Legislature(1997 - 1998)
11/20/1997 02:00 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
Anchorage AK
November 20, 1997
2:00 P.M.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
Review of Alaska Domestic Violence and Child Abuse Laws
ALSO PRESENT
Representative Tom Brice (via teleconference from Fairbanks)
Representative Joe Ryan
WITNESS REGISTER
Captain Ted Bachman
Department of Public Safety
5700 E. Tudor Rd.
Anchorage, AK
Ms. Laurie Hugonin, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward St. room 501
Juneau, AK 99801
Mr. Brian Clark
Assistant District Attorney
310 K Street
Anchorage, AK
Ms. Suzanne Mannikko
We Against Sexual Predators
HC 33 Box 2859-A
Wasilla, AK
Ms. Bobbi Dail
We Against Sexual Predators
HC 33 Box 2851
Wasilla, AK
Ms. Jan MacClarene
Abused Women's Aid in Crisis
100 W. 13th Avenue
Anchorage, AK
Ms. Delores-Dier Pratt
403 F Street
Fairbanks, AK 99701
Mr. Scott Trafford-Calder
PO Box 75011
Fairbanks, AK 99707
Mr. Michael MacDonald
1008 16th Avenue
Fairbanks, AK 99701
Mr. Lynn Levengood
1008 16th Avenue
Fairbanks, AK 99701
Mr. Robert Downes
1008 16th Avenue
Fairbanks, AK 99701
Ms. Bridget Crawford
222 Seward Street
Juneau, AK 99801
Mr. David Salmon
222 Seward Street
Juneau, AK 99801
Ms. Susan Patrick
Women In Safe Homes
PO Box 551
Ketchikan, AK 99901
Ms. Kathleen Yarr
Ketchikan Indian Corporation
429 Deermount
Ketchikan, AK 99901
Mr. Brent Stoehr
PO Box 520718
Big Lake, AK 99652
ACTION NARRATIVE
TAPE 97-42, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:OO p.m.
CHAIRMAN TAYLOR stated that all members of the Legislative body he
has spoken with are vitally concerned with the issue of domestic
violence and child abuse.
BRIAN CLARK, Assistant District Attorney from Anchorage,
representing the District Attorney's office, was asked to testify.
He was asked to speak of his previous work as Assistant Attorney
General in Barrow and his experience with the practicality of
domestic violence and child abuse laws. He said that after the law
went into effect there were more cases coming into the Barrow
District Attorney's office because of an increase in arrests and
more pressure put on law enforcement to arrest and prosecute
domestic violence offenders. Another result of the law was more
defendants changing their pleas and fewer negotiations in these
cases.
SENATOR PARNELL asked if there was concern expressed in Barrow
regarding the length and complexity of the forms required in
domestic violence cases.
MR. CLARK said he did not personally hear any comments to that
effect and believes people receive help from the Barrow magistrate.
SENATOR PARNELL asked about any practical problems with the
application of the law.
MR. CLARK stated it may be difficult for the victims to be notified
when people are released on bail as not all households have phones.
CHAIRMAN TAYLOR wondered if any criminal activity was stopped.
MR. CLARK was unable to say.
CHAIRMAN TAYLOR asked if follow ups were done and orders were in
fact being followed.
MR. CLARK asserted that when reports are made and victims cooperate
procedures are easier to follow.
CHAIRMAN TAYLOR questioned if the District Attorney's office and
the police are able to enforce orders.
MR. CLARK stated if a police officer is aware of a violation they
will issue an affidavit and the District Attorney's office will
issue a petition to revoke.
CHAIRMAN TAYLOR asked specifically when an offender is picked up
intoxicated on a Friday night, when would he or she appear before
a judge?
MR. CLARK suggested as early as Monday or Tuesday.
CHAIRMAN TAYLOR noted the arrival of Senator Pearce and
Representative Joe Ryan. He further noted that Senator Parnell and
Representative Ryan have worked closely with the committee on this
issue.
CHAIRMAN TAYLOR asked Mr. Clark for recommendations to make the law
more effective.
MR. CLARK did not have any recommendations but suggested that an
additional district attorney in Barrow would help with the
caseload.
CHAIRMAN TAYLOR wondered if Mr. Clark could tell a difference in
caseload between Barrow's dry, wet and damp periods.
MR. CLARK noted an amazing difference for two or three months when
the town was dry and things picked up when they went back to damp.
He thought there was not as much of a reduction the second time
Barrow voted to go dry.
REPRESENTATIVE RYAN asked if it was correct that an officer would
have to make an arrest if an accusation of assault was made.
MR. CLARK replied that was not correct. An officer must have
probable cause to believe an act of domestic violence has been
committed. The officer makes that determination on-site.
REPRESENTATIVE RYAN asked if Mr. Clark believed the legislation has
made a significant impact in decreasing domestic violence.
MR. CLARK testified that the law increased reporting of domestic
violence cases and possibly people felt more comfortable making
reports and arrests did increase. Also, less negotiation meant more
people pleading no contest than before.
