Legislature(2003 - 2004)
03/26/2004 08:06 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 26, 2004
8:06 a.m.
TAPE(S) 04-27&28
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 311
"An Act providing for a special deposit for workers'
compensation insurers; relating to the board of governors of the
Alaska Insurance Guaranty Association; relating to covered
workers' compensation claims paid by the Alaska Insurance
Guaranty Association; stating the intent of the legislature, and
setting out limitations, concerning the interpretation,
construction, and implementation of workers' compensation laws;
relating to restructuring the Alaska workers' compensation
system; eliminating the Alaska Workers' Compensation Board;
establishing a division of workers' compensation within the
Department of Labor and Workforce Development and assigning
certain Alaska Workers' Compensation Board functions to the
division and the Department of Labor and Workforce Development;
establishing a Workers' Compensation Appeals Commission;
assigning certain functions of the Alaska Workers' Compensation
Board to the Workers' Compensation Appeals Commission; relating
to agreements that discharge workers' compensation liability;
providing for hearing officers in workers' compensation
proceedings; relating to workers' compensation awards; relating
to an employer's failure to insure and keep insured or provide
security; providing for appeals from compensation orders;
relating to workers' compensation proceedings; providing for
supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of- living adjustment for workers' compensation
benefits; providing for administrative penalties for employers
uninsured or without adequate security for workers'
compensation; relating to assigned risk pools and insurers; and
providing for an effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 230(STA)
"An Act relating to political signs on private property."
HEARD AND HELD
SENATE BILL NO. 308
"An Act increasing the duration of certain provisions of
domestic violence protective orders from six months to one
year."
HEARD AND HELD
SENATE BILL NO. 345
"An Act relating to civil liability associated with aircraft
runways, airfields, and landing areas."
MOVED CSSB 345(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 311
SHORT TITLE: INSURANCE & WORKERS' COMPENSATION SYSTEM
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/09/04 (S) READ THE FIRST TIME - REFERRALS
02/09/04 (S) L&C, FIN
02/10/04 (S) L&C AT 1:30 PM BELTZ 211
02/10/04 (S) Heard & Held
02/10/04 (S) MINUTE(L&C)
02/19/04 (S) L&C AT 1:30 PM BELTZ 211
02/19/04 (S) Heard & Held
02/19/04 (S) MINUTE(L&C)
02/26/04 (S) L&C AT 1:30 PM BELTZ 211
02/26/04 (S) Heard & Held
02/26/04 (S) MINUTE(L&C)
03/04/04 (S) L&C AT 1:30 PM BELTZ 211
03/04/04 (S) Moved SB 311 Out of Committee
03/04/04 (S) MINUTE(L&C)
03/05/04 (S) L&C RPT 1DP 1DNP 2NR
03/05/04 (S) DP: BUNDE; DNP: FRENCH; NR: SEEKINS,
03/05/04 (S) STEVENS G
03/12/04 (S) JUD REFERRAL ADDED AFTER L&C
03/26/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 230
SHORT TITLE: POLITICAL SIGNS ON PRIVATE PROPERTY
SPONSOR(s): REPRESENTATIVE(s) HOLM
03/31/03 (H) READ THE FIRST TIME - REFERRALS
03/31/03 (H) TRA, STA
04/29/03 (H) TRA AT 1:30 PM CAPITOL 17
04/29/03 (H) Heard & Held
04/29/03 (H) MINUTE(TRA)
05/06/03 (H) STA AT 8:00 AM CAPITOL 102
05/06/03 (H) Scheduled But Not Heard
05/06/03 (H) TRA AT 1:30 PM CAPITOL 17
05/06/03 (H) Moved CSHB 230(TRA) Out of Committee
05/06/03 (H) MINUTE(TRA)
05/07/03 (H) TRA RPT CS(TRA) 4DP 2NR
05/07/03 (H) DP: OGG, KOOKESH, FATE, HOLM;
05/07/03 (H) NR: KOHRING, MASEK
05/07/03 (H) STA AT 8:00 AM CAPITOL 102
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) STA AT 8:00 AM CAPITOL 102
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(STA)
05/09/03 (H) STA AT 8:00 AM CAPITOL 102
05/09/03 (H) Moved CSHB 230(STA) Out of Committee
05/09/03 (H) MINUTE(STA)
05/12/03 (H) STA RPT CS(STA) 3DP 3NR
05/12/03 (H) DP: GRUENBERG, HOLM, LYNN; NR: SEATON,
05/12/03 (H) DAHLSTROM, WEYHRAUCH
05/17/03 (H) CORRECTED CS(STA) RECEIVED
05/17/03 (H) TRANSMITTED TO (S)
05/17/03 (H) VERSION: CSHB 230(STA)
05/18/03 (S) READ THE FIRST TIME - REFERRALS
05/18/03 (S) STA, JUD
02/12/04 (S) STA AT 3:30 PM BELTZ 211
02/12/04 (S) Heard & Held
02/12/04 (S) MINUTE(STA)
03/09/04 (S) STA AT 3:30 PM BELTZ 211
03/09/04 (S) Scheduled But Not Heard
03/11/04 (S) STA AT 3:30 PM BELTZ 211
03/11/04 (S) Moved SCS CSHB 230(STA) Out of
Committee
03/11/04 (S) MINUTE (STA)
03/12/04 (S) STA RPT SCS FORTHCOMING 3NR
03/12/04 (S) NR: STEVENS G, STEDMAN, GUESS
03/15/04 (S) STA SCS RECEIVED
03/26/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 308
SHORT TITLE: DOMESTIC VIOLENCE PROTECTIVE ORDERS
SPONSOR(s): SENATOR(s) FRENCH
02/09/04 (S) READ THE FIRST TIME - REFERRALS
02/09/04 (S) STA, JUD
03/11/04 (S) STA AT 3:30 PM BELTZ 211
03/11/04 (S) Moved SB 308 Out of Committee
03/11/04 (S) MINUTE (STA)
03/12/04 (S) STA RPT 3DP
03/12/04 (S) DP: STEVENS G, STEDMAN, GUESS
03/12/04 (S) FIN REFERRAL ADDED AFTER JUD
03/26/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 345
SHORT TITLE: LIABILITY FOR AIRPORTS AND AIRSTRIPS
SPONSOR(s): SENATOR(s) SEEKINS
02/16/04 (S) READ THE FIRST TIME - REFERRALS
02/16/04 (S) TRA, JUD
03/16/04 (H) TRA AT 1:30 PM CAPITOL 17
03/16/04 (S) Moved SB 345 Out of Committee
03/16/04 (S) MINUTE(TRA)
03/17/04 (S) TRA RPT 3DP
03/17/04 (S) DP: WAGONER, COWDERY, THERRIAULT
WITNESS REGISTER
Ms. Linda Hall
Division of Insurance
Department of Community & Economic Development
PO Box 110800
Juneau, AK 99811-0800
POSITION STATEMENT: Explained the contents of SB 311
Mr. Paul Lisankie
Division of Workers Compensation
Department of Labor & Workforce
Development
PO Box 21149
Juneau, AK 99802-1149
POSITION STATEMENT: Explained the impact of SB 311 on the
Division of Workers Compensation
Mr. Joe Michel
Staff to Senator Seekins
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 345 for the sponsor
Mr. Tom George
Alaska Aircraft Owners and Pilots Association
POSITION STATEMENT: Supports SB 345
Mr. Felix McGuire
Alaska Airmen's Association
POSITION STATEMENT: Supports SB 345
Mr. James F. Dieringer III
Fairbanks, AK
