Legislature(1995 - 1996)
04/15/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 15, 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 SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 387(JUD) am
"An Act rearranging existing provisions of AS 47.10 into chapters
separately addressing the topics of children in need of aid,
delinquent minors, and the institutions, facilities, and
management, administration, and oversight of programs relating to
minors, and conforming references and making other conforming
changes due to that rearrangement; amending the manner of
determining support obligations for children in need of aid and
delinquent minors; amending the purpose of delinquency provisions;
amending hearing procedures used in delinquency proceedings;
amending provisions relating to enforcement of a restitution order
entered against a minor; setting out the considerations to be given
by a court in making its dispositional orders for minors
adjudicated delinquent; authorizing municipalities to establish
curfews for minors by ordinance; relating to enforcement of truancy
under the compulsory school attendance law; and amending Rule
23(d), Alaska Delinquency Rules."
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."
HOUSE BILL NO. 18
"An Act amending the statute of limitations applicable to civil
actions brought against peace officers and coroners."
SENATE BILL NO. 296
"An Act requiring fingerprint criminal background checks before
certain persons may be employed in a nursing home or assisted
living facility; and prohibiting the hiring or retention of certain
nursing home and assisted living facility employees convicted of
specified offenses."
PREVIOUS SENATE COMMITTEE ACTION
SB 191 - See State Affairs minutes dated 1/25/96, 3/12/96,
and 3/19/96.
HB 341 - See Judiciary minutes dated 4/12/96.
HB 314 - No previous Senate committee action.
HB 387 - See Judiciary minutes dated 4/12/96.
HB 18 - No previous Senate committee action.
SB 296 - See Community & Regional Affairs minutes dated 3/20/96.
WITNESS REGISTER
Senator Tim Kelly
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SB 191
Jack Chenoweth
Division of Legal Services
Legislative Affairs Agency
130 Seward St., Ste. 409
Juneau, AK 99801-2105
POSITION STATEMENT: Testified on SB 191
Bruce Campbell
c/o Rep. Kelly
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for sponsor of HB 387
Representative Pete Kelly
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 387
Laurie Otto
Deputy Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supports HB 387 and HB 314
L. Diane Worley
Division of Family and Youth Services
Dept. of Health and Social Services
P.O. Box 110630
Juneau, AK 99811-0630
POSITION STATEMENT: Supports HB 387
Wilda Whitaker
c/o Rep. Therriault
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for sponsor of HB 18
Kathleen Strasbaugh
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 296
Connie Sipe
Division of Senior Services
Department of Administration
3601 C St., Suite 380
Anchorage, AK 99503-5984
POSITION STATEMENT: Supports SB 296
Representative Joe Green
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 341
Robert Briggs
Assistant Attorney General
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on proposed amendments to HB 341
Deborah Vogt
Deputy Commissioner
Department of Revenue
P.O. Box 110405
Juneau, AK 99811-0400
POSITION STATEMENT: Supports HB 341 but opposes a proposed
amendment
Representative Sean Parnell
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 314
Jayne Andreen
Council on Domestic Violence and
Sexual Assault
P.O. Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Supports HB 314
Chris Christensen
Alaska Court System
303 K St.
Anchorage, AK 99501-2084
POSITION STATEMENT: No position taken on HB 314 but offered an
amendment
Lauree Hugonin
ANDVSA
130 Seward St., Rm. 501
Juneau, AK 99801
POSITION STATEMENT: Supports HB 314 but opposes mediation
ACTION NARRATIVE
TAPE 96-38, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:37 p.m. Also present were Senators Green and Miller.
SB 191 ELECTION CAMPAIGN FINANCE REFORM
SENATOR TIM KELLY, prime sponsor of SB 191, stated 33,000 Alaskans
signed an initiative to put a campaign finance reform vote on the
ballot in November if the legislature does not pass similar
legislation. Three legal opinions on SB 191 have been solicited;
all raise constitutional questions. In his opinion, if the
legislature attempts to fix all of the constitutional questions, a
disservice will be done to the 33,000 Alaskans who voted for
campaign finance reform, and the legislation will not be
substantially similar to the initiative. U.S. Representative Don
Young is conducting his annual benchmark poll at this time. At
Senator Kelly's request, the poll contains a question about
campaign finance reform. So far 80.4 percent of those polled favor
reform. He recommended the committee work on version M of SB 191.
Number 051
JACK CHENOWETH, Division of Legal Services, described a draft
committee substitute (version M) of SB 191. Version M accommodates
changes made by the Senate State Affairs, House State Affairs, and
House Judiciary Committees. The starting point for SB 191 was the
initiative that appeared on the ballot. Version M addresses
questions that came up in the committee process, and was directed
by a working group comprised of Senator Kelly, Representatives
James and Finkelstein, and APOC members. The changes in version M
are as follows.
The initiative included an indexing feature so that at five-year
intervals the dollar amounts would be recalculated to account for
inflation: that feature was deleted. The provision in the
initiative requiring individuals to register before making campaign
contributions was also deleted. The cash contribution limit of
$100 was reduced to $25 in the initiative, but restored to $100 in
version M. The prohibition on honoraria payments during the course
of a campaign was changed to allow a limited payment comparable to
honoraria based upon services actually provided by a candidate.
Campaign funds may not be raised in years in which there is no
election. If running for election or re-election for Governor,
funds may be raised during the period beginning January 1 of the
election year. Candidates for legislative offices may raise funds
beginning June 1 of the year in which re-election is sought. For
other offices (state special elections and municipal elections)
there is a five month window period before the date of the
election.
The initiative allows candidates to accept and expend loans from
family members. That provision is not included in version M.
Technical changes were made to the APOC report filing procedure.
The use of surplus campaign funds was expanded to allow return of
contributions to contributors, to allow a carry-forward, or to
allow a portion of a contribution to a legislative office
allowance. Felony criminal penalty provisions were removed so that
all violations are misdemeanor offenses. The "paid for by"
requirements were loosened in light of a U.S. Supreme Court
decision within the last year. The bill includes definitions for
terms used within the initiative such as "publically funded
entities." The use of charitable gaming, with the exception of
raffles and lotteries, for the support of political activities,
would be banned. The ban on contributions from out-of-state
sources was modified to allow a limited contribution. The maximum
amounts that can be contributed to campaigns was increased and
altered depending upon the nature of the campaign. The procedures
for placing questions on campaign practices before APOC and the
Superior Court were amended. The small campaign exemption in which
disclosure is not necessary was raised from $1,000 to $2,500. The
severability provision, which appears in the initiative, was
included. The bill has an immediate effective date, and requires
the Lt. Governor to place the initiative on the ballot if this
legislation is not found to be substantially similar to the
initiative.
Number 186
CHAIRMAN TAYLOR commented the legislation is an attempt to mirror
the initiative, however most people who signed the initiative did
not understand its contents. He asked if the legislation contains
provisions that are patently unconstitutional.