REPRESENTATIVE RYAN asked for suggestions as to how to stop this
kind of behavior from occurring or at least decrease its incidence.
MR. CLARK replied he was not certain of anything more effective
than trying to enforce the laws we have. He cited public awareness
as an effective tool as well.
CHAIRMAN TAYLOR called Suzanne Mannikko to testify.
SUZANNE MANNIKKO, representing We Against Sexual Predators (WASP)
began her testimony reciting names of accused pedophiles. She asked
what kind of legislation we had available to punish these
offenders. She recounted certain cases in which she believed
offenders would be back on the streets molesting children. She
would like to see tougher registration requirements for sex
offenders. She is against three-judge panels and urges the
legislature to come up with the money to make necessary changes to
the law.
BOBBI DAIL, also representing WASP, wanted to add her comments to
those of her friend, Suzanne Mannikko. She is flabbergasted by the
sentence received in one sexual abuse case in Anchorage. She asked
for the legislature's help in dealing with this issue. She'd like
to see a pedophile with a first conviction spend 85% of his
sentence in prison with no parole. She would like to see second
time convictions go to prison for life with no parole.
CHAIRMAN TAYLOR asked if Ms. Dail knew the maximum sentence
available to the judge in this particular case.
MS. DAIL responded it was 13 years according to what the judge
stated in open court. She believed this man was a stalking
pedophile who deserved zero tolerance.
CHAIRMAN TAYLOR said that some people present had participated in
setting minimum mandatory sentences for this type of offense and at
the time it was quite controversial.
MS. DAIL said sometimes they serve less than the minimum.
CHAIRMAN TAYLOR agreed that an appellate court can reduce the
sentence. He went on to say that after these minimum sentences had
been established there were many people serving long prison
sentences; so many, in fact, that the state had been fined for
overcrowded conditions. He assured the witness that everyone in the
room had a tremendous amount of compassion and concern about this
topic.
Number 305
CHAIRMAN TAYLOR asked the assistant District Attorney if in fact 13
years was the maximum sentence applicable in this case.
MR. CLARK said the judge may have been referring to a maximum
sentence of twenty years, with thirteen served.
MS. DAIL objected, saying that was incorrect.
SUZANNE MANNIKKO concurred, saying after the judge calculated the
sentence the offender would spend a minimum of nine years, two
months incarcerated.
CHAIRMAN TAYLOR asked for clarification. He did not recall thirteen
years as a sentence in this category. He said he would check into
this case and get more information.
MS. MANNIKKO asserted that in July our Supreme Court gave us the
right to start putting these people away and we should get to doing
it.
MS. DAIL asked Chairman Taylor what would be wrong with "double-bunking" prison
CHAIRMAN TAYLOR agreed that some members might like to do that but
the Cleary settlement agreement lists rights that prisoners have,
although members of the legislature would like to revisit this
decision. He cited this decision as the reason they are unable to
implement this suggestion.
MS. DAIL asked about the one State Trooper assigned to check on
pedophiles. She believes one is not enough.
Number 373
CHAIRMAN TAYLOR asked for her feelings on the current law passed
last year. He specified he was referring to the domestic violence
law.
MS. DAIL wanted to comment on the truth-in-sentencing law. She was
disappointed. She believes people committing crimes know what they
are going to get.
CHAIRMAN TAYLOR interjected that the law was designed to let the
victims, their families and the newspapers know.
MS. DAIL argued the newspaper reported thirteen years.
SENATOR PEARCE remarked they could not tell the media how to
report.
CHAIRMAN TAYLOR commented the legislature wanted people to know
what the sentencing formula meant.
CHAIRMAN TAYLOR restated Senator Pearce's point that sometimes
things come out a little different in the media than how you may
remember them.
JAN MACCLARENE, Executive Director of Abused Women's Aid in Crisis
(AWAIC), a domestic violence shelter program in Anchorage,
testified next.
SENATOR PEARCE disclosed that she is an AWAIC board member.
MS. MACCLARENE thanked the committee for the legislation, saying
victims were protected for a longer period of time. She mentioned
some problems with implementation. The most difficult problem in
section 12.55.101 (Alaska Statutes)allows the court to order an
offender to any program, whether or not it meets their needs. This
puts her program at a disadvantage to those programs utilizing an
unpaid intern, putting her program at risk of going out of
business. She requests that 'may' be changed to 'shall'. She also
touched on broader problems including the lack of misdemeanant
probation and the absence of monitoring programs and follow up in
these cases.
Number 461
CHAIRMAN TAYLOR asked if the judge designated a program for the
defendant.
MS. MACCLARENE remarked that the public defender might request a
particular program or the judge may designate one.
CHAIRMAN TAYLOR maintained the judge is not required to do this but
may in cases he believes it is necessary.
Tape 97-42 SIDE B
Number 001
CHAIRMAN TAYLOR informs those present that the procedure he was
familiar with, in cases where offenders fail to abide by the
conditions of their judgements, would require a police officer to
complete an affidavit to be signed by a witness and send it to the
judge. The judge would then wait for the district attorney to file
a petition of revocation at which point the person would be served
with this petition and then they could be brought before the court.