POSITION STATEMENT: Described problems with the current
restraining order process (SB 308)
Ms. Barbara Brink
Public Defender Agency
Department of Administration
th
900 W 5 Ave., Suite 200
Anchorage, AK 99501-2090
POSITION STATEMENT: Expressed concerns about SB 308
Ms. Lauri Hugonin
Alaska Network on Domestic Violence and Sexual Assault
Juneau, AK
POSITION STATEMENT: Supports SB 308
Mr. Todd Larkin
Staff to Representative Holm
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 230 for the sponsor
ACTION NARRATIVE
TAPE 04-27, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:06 a.m. Senators Therriault,
Ellis, French and Seekins were present. The first order of
business to come before the committee was SB 311.
SB 311-INSURANCE & WORKERS' COMPENSATION SYSTEM
MS. LINDA HALL, Director of the Division of Insurance, told
members that she and Mr. Lisankie would describe the bill
sections and indicated that the team that worked on SB 311 has
been involved in discussions with other interested parties in an
attempt to reach consensus on sections of the bill that are
causing dissention. They hope to present a committee substitute
next week that will reflect some agreement on those issues. She
then offered to provide some background information on what
prompted the bill.
CHAIR SEEKINS announced that, at the request of the sponsor, he
would not take public testimony today, but the bill would be
rescheduled next week. He hoped to have a bill before the
committee next week that would be ready to move out of
committee. He then asked Ms. Hall to proceed.
MS. HALL indicated that all members have heard her discuss the
cash deficit in the Guaranty Association. She said she would
also discuss the unhealthy workers' compensation environment in
Alaska. The Division of Insurance is dealing with four
problematic areas. The first is the lack of profitability in the
workers' compensation market from 1997 to 2002, when losses
ranged from 99.9 percent to 154 percent. The high of 154 percent
means that insurance companies spent $1.54 for workers'
compensation claims for every dollar of premium collected. The
average over that same 5-year period was 124 percent, which is 5
percent higher than the national average. Alaska's workers'
compensation claims are more expensive and costly than the
national average, which isn't attractive either. The cost of
medical benefits has increased substantially, which tend to
increase the cost of workers' compensation claims and result in
higher premiums.
MS. HALL told members the Division of Insurance approved a rate
increase effective January 1, 2004, which averaged 21.2 percent.
As the cost of claims increased, the actuarial analysis showed
that historical claims and projections of future claim costs
indicated the need for a substantial rate increase. Within the
21.2 percent average, about 30 classifications decreased, mostly
related to marine industries. However, 17 classifications had
rate increases in excess of 50 percent.
MS. HALL said the last factor in the increase is the assigned
risk pool. Because of the mandatory nature of workers'
compensation, the Division has a mechanism to ensure that
everyone can afford to purchase workers' compensation insurance.
That market has also suffered substantial losses; the dollars
spent on claims have not met the revenue in premiums. Alaska has
had the highest rate of any state of workers' compensation
assessments for its assigned risk pool from 1997 through 2001.
In 2002, Alaska dropped to number six. The average burden has
ranged from 4 percent to 10 percent and is an additional cost to
insurance companies on top of their operating costs, again
making Alaska an unattractive marketplace. She emphasized that
Alaska's workers' compensation environment has become very
expensive for employers and unattractive to insurers. She said
from her perspective, the state cannot continue to just increase
workers' compensation premiums. The state needs to look for ways
to stem increasing costs and bring about some efficiency in the
system. The state needs a stable, sustainable workers'
compensation environment that will encourage companies to do
business here and provide affordable insurance so that employers
can continue to develop jobs.
MS. HALL informed members that a healthy environment depends on
adequate rates, a self-funded assigned risk pool and a viable
workers' compensation system. She pointed out, "SB 311 is fairly
unique as it represents cross-departmental solutions to various
issues." She emphasized that the bill addresses a number of
issues, many of which affect insurance and the marketplace. The
focus and stimulus of the bill were to affect changes in the
marketplace. She then addressed the insurance pieces of the
bill:
Section 3 adds a requirement to increase the deposits
of insurance companies that write workers'
compensation. These special deposits would be for the
benefit of workers in case of an insolvency.
Section 5 addresses the Board of Governors of the
Guaranty Association. Today we have nine member
boards, seven of those are insurance companies. They
have done an excellent job so the change in the board
representation is not a reflection on what they've
done. But what I'd like to do is see a board that has
representatives of all the stakeholders. We have - in
the proposal I have two members of labor, two members
of employers, an agent and four insurance companies.
The number would stay the same but they would have a
different representation.
Section 6 of the bill is called a net worth exclusion.
It's a way to bring some cap to cost in the Guaranty
Association. Currently, except [for] workers'
compensation, all claims and Guaranty Association
[costs] are capped at $500,000. Workers' compensation
claims are unlimited. Thirty-two other states have
what we call the net worth exclusion for workers'
compensation and I'm proposing that we adopt that in
our statutes. The purpose - the goal would be to not
pay claims of employers whose net worth exceeds $25
million. The other states that have such caps, and
there are 32 of them, range from $10 million to $50
million - 25 seemed like a number that would work well
for Alaskans.