MR. CHENOWETH replied there are provisions in the initiative that
were carried forward to the legislation that are constitutionally
questionable. The law in this area is changing as the Supreme
Court wrestles with various issues and has made only a few key
decisions to date.
CHAIRMAN TAYLOR questioned whether the legislature has the
responsibility to review the initiative and craft a bill that is
constitutional, to rubber stamp the legislation, or let the
initiative appear on the ballot for a vote, knowing full well there
are provisions within it that are unconstitutional. He believed
that would be fraud on the public since the average voter will not
understand the constitutional ramifications of the initiative.
MR. CHENOWETH responded the alternative to passing legislation is
to allow the initiative to go forward as presented. It appears the
Attorney General's Office is prepared to defend the provisions
within the initiative. The Division of Legal Services has
attempted, in response to opinions from Av Gross and Mike Frank, to
pick up the most troublesome features in the initiative and address
them to reduce or eliminate the possibility that those provisions
will be found unconstitutional as a violation of the First
Amendment. He could not guarantee version M will succeed, but
believed the constitutional questions that remain are no worse than
what came to the legislature in the form of the initiative.
CHAIRMAN TAYLOR felt if the legislature knows that something is
patently unconstitutional, it has an obligation to remove it, no
matter how many people signed the initiative. Most of the people
who signed the initiative are most likely unaware that it will
forfeit a good portion of one's constitutional rights.
SENATOR ADAMS arrived at 1:52 p.m.
There being no one else wishing to testify on SB 191, CHAIRMAN
TAYLOR announced the bill would be held until Friday to enable more
work to be done on the measure.
HB 341 TAX APPEALS/ASSESSMENT/LEVY/COLLECTION
CHAIRMAN TAYLOR announced that although HB 341 is scheduled on
today's calendar, it is not his intent to move the bill out of
committee at this time. The committee will take up amendments
later in the meeting, and a committee substitute will be drafted
for consideration on April 19.
HB 387 JUVENILE CODE REVISION
BRUCE CAMPBELL, staff to Representative Kelly, sponsor of HB 387,
informed committee members the tabbed version of the bill shows the
seven new pages added to the juvenile code.
REPRESENTATIVE PETE KELLY, sponsor of the measure, arrived and
stated in spite of the length of the bill, there are only four or
five policy changes in the legislation. HB 387 gives school
districts statutory authority to address truancy in Title 29.
Existing truancy provisions are too cumbersome for school districts
to enforce effectively. The purposes section of the new
delinquency code, on page 22, establishes a new chapter in statute
that deals specifically with delinquents and establishes a policy
allowing sanctions to be imposed for delinquent behavior. On page
25, line 31, an existing court rule is placed in statute. A more
significant change is on page 32 regarding court dispositional
orders and requires a court rule change. At present, the court,
when considering detention for a minor, is instructed to act in the
best interest of the minor and the public. A much longer list of
criteria has been added in HB 387 for judges to use when
considering detention. The term "least restrictive alternative"
was changed to allow judges to consider what may be most conducive
to the minor's rehabilitation and in the best interest of the
public. According to many caseworkers in the field, the "least
restrictive alternative" has been a detriment to providing
consequences to minors in detention. On page 35, there is a
provision for the enforcement of restitution that would apply to
those aged 19 or older.
SENATOR GREEN asked if the automatic continuation of restitution
would be required in every event. REPRESENTATIVE KELLY replied the
restitution recipient may enforce payment of the restitution order
against the minor under AS 09.35.
REPRESENTATIVE KELLY explained the last change is the creation of
Chapter 14 which gives the Department of Health and Social Services
purview over both children in need of aid and delinquent minors.
Number 400
SENATOR ADAMS asked Representative Kelly's recommendation on the
proposed amendment regarding the two-year probation period.
REPRESENTATIVE KELLY stated he agreed to the amendment although he
prefers a four-year time period to give the court system a longer
period of time to monitor the progress of juveniles who commit
offenses at younger ages.
Number 421
LAURIE OTTO, Deputy Attorney General with the Criminal Division of
the Department of Law, thanked the sponsor for his time and
patience in the complicated effort it took to split the juvenile
code. The bill provides a good foundation for the recommendations
the Governor's Conference hopes to bring to the legislature next
year. The Department of Law feels the proposed amendment dealing
with the probation period is important because it tracks with the
rest of the bill.
SENATOR GREEN asked who submitted the proposed amendment. MS. OTTO
answered the Department did, with the consent of Representative
Kelly.
DIANE WORLEY, Director of the Division of Family and Youth
Services, stated support for HB 387 as the bill will help the
Division prepare for future changes.
There being no further testimony, SENATOR GREEN announced HB 387
would be held until CHAIRMAN TAYLOR returned.
HB 18 STATUTE OF LIMITATIONS:POLICE/CORONERS
WILDA WHITAKER, staff to Representative Therriault, sponsor of HB
18, explained the bill is intended to bring the statute of
limitations for civil actions brought against peace officers and
coroners into conformity with the statute of limitations for civil
actions brought against private persons. It reduces from three
years to two the period in which civil actions can be brought
against police officers and coroners. Alaska statutes are based on
Oregon statutes which are based on New York statutes. New York's
laws originally set the statute of limitations for civil suits
brought against a private person at six years, and against a peace
officer at three years. The statute of limitations for peace
officers was shorter because it was recognized that police officers
need to be free from excessive harassment to carry out their
duties. After adopting New York statutes, the State of Oregon
reduced the time for bringing civil suits against private persons
from six years to two, but failed to correspondingly reduce the
statute of limitations against peace officers, which remained at
three. This is how the Oregon law stood when Congress enacted it
for Alaska. What was intended to provide a shorter statute of
limitations for peace officers is now longer than that against the
general public. HB 18 would bring an antiquated statute into
conformity with more recent law. HB 18 is one of the Alaska Peace
Officers Association's priority pieces of legislation. The measure
passed the House Judiciary Committee with seven "Do Pass"
recommendations and passed the full House 38 to 0.
SENATOR ADAMS moved HB 18 out of committee with individual
recommendations. There being no objection, the motion carried.
Senator Ellis arrived at 2:15 p.m.
SB 296 NURSING HOME & ASSTD LIVING EMPLOYEES
SENATOR ELLIS, sponsor of SB 296, noted the proposed committee
substitute is a modification of his original idea to require
greater accountability of the employees who work with vulnerable
adults in Alaska. The bill requires criminal background checks and
fingerprint checks of individuals who will be providing direct care
to vulnerable adults. The committee substitute addresses a number
of concerns expressed by the state agencies involved regarding
public employee contracts, provisional hires, and private sector
facilities. It proposes that this be a prospective requirement at
the negotiation of the next collective bargaining agreement and
gives to the DHSS the discretion to determine the kinds of job
classifications this requirement would apply to. The committee
substitute also allows provisional hire so that people can be hired
before the criminal background check is completed but can be fired
if the check revealed a prior conviction. There is also a proposal
to adopt in statute the regulations of the Division of Senior
Services that relate to background checks.