He said this does not work. He said instead he had witnesses come
in and make their own affidavit. He would then take judicial notice
that it had been filed and issue a bench warrant for the person. He
said it worked quickly. He asked for clarification on her earlier
statement about competing programs.
JAN MACCLARENE said hers was the only accredited program in
Anchorage.
CHAIRMAN TAYLOR noted if the courts required the use of an
accredited program, she would have a monopoly.
MS. MACCLARENE emphasized that would be true if the language read
shall rather than may.
SENATOR PEARCE pointed out they would only have a monopoly if the
other programs did not become accredited.
CHAIRMAN TAYLOR asked if she had been in contact with the district
attorney about the follow up.
MS. MACCLARENE said she has been trying to coordinate a local
implementation plan for Anchorage.
CHAIRMAN TAYLOR was pleased to note the Governor has added his
support.
CAPTAIN TED BACHMAN, Alaska State Troopers, offered that he thinks
the law is working and had been a plus for the troopers.
CHAIRMAN TAYLOR asked his thoughts on Ms. MacClarene's comments.
CAPTAIN BACHMAN believed her concerns could not be addressed with
the resources presently available.
CHAIRMAN TAYLOR has a problem throwing money at it. He would like
to see systemic improvements allowing law enforcement to react more
quickly to failures to abide by judgements. He thinks this kind of
short-circuiting might make things work. He is aware of the time
spent by police officers trying to locate people.
CAPTAIN BACHMAN concurs this can be and is actually done.
CHAIRMAN TAYLOR asks that someone from the department work with Ms.
MacClarene. He thinks with cooperation things might work as well in
Fairbanks as they do in smaller towns.
Number 130
CHAIRMAN TAYLOR noted the arrival of Representative Dyson.
CHAIRMAN TAYLOR was reminded via teleconference that other sites
were on line Women In Safe Homesing to offer testimony.
SENATOR PARNELL asked about the status of the central registry of
protective orders.
CAPTAIN BACHMAN explained it was to be rolled out tomorrow. It will
give police and the courts access to conditions of orders.
SENATOR PARNELL inquired if this was part of APSIN.
CAPTAIN BACHMAN answered yes.
CHAIRMAN TAYLOR wondered why it took a year to come on.
CAPTAIN BACHMAN could only say that programming resources were
limited, but programming tasks were not.
SENATOR PARNELL raised the question of how many convictions came
from arrests.
CAPTAIN BACHMAN did not have numbers but explained the law set
basic guidelines for investigations and helped investigators take
better evidence to court and obtain more prosecutions.
SENATOR PARNELL asked if the definitions were clear enough to
inform law enforcement what they need to obtain prosecution.
CAPTAIN BACHMAN believed they were, although there was some initial
concern regarding the term "primary aggressor."
Number 175
SENATOR PARNELL went on to inquire if he felt comfortable that his
office was meeting the test of probable cause.
CAPTAIN BACHMAN thought they absolutely were.
REPRESENTATIVE DYSON has been sitting in on the Governor's task
force on child protection and has been impressed with the quality
and efficacy of the group. He understands the Department of Law has
a person designated to write legislation to be presented this
session. He is concerned with the time line. He was just contacted
by Commissioner Pugh and informed that the request-for-proposal
(RFP) for the VINE program was just being written. He thought it
should be working already and is disappointed in the time frame. He
mentioned electronic bracelets as a possible tool to protect
victims of domestic violence.
CAPTAIN BACHMAN had no updated information on the bracelets
specifically, but voiced concern over the possibility that a person
would be located where they were supposed be but engaged in
domestic violence.
Number 235
CHAIRMAN TAYLOR moved to the teleconference participants and began
in Ketchikan.
SUSAN PATRICK, representing Women In Safe Homes, spoke from
Ketchikan. She commended the law, regardless of a few initial
problems. She feels victims have a better opportunity to get a
restraining order.
KATHLEEN YARR, representing Ketchikan Indian Corporation, also
spoke from Ketchikan, asking if the law applied to people convicted
of domestic violence before the law went into effect, particularly
as related to gun ownership.
CHAIRMAN TAYLOR responded that he was not aware of a state law but
believed there was a federal law governing that.
KATHLEEN YARR further asked if someone convicted of domestic may
never own a firearm again.
CHAIRMAN TAYLOR asserted the law is not quite that severe, but
restrictions do apply. He asked for comments from attorneys
present.
DEBORAH GREENBURG, Assistant Attorney General for Alaska, agreed
with Senator Taylor that there is a federal law. She did not recall
how far back the law went or what standard of proof they used to
determine if the conviction was domestic violence or not.
CAPTAIN BACHMAN asserted that if a person is convicted of domestic
violence, they are legally unable to purchase a firearm.
CHAIRMAN TAYLOR echoed this statement but wondered how a background
check would be set up.
CAPTAIN BACHMAN said the process is in place now.
CHAIRMAN TAYLOR wondered if those people convicted now would be
precluded from purchasing a hunting rifle.
