Legislature(1995 - 1996)

04/19/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
  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                   
 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                
 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           
 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             
 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                      
 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                 
 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                        
 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                    
 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           
 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               
 CHAIRMAN TAYLOR asked if the Administration supports the                      
 legislation if these amendments are adopted.  MS. VOGT replied                
 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              
 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              
 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               
 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           
 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           
 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           
 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                      
 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                  
 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                
 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              
 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                 
 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               
 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'                     
 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                   
 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.                            

Document Name Date/Time Subjects