SENATOR MILLER asked why this bill would not apply to current
employees.
Number 543
SENATOR ELLIS commented he would prefer that, but prior attempts to
have similar legislation take effect immediately were struck down
by the courts because of collective bargaining agreements.
KATHLEEN STRASBAUGH, Assistant Attorney General, gave the following
example. Prior legislation required airport safety officers to
become certified police officers because they used guns in their
employment. At the time the legislation was enacted it was known
that several existing employees would not be able to meet
provisional requirements within the two-year grandfather period.
Those people sued, and because they were able to adequately perform
their jobs without certification, the court ruled they could keep
their jobs. In the case of people working with vulnerable adults,
if they have been performing their jobs satisfactorily, there will
not be just cause to fire them.
Number 573
SENATOR MILLER asked if the bargaining unit covering these
employees has been asked if its members would voluntarily comply.
SENATOR ELLIS answered the bargaining unit has not been approached
with that suggestion due to a lack of time.
SENATOR MILLER said he supports the bill but hopes this requirement
isn't used as a bargaining tool.
SENATOR ELLIS thought it would be embarrassing for a bargaining
unit to argue this issue at the table.
MS. STRASBAUGH commented the union supported the airport safety law
but could not ultimately control the litigation.
TAPE 96-38, SIDE B
MS. STRASBAUGH believed the state would use this opportunity to
examine job specifications for the relevant departments. If a new
contract came forward and an employee wished to transfer, he/she
would most likely have to reapply for the new job. Additionally,
if it was revealed that a current employee had lied on an
application, that employee could be terminated. Finally, the
requirement would have to be accepted if it is a statutory change,
as long as employees are not fired without just cause.
Number 573
SENATOR GREEN asked how new hires would be affected. MS.
STRASBAUGH replied SB 296 could cover new hires if the
specifications were changed, and it would cover new hires in the
private sector.
SENATOR GREEN asked if the legislation would apply post haste to
someone in the private sector or someone not covered by a
bargaining unit. MS. STRASBAUGH stated it is designed to require
newly hired employees, private or public, to comply. She believed
it would be easier to administer in the private sector because it
is less likely there are unions involved in those facilities.
SENATOR MILLER moved to adopt CSSB 296 (version K). There being no
objection, the motion carried.
CONNIE SIPE, Director of the Division of Senior Services, stated
the division is very supportive of this bill. The division, by
regulation, uses similar requirements when hiring employees at
assisted living homes, but the fingerprinting requirement has never
been in state regulations for nursing homes.
SENATOR GREEN moved CSSB 296 (JUD) out of committee with individual
recommendations. There being no objection, the motion carried.
CHAIRMAN TAYLOR returned and the committee revisited HB 387.
HB 387 JUVENILE CODE REVISION
SENATOR ADAMS noted amendment #1, requested by DHSS, was before the
committee: it decreases the probation period from four to two
years. SENATOR ADAMS moved adoption of amendment #1. SENATOR
TAYLOR asked for further clarification of the amendment.
LAURIE OTTO, Deputy Attorney General, explained the bill has been
changed substantially: the original four year probation period is
inconsistent with the current version of the bill. The amendment
is technical.
CHAIRMAN TAYLOR noted there was no objection to the motion,
therefore amendment #1 was adopted.
SENATOR MILLER moved CSSSHB 387 (JUD) as amended out of committee
with individual recommendations. There being no objection, the
motion carried.
HB 341 TAX APPEALS/ASSESSMENT/LEVY/COLLECTION
REPRESENTATIVE JOE GREEN, sponsor of the measure, informed
committee members he and department officials met over the weekend
and prepared a proposed amendment to resolve one of the three
issues of contention. Headway was made on the other two issues,
but no resolution was reached. He planned to offer amendments on
the other two issues as well.
REPRESENTATIVE GREEN explained proposed amendment #1 separates the
appeal from the taxing authority by establishing an administrative
law judge through a nomination procedure. The Alaska Judicial
Council would nominate at least two names for the chief
administrative law judge for the governor to choose from.
Subsequent administrative law judges would be chosen in the same
manner. The last two to three pages of the amendment are technical
to change from the board concept to the administrative law judge
concept. Although he and other legislators prefer to maintain
control through legislative approval of the nominees, in the
interest of cooperation he agreed to this method as it accomplishes
the purpose of keeping the appeal body away from the taxing
authority.
REPRESENTATIVE GREEN discussed amendment #2 which deals with the
judicial bypass issue. The department does not concur with this
amendment. Amendment #2 allows the taxpayer to go from the
informal review straight to Superior Court if the taxpayer prepays
the total amount due. Failure to deposit those funds would dismiss
the taxpayer's appeal. Interest that accrues on the deposited
funds would be added to the principal and awarded to the winning
party. If the judicial decision determines a fractional
settlement, both parties would receive an award proportional to the
decision. Using that method, the taxpayer would receive the same
amount of interest he/she would have had the prepayment not been
required.
Number 437
SENATOR GREEN asked for an example of an amount of a prepayment.
REPRESENTATIVE GREEN responded it could be millions of dollars, and
possibly as high as hundreds of millions. He pointed out this
procedure does not only apply to oil companies but to all
taxpayers.
REPRESENTATIVE GREEN clarified that the amendments labeled "Z.5,
Z.6 and Z.7" are amendments 1, 2, and 3. Amendment #3 addresses
the transition issue and gives any taxpayer who filed an appeal,
before the act takes effect, 45 days to either prepay the disputed
tax amount and go to court, or have a formal appeal within the
department. A party currently undergoing a formal appeal would
still have the right to go to trial, but not have a de novo trial.
Section 18 was added to the bill at the recommendation of the
Division of Legal Services and does not change the intent of the
transition provision.
Number 387
CHAIRMAN TAYLOR returned.
BOB BRIGGS, Assistant Attorney General, stated the Department of
Law supports amendment #1. With regard to amendment #2, he
believed it would be unwise for the committee to contemplate a
payment provision that allows a taxpayer to essentially save money
by filing an appeal. If the interest rate for monies deposited in
the registry of the court is lower than the interest rate provided
under AS 43.05.225, it would be to the taxpayer's advantage to file
an appeal.
CHAIRMAN TAYLOR asked why that would occur. MR. BRIGGS answered
the amendment does not specify what interest rate the money
deposited in the registry of the court will earn. Assuming that
interest rate is lower than the interest rate accruing to a
taxpayer under AS 43.05.225 the taxpayer could simply file an
appeal and save money.