CAPTAIN BACHMAN maintained they could not purchase nor possess one.
Number 284
LAURIE HUGONIN, Director of the Alaska Network on Domestic Violence
and Sexual Assault (ANDVSA), agreed that there was a federal law,
but said it was more specific and was applicable only in cases of
physical assault or threat of physical assault committed by a
spouse against a spouse or former spouse or a cohabitant.
Additionally, the person had to have knowingly waived his or her
opportunity to have a trial by jury. It does not apply to everyone
in the household or our state's broader definition of domestic
violence. If it did apply, there would be no time limit.
CHAIRMAN TAYLOR asked if she would agree that it would cover the
vast majority of cases?
MS. HOUGININ allowed that it could be.
CHAIRMAN TAYLOR postulated that the federal law may cast too broad
a net in rare cases.
Number 321
KATHLEEN YARR went on to ask if any more money would be allocated
to intervention programs.
CHAIRMAN TAYLOR deferred to finance member Senator Parnell.
SENATOR PARNELL recalled that there was a conflict regarding
funding for batterrer's intervention programs. He favored them and
worked to fund them. He thinks funding would be easier if there was
a consensus among the Council on Domestic Violence.
KATHLEEN YARR responded that more work with batterers is important.
SENATOR PARNELL agreed but restated his previous point.
SUSAN PATRICK expressed thanks for additional training made
available to officers in Ketchikan.
CHAIRMAN TAYLOR acknowledged help from law enforcement in
Ketchikan.
DELORES DIER-PRATT, testifying from Fairbanks, recounted her 16-year history wi
pages of written testimony. Her concern is that money continues to
flow into the agency though she believes there are severe problems
with it.
CHAIRMAN TAYLOR reminded Ms. Deir-Pratt that today's hearing is
relating to domestic violence and child abuse laws and referred her
to an auditor overseeing the Department of Family and Youth
Services.
Number 432
BRIDGET CRAWFORD, Executive Director of Tongass Community
Counseling Center, testified from Juneau. Her organization works
with batterers, teaching intervention and prevention. Hers is the
only approved program in Juneau. She echoed concerns raised about
implementation of these programs under the law. She stated it was
difficult for programs to be approved due to lack of funding for
them. Although there are currently only two approved programs in
the state, others are seeking approval.
TAPE 97-43 SIDE A
Number 001
BRIDGET CRAWFORD explained the need for closer monitoring and
better inter-agency cooperation regarding offenders during their
treatment. She believes this will increase offender accountability
while cutting costs.
SCOTT TRAFFORD CALDER, from Fairbanks, expressed frustration with
the victimization of people by social engineering agencies like the
Division of Family and Youth Services (DFYS). He wants more focus
on the victims like himself who have been abused by the agency. He
suggested more funding for the Ombudsman's office or better citizen
review.
CHAIRMAN TAYLOR agreed on the importance of better citizen review
and recommended Mr. Calder get in touch with Senator Phillips to
work with him on his audit of DFYS. He also expressed his
disappointment that the Administration has not implemented the
citizen review panel put in place by the Legislature.
SCOTT CALDER pointed out personal problems that he had with a
previous audit and hoped that future audits could get away from
blaming the victim and focus on doing better work in the future.
DAVID SALMON, Program Director for Tongass Community Counseling in
Juneau, commented that the domestic violence law is working. He
echoed concerns about monitoring, citing statistics that say only
50% of the people ordered to attend counseling even show up for the
first session. He says it is a tough job made tougher by less
funding and more regulation. He estimates it would take eight full
time staff to comply with state regulations. He feels they are
being regulated out of existence.
CHAIRMAN TAYLOR asked if it was six months to follow up on those
people ordered into the program who do not show up.
MR. SALMON said closer to two or three months. They have made
efforts to increase the tracking of no-shows to their program.
CHAIRMAN TAYLOR wondered what would prevent his organization from
filing an affidavit.
MR. SALMON replied that they do that every week.
CHAIRMAN TAYLOR asked then why the increase in funding?
DAVID SALMON recalled the Chairman's earlier point, saying there is
simply no one to arrest them unless they are stopped for another
reason.
Number 155
CHAIRMAN TAYLOR said he has always had exceptional cooperation from
the police.
MR. SALMON said there are staffing limitations within the Juneau
Police force. They are currently training new officers but it takes
time.
CHAIRMAN TAYLOR asked what the waiting time in Ketchikan is.
MR. SALMON did not know.
CHAIRMAN TAYLOR said they need to put some teeth into the system if
50% of people are not complying with court orders. He asked if
these people have already been convicted.
MR. SALMON stated that some have and others have rule 11 agreements
of deferred prosecution.
CHAIRMAN TAYLOR asked what recourse was available if someone under
deferred prosecution did not show. Would they have to set up a new
trial?
MR. SALMON said that was right.
CHAIRMAN TAYLOR asked if anyone was following whether more people
walk away from the rule 11 agreements as opposed to convictions.