Section 105 is the other section that is important to
me in terms of our workers' compensation market. It
repeals the 25 percent statutory cap on the surcharges
for the assigned risk pool and exclusion for
surcharges on policies under $3,000. I feel that the
assigned risk pool must be self-funding. There are
nearly 8,800 policies, 17 percent of our market is in
the assigned risk pool. 6,000 of those policies have
premiums under $3,000. The average premium for those
policies is $864. Small employers have claims equally
big as large employers. The size of the employer does
not normally correlate with the size of the claim. We
have an average premium of $864. A single claim will
offset, probably in that size, several hundred of
those policies. So I'm looking in this provision to
make that pool self-funding to allow it to fluctuate
as the losses in the pool fluctuate in the same way we
allow rates for the traditional market to fluctuate
based on the cost of claims. The assigned risk pool is
probably one of the major factors that is a deterrent
to new companies coming into our marketplace. When
they look at that and know off the top they are going
to pay anywhere from 4 to 6 percent of their income to
offset work comp losses in the assigned risk pool,
they frequently decide they don't want to do business
here. It's a very fragile marketplace and I'd like to
find ways to bring it to a healthier place where we
encourage companies to do business in Alaska.
CHAIR SEEKINS announced that Senators Therriault and Ogan had
joined the committee some time ago.
SENATOR THERRIAULT asked Ms. Hall to review the workings of the
assigned risk pool.
MS. HALL explained the assigned risk pool is considered to be
the market of last resort. It is a place to obtain coverage
when an employer cannot get workers' compensation from a
traditional carrier. Many small employers, particularly those
with premiums under $10,000, find it difficult to obtain
coverage in the traditional marketplace. With a premium that
size, a single loss costs enough that it is a losing proposition
to underwrite that type of business. Some of the policies in the
assigned risk pool are higher hazard, but not many. Usually
employers with bad loss ratios are in the assigned risk pool,
but about 93 percent of them are there because they are small.
The pool losses have been exceeding the premiums collected since
at least 1997 so the pool has been losing money at a very
substantial rate. That 4 to 10 percent loss of money is a direct
assessment back to the insurance companies that write business
in our state. They must participate in those losses, known as
reinsurance. That amount is not charged back to a policyholder,
it is a direct obligation of the insurance company.
SENATOR THERRIAULT affirmed that amount makes up the difference
and then asked Ms. Hall to review Section 6.
MS. HALL said Section 6 pertains to the net worth exclusion so
that if an employer's net worth is over $25 million, the system
would not pay the claims of the insolvent insurer for that
employer.
CHAIR SEEKINS commented that since the state requires employers
to purchase workers' compensation, the assigned risk pool is a
very valuable asset to small companies that may not be able to
use a major carrier.
SENATOR THERRIAULT asked Ms. Hall if she was speaking to the
claims being paid out of the Guaranty Fund, in regard to Section
6.
MS. HALL said that is correct.
SENATOR THERRIAULT asked if the employers would pay into the
Guaranty Fund, but if there was insolvency and a company had
substantial assets, that company would still have to pick up its
individual company claims.
MS. HALL replied:
Yes. The only way they would pay into the Guaranty
Fund is in a situation where there is an assessment,
which is certainly the case today. We have assessments
that are passed back on to that policyholder. But as I
said, in many states, it's felt to be the best public
policy. Those employers in theory have more financial
resources to take back and be able to fund the claims
- the workers' compensation obligations for their
employees.
CHAIR SEEKINS asked if there is a mechanism in the bill that
would allow a company who is subject to this risk to avoid the
surcharge that would fund the Guaranty Fund.
MS. HALL said not as proposed.
CHAIR SEEKINS surmised that companies would have to pay into it
as a part of their premiums, but would not be able to reap the
benefits.
MS. HALL said that is correct.
CHAIR SEEKINS suggested the committee might address that.
MR. PAUL LISANKIE, Director of the Division of Workers'
Compensation, Department of Labor and Workforce Development
(DOLWD), told members he would provide a brief overview of the
major portions of the bill as they would affect the Division of
Workers' Compensation and the Workers' Compensation Board and
then answer questions.
CHAIR SEEKINS interjected to announce that he intends to hear an
introduction of the bill but not take public testimony today. He
said the Division and other folks are working on a committee
substitute to address the concerns that both sides have had on
the issue. He believes this is a high impact bill and it is not
his intention to ignore the entreaties of both sides of the
matter. He intends to move some version of the bill out of
committee by the end of the next week.
MR. LISANKIE noted that SB 311 has four major areas that will
impact the current workers' compensation program. The first
change would impact the current cost of living provisions. Under
the existing program, a person who is injured and gets a
workers' compensation rate established and moves to a higher
cost area than Alaska would get a higher compensation rate than
an Alaskan injured worker who resides in Alaska. Under SB 311,
the rate would be capped at the Alaska rate so that no one would
get a higher rate than an Alaskan injured worker.
The second important area of change is with uninsured employers.
The Division currently fines employers that do not follow the
law by properly insuring against their liability for workers'
compensation benefits. The Division has a limited armament to
use against employers. The Division can shut the business down
but, more often, after detected the employer will get insurance
so cannot be shut down. SB 311 will give the Division an
accelerated procedure for imposing civil fines against employers
who are working without the required insurance. The fine can be
up to $100 per day, per employee. The intent is to make the fine
so repugnant that businesses will be sure to get coverage.
MR. LISANKIE said the third change SB 311 will make is to
formally establish a Division of Workers' Compensation within
DOLWD. The director will be required to have at least three
years of experience in the field of workers' compensation. The
formal establishment of a division will provide for a firm
separation between the division and the group that resolves
disputes. The division and division director will be responsible
for investigations, administering the workers' compensation
system, and attempting to informally resolve potential disputes
about benefits. However, in the event that all attempts to
resolve a dispute fail and the case has to be adjudicated, the
case would go to a separate entity. The hearing before a
separate entity should assure the parties involved that the
previous attempts and players will not foreshadow the
adjudication. That same procedure is now used informally.