SENATOR MILLER asked if the taxpayer has to prepay the tax on
appeal at present. MR. BRIGGS answered no. SENATOR MILLER noted
amendment #2 would require the taxpayer to pay the tax upfront to
the court. He questioned how that would benefit the taxpayer since
that money could not be used for other purposes.
MR. BRIGGS explained under the current system, if a taxpayer does
not pay a delinquency, the interest accrues on that delinquency
under a rate defined by statute, which is a minimum of 11 percent.
Under amendment #2 there is no interest rate specified therefore it
is possible for a taxpayer to gain a benefit from depositing the
money in the registry of the court and pursuing an appeal.
Number 357
SENATOR MILLER discussed the opposite scenario in which the
taxpayer goes to court and has lost the ability to invest the money
deposited with the court registry. If that taxpayer appeals
through the administrative law judge, no money has to be prepaid,
therefore the taxpayer is free to invest it in a project that may
be earning 20 percent.
MR. BRIGGS noted he is not speaking against the concept of
prepayment, which is a policy matter the Department of Revenue
should address, but he expressed concern that amendment #2 could
encourage frivolous appeals.
CHAIRMAN TAYLOR commented the current version of the bill allows
the taxpayer to continue to play in the administrative process, or
opt out and go to Superior Court. He asked Mr. Briggs if the
taxpayer should be allowed to opt out for free. MR. BRIGGS
repeated he was not speaking against the concept of prepayment,
just the method used in amendment #2, however the Department of Law
is opposed to the concept of a separate direct appeal track to
Superior Court.
MR. BRIGGS addressed amendment #3 regarding the transitional
provision. There are 31 cases at the formal appeal stage. The
total amount of money at stake in those cases is $1.224 billion.
Those cases are in various stages of the formal hearing process; in
some a notice of appeal has been filed; in some there has been
motion practice and discovery; in other cases there has been a
formal hearing and the taxpayers are awaiting decisions. A few
cases will go to a formal hearing process within the next month.
The state has invested resources in those cases, attorney time and
other resources: those resources would be wasted if the taxpayers
were allowed to bypass the formal hearing and go to court. He
preferred the approach in HB 427 which provides that existing rules
apply to pending cases at the formal appeal stage, unless the
taxpayer and Departments of Revenue and Law reach an agreement as
to how the new procedures should apply to those cases.
CHAIRMAN TAYLOR asked Mr. Briggs if he knew of any cases worth $50
or $60 million that the state has taken to judgment and settled,
and if so whether the state received interest. MR. BRIGGS replied
he was unsure, but thought only one case has gone to a formal
hearing. In that case the taxpayer and Departments of Revenue and
Law resolved the situation.
CHAIRMAN TAYLOR clarified his concern is that if cases are settled
within the Department of Revenue no one will know how much the
state lost in interest and penalties since those are usually the
first things given up as the parties work towards a settlement.
MR. BRIGGS felt the idea of prepayment is a good one if the direct
to court option is allowed. CHAIRMAN TAYLOR stated he wants to
place a hurdle to the taxpayer from getting a free ticket to the
court system but believes having to prepay the full amount to be a
penalty.
MR. BRIGGS believed the state would be getting the benefit of a tax
delinquency based on the presumption the tax assessment is valid.
There will be a lot of delay if taxpayers are allowed to take a tax
case directly to a Superior Court judge because the judge will not
have the benefit of the administrative record. As a practical
matter, that will slow the case down and take longer to resolve
than if the case is first heard by an administrative tribunal and
then appealed on the record to a Superior Court judge.
SENATOR MILLER asked what the delinquency rates are charged by the
Department of Revenue. MR. BRIGGS answered those rates are set by
AS 43.05.225, and have an 11 percent floor. SENATOR MILLER said
that statute is referred to in (B). MR. BRIGGS deferred to Ms.
Vogt to answer that question.
DEBORAH VOGT, Deputy Commissioner of the Department of Revenue,
discussed the proposed amendments. She reiterated the parties have
agreed that amendment #1 is the preferred alternative to the
existing provisions regarding method of appointment. Regarding
amendment #2, she believed a prepayment requirement is a great
improvement. In her interpretation of paragraph (B), interest
under AS 43.05.225 is tolled, and the interest that accrues on the
escrow account substitutes for that interest. The interest rate
under AS 43.05.225 is five percent above the federal rate with an
11 percent floor. That rate applies to any amount refunded by the
state resulting from an overpayment, as well as to any amount owed
by the taxpayer. Amendment #2 does not set out investment
standards and she presumed the court system would use a
conservative strategy for a liquid account. In response to an
earlier comment made by Chairman Taylor, she noted the Department
of Revenue is prohibited from forgiving interest in settlements.
Issues are negotiated, the parties agree to an amount each issue is
worth, and the statutory interest is applied to that amount. She
repeated that a prepayment provision is an improvement but the
state might get substantially less using an escrow account rather
than the statutory interest rate.
Regarding amendment #3, MS. VOGT shared Mr. Briggs' concerns. The
cases currently before the hearing officer include fisheries
business tax, mining license tax, corporate income tax, a few oil
and gas cases, but most of those cases do not involve any of the
parties that have negotiated this legislation. They are primarily
small taxpayers owing small amounts. There are a couple of big
cases which amount to over $1 billion. Amendment #3 would permit
a person who has gone through a hearing and lost, to have a hearing
before the new hearing officer, or to go to court. The department
prefers the language that makes the cutoff date the effective date
of the act; appeals after that use the new system, existing cases
stay within the department unless both parties agree to use the new
system. At this time there is only one taxpayer concerned about
the transition provision.
Number 164
CHAIRMAN TAYLOR stated the $1 billion currently in dispute has
taken years to accumulate. This bill will only have prospective
effect and then only to those taxpayers who have high enough
amounts in dispute they want to go to court. MS. VOGT could not
speak to particular cases because of confidentiality requirements,
but noted the retroactive provision is not of concern to the
biggest taxpayer. She repeated there is one problem, and the
department is trying to resolve the situation without drafting a
provision which allows taxpayers to take a second or third bite.
CHAIRMAN TAYLOR asked if there was objection to amendment #1.
There being no objection, the amendment was adopted.
CHAIRMAN TAYLOR asked if there was objection to the adoption of
amendment #2. SENATOR ADAMS objected. The motion carried with
Senators Green, Miller, and Taylor voting "yea," and Senator Adams
voting "nay."
CHAIRMAN TAYLOR asked if there was objection to the adoption of
amendment #3. SENATOR ADAMS objected. Amendment #3 was adopted
with Senators Miller, Green and Taylor voting "yea," and Senator
Adams voting "nay."
CHAIRMAN TAYLOR announced that he planned to hold the bill until
Friday to give the sponsor and Department of Revenue more time to
work on the disputed issues.
SENATOR ADAMS asked Ms. Vogt if the Governor will veto HB 341 with
amendments #2 and #3. MS. VOGT replied it is her understanding the
Governor will veto a bill that allows the taxpayer to avoid the new
administrative process and go straight to court.
