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