MR. LISANKIE said one significant change in the bill addresses a
problem the division sees too often. Some people are unable to
get an attorney if a dispute is appealed. SB 311 will give the
division and division director the opportunity, in questions of
unsettled law, to represent the position of the person without
an attorney. That will enable the pro se claimant to be more
focused and prepared for the hearing.
SENATOR THERRIAULT asked if someone within the division would
help the pro se claimant to focus on the appropriate legal
points.
MR. LISANKIE said that is correct.
SENATOR THERRIAULT questioned whether the staff person would
appear at the appeal hearing beside the claimant as legal
counsel.
MR. LISANKIE said the staff person would not be legal counsel
but would be involved in the proceeding. He then continued with
the impacts of SB 311 on the Division of Workers' Compensation
and said the fourth change pertains to how the initial disputes
are heard and resolved and who will hear the appeals. SB 311
proposes to have hearing officers hear the initial cases and
that appeals be heard by a new commission, named the Workers'
Compensation Appeals Commission, which would stand in lieu of
the Superior Court appeals process. The change will create a
more efficient, consistent and predictable system for decision-
making. Decisions with precedent value will be made sooner so
that the period of uncertainty about a given point on the law
will be shorter. He explained:
It sometimes happens now, for a variety of reasons,
that the workers' compensation board can be of two
minds on an issue and until it gets all the way to the
Supreme Court, right now, you never know which one of
those positions is going to be finally considered to
be the correct one. As you go through the present
system into the Superior Court appeal, you can get a
decision from a Superior Court judge [indisc.] the
question between you and your opponent in that
particular dispute but it doesn't have broad
precedential value across the board for anybody else.
What this bill would do by having the workers'
compensation appeals commission established is that
first line of appeal would go to the Workers'
Compensation Appeal Commission. Those commissioners
would render a decision. That decision would be
published and would have precedential value unless and
until it was overturned by the Alaska Supreme Court,
which would continue and be the final arbiter of what
is and is not the law in the State of Alaska. So what
it would do is give you a shortened period of
uncertainty so that other parties that had read that
decision could say all right, now we can base our
decisions to pay or not pay - I am entitled, I am not
entitled to certain benefits and they could move
forward from that day on unless and until the Supreme
Court gave other instructions.
SENATOR THERRIAULT noted that although Mr. Lisankie is claiming
that change will create efficiency and consistency early in the
process, one of the major criticisms leveled at that approach is
the expense. He asked Mr. Lisankie to comment about its cost
effectiveness.
MR. LISANKIE agreed it is difficult to quantify how much money a
system that makes findings decisions more quickly will save. The
intention is that if the insurance company or the employer and
employee and their representatives have greater certainty in
what their obligations are, they will be able to pay without
having to litigate, which will create cost savings. He added:
There would also be, presumably, cost savings in the
many claims that in the current environment where
you're not certain what the obligations to pay are and
what the entitlements are - most cases in our system
never go to litigation, thank goodness. It would
overwhelm us. Most of them are settled between the
parties and what goes into the valuation of how much
money changes hands is what the entitlements might be
construed to be, what the liabilities might be
construed to be. So, if there's less in the way of
uncertainty about what the benefits are, and then more
benefits can be paid without litigation, fewer
benefits will have to go into litigation and
ultimately be settled. With money changing hands -
obviously if that settlement is litigated, somebody
would have gotten more and somebody would have gotten
less but you're not precisely sure who would get how
much more or how much less and that would be some
savings there. The commission itself is not a cost
savings.
SENATOR THERRIAULT asked the projected cost of the commission.
CHAIR SEEKINS estimated the total cost to be $750,[000] between
the division and the courts. He noted the court system's fiscal
note estimates the cost to be $200,000.
MR. LISANKIE specified the DOLWD's projected cost is $556,000,
which includes some start-up costs that will not carry over.
SENATOR THERRIAULT asked for an explanation of the source of the
funding for the commission.
MR. LISANKIE said the workers' safety account is comprised of a
portion of the premiums paid by the insurers that insure their
liability and an assessment against the self-insured employers
based on the amount of the total paid out benefits.
8:40 a.m.
SENATOR FRENCH thought it is important to remember that the
proposed structure of the appeals commission will be comprised
of six attorneys who will hold hearings and who will be overseen
by three appellate judges. He suggested that is a fairly top-
heavy appeals system. He guessed there are about 30 Superior
Court judges statewide and five Supreme Court justices to hear
their appeals, which amounts to a 6:1 ratio. He maintained the
2:1 ratio in SB 311 is inefficient.
SENATOR FRENCH said his second area of concern is removing the
hearing officer positions from classified service. In the model
act, the hearing officers remain in classified service. He felt
this issue is important because the hearing officers will have
to make rulings against their very employers, therefore they
will need to have some measure of cover to be able to make truly
independent decisions.
SENATOR FRENCH asked, in regard to the precedential weight being
given to the appeals commission, how the opinions will be
published to be sure everyone appearing before the commission
has access to those opinions.
MR. LISANKIE said he could not provide the specifics about
publication of the precedential opinions.
SENATOR FRENCH asked if the specifics will be worked out as the
project progresses.
MR. LISANKIE said that is correct.
SENATOR FRENCH said he is also concerned about the commission's
standard of review. SB 311 proposes a de novo review, meaning
the commission's review will start afresh, so that it will give
no deference to the facts given by the hearing officer. He noted
that also strikes him as being inefficient.
CHAIR SEEKINS asked Mr. Lisankie if the current court review is
a de novo review.
MR. LISANKIE said it is his understanding that the current
review at the superior court level is constrained, meaning it
only measures whether the fact finder had substantial evidence
to support his or her fact finding. Therefore, the court review
is not a de novo review.
CHAIR SEEKINS announced that he would set SB 311 aside and
strongly encouraged the stakeholders to work out a bill that
everyone involved finds acceptable.
SENATOR ELLIS requested that Chair Seekins provide public notice
of a subsequent hearing on SB 311 at least one full working day
before to provide adequate time for everyone to review the new
version.
CHAIR SEEKINS said it has never been his policy to rush
legislation through the committee and not allow members adequate
time to consider the legislation.
SENATOR ELLIS also asked Chair Seekins to publicly announce the
meeting one day in advance so that participants at
teleconference sites will be aware of an opportunity to testify.
