the weapons would be needed for evidence. He wondered if
the word "evidence" only involves the possibility of a criminal
charge being brought, or whether it also involves a pending civil
action. MR. VITALE explained his understanding is that it only
applies to criminal cases.
Number 350
LAURIE OTTO, Deputy Attorney General, Department of Law, discussed
the proposed amendments. Amendments .1 and .4 correct drafting
inconsistencies. Amendment .12 amends page 22, lines 5 and 7,
which lists certain protective orders the court can enter. The
Department of Law supports Amendment .12 as it is an appropriate
narrowing of the protective order. The Department of Law does not
support Amendment .7 however, because it says, after Amendment .12
has been incorporated, the court has made a finding that a
respondent has used, or threatened to use, a weapon in the domestic
violence. If a victim is requesting an ex parte order, a court
should be able to find that the respondent should be prohibited
from using or possessing a deadly weapon. These conditions are not
mandatory, they are entered in the court's discretion. If after
finding the respondent has used or threatened to use a weapon,
which is required by Amendment .12, it is dangerous to not also
give the court the ability to order those in emergency and ex parte
orders.
CHAIRMAN TAYLOR asked for further clarification.
Number 270
MS. OTTO explained that Amendment .7 amends page 23, line 22 and
page 24, line 6 which contain the ex parte and emergency protective
order statute. Amendment .7 cuts out the ability to order
paragraphs 6 or 7, which are using or possession deadly weapons or
surrendering firearms. It prevents the court from entering those
two orders for the emergency and ex parte protective orders. These
orders are only available in the full-blown protective order after
notice and hearing. The problem is that Amendment .12 says that in
any case, even the protective orders entered after notice and
hearing, the court can only enter the kinds of orders on paragraph
6 and 7 if the court makes a specific finding that the respondent
used or threatened to use a weapon in the domestic violence.
CHAIRMAN TAYLOR asked how this would affect a domestic violence
situation, which might be an argument involving pushing, but there
is no threat with a deadly weapon.
MS. OTTO explained if a person pushed somebody, but never used, or
threatened to use, a weapon, Amendment .12 would prohibit the court
from ordering, in any context, the kinds of protections listed in
paragraphs 6 and 7. If Amendment .7 is adopted, and the person
shoots at somebody, the court can only order that person to not use
or possess a deadly weapon after a hearing and notice has occurred
and a protective order has been issued. Even if a person was shot,
the court could not prohibit the use or possession of a deadly
weapon if an emergency or ex parte order were issued.
CHAIRMAN TAYLOR asked how the court would be limited. MS. OTTO
stated the omission of paragraphs 6 and 7 in Amendment .7 only
allows the court to order the kind of protection in (c)(1)-(5) and
(8)-(12). CHAIRMAN TAYLOR asked if that is in one form of hearing.
MS. OTTO clarified the court cannot order the person to refrain
from using, or threatening to use, a deadly weapon in the 72-hour
emergency order, and the 20-day ex parte order.
CHAIRMAN TAYLOR asked if, once a hearing is held, the third phase
would apply, and why a victim would not want to have a hearing.
MS. OTTO responded if a person uses a weapon against another, we
should allow the court to take emergency action to prevent that
from happening again.
CHAIRMAN TAYLOR asked if there is an amendment that allows a police
officer to charge a person criminally if someone used or threatened
to use a weapon. MS. OTTO replied the police officer can charge
criminally, but may not. The removal of Amendment .7 will provide
extra protection. There are cases where the victim does not want
the police involved, or to file criminal charges, but may want a
court order to protect herself against future domestic violence.
CHAIRMAN TAYLOR questioned whether this legislation goes further
than that, since even though the victim may not wish to bring
criminal charges, the fact that an officer investigates gives the
officer the authority to seize all weapons the abuser may control.
That authority would be given in civil matters, and overlaying that
is the existing criminal law. He questioned the very narrow area
in which Ms. Otto was suggesting the victim would not be
protected.
MS. OTTO said there is a tremendous amount of domestic violence
that occurs in Alaska, including domestic violence involving the
use of weapons, where women do not involve the police or criminal
justice system, but do want to protect themselves. CHAIRMAN TAYLOR
asked if that is what a civil protective order is designed to
cover. MS. OTTO replied it is. She explained the weapon can only
be seized if the victim asks for a full blown hearing and a
protective order is issued: the court cannot do anything about the
weapon if the victim requests a 20 day ex parte order the day after
the domestic violence occurs.
Number 214
SENATOR GREEN asked for a definition of ex parte. MS. OTTO replied
that it means only one side appears before the court.