HB 314 VIOLATING DOMESTIC VIOLENCE ORDERS
REPRESENTATIVE SEAN PARNELL, sponsor of HB 314, highlighted the
bill. The original bill, as passed to the Senate, revised statutes
related to violations of domestic violence restraining orders, and
included a prohibition against tape recording by defense attorneys
of the victim or a witness without the victim's or witness' consent
by defense attorneys. At the request of many interested
individuals and groups, the proposed committee substitute presents
a more comprehensive approach to domestic violence in Alaska. The
committee substitute is based, in part, on the Model Code on
Domestic and Family Violence and is focussed on victim protection
and domestic violence prevention.
The bill provides for three types of protective orders: an
emergency protective order for 72 hours that can be obtained by a
peace officer; an ex parte order which is a 20 day protective
order; and a protective order that is issued after notice and a
hearing that offers some protections for one year, or until changed
by the court. It also allows an opportunity for the respondent to
attempt to modify an ex parte protective order after three days
notice and a hearing.
The act rewrites the crime of violating a protective order which,
as under current law, is a class A misdemeanor. The act also
creates a central registry of protective orders. It provides for
mandatory arrest of the primary physical aggressor if the violence
has occurred within 12 hours of the call to law enforcement
officers. The act requires the courts and correctional system to
consider the safety of the victims during all aspects of the case,
from conditions of release to notifying the victim of furloughs and
prereleases. Before entering a plea agreement, it requires the
prosecutor to make a reasonable effort to concur with the domestic
violence code. It also adds training requirements in domestic
violence for all law enforcement and public employees who deal with
domestic violence victims. With respect to divorce and child
custody, it tightens requirements of when the court can order
mediation. He urged the committee's support of the measure.
SENATOR ADAMS moved the committee adopt SCSCSHB 314(JUD) am
(version W). SENATOR GREEN objected.
CHAIRMAN TAYLOR commented the original bill was 4 pages, and the
proposed committee substitute is about 50 pages. He asked why the
legislation has grown over tenfold.
TAPE 96-39, SIDE A
Number 005
REPRESENTATIVE PARNELL explained the original legislation expanded
and clarified the crime of violating a domestic violence
restraining order. It also included a surreptitious taping
component, which said a person working for the defense cannot
secretly tape record a crime victim or witness without consent. He
introduced the bill last April but became familiar with the Model
Code during the interim, which the new draft is based on. He also
watched closely the Governor's work with respect to domestic
violence legislation. He offered his bill as a vehicle to members
of the Administration to help aid in the process of getting a
comprehensive approach to domestic violence on the table, which is
why the bill has grown.
CHAIRMAN TAYLOR asked which provisions of the draft were in the
original bill. REPRESENTATIVE PARNELL responded Sections 18 - 21
were the original bill.
SENATOR GREEN asked if the bill contains a definition section.
REPRESENTATIVE PARNELL answered there are two definition sections;
Section 990 on page 29 contains the domestic violence definitions.
REPRESENTATIVE PARNELL asked committee members if they had
amendments in their packets that he planned to propose. CHAIRMAN
TAYLOR acknowledged the amendments were made available to the
committee.
SENATOR ELLIS asked Chairman Taylor if he planned to hold the
amendments at this time. CHAIRMAN TAYLOR responded he planned to
hold them, as the committee substitute has not even been adopted
yet. He planned to incorporate all changes at one time.
LAURIE OTTO, Deputy Attorney General, Department of Law, discussed
her background as a prosecutor, and the frustration prosecutors
experience because of their inability to do anything to stop the
flood of cases they receive. A high percentage of homicides in
Alaska are related to domestic violence, and Alaska has a high rate
of child abuse and neglect. Nationwide, children that grow up in
homes with domestic violence are 1500 times more likely to be
abused. The abuse and neglect comes from both the perpetrator and
the victim. Abused or neglected children are 40 percent more
likely to become involved with the criminal justice system. She
emphasized something needs to be done to stop the flood of people
coming into the criminal justice system and to stop the number of
children accounting for the rise in juvenile crime so that we can
spend our resources on education rather than prisons. Merely
locking people up for domestic violence does not treat the problem.
Good laws are not useful unless people are trained to use them.
This bill takes the best provisions of the Model Code which was
drafted after the National Council of Juvenile and Family Court
judges spent three years working on this issue. The bill also
includes training and prevention components, as well as civil and
criminal components. She appreciated the work put into the bill by
the sponsor.
Number 179
CHAIRMAN TAYLOR asked what percentage of the people who initiate a
domestic violence restraining order reconcile with their partners.
MS. OTTO did not know. CHAIRMAN TAYLOR asked if she would estimate
an amount. MS. OTTO said she could not give an answer, but she has
consistently seen people who are trying to get out of abusive
relationships cycle through the system more than once. The choice
of being out on the street with your children or returning to a
violent relationship is a hard one. Additionally, many of the
victims grew up in violent homes and think that is an acceptable
form of behavior.
CHAIRMAN TAYLOR asked Ms. Otto to explain Section 6 on page 3. MS.
OTTO responded one of the things that happens in trials is that
defendants, who are operating under a court order to not have
contact with another person, claim as a defense that they did not
initiate the contact. The victim will disagree and the situation
becomes a "he said-she said" swearing match. The state needs to
prove beyond a reasonable doubt what occurred, therefore
prosecutors are left hard pressed to protect people who have gotten
protective orders when the person ordered has the obligation to
stay away.
Number 225
CHAIRMAN TAYLOR discussed a common scenario where an abused wife
comes before the court and requests an emergency order to protect
her from the violent husband. The court issues the order which
prohibits any contact with the wife. After things cool down, he
has seen in his experience as a judge, a large percent of those
people attempt to reconcile. The wife contacts the husband. Under
this provision, the husband would be in violation of the order.
MS. OTTO responded this bill makes it very easy for people to get
modifications to protective orders: all either party needs to do is
ask the court for modifications. It is far more desirable, if
people are reconciling, that they ask that the protective order be
lifted. She noted she would be uncomfortable with people picking
and choosing which court orders they would obey.
CHAIRMAN TAYLOR commented that according to the bill, it would not
matter what the factual circumstances were, or who had initiated
the contact: the other party would still be at fault. MS. OTTO
pointed out the respondent would be under a specific court order to
not have contact but if either side wanted to initiate contact,
they would request the court to lift the order. The court would do
so if it was acceptable to both sides.
CHAIRMAN TAYLOR asked why not put the hammer on both sides. The
respondent would be ordered to have no contact, but how is that
person to know which phone calls to answer before picking up the
phone. Most people involved in these situations cannot act
rationally and maintain total emotional control. It is unlikely
the respondent will actually require the wife to go to court to
lift the restraining order before speaking. He guessed the
percentage of couples who reconcile is very high. This bill would
make a criminal out of the respondent for attempting to respond to
the wife's contact. If people routinely got orders changed, the
Child Support Enforcement Division would not be chasing people all
over the country.