CHAIR SEEKINS said his intent is to reschedule the bill, not to
bring it up unannounced under bills previously heard. He then
stated:
Although, our notice - well I'll put it this way, our
notice on intent to reschedule it may be required
depending on how soon I get it to go outside of the
normal notice process and still hold it under, but
make sure that it's published to that effect. How
would that be? Because if these guys - nobody should
think if they - let me tell you - nobody is going to
procedurally drag their feet to carry this thing
forward, okay?
SENATOR ELLIS responded:
My concern is public notice. We have the CS. Since the
CS is being talked about Mr. Chairman, by
stakeholders, you know, behind closed doors or out in
the hallway or wherever - outside the public process
here until it becomes a committee CS presented by you,
my interest is in adequate public notice so people can
testify and [indisc.] the CS.
CHAIR SEEKINS said he has the same interest and intends to give
plenty of notice so that people will have the opportunity to
weigh in and review the proposed legislation before it gets to
the committee.
SB 345-LIABILITY FOR AIRPORTS AND AIRSTRIPS
MR. JOE MICHEL, legislative aide to Senator Ralph Seekins,
sponsor of the measure, explained that SB 345 is a short bill
that makes one major change to one section of statute. It
removes the word "natural" from the phrase "a natural person."
The intent of [the original legislation] was to provide
protection from civil liability to a natural person, meaning a
human being, who clears or cleans an airfield in a rural area to
prepare it for landing. According to Black's Law Dictionary, the
definition of a natural person is a human being as distinguished
from an artificial person created by law. In contrast, a person,
as defined in Alaska statute, includes a corporation, company,
partnership, firm, association, organization, business trust or
society, as well as a natural person. SB 345 would provide
liability protection to all types of businesses, corporations
and organizations that want to maintain an airstrip for no
compensation. This would not apply to airports or corporations
that charge for aircraft landings on their runways. He noted the
Alaska Miners Association endorses SB 345 because a number of
miners maintain airstrips to access their mines.
CHAIR SEEKINS announced that a proposed committee substitute,
version D, was before the committee.
SENATOR THERRIAULT moved to adopt version D as the working
document before the committee.
CHAIR SEEKINS announced that without objection, version D was
before the committee.
SENATOR OGAN asked if this applies only to the group that
maintains the airstrip, no matter who owns the land and how SB
345 would affect a runway on state land.
MR. MICHEL replied:
Yes, Senator Ogan, that was one of the changes that
provided for the new work draft. In Section B, the
words that were taken out, that said, 'that is located
on private land' - and the reason that was taken out
was the Alaska Miners Association and other people
expressed concerns about the mines up there on state
lands that are on 40-year land leases and such things
like that.
SENATOR OGAN questioned whether an airstrip on state-owned land
could be closed by putting an X on it, even though it is public
domain.
MR. MICHEL referred to Section B, and noted the addition of "in
accordance with FAA guidelines" because an X can mean different
things depending on the color, etcetera, so this bill will use
the FAA definitions of a closed airfield.
SENATOR OGAN asked whether that will mean if an airstrip has an
X on it that follows the FAA guidelines, no one else can use it.
MR. MICHEL replied, "...Not so much that they can't use it, but
as a person who owns and operates that landing area, that's
protecting them from civil liability. It's a notification to the
pilot in the air that, you know, this runway is closed for some
reason."
SENATOR OGAN commented:
...with an X and I was running out of fuel and I was
lost and I'm really lost but I just didn't have a lot
of fuel to - I needed to know the quickest route back
and I land on these guys' strip - these miners' strip
that had an X and they all came out with their AR-15s
- [indisc.] not be happy about me being there. They
invited me in for coffee and I never drank a cup of
coffee in my life but when a guy with an AR-15 offered
me coffee, by golly, I drank coffee. [Indisc.]. But
that was on a mining claim and that was, you know,
they own the rights to mine there but it was state
land and there was an X on the strip and I've always
understood that the Xs on the strips mean it's a
private runway and I guess I don't see anything in the
pack that talks about what the FAA guidelines are.
CHAIR SEEKINS said SB 345 will make it less necessary for
someone to put an X on a runway to preclude liability.
MR. MICHEL furthered that a person with a 40-year lease does not
own the airstrip and is not required to place an X on the
runway.
CHAIR SEEKINS explained that someone might put an X on the
airstrip because he or she knows there is a good reason to not
land on it, such as a ditch running across it.
TAPE 04-27, SIDE B
CHAIR SEEKINS summarized that SB 345 extends protection from
liability from a natural person to a LLC, a sub-S corporation, a
C corporation, or any other entity.
SENATOR FRENCH asked if SB 345 would not apply to a group that
charges the public or charges itself.
CHAIR SEEKINS clarified that it would not apply to a group that
charges a landing fee.
SENATOR FRENCH expressed curiosity about Section B and
questioned how large of an expansion of the doctrine this is
since it used to be restricted to private land but it will no
longer be, under SB 345. He asked if the Alyeska airstrips are
on private land.
CHAIR SEEKINS answered some are on state-leased lands and some
are on federal-leased lands. He added:
I mean what we're doing here, Senator French, is
basically saying that you may not be the runway owner
but you may have authority to have that runway in
place and, as such, if you construct it and maintain
it, etcetera, you have no civil liability if someone
else lands there unless, through your gross
negligence, you knew that there was a hazard and
didn't mark it.
SENATOR FRENCH asked how many runways will be affected by this
bill.
CHAIR SEEKINS estimated hundreds, and said they are very
valuable to pilots. He noted he has used unmarked, owner unknown
runways when he needed to put his plane down in bad weather. He
does not believe the owner of that runway should be held liable
for any damage done to his airplane because, "a bear dug a hole
that he didn't know about in the middle of the runway." That is
the case now if the runway is on private land and under private
ownership.
SENATOR FRENCH asked whether any outrageous lawsuits have ever
been filed against runway owners, as envisioned by the bill.
MR. MICHEL said to his knowledge, there have only been three
issues in the state regarding some sort of lawsuit in regard to
runways. He pointed out that Representative Harris introduced
nd
the same legislation, HB 127, during the 22 legislature.
CHAIR SEEKINS said SB 345 is not intended to reduce the number
of lawsuits but was introduced to provide for a safer Alaska for
pilots who may need to land and who would otherwise be
restricted from doing so because of potential liability.
SENATOR FRENCH asked how an airstrip owner would keep a pilot
from using that airstrip in an emergency situation.