CHAIRMAN TAYLOR stated that there are three different hearings that
can occur: an emergency order in which a person goes in alone and
asks for a 72 hour protective order; an ex parte order which lasts
for 20 days and then automatically terminates; and the protective
order which requires a hearing in which both sides must appear and
testify. MS. OTTO clarified the change the sponsor has recommended
prevents the court from issuing, as part of its ex parte or
emergency order, an order that would prohibit the respondent from
possessing or using a deadly weapon or directing the respondent to
surrender the firearm.
MS. OTTO emphasized the weapons orders are not mandatory: the judge
would be given the discretion to enter the order in appropriate
cases, if Amendment .7 is not adopted. Further, if Amendment .12
is adopted, the court would have to have a finding that the
defendant used or threatened to use a weapon in the domestic
violence.
SENATOR GREEN asked for a definition of the word "respondent." MS.
OTTO replied the "respondent" is the person against whom a
protective order is issued. The petitioner is the person who seeks
the protective.
SENATOR GREEN asked at what point a person becomes a respondent.
MS. OTTO answered that occurs when a petition for a protective
order is filed but no orders can be entered against the respondent
until the protective order is issued by the court.
MS. OTTO continued discussing the remaining proposed amendments.
The Department of Law supports Amendment .2. Amendment .9 amends
page 23, line 11 which says that a court cannot deny a petition for
a protective order solely based on a lapse of time between an act
of domestic violence and the filing of the petition. That was
included for several reasons, for example a person may not seek a
protective order because the abuser goes to jail for an extended
period of time, but may request one upon release. Also, in rural
Alaska, it might take weeks for a person to travel to a place where
a magistrate is available. After discussing with Representative
Parnell different circumstances the lapse of time should apply to,
Amendment .9 was drafted to allow a person to file a petition for
up to one year.
CHAIRMAN TAYLOR asked if that provision impacts all three forms of
protective orders or only the form that requires a hearing. MS.
OTTO replied it would affects the ex parte and protective order
that requires a hearing. The reason it is important to have it
affect both is that sometimes what triggers people to file a
petition for a protective order is a past act of domestic and a
current immediate threat. If a hearing is required, the person may
not be served in time.
CHAIRMAN TAYLOR asked what current law is on lapse of time. MS.
OTTO stated the law is silent in most places in the state. Judges
usually grant a protective order regardless of whether there has
been a lapse of time. Certain locations with certain magistrates
deny protective orders based on lapse of time. CHAIRMAN TAYLOR
stated he considers that awfully abhorrent on behalf of a
magistrate and perhaps training is necessary. He questioned
whether this provision will change those practices. MS. OTTO
believed it will, since this provision will articulate in law that
lapse of time is not sufficient basis for denying a protective
order.
CHAIRMAN TAYLOR explained his reluctance on this issue is because
he does not believe judges use a short period of time for a
standard, and in fact, if there is a history of domestic violence
in a relationship, a judge needs to use that history to determine
the individual's propensity for violence. The abusive person may
be a seasonal worker who is out of town for months at a time, and
hasn't abused the same victim for 13 months. If this provision is
put in law, a judge could not grant an order under those conditions
or an opposite situation could occur in which a judge might
determine a protective order is not necessary.
MS. OTTO agreed completely and stated she prefers the bill as
written for the reasons Senator Taylor discussed. CHAIRMAN TAYLOR
commented he always finds, when specific time limits are imposed,
a case arises to which the law doesn't quite apply.
TAPE 96-41, SIDE A
Number 000
MS. OTTO indicated the Department of Law supports Amendment .8.
Amendment .11 would require the phrase " in a criminal case" to be
inserted on line 11 of the actual amendment.
SENATOR GREEN questioned whether that language also needs to be
inserted on line 9. MS. OTTO felt it wouldn't hurt but might be
redundant.
SENATOR GREEN asked if Chairman Taylor's conclusion was that it
would be better not to adopt Amendment .9. CHAIRMAN TAYLOR
explained line 11 prohibits the court from denying a petition based
solely on a lapse of time. He believed it is better to allow the
court to determine what a reasonable lapse of time would be.
SENATOR MILLER asked if it is Chairman Taylor's intent to not adopt
Amendment .9. CHAIRMAN TAYLOR replied affirmatively.
LAURIE HUGONIN, Alaska Council on Domestic Violence and Sexual
Assault ACDVSA, testified the council prefers the bill as is, in
respect to the lapsed time provision. ACDVSA is not opposed to the
other proposed amendments with the exception of Amendment .7.