MS. OTTO felt that situation is different because to get a child
support order changed is complicated: standards are based on a
complicated body of case law. CHAIRMAN TAYLOR replied all it
takes is a 10 percent decrease in income. If the father loses his
job for four months he has probably lost 10 percent of his income
and does not have the money to hire an attorney and go to court.
Additionally, it is not easy to go to court if the court only comes
to town once a month.
MS. OTTO stated she understood Chairman Taylor's point, however has
seen the opposite situation more often than not: cases where the
victim has not initiated contact and wants nothing to do with the
respondent. The respondent claims the victim is the one who
initiated contact, and even though it is a lie, it becomes an
impossible burden to overcome and disprove. That means people go
to court seeking protection and expect the system to back up the
order, but get no help if the respondent lies and asserts the
victim initiated contact, because the state cannot provide
evidence. Because protective orders are used to protect peoples'
lives they need to be enforceable. Based on the Department of
Law's limited resources it would not take a case if a victim
contacted an offender.
CHAIRMAN TAYLOR said he has seen, over many years, a terrible cycle
of abusive relationships where the couple goes through an abusive
experience, then has a strong desire to reconcile, does so for a
short period of time, and then something triggers another violent
episode, and the cycle repeats itself. Depending on what phase of
the cycle the parties are in, the wife either desires the order, or
does not. She either listens to the advice of counselors, or does
not. She either files for divorce, or dismisses the case and
returns to the relationship. He did not believe the Department of
Law would not prosecute in such a case.
MS. OTTO said she was speaking to the example he gave of the wife
calling her husband on the phone even though he was under a
protective order. She repeated she has never seen a case like that
prosecuted and she does not believe such cases are prosecuted.
CHAIRMAN TAYLOR clarified they are not being prosecuted because to
date such situations have been handled as violations of a domestic
relations order, not crimes. MS. OTTO responded a violation of a
domestic relations order is a crime at present. CHAIRMAN TAYLOR
pointed out that in the past it was considered a civil matter which
came before the court civilly. MS. OTTO said it has been a crime
for approximately five years. CHAIRMAN TAYLOR said he knew that,
but he is speaking to the evolution of this process. He noted
there was a case in Wrangell about five years ago where a woman got
a restraining order against a man, but then kept following him
around town in her car. He complained to police about it, but no
one believed him until two police officers witnessed it happening.
CHAIRMAN TAYLOR emphasized people use and misuse the system. He
noted two cases where policemen were beat up by the victim after
stopping a domestic violence dispute. Emotions in these situations
run very high, and it is important to separate those involved, but
to create a process which gives one side the right to have the
other side revoked because they initiated the contact would not
work unless both parties are rational and objective.
Number 390
SENATOR GREEN referred to definitions of crimes on page 19 which
use active language, and the list of crimes related to domestic
violence which use passive descriptions. She asked if assault is
classified as assault whether it occurs in the home or elsewhere,
and whether it is treated differently under this bill.
MS. OTTO referred to the definition of a crime involving domestic
violence on page 29 and the list of crimes that are on page 19.
The difference between the two lists is the criminal mischief under
(E) which contains vandalism offenses that commonly occur in
domestic violence situations. There was no desire to pick up
criminal mischief except in domestic violence situations because it
is often a precursor to physical violence. Harassment offenses are
also limited to the domestic violence context. She clarified
assault is assault: if one is charged with a domestic violence
assault, the DPS computer system will list assault, not a crime
involving domestic violence, but a domestic violence flag would
accompany the offense in the computer system.
Number 428
SENATOR GREEN asked if domestic violence would be classified as a
felony. MS. OTTO answered domestic violence is not a separate
offense. The bill has taken the kinds of offenses people commit as
part of domestic violence, and grouped them together and called
them crimes involving domestic violence. Once an offense occurs,
a number of things would happen according to the bill, but some of
the offenses are misdemeanors and some are felonies.
SENATOR GREEN asked if the new list is duplicative of what is in
existing statute. MS. OTTO clarified the bill does not create new
crimes; it does create a new name for the violation of a protective
order.
SENATOR GREEN asked if a neighbor assaulted her versus a person she
lived with, whether the penalty would be the same and whether she
could get a protective order against the neighbor. MS. OTTO
answered a protective order is not a penalty, it is a device to
protect oneself. The penalty would be the same for both: fourth
degree assault. Crimes are charged under existing law.
SENATOR GREEN asked if the same standard would apply to a neighbor
using a weapon against her. MS. OTTO stated that would carry a
different penalty. If a person is convicted of assaulting his/her
spouse with a weapon, HB 314 calls for mandatory forfeiture of the
weapon; that would not apply to the neighbor. She emphasized a
spouse would actually have to be using the weapon in the assault
for forfeiture to be mandatory.
SENATOR GREEN asked about line 6 on page 22. MS. OTTO clarified
page 22 only applies to protective orders and noted Representative
Parnell has a proposed amendment to narrow that section, which the
Department of Law supports.
SENATOR GREEN recounted a situation she was involved in years ago
in which she helped a victim of domestic violence get out of an
abusive relationship. At the time she found it cumbersome that the
standard for prosecution was so high because the perpetrator no
longer lived with the victim. She asked what the first line of
protection is for a domestic violence victim who calls the police.
MS. OTTO replied if a victim calls police to the house, and is
being assaulted at that time, the bill requires the person
committing the assault to be arrested and removed from the home.
If the victim calls the day after the assault, an investigation
will occur before any action is taken because the evidence is not
as readily available.
SENATOR GREEN asked what evidence would be required of the victim's
statement if the victim contacted police one day after an assault.
MS. OTTO clarified to get a protective order, the victim would need
to appear in court, fill out forms, and provide the court with
evidence that the crime of domestic violence was committed against
her. If the evidence is produced, the court will order a
protective order. If you are seeking to have someone prosecuted
for assaulting you, the prosecutor would have to conclude there is
sufficient evidence to prove to a trial jury beyond a reasonable
doubt that a crime was committed against you.
SENATOR GREEN asked when issuing the protective order based on the
victim's statement, what penalties or restrictions can be imposed
on the respondent. MS. OTTO replied the victim would need to swear
to the facts and provide evidence that is acceptable to the court.
When that occurs, the court can issue an order that contains the
provisions on page 23, line 22. There are broader protections the
court can order after notice and a hearing is provided to the
person who is accused of assault.
CHAIRMAN TAYLOR referred to page 25 and asked why the bill would
prevent the court from imposing conditions on both parties during
the hearing for the restraining order. MS. OTTO answered that is
because as a predicate to entering an order, the finding that
domestic violence was committed against another person needs to be
established. If a person has not committed domestic violence,
there is nothing to trigger court jurisdiction. Because protective
orders are designed to protect people, the protection proceeding
focusses on protection from violence, not counseling or behavior
correction.