CHAIR SEEKINS replied:
You can still do it but what it does is, there are
times when private owners of airstrips, for an
example, in order to keep from having any liability,
will put barrels in the middle of their runways, put
logs across the runways, mark them to keep people from
being able to use them except when they want to use it
and remove those obstacles because of potential
liability. There's no reason for them to do that now.
SENATOR FRENCH asked if those owners can still close their
runways.
CHAIR SEEKINS said they could.
SENATOR OGAN questioned language in Section 3 that reads, "if it
is marked closed by placing a large X on the runway and, if
listed or charted as designated as closed...."
CHAIR SEEKINS said the owner would notify the FAA that the
runway is closed and then mark the runway.
SENATOR OGAN indicated that a pilot that lands on a closed
runway is doing so at his or her own risk.
CHAIR SEEKINS said the pilot is also using a runway at his or
her own risk if the runway is left open and maintained. He noted
that is a redundancy but it will protect the owner after closing
the runway. He then took public testimony.
MR. TOM GEORGE, representing the Aircraft Owners and Pilots
Association (AOPA), said AOPA's interest is in preserving a
healthy aviation industry in Alaska, which includes backcountry
airstrips. AOPA supports SB 345, which broadens the current
statute. The primary focus of the statute is to protect the
backcountry airstrips, which pilots rely on for access to remote
locations in Alaska. The bill will protect companies,
corporations, and organizations that devote their time and
resources to maintain airstrips without compensation. The
current statute only applies to an individual person. AOPA
believes it is necessary to use the broader definition of person
to include other entities. The other changes made in the work
draft clarify what activities and cases this protection applies
to. AOPA believes this is a good step toward protecting the
airstrips that provide access primarily to public lands.
In response to questions from members, MR. GEORGE said the first
portion of the bill will provide protection from liability for
people or businesses that construct and maintain airstrips. The
second portion of the statute says that protection will continue
if an owner needs to close the airstrip and does so with
specific markings and notification for the purpose of updating
charts and records. That second section provides protection from
limited liability only to private land. AOPA believes that to
provide an incentive to keep airstrips open, that protection
should extend to airstrips on public land. The landowner, often
the state, and the operator should discuss the issue as to
whether those airstrips on public land are open or closed. SB
345 does not take a stand on that, it only says if an owner
properly notices the closure, protection would continue. He
offered to answer questions and thanked Senator Seekins for
sponsoring the bill.
MR. FELIX MCGUIRE, representing the Alaska Airmen's Association
(AAA), told members the AAA supports SB 345, particularly
because the AAA has been unable to improve backcountry airstrips
because of the liability problem.
With no further participants, CHAIR SEEKINS closed public
testimony.
SENATOR OGAN moved CSSB 345(JUD) from committee with individual
recommendations and its zero fiscal note. Without objection, the
motion carried. He then announced a three-minute recess.
SB 308-DOMESTIC VIOLENCE PROTECTIVE ORDERS
SENATOR HOLLIS FRENCH, sponsor of SB 308, explained that the
measure does one thing: it doubles the length of time of a long-
term protective order from six months to one year. He noted that
short-term, ex parte orders allow a person to go to court and
get an order without the other party appearing. Those are
referred to as 20-day orders or short-term orders; SB 308 will
not affect them. SB 308 deals with long-term protective orders,
the difference being that long-term protective orders require
that the respondent be notified in person of the hearing and be
allowed to respond at the hearing.
He believes it is a good idea to expand the length of time for
two reasons. First, it will save money. The court system must
frequently renew orders, which requires serving notice, a
hearing before a judge and paperwork. The second reason is that
it will avoid putting two parties who do not want to be together
in contact. He said that Alaska continues to struggle with high
rates of domestic violence. Extending the length of the six-
month order will address that problem. Currently, only five
states have shorter terms for domestic violence restraining
orders; the vast majority of states give judges the authority to
impose restraining orders of up to one-year length, which has
been shown to have a positive effect on repeat offenses.
CHAIR SEEKINS asked what percentage of restraining orders are
renewed under the current system.
SENATOR FRENCH said the numbers he got from the Court System
indicate that as of June 30, 2003, the registry had 32,586
orders. About 1,000 of those were active, which has been the
norm for several years. He provided a few examples from the
Court System. One respondent had nine orders filed by the same
petitioner with two ex parte so the petitioner had gone back to
court for 3.5 years. Another respondent had 19 entries in the
registry filed by two related individuals, presumably a mother
and a daughter. He surmised that the current system works well
for the majority of people but a narrow category involves bad
actors. In those situations, the petitioner must continually go
back to court because of lingering issues on the part of the
respondent.
CHAIR SEEKINS asked if the same incentive to reconcile the
domestic unit based on a six-month restraining order would be
there with a 12-month restraining order.
SENATOR FRENCH replied the cycle of domestic violence is fairly
complicated but fairly predictable. Usually it involves a slow
build-up of tension until an explosion occurs. Typically, after
the violent episode, the couple reunites in a "honeymoon" phase
but in general, the underlying issue has not been resolved so
the cycle repeats itself with the blow-ups getting worse. SB 308
would interrupt the cycle for a greater length of time.
CHAIR SEEKINS asked Senator French to compare Alaska statute to
other states' statutes.
SENATOR FRENCH explained that most other states have extended
the length of time of orders to one-year or longer. Alaska is
only one of five states with restraining orders of six months or
less. He believes the longer time frame is due to a growing
awareness on society's part about the long term negative effects
of domestic violence and the length of time necessary to break
the cycle.
CHAIR SEEKINS noted the many discussions in the Capitol Building
over the past few weeks on the effects of alcohol and drug abuse
in terms of the court system's caseload and the burden put on
law enforcement agencies and court-appointed attorneys. He asked
Senator French if he had any statistics on the relationship
between alcohol and drug abuse and domestic violence.
SENATOR FRENCH said he did not have any hard statistics, but his
personal observations as a district attorney lead him to believe
that a solid 70 to 80 percent of all crime is driven by alcohol
abuse, including domestic violence.
SENATOR OGAN recalled that he has heard that 80 percent of
people serving jail sentences are in prison because of crimes
committed while under the influence of alcohol.