MR. SALMON said this information was tracked by their interagency
coordinator. He restated that his main point is funding for the
programs, not for regulations.
CHAIRMAN TAYLOR said he'd appreciate further written comment on the
regulations. He also asked if they had looked into 'self pay'
programs.
MR. SALMON replied that they currently require self-pay. They
charge $15 per hour for group sessions.
CHAIRMAN TAYLOR inquired as to the typical bill of an offender for
the entire course of treatment.
MR. SALMON estimated about $720 0ver six months.
CHAIRMAN TAYLOR asked what percent pay.
MR. SALMON replied that if they do not pay, they are not allowed to
continue with the program.
CHAIRMAN TAYLOR asked if that is where the 50% drop out rate comes
from.
DAVID SALMON replied that number applies to people who never come
through the door. He said there are more who drop out after some
treatment.
CHAIRMAN TAYLOR repeated his request for additional information.
BRENT STOEHR, from Big Lake, recounted a story about a neighbor
abusing her adopted children. He and his wife turned her in to the
troopers. DFYS investigated and said the children were lying. Mr.
Stoehr said the children were then beaten for telling and told that
if their adopted mother went to jail, she would hunt them down and
kill them when she got out and that they would be returned to their
abusive biological parents. He believed this woman had connections
to DFYS and if his wife, to whom the kids had divulged the abuse in
the first place, had been allowed to be present during the
questioning, the woman would have been convicted. He thinks the
system did not protect the children in this situation and in the
future, friends and confidants of children should be present during
an investigation.
SENATOR PARNELL questioned whether Mr. STOEHR had provided the
names of these people to the committee for further investigation.
MR. STOEHR confirmed that and said he would continue to work to
help the kids.
CHAIRMAN TAYLOR restated the necessity of a foster care review
panel to provide an objective view on children's treatment in
foster care. He is disappointed with the Administration's lack of
support for this.
GLORIA DITE-BRAATHEN provided oral testimony in addition to the
written comments she submitted to the committee. She had her son
Harvey Leroy Surigen, Jr. with her. She spoke of a gross injustice
that assumes all perpetrators are male. She recounted the story of
her grandson's abuse at the hands of her son's fianc .
Number 343
HARVEY LEROY SURIGAN, JR. corroborated his mother's testimony,
adding that a court employee lied to him when he attempted to file
papers for the custody of his son, telling him he could not do
anything without a lawyer.
TAPE 97-43 SIDE B
Number 001
MR. SURIGEN lamented his lack of parental rights and expressed
concern over the safety of his child in his current home because of
behavior problems with his sibling. He was unable to recover
custody as the children's mother fled the state after filing an
emergency domestic violence order against him. He now has no
custodial rights as ordered by a Washington State judge.
MS. DITE-BRAANTHEN charged that her son's fianc committed several
other crimes as well, including forgery and extortion. She
attempted to pass this information on to the District Attorney but
received no help from the Palmer office.
SENATOR PARNELL attempted to clarify, asking if this woman had been
ordered to remain in the state.
MS. DITE-BRAANTHEN said she was and claimed she was helped to leave
the state by organizations such as the Valley Women's Resource
Center.
Number 192
CHAIRMAN TAYLOR said his main concern was the illegal removal of
the child from the state.
MS. DITE-BRAANTHAN said the troopers had instructed this woman to
leave the state immediately.
CHAIRMAN TAYLOR asked for a further inquiry into the supposition
that a state program or employee(s) assisted in the violation of a
court order.
MS. DEBORAH GREENBURG, Assistant District Attorney, has prosecuted
many domestic violence cases and came forward to address Senator
Taylor's previous question regarding failure to comply with court
orders. She stated that upon failure to comply, an affidavit would
be sworn and delivered to her office. A petition to revoke this
person's probation would then be filed and sent to the court. They
may then be summoned or a warrant issued for them. She agreed it
can take some time.
CHAIRMAN TAYLOR asked if a prioritization could be initiated for
these no-show cases.
MS. GREENBURG said possibly so.
CHAIRMAN TAYLOR said they would be happy to entertain any
legislative action necessary to expedite this. He raised a question
about the illegality of shuttling children back and forth between
states in situations like this.
MS. GREENBURG cited a law against interference with custodial
rights. Cases like this have been prosecuted under this law
successfully.
CHAIRMAN TAYLOR asks which party would retain custody when the
judge does not designate one or the other.
MS. GREENBURG said that if there is a writ of domestic violence, it
would indicate no further contact between the two parties. More
information would be necessary to make a custody determination and
that may be why one was not made in this case.
Number 352
SENATOR PARNELL asked why one court form does not match the other.
CHAIRMAN TAYLOR assures him it will be checked out. Sen. Taylor
restated his question about custody.
MS. GREENBURG explained that in her experience, one party likely
has a history of criminal convictions. This, as well as the
narrative provided by the petitioner, informs the judge in part and
allows them to make a determination if they decide to do so.