CHAIRMAN TAYLOR discussed a situation where a woman goes to a
shelter and files a complaint for divorce. The court, under
divorce jurisdiction, has all kinds of authority to separate
people. On page 26, the bill says the petitioner is not barred
from seeking an order under this chapter because of the existence
of another civil action between the petitioner and the respondent.
That means even though orders are in place when a divorce case is
pending, either party is free to go into court to seek an
additional protective order.
Number 599
MS. OTTO stated one of the things the bill requires of a person
seeking a protective order is that the person disclose to the court
any outstanding civil or criminal matters to avoid forum shopping
and duplication of effort. CHAIRMAN TAYLOR believed the system
could be easily abused in that process.
CHAIRMAN TAYLOR asked why the bill prevents the court from entering
an order against the petitioner or referring the parties into
mediation.
MS. OTTO explained the problem with mediation is that unlike
arbitration, where a neutral third party makes the decision after
hearing evidence from both sides, mediation has a neutral third
party who does not express an opinion. The mediator attempts to
help the parties come to a mutual agreement. It is premised on the
idea that the parties have equal footing. In domestic violence
situations, the parties are not on equal footing, and nationwide it
has been discovered that mediation often triggers domestic violence
incidents. For that reason, both the American and Canadian
mediation societies have recommended against mediation for domestic
violence issues. The Department of Law has taken the middle ground
on this issue except for mediation directly related to domestic
violence issues. If mediation is occurring in another context
between parties where there is ongoing domestic violence, the bill
provides that mediation can take place only if protections for the
victim are in place.
TAPE 96-39, SIDE B
MS. OTTO stated that is the approach recommended by the National
Council on Juvenile and Family Court Judges.
SENATOR GREEN commented that in other testimony taken on mediation,
mediators informed committee members that mediation does not need
to occur with all parties in the same room, and it has been
successful. MS. OTTO repeated the Department of Law has agreed to
take a middle ground, so that in cases where the victim is
agreeable to mediation, it can occur.
JAYNE ANDREEN, Executive Director of the Council on Domestic
Violence and Sexual Assault, stated more than 25 percent of Alaskan
woman have been physically or emotionally abused by a spouse or
live-in partner. More than 10 percent of women report their
abusers used a gun or knife against them, in addition to being
bitten or burned by the abuser. Up to 90 percent of their children
witness abuse and between 35 to 75 percent of those children are
also abused. Intervention is very complex. As a society, we view
domestic violence as a women's issue rather than the serious
criminal behavior that it actually is. Domestic violence is a
series of controlling behaviors that lead to physical abuse. The
behaviors develop and evolve over a period of time. Victims and
offenders often fear the stigma that's attached to reaching out for
help. We have many problems in our criminal justice system that
hinder our ability to respond to these crimes. Cultural factors
often prohibit victims from seeking help. The system does not hold
offenders accountable, and is slow and cumbersome in responding to
these crimes. Victims are not aware of their civil and criminal
options and the effect of domestic violence on children is too
often forgotten. The current civil restraining order time is
limited, leaving victims vulnerable to additional abuse after 90
days. In order to make real changes, the system must respond in a
timely fashion and provide immediate consequences for domestic
violence. She urged committee members to support the proposed
committee substitute. If this legislation passes, everyone will
operate with the same level of understanding when it comes to
domestic violence. This bill represents the establishment of a
statewide, public policy against domestic violence at both the
state and local level. It gives everyone concerned about these
problems the opportunity to respond rather than react to domestic
violence. This bill does not change Alaska's laws on domestic
violence: it restructures the approach to domestic violence.
Number 570
CHAIRMAN TAYLOR asked Ms. Andreen if she could answer his previous
question about the percent of people who cycle back through the
system. MS. ANDREEN estimated a victim of domestic violence will
reach out for help between five and twelve times to end the abuse
in the relationship. Those attempts include contact with a
shelter, with the police, or with family members. Victim advocates
try to maintain a safe educational approach that allows the victim
to make the choices she needs to make and continue to reach out for
help.
CHAIRMAN TAYLOR asked if economics play a role in domestic
violence. MS. ANDREEN verified economics do play a role for
victims, but that does not mean victims at the low end of the
economic scale are more prone to be involved in an abusive
relationship. CHAIRMAN TAYLOR clarified he was referring to
economic cycles within the family unit. MS. ANDREEN stated she was
not aware of any specific research along those lines, but indicated
domestic violence can be impacted by outside stressors. Economic
changes, whether significant increases or decreases, can be a
contributor to a change in the level of violence. The same can be
said for substance abuse and alcoholism.
Number 548
CHAIRMAN TAYLOR stated that many studies conclude the single
causative factor of many divorces is lack of money, or financial
problems due to job loss. He noted the increase in domestic
violence cases appears to be directly related to job loss in
Wrangell and Sitka. He expressed concern that the bill does not
address family counseling.
MS. OTTO commented at every juncture, whether it be part of the
probation condition, parole condition, or in the domestic violence
restraining order context, rehabilitation is included. At the
bottom of page 22, there is a provision to order the respondent, at
the respondent's expense, to participate in a program for the
rehabilitation of perpetrators for domestic violence that meets
standards set by the Department of Corrections.
SENATOR GREEN asked if the court ever pays for offender
rehabilitation. MS. OTTO indicated the system pays for people in
custody. The bill contains a provision that allows treatment
providers to garnish the offender's permanent fund dividend to
recapture the cost of treatment.
MS. OTTO disagreed that economics is a direct underlying cause of
domestic violence. She believed the issue to be one of power and
control in the relationship, which tends to escalate from verbal
abuse. By the time physical violence occurs, the dynamic of
control has already been developed in the relationship.
CHAIRMAN TAYLOR stated there seems to be a relationship between
economic stress and the way in which people act out. MS. OTTO
clarified she does not disagree that stress causes problems, but
believes the root of a domestic violence relationship is a power
and control dynamic.
CHAIRMAN TAYLOR commented that all victims that get a protective
order do not get divorced. He expressed concern that this method
will not work well for couples that reconcile, and that by
providing more punitive measures, the bill does not provide any
incentive for couples to break the cycle of domestic violence. He
believed that if 30 percent of people involved in domestic violence
disputes go through the cycle more than once, it would be
beneficial to mandate training for the perpetrator.
MS. ANDREEN responded the bill does address rehabilitation for the
perpetrator. Most victims commonly say they return to the
relationship because the system has not adequately worked for them.
This bill will not make the problem go away, but will make the
criminal justice system more responsive to the immediate needs of
victims. The system will ensure that immediate response will
occur, and sends the message that this behavior is a crime, not
merely a family problem.