CHAIR SEEKINS said he has been told by social workers and
attorneys that a huge number of domestic violence proceedings
can be traced to alcohol or drug abuse. There being no further
questions of Senator French, Chair Seekins took public
testimony.
MR. JAMES F. DIERINGER III, representing himself, told members
he took personal leave from work to tell his story today. He
continued:
I am that 10 to 15 percent of the men who have been
abused by this system and my domestic violence has not
been related to alcohol; it has been [indisc.] as a
tool to gain custody, child support, possession of the
home, those kinds of things.
I'm a financial consultant and I worked as a banker
and I own a collection agency in Fairbanks and I
repossess cars so automatically I'm probably
considered a crazy person. I wouldn't categorize
myself as a violent person but as an aggressive
person. I don't commit acts of domestic violence yet
I've had five DVROs issued against me.
I'm kind of embarrassed to be here today. I'm very
nervous to be here. I was here six years ago when I
heard testimony in Senate Finance about strengthening
the law, making it more liberal to get these orders
without going back on probable cause. I didn't really
listen at the time because it didn't affect me and I
heard guys come in and tell me hey, I've been caught
in this web. It's been used against me as an evil
tool. It's been abused against me and I was hoping the
committee would consider that six months is more than
sufficient and it does drive a wedge in the family
life, the children, trying to get back together.
You're not allowed to talk at all for six months and
you have to talk through your attorney at 200 bucks an
hour. In the first 30 days it cost me $16,000 to try
to communicate.
I don't think a DVRO is going to stop a predator. Like
you said before, it's a piece of paper and it doesn't
stop the real violent folks that are going to go out
and commit acts of domestic violence.
Mine started in 1998. My ex-wife and I have been
together since we were 15 years old and we got
divorced after 22 years. It started our divorce. I had
no idea what it was. It was served on me and she got
temporary possession of the children, temporary
possession of the house, temporary child support. It
kept me away from school and set a nasty precedent to
when I finally got to my divorce trial, there had
already been a six, seven-month precedent set. And it
was assumed that maybe that was a good set-up. It was
not a good set-up. It automatically gets converted to
a six-month - yes, you do get notice and you get to
have your day in court and the judge tells you that I
shall issue this order because that's what the
legislation - the current law says - I shall issue an
order. And I've had all of them issued against me and
I've had every one of them dismissed. They've never
gone the full length of duration because my ex-wife's
either realized it wasn't fair [or] she got what she
wanted and then she dismissed it because she wants
help raising the children.
Twelve months is too long. You're always on the
defensive. I heard Senator French refer today - he
speaks of females and her life and then he talks about
he and him as the person that's getting served. It
probably is 80 percent, that's probably the case.
There are some of us guys out there that aren't
violent. We get abused in this system. And this is an
evil tool used by divorce attorneys to start the
divorce and to get the upper hand. And I've seen it
first hand where I've even told some of my friends you
need to go get your restraining order first before you
file your divorce, get the upper hand, and I've seen
first-hand those two gentlemen doing very well in
their divorce.
I did very poorly in my trial. I've been on the
defense for four years. I've had restraining orders
filed on me everyday on Wednesday before the
basketball tournament starts in Fairbanks and then the
shootout the next week. My ex-wife does it on purpose
and then she shows up at the basketball games when I'm
there with my family and friends and calls 911 and
says he's stalking me and I have to leave if the
police feel like asking me to leave. They can always
come and arrest me and throw me in jail for 20 days.
I'm extremely concerned about that happening to me. I
respect the orders when they're served on me yet I
feel there's a tremendous amount of abuse on these
things. She goes in and she checks no guns, no contact
at school, no alcohol, no controlled substance. I mean
I have a business that requires bonding and insurance.
I have a background check and a criminal check in
order to be a collector and if I were to get convicted
or break the restraining order I would lose my
business or I could lose my bonding.
There needs to be some sort of penalties for women
that do abuse this and there are some now - probably,
and I really don't know the statistics, probably 85
percent of these are good and they're needed but there
are some folks out there that are getting caught in
the web. She does the same thing at the movie theater,
the grocery store. I'll be in shopping and she'll call
911 and the police will come and ask me to leave the
grocery store. She does it on purpose.
I have no criminal history. I have no record, no
convictions, yet I've been on the defense for four
years. And this year was so bad that she did it again
on me on Wednesday. She was supposed to show up for a
six-month hearing. It was on a Monday morning at 8 and
she was sleepy and she forgot to show up. I mean if
somebody interfered with their life, they would be at
that six-month hearing. It was dismissed. Three days
later she filed another DVRO because she forgot to go
to her long-term hearing and they gave her another one
simultaneously with the other one still having two
days to go in it. When it expired on Friday, I then
had 18 more days to go to another long-term hearing. I
missed coming down to Juneau because I had to stay for
the long-term hearing and get it dismissed.
Judge Closuit is the lady who gives them against me
every time and this last time I finally asked her what
does a guy like me do to protect himself. I go to
apply for employment. People look it up, see there's
four or five DVROs. I might not get a good job that I
deserve. She told me that the law says 'shall issue
anytime' and she said, 'Mr. Dieringer, if you're going
to come into my courtroom, I'm going to issue one
against you no matter what. There is probable cause.
There's been issues before and you are going to get a
DVRO issued against you so, unless you go down and
talk to your legislator or you change the law, that's
the way it is.' So, I can't change the law. All I can
do is tell you my side of the story and hope that you
consider it and that's just what I have to say.
9:30 a.m.
SENATOR OGAN admired Mr. Dieringer's courage for appearing
before the committee. He said he has heard of other similar
cases in which one parent uses such tactics to build a case in
custody disputes. He said one of the nastiest things he gets
involved in [as a legislator] are custody disputes and he has
heard that a number of male groups have organized around these
same concerns. He noted if the committee leaves the six-month
order in place, Mr. Dieringer's problem will not be resolved.
MR. DIERINGER suggested the committee look at probable cause and
require the judge to look at recent probable cause, not the
initial complaint that started a restraining order cycle years
before. He added that a judge can look back 20 years for
probable cause. He felt the petitioner should have to prove that
a recent act of domestic violence occurred. He then added that
harassment should be looked at because he has had a restraining
order issued for harassment because he called his [ex-wife]
asking for tax records. He felt a good starting point would be
to make it more difficult to get the first 20-day order.