CHAIRMAN TAYLOR read part of a written statement submitted by an
attorney in Fairbanks. It states, "Attorneys and sophisticated
parties have learned that if you are first into the courthouse
door, you can obtain a temporary custody order without even giving
the other parent the opportunity to object to the arrangements
being made. This gives the parent who makes it to the courthouse
first a 'one up' in the custody matter. If the court were given
discretion to call or contact the opposing party this might not
occur so frequently. Further, the separate cases (one a DV and one
a Divorce or Custody case) make it difficult for the court not to
enter conflicting orders. Perhaps the legislature should consider
requiring that if there is a pending custody or divorce that the DV
be filed in that case and/or consolidate the two cases as soon as
a custody or divorce action is filed." Senator Taylor asked for
comments on this.
MS. GREENBURG said she believes this rarely happens. She does think
the ability to issue a consolidated order for domestic violence and
custody exists. She recalls seeing it in at least one case.
CHAIRMAN TAYLOR remarked that maybe this recommendation could be
made to the court system. In some communities it may not be
necessary because they only have one judge, but it might be useful
in others.
MS. GREENBURG concurred.
CHAIRMAN TAYLOR asked Ms. Greenburg about the next paragraph of the
document, regarding a case where a respondent is kicked out of
their home and subsequently cleaned out by the petitioner who then
leaves town. He was pleased to note that it sounds like cases like
this are rare.
SENATOR PARNELL interjected a question about the penalty for a
frivolous or false claim.
TAPE 97-44 SIDE A
NUMBER 001
CHAIRMAN TAYLOR explained the crime of perjury.
MS. GREENBURG suggested that a petition may include a provision
that notes the information provided is under the penalty of
perjury. She said she would have to check to be certain. She was
more certain that it was noted on a recantation of a petition. This
is sometimes used by a victim trying to dissolve an order
previously filed.
CHAIRMAN TAYLOR acknowledged that sometimes people milk the system
and he wants to see a level playing field for all people who use
the system.
UNIDENTIFIED MALE SPEAKER agreed that people, mainly females, can
and do use the system when it is inappropriate.
Number 064
SENATOR PARNELL objected that the issue under discussion was
perjury, not domestic violence.
CHAIRMAN TAYLOR says it sounds like overall the system works well
but could use a few refinements. He asked Ms. Greenburg if she had
any further recommendations.
MS. GREENBURG brought up the issue of the primary aggressor, saying
it has worked in her estimation. Conversely, she said the speedy
trial rule can be problematic in cases when victims can't be found.
Also, initially there was a problem with the myth of mandatory
arrest.
CHAIRMAN TAYLOR said he thinks a training course in Ketchikan has
helped officers there feel more at ease. He wondered if she felt it
would work itself out with some training.
MS. GREENBURG did. She also felt judges are becoming more
conversant with the law. She spoke of the importance of following
up on even small events such as an unwanted phone call in a
domestic violence case.
CHAIRMAN TAYLOR expressed concern over the cycle that sometimes
ends with the people involved back together.
MS. GREENBURG added that it makes it easier to screen cases and
decide which to bring to trial if all instances are noted.
Number 165
CHAIRMAN TAYLOR stated that he was pleased that someone who works
on so many of these cases does not have many complaints about the
law. He directed her attention to the remaining two points brought
up by the attorney in Fairbanks. He did not want to discuss them
here, but hoped she would submit comments on them in the future.
MR. BILL MILLER, Police Captain from Anchorage and Domestic
Violence Coordinator for the department, made observations about
the law. He noticed that after instituting the mandatory arrest
policy there was an increase in arrests of females. He also
explained domestic violence as an issue of control, not of anger.
He stated that mutual arrests are down as police attempt to
determine the primary aggressor. He also suggested that training is
an important part of implementing this new law.
CHAIRMAN TAYLOR asked if he thought the training provision in the
law was adequate.
CAPTAIN MILLER said it is a continuous process of training and
field experience. He stated he has seen people 'race to the
courthouse' and he has talked to judges about it. It seems to him
that judges or magistrates should be able to call the other party
and flesh out the story.
CHAIRMAN TAYLOR said that part of the problem may be that they do
not want to. He said that the majority of incidents of violence in
the courtroom are related to domestic violence cases. He surmised
that judges may not want to exacerbate a conflict by bringing
combatants together in the courtroom, as the law certainly does not
prohibit it. He has known judges who have done this and been able
to resolve things quickly with the knowledge of both parties.
CAPTAIN MILLER said orders have more effect coming from a judge
than from an officer. He also remarked that the policy in his
department allows the parent with custody of a child at the time of
an order to retain custody unless there is neglect, abuse or a DFYS
issue until a custody determination is made.
CHAIRMAN TAYLOR affirmed that this indeed was the law. An order
contains provisions mandating the status quo be maintained.
CAPTAIN MILLER attested to the importance of information to
effective police work. He recalled that there used to be a problem
in Anchorage with prostitutes and drug dealers. Officers would
arrest them and they would get bail conditions, these conditions
were then put into APSIN. Using a municipal law that was passed
allowing officers to make a probable cause arrest on someone with
bail restrictions, officers could then take in people found
violating these conditions. He suggested that a place to note bail
conditions would allow officers a shortcut for some problems when
they come into incidental contact with people.