CHRIS CHRISTENSEN, general counsel to the judicial branch, stated
the Supreme Court takes no position on this issue and feels the
issues in the bill are matters of public policy best left to the
legislature. The court system has attached a fiscal note which
reflects minor additional costs for implementation. He thanked the
sponsor for the many hours he spent working with the court system
to ensure the effect of the bill will not result in an understaffed
judiciary spinning its wheels.
MR. CHRISTENSEN discussed mediation. There are several existing
statutes which authorize a judge to order mediation in different
kinds of cases, including divorce and child custody cases. Civil
Rule 100 provides in part that a court may order mediation in
response to a motion by a party, or on its own motion, when it
determines that mediation may result in an equitable settlement.
When making this determination the court may consider whether there
is a history of domestic violence between the parties, which could
be expected to affect the fairness of the mediation process, or the
physical safety of the domestic violence victim. The Supreme Court
believes that Civil Rule 100, in its current form, strikes a good
balance between public policy, as expressed by the legislature,
which favors alternative dispute resolution, and the need to
protect victims of domestic violence. The Court does not agree
with one of the changes to mediation that has been made to Civil
Rule 100 in HB 314, specifically the conditions under which
mediation may be ordered by a court on pages 34-36 (Sections 41,
44, and 47). Language on page 34, line 22, prevents a mediator
who receives a court referral from engaging in mediation if
domestic violence has occurred unless three conditions are met.
One of the conditions is if the victim initiates the request for
mediation. As written, the court would be unable to suggest to the
parties that they consider mediation. He proposed language be
added to line 26 that reads "mediation is requested, or proposed by
the court and agreed to, by the victim of the alleged domestic
violence."
CHAIRMAN TAYLOR asked Mr. Christensen to submit the draft amendment
to committee staff.
LAUREE HUGONIN, representing the Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), testified in support of HB
314 as it is a comprehensive approach toward eradicating domestic
violence in Alaska. ANDVSA particularly supports the protective
order registry, the expansion of the protective orders, training
required of professionals who interact with victims, victim
notification by the parole board and Department of Corrections, and
of the anti-surreptitious taping language in the bill. ANDVSA
opposes court ordered mediation in cases involving domestic
violence as it is an inappropriate method for settling disputes
when domestic violence has occurred. Unfortunately, separation
does not end violence: almost 75 percent of domestic violence
recently reported to the U.S. Dept. of Justice was inflicted after
the separation. Mediation is based on several assumptions, the
first being that the parties involved will have equal power in
their ability to bargain and reach agreements equitable to both
sides. It also assumes that a mediator will offer impartial
assistance to both parties. Both of these assumptions are
problematic when working with people involved in domestic violence
situations. If a mediator is unaware of the many issues involved
in domestic violence situations, he/she cannot assure a fair and
equitable outcome. If the mediator does not understand the pattern
of power, control and dominance used by the abusive person, not
only will the outcome of the mediation be compromised, but the
victim can be placed in further danger. Mediation is also
dangerous to mediators themselves. California was the first state
to order mediation, but because some abusers carried guns to the
hearings, guards are often required to accompany people to the
mediation process. Violence distorts the balance of power in the
relationship. Abusers are able to exert control by signals only
the victim will notice. The American Bar Association recommends
that mediation not be used in domestic violence cases, and The
National Council of Family and Juvenile Court Judges opposed
mediation in 1990, but has included ways to work with mediation in
the Model Code, possibly to accommodate those states that use it.
The Academy of Family Mediators, the Family Mediation Association
of Canada, and The Society of Professionals in Dispute Resolution
have also come together in a 1993 report and agreed there should be
a rebuttable presumption in cases involving domestic violence for
mediation, and that presumption should stay in place until research
is done that repudiates the data showing this is a dangerous
situation to place victims of domestic violence in.
CHAIRMAN TAYLOR asked Ms. Hugonin the number of couples involved in
domestic violence who reconcile. MS. HUGONIN was unaware of the
number. She believed parts of the protections in the bill will
give people the opportunity to make the break easier because there
are requirements for direct intervention. Part of the problem is
that, as a society and justice system, we have not done a quick and
thorough job of putting sanctions in place to reinforce the premise
that this activity is criminal.
CHAIRMAN TAYLOR asked Ms. Hugonin how long she has been in this
business. MS. HUGONIN answered 11 years. CHAIRMAN TAYLOR noted
the people who work in the trenches are anguished over the fact
that the victims have so much difficulty breaking out of the cycle.
MS. HUGONIN felt it is important to recognize that the question
always focusses on why the victim remains in an abusive
relationship, rather than why the abuser continues to abuse. She
believed it would be more useful to question what we are doing as
a society to stop abusive behavior. Many victims do leave abusive
relationships but that does not solve the problem.
CHAIRMAN TAYLOR stated that is why he is concerned that there are
only one or two sentences in a 50 page bill that talk about
addressing the perpetrator's problem, rather than 50 pages
addressing the perpetrator's problem.
MS. HUGONIN noted the bill does address the perpetrator's problem,
not in a treatment modality, but with criminal consequences. The
bill provides for mandatory arrest, more provisions of the
protective orders, and sends the message to the abuser that this
behavior is considered criminal.
CHAIRMAN TAYLOR asked Ms. Hugonin if she thought the mandatory
arrest provision will have a chilling effect upon the filing of
petitions. MS. HUGONIN stated she was not aware whether that has
happened in states that have mandatory arrest. CHAIRMAN TAYLOR
stated there is a pattern in enforcement where the victim refuses
to sign a complaint against her abuser if it would result in an
arrest. MS. HUGONIN stated under HB 314, the police officer would
determine whether or not a crime has occurred.
MS. HUGONIN emphasized she feels strongly about the removal of the
mediation provision, as she honestly believes it is dangerous.
People who abuse are not able to successfully mediate as they do
not have cooperative attitudes. She did not support the Court
System's amendment.
CHAIRMAN TAYLOR repeated the Court System's amendment would still
require the consent of the victim. MS. HUGONIN stated her concern
is that people take a judge's recommendation very seriously
therefore feel they should comply. It also puts a victim in a
position to have to declare, in front of her abuser, that she will
not agree to mediation. That could prove dangerous.
MS. OTTO commented in response to an earlier question about the
potentially chilling effect of mandatory arrest: mandatory arrest
is only triggered when a police officer is responding to a crime
that occurred within the last 12 hours.
CHAIRMAN TAYLOR noted there was a lengthy period of time in our
recent history where unless the victim was willing to sign a
complaint, nothing happened.
MS. OTTO agreed that if a police officer responded to a call, and
the victim did not want to file a complaint, the police did not do
so. Police officers also tried to mediate at the scene. The Model
Code recommends mandatory arrest because it sends the message that
violent behavior is no longer a family problem, it is illegal.
CHAIRMAN TAYLOR thanked all of the people who worked on this
legislation. He announced the committee would take action on the
bill at the next hearing.
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