JAYNE ANDREEN, Council on Domestic Violence and Sexual Assault
(CDVSA) concurred with Ms. Hugonin's testimony.
SENATOR ELLIS noted he prepared an amendment to propose which
eliminates a portion of the language in the bill dealing with
mediation.
CHAIRMAN TAYLOR noted the Court System has submitted an amendment
on mediation.
Number 094
CHRIS CHRISTENSEN, General Counsel to the Judicial Branch,
explained the legislation significantly restricts a judge's right
to order mediation. The court believes the legislation goes too
far in that it bans a judge's authority to even suggest mediation.
The proposed amendment gives a judge the ability to suggest
mediation, but gives the victim the right to decline.
SENATOR ELLIS commented his amendment deletes any references to
mediation from the bill at the request of the groups that deal
directly with domestic violence.
CHAIRMAN TAYLOR asked Mr. Christensen to address strong concerns
expressed about the danger to people working with domestic violence
cases, and that people involved in the business do not believe
mediation works.
MR. CHRISTENSEN stated nationwide there is more violence in
courtrooms as a result of family law matters than there is during
criminal cases. At present, the Supreme Court has a rule on
mediation which allows a judge to order mediation, but he judge is
required to consider first whether or not it is appropriate. The
bill, as now drafted, reduces a judge's authority dramatically, and
gives the victim the ability to refuse to mediate. There is a
proposal to prohibit judges from ever allowing mediation to occur
in domestic violence cases. The court opposes an absolute ban on
mediation because there are many different kinds of domestic
violence. The Court System believes such a proposal is
paternalistic and essentially prevents the victim from making
her/his own decisions, even when the victim makes the request. It
also has the effect of revictimizing the victim. The Court System
does believe significant limitations on mediation are appropriate,
given the danger of the situation. The Court System has limits
in its current rule: the bill imposes a number of additional limits
the Court System finds inappropriate.
SENATOR ELLIS stated, for the record, that he has supported
mediation in other contexts, but when domestic violence is
involved, he disagrees with placing people in a confrontational
situation.
CHAIRMAN TAYLOR noted the amendment proposed by the Court System
would only work if either the Court or victim requests mediation,
and the victim agrees to it.
MS. HUGONIN stated according to Civil Rule 100, judges may consider
mediation, but are not required to consider it. She is not asking
that all mediation be banned, but rather that court ordered
mediation or referrals be banned, so that if a victim does want to
voluntarily engage in mediation, he/she could do so.
CHAIRMAN TAYLOR noted that is what the court system's amendment
does. MS. HUGONIN maintained her opposition because when a judge
refers a person to do something, the person may construe that as
mandatory. ANDVSA's additional concerns with mediation are that
there are no standards or requirements for mediation in Alaska; and
there is no research that suggests that mediation used to resolve
domestic violence issues is safe or satisfactory. Research has
shown it can be harmful. People who enter into mediation will give
away whatever is necessary if they believe that will help them to
stay safe. One study has shown that an adversarial approach toward
ending marriage is more helpful to victims than a conciliatory
approach. With an adversarial approach, a lawyer represents the
victim's best interests. ANDVSA believes in domestic violence
cases, mediation focusses on the violence because the victim views
the procedure from what will keep her safe. The process is also
unsafe for mediators, and mediation proceedings in California
require armed guards be present.
CHAIRMAN TAYLOR asked if mediation is mandatory in California. MS.
HUGONIN replied it is required.
MS. HUGONIN asked the committee to consider the fact that it is
dangerous for judges to be placed in these situations, and asked
committee members to place themselves in the victim's shoes. The
victim would be very vulnerable in situations where there are not
protections the court can afford. ANDVSA believes mediation is
extremely dangerous and very much supports Senator Ellis'
amendment.
CHAIRMAN TAYLOR repeated ANDVSA is opposed to mediation even when
requested by the victim. MS. HUGONIN agreed, and added the victim
could voluntarily engage in mediation if so desired without a court
order or referral. CHAIRMAN TAYLOR asked if that wouldn't be more
dangerous. MS. HUGONIN replied if ANDVSA had the opportunity to
talk with a victim considering mediation, it would point out the
dangers and consequences and would hope the victim would choose a
different method.
CHAIRMAN TAYLOR believed government agencies can only go so far in
directing people's lives, and at some point in time, the victim
needs the opportunity to control his/her own life. If the victim
requests mediation, he suspected it would be better to do so
through the court. He also agreed with Mr. Christensen's
testimony that it would be patronizing to suggest to a victim that
they do not know what they want.