CHAIRMAN TAYLOR applauded the recommendation and asked if he
thought a statutory amendment would be necessary to do it.
CAPTAIN MILLER said he did not know where it would fit but that it
clearly related to domestic violence.
CHAIRMAN TAYLOR stated that it would be in APSIN if someone pulled
them up.
CAPTAIN MILLER stated that bail conditions are not in APSIN.
Number 283
CAPTAIN MILLER said the first thing an officer does after stopping
a person is to check them out in APSIN.
CHAIRMAN TAYLOR said as long as there is no conviction, nothing
will show?
CAPTAIN MILLER said that in this case they were given area
restrictions as a condition of release even before conviction and
these were put in APSIN.
CHAIRMAN TAYLOR wanted to know why this could not be done for no
contact orders as well.
CAPTAIN MILLER said he did not know why not, it would just take
some clerical support.
CHAIRMAN TAYLOR thought it could be an effective tool to help
victims.
CAPTAIN MILLER said in a domestic violence writ that information is
already there. He is referring to putting this information into
APSIN before it gets to that stage.
CHAIRMAN TAYLOR suggests Captain Miller get in touch with Deborah
Greenburg about this. This would be quicker than the way it has
been done.
CHAIRMAN TAYLOR explained the previous conversation to Ms.
Greenburg and asked her thoughts.
CAPTAIN MILLER elaborated, saying they were talking about bail
conditions as opposed to emergency orders.
CHAIRMAN TAYLOR said his only concern was that of notice and due
process. He asked Ms. Greenburg her thoughts.
MS. GREENBURG said she was not very familiar with that mechanism
and but it is very important those requirements are met.
CAPTAIN MILLER inserted the fact that in Anchorage notice is served
because any case requiring bail must appear before a judge or
magistrate.
MS. GREENBURG said she believes notice is served in the other
process as well. She says in her own practice, knowing the
conditions of a certain petition can be helpful. She added that the
municipality of Anchorage has a criminal offense for violating bail
conditions that other places do not have.
CHAIRMAN TAYLOR said we may need that.
MS. GREENBURG agreed that it may be a useful tool.
Number 381
CHAIRMAN TAYLOR said he would love to have a system where any
officer could respond to a problem.
MS. GREENBURG said that exists in a felony situation but not in a
misdemeanor case.
CHAIRMAN TAYLOR agreed but stressed this is the most dangerous
misdemeanor situation. He thinks this might be the place to extend
that right into misdemeanor law.
MS. GREENBURG agreed it would be worth looking into.
CHAIRMAN TAYLOR offered that it might put some teeth into some of
these orders.
MS. GREENBURG said at that point you are beyond bail conditions and
into probation conditions.
Number 405
CHAIRMAN TAYLOR remarked that what Mr. Levengood had suggested was
a stipulation. A person could stipulate to conditions of release in
front of the court. If they later disregard those conditions, they
could be subject to arrest.
CAPTAIN MILLER said the way they crafted the municipal ordinance in
Anchorage was to deal with any court order including bail
conditions, arraignments and others.
CHAIRMAN TAYLOR was informed he had three other people in Fairbanks
waiting to testify. He called Michael MacDonald.
MICHAEL MACDONALD, an attorney from Fairbanks, said he has
represented parties on both sides of domestic violence cases since
1988. He has a very different perspective from Ms. Greenburg. In
his experience, the bloody noses of domestic violence are just the
tip of the iceberg. He thinks Mr. Levengood's comments are
overstated. He agrees there may be some abuse of the process but he
thinks it was abused before the 1996 amendments and he feels these
amendments stripped the last vestiges of due process from the
system. He was concerned to hear that people were pleased with how
the law has been working. He thinks that if convictions are up it
is because people are pleading out in order to escape further abuse
by the process. He believes a misdemeanor committed in the presence
of an officer is subject to arrest.
TAPE 97-44 SIDE B
Number 001
MR. MACDONALD emphasized the importance of due process, stating
that in the search for more ways to enforce the law this may not be
given full consideration.
CHAIRMAN TAYLOR asked how long he had been waiting to testify. He
added he had not known there were more participants Women In Safe
Homesing to testify.