MS. HUGONIN believed that this is not an area where the court
should intervene. Only allowing judges to tell victims to go to
mediation would be patronizing. CHAIRMAN TAYLOR commented under
Mr. Christensen's proposed amendment, the mediation could occur
only if the victim agrees. MS. HUGONIN repeated ANDVSA prefers
that the court not be able to recommend it because it would put the
victim in the dangerous position of having to say, in front of her
abuser, or at any point, that she refuses, when the abuser knows
that she could make it happen.
CHAIRMAN TAYLOR reiterated that even though the victim requests
mediation, ANDVSA does not want the court to have the authority to
grant that request. MS. HUGONIN replied affirmatively.
There being no further discussion, SENATOR GREEN moved the original
packet of amendments with the exception of Amendment .9, and with
the changes made to Amendment .11. CHAIRMAN TAYLOR objected for
purposes of clarification. SENATOR ELLIS objected because
Amendment .7 would remain in the packet.
CHAIRMAN TAYLOR moved to divide the question to exclude Amendment
.7. There was no objection.
There being no objection to adopting the packet of amendments with
the exceptions of Amendments .7 and . 9 and the language change to
Amendment .11, the motion carried.
CHAIRMAN TAYLOR announced the motion to adopt Amendment .7 was
before the committee. SENATOR ELLIS objected. The motion to adopt
Amendment .7 carried with Senator Ellis voting "nay," and Senators
Green, Taylor, and Miller voting "yea."
SENATOR MILLER moved the amendment on mediation proposed by Mr.
Christensen. SENATOR ELLIS objected and asked if his amendment
dealing with mediation should be handled first. SENATOR MILLER
withdrew his motion.
SENATOR ELLIS moved his amendment to delete mediation from the
bill. SENATOR GREEN objected.
CHAIRMAN TAYLOR stated the intent of the amendment is to preclude
the court from ever ordering mediation in domestic violence
circumstances. SENATOR ELLIS explained the bill would be silent on
that point. CHAIRMAN TAYLOR replied that is his concern, because
if the bill is silent on that point, Court Rule 100 would still
apply. SENATOR ELLIS clarified Chairman Taylor is correct, because
the amendment would preclude the court from ordering mediation, and
not just be silent. MS. OTTO indicated the last part of Senator
Ellis' amendment amends Civil Rule 100.
SENATOR GREEN explained her opposition to the amendment is based on
the fact that she does not want the opportunity for mediation taken
away from a person who does want to use it.
The motion to adopt Senator Ellis' amendment to delete mediation
failed with Senators Green, Miller, and Taylor voting "nay" and
Senator Ellis voting "yea."
SENATOR MILLER renewed his motion to adopt the amendment proposed
by Mr. Christensen. SENATOR ELLIS objected. CHAIRMAN TAYLOR
stated this amendment would allow the court to refer a matter for
mediation only if the victim agreed to it. MS. OTTO agreed the
effect is to narrow existing law, but the amendment is a little
more expansive than the provision contained in the committee
substitute. SENATOR GREEN asked for the sponsor's opinion.
MR. VITALE responded Representative Parnell prefers the language as
it exists in the committee substitute.
SENATOR MILLER stated he believes judges should have the latitude
to propose mediation because most judges dealing with this issue
have had substantial experience with it, and they should be given
the option to propose it, especially in light of the fact the
victim must agree.
CHAIRMAN TAYLOR indicated the language in the amendment proposed by
the Court System is the same as existing law and provides that the
victim must request mediation. MS. OTTO stated the existing bill
requires the victim to request mediation; the amendment would allow
the court to propose mediation but the victim would have to agree.
The concern with the amendment is that if a judge proposes
mediation to a victim, most victims will believe they should comply
with the judge's advice and might put themselves in a risky
situation.
CHAIRMAN TAYLOR believed lines 24 and 25 on page 34 restrict the
court substantially.
The question to adopt the proposed amendment by Mr. Christensen was
called with Senators Green, Miller and Taylor voting "yea," and
Senator Ellis voting "nay."
SENATOR MILLER moved HB 314 as amended out of committee with
individual recommendations with any accompanying fiscal notes.
There being no objection, the motion carried.
BRANT MCGEE, Office of Public Advocacy, testified via
teleconference, and informed the committee there is a fiscal impact
to HB 314. CHAIRMAN TAYLOR indicated the bill will go to the
Senate Finance Committee, and stated in the interest of time, it is
important that any further testimony be taken by that committee.
CHAIRMAN TAYLOR adjourned the meeting at 3:55 p.m.
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