MR. MACDONALD replied that they had been there two hours. He
emphasized the difference between a criminal and civil domestic
violence proceeding. He stressed the idea that if there is a race
to the courthouse, a person can have their children taken away from
them ex-parte and without notice. He added this could also happen
to a person's home or business. In order to address a small
problem, he thinks an intolerable situation has been created. He
said it is not a concern for stable families but can be for
families dealing with mental health or emotional problems or
alcohol abuse. He recounted stories from his practice to
demonstrate how the law can go too far. He thought the committee
should see the form brought by the police to a domestic violence
call, saying it steers the officers to arrest the male when it
should be gender neutral. He related several case histories in
order to stress his point that gender bias is built into the
statutes relating to domestic violence. He believes the DV statutes
can be abused and overused. He believes the government's resources
could be better spent dealing with other things rather than minor
violations or victimless crimes. He reiterated an earlier point,
saying the Women in Crisis Center oversteps their legal bounds. He
recommended that if a custodial parent received an order it should
contain a provision that prohibits them from removing the children
from that judicial district or location. He thinks the due process
provisions should be reinforced, not removed. Additionally, he
argued that the ex parte provisions should be completely removed
and a subpoena process inserted before any orders are issued. He
thinks this would help determine in the first place whether a crime
of domestic violence has actually occurred. He thinks the legal
relationship between a child and a parent should be highly valued
and there should be no ex parte orders removing children from their
parents. He also feels there should be no ex-parte adjudication of
property rights. He stated that the point of his testimony is that
the process is being cheapened by bureaucratic bias and
complacency. He quoted John Adams saying, "it is better that nine
guilty people go free than one innocent man suffer."
Number 333
CHAIRMAN TAYLOR again apologized that they did not hear his
testimony sooner. He asked him to prepare a draft of recommended
amendments for the committee.
MR. LYNN LEVENGOOD, a private practice attorney from Fairbanks,
stated that the new law has unconstitutional provisions and is
being abused. He submitted a single sheet of recommendations
drafted by a judge. He adopted it to submit as his own as the judge
was in fear of losing his job.
CHAIRMAN TAYLOR noted that Deborah Greenburg agreed with one of the
four recommendations made.
MR. LEVENGOOD said unfortunately the Fairbanks judiciary has
instructed the magistrate that stipulations cannot be granted
without a finding of domestic violence. He sees a problem with the
law that requires a finding of criminal wrongdoing before the
issuance of any restraining order. He thinks we need a system that
allows the issuance of a restraining order without a finding of
domestic violence. He thinks constitutionally crimes must be proven
beyond a reasonable doubt. He thinks the statutes governing
domestic violence have lowered the standard to a preponderance of
the evidence under the assumption that the petitioner will always
be the victim. He believes that people who know the system become
petitioners in order to victimize others. He said the new law
allows a petitioner to take the other person's property without
regard to ownership for at least 20 days before a motion to modify
the original court order can be heard.
CHAIRMAN TAYLOR asked if he has had this occur.
MR. LEVENGOOD responded yes.
CHAIRMAN TAYLOR asked if this could be verified and presented or if
it was unable to be disclosed.
MR. LEVENGOOD replied that circumstances prevented disclosure.
UNIDENTIFIED MALE SPEAKER interjected that the case was pending
litigation and Mr. Levengood agreed.
CHAIRMAN TAYLOR restated the question to ask if Mr. Levengood had
encountered this type of a situation.
MR. LEVENGOOD affirmed this was true. He said in Fairbanks
magistrates who doubt the veracity of a domestic violence petition
may question the petitioner from the bench about past actions until
they find something that qualifies. On one occasion, a client of
his lost custody as a result of nonphysically blocking his wife's
egress 16 years prior in another state. He also agreed with
previous testimony saying he has witnessed a state-funded advocacy
agency help a person leave the country.
CHAIRMAN TAYLOR clarified that Mr. Levengood had knowledge of an
agency or contractor providing funds for someone to leave the
country in violation of a court order.
MR. LEVENGOOD replied that it was not in violation of a court
order.
CHAIRMAN TAYLOR asked if there was a restriction on movement in the
order.
MR. LEVENGOOD answered that at that time there was no prohibition
on leaving the state. He reported that the Fairbanks district
attorney's office has a policy of prosecuting all domestic violence
cases without discretion.
TAPE 97-45, SIDE A
Number 001
MR. LYNN LEVENGOOD said that neither the district attorney, the
police nor the courts have any discretion in the prosecution of
these cases and this was allowing abuse of the process and of
Alaskans' constitutional rights. He said he did not understand why
a restraining order used to be a civil matter between two people
and now reads that one person is a victim domestic violence. He
again cited the reasonable doubt standard and said it is not being
met. He does not know how this can occur. He thinks people are
being denied their constitutional right of due process.
Number 061
CHAIRMAN TAYLOR repeated his previous request that he send his
recommendations for amendments to the committee.
MR. ROBERT DOWNES, private practice attorney, echoed the idea that
in domestic relations cases people play games with the law. He
called attention to the advantage one person can gain over the
other by using the law for their own benefit and not as it was
intended. He said attorneys are also guilty of this. He says the
system gets clogged by people filing domestic orders as a maneuver
for future property or custody cases. He said attorneys could
provide a string of cases demonstrating this type of abuse. He says
the law is poor and needs to be tightened up so it is not in
conflict with the Constitution and other state laws. He urged the
committee to talk to judges and magistrates off the record to
uncover these abuses. He said this legislation needs work and he is
willing to help.
CHAIRMAN TAYLOR asked if there were other witnesses in Fairbanks
waiting to testify. Hearing none, he thanked those who spoke and
reminded people to submit their suggestions to the committee.
| Document Name | Date/Time | Subjects |
|---|