SENATOR OGAN said he can see some value in allowing the ex parte
order, so that one person can get one to remain safe. He then
asked if a restraining order affects one's right to own a gun.
MR. DIERINGER said it does if the judge issues it, and that his
wife checks it every time. If he violates that order, he would
get 20 days in jail and loss of gun privileges for 5 years.
SENATOR OGAN noted that women have been killed because the
response was insufficient and a piece of paper may discourage a
rational person from doing something bad but domestic violence
situations are usually not rational. He suggested raising the
standard of evidence for the longer term restraining orders.
CHAIR SEEKINS said he has heard that divorce attorneys advise
clients to be the first one to file for a restraining order to
get the upper hand in the divorce. He said he does not know how
to correct that abuse without affecting the innocent parties
that need protection. He said he understands Mr. Dieringer's
concerns but asked what adverse conditions would be created by
the longer timeframe in SB 308.
MR. DIERINGER said it would affect his relationship with his
children. He noted he usually does not want to talk to his ex-
wife but has to for the purpose of getting tax returns to modify
child support or to get educational information about his
children. During the six-month period, he is not allowed to talk
to his ex-wife about his children's discipline or school
progress. He cannot go to parent-teacher conferences with his
ex-wife. He believes a whole year would drive a wedge in his
relationship with his children.
CHAIR SEEKINS asked Mr. Dieringer if he has been successful in
getting the restraining orders dismissed and to describe the
procedure.
MR. DIERINGER said he has. Either his wife agrees to drop the
order after 20 days or his wife realizes she needs to talk to
him about something so she dismisses the order. He admitted that
he has abused the system by simultaneously filing an order
against her as he believes it is the only thing he can do to get
on an even playing field. If his wife violates the order by
contacting him, the police tell him to grow up. If she calls,
the police come to arrest him.
CHAIR SEEKINS thanked Mr. Dieringer and called Ms. Brink.
MS. BARBARA BRINK, Director of the Alaska Public Defender
Agency, said she shares some of Mr. Dieringer's concerns about
SB 308. The bill, somewhat paternalistically, requires the court
to order the restraining order for one year, however, a lot can
happen in one year. Often families are able to conquer domestic
violence with the use of counseling and treatment and are
successfully reunited. She pointed out that last year in
Anchorage, the court issued about 1,758 ex parte orders - the
20-day orders. Of those, only 44 percent of the people requested
a six-month order. No one knows why. She told members she is a
member of a Supreme Court committee that is studying domestic
violence and court processes. One of the group's recommendations
to the Supreme Court will be that the court follow-up and find
out why so few people who got 20-day orders got six month
orders. She said the Public Defender Agency certainly has
concern for people who must go back to court repeatedly to get
restraining orders but the current system works pretty well for
the bulk of the people.
MS. BRINK noted that circumstances are constantly changing even
under the 20-day restraining order. Out of the 1,758 ex parte
orders issued in Anchorage last year, there were 520
modifications within that 20-day period. She surmised that
cooling off periods range greatly and she fears SB 308 will not
save money but will force a petitioner to have more hearings.
She then noted when a petitioner gets a restraining order, the
petitioner is free to contact the respondent. If the respondent
does not immediately extricate him or herself from the
situation, the respondent can immediately be charged.
MS. BRINK told members that about 80 percent of the violations
of orders happen within the 20-day order, while only about 20
percent happen in the six-month order. She cautioned that
statistic encompasses Anchorage only. In many of the smaller
communities, it is very, very difficult for someone to comply
with a no contact order. The state does not have information
about where in the life of the six-month order violations take
place. She suggested drafting a more particularized amendment
giving the judge discretion to extend the order in appropriate
cases but she does not believe it is a good idea to extend the
orders in every single case.
SENATOR THERRIAULT asked Ms. Brink to elaborate on the Supreme
Court group that she is working with.
MS. BRINK said she is a member of the Supreme Court domestic
violence committee, which has been meeting for approximately two
years. The standing masters who are usually in charge of issuing
restraining orders run the committee. Other members include a
Superior Court judge, a Department of Law representative, an
Anchorage Police Department representative, a representative
from the Office of Children's' Services, and victims advocates
from AWAKE, STAR, the Women's Resource Center, as well as
representatives from Alaska Legal Services, the Alaska Native
Justice Center, and the Council on Domestic Violence. She noted
the committee is close to finalizing its report to the court and
estimated its completion in three months. The court system
members are Jennifer Wells and Suzanne Cole.
SENATOR THERRIAULT asked if the committee has actively discussed
the issue of orders.
MS. BRINK said it has.
SENATOR FRENCH asked Ms. Brink if her objections to SB 308 would
change if it was changed to say the provisions of this section
are effective for a minimum of six months and up to one year,
unless earlier dissolved by court order.
MS. BRINK thought that would be a large improvement because it
gives the judge discretion and does not make the extension
automatic.
SENATOR THERRIAULT asked how that would be applied and whether
the judges would be likely to default to the maximum.
MS. BRINK said she does not know and, as a public defender, the
only contact she has with a domestic violence restraining order
occurs when someone is accused of violating the order. She added
that as Mr. Dieringer pointed out, the default position is often
to continue the temporary restraining order.
There being no further questions for Ms. Brink, CHAIR SEEKINS
asked Ms. Hugonin to testify.
MS. LAURI HUGONIN, Alaska Network on Domestic Violence and
Sexual Assault, stated support for SB 308 because the extension
will provide an opportunity to decrease access to victims. She
felt people can hear the extreme cases on both sides of this
issue and don't want either to be used to determine most
people's experience with protective orders. She distributed
copies of the petitions and noted they are very detailed. She
stated:
To have that order crafted well and then to have both
parties abide by that order, a year in length wouldn't
necessarily mean that if there were changes during
that length of time, then either party couldn't come
back and ask for a modification. They could. In one of
Ms. Brink's references, that maybe such a long period
of time, things will have changed, ...[END OF TAPE]
TAPE 04-28, SIDE A
MS. HUGONIN continued:
...back to the judge and asked for that. But, having a
year, I think, gives people time to sort out what's
going to be going on. It gives victims a better sense
of security if the perpetrator is going to take that
order seriously. I think you find out sooner rather
than later. I understand we don't have hard statistics
that say at what point during the protective order it
might be violated. I would tend to think it would be
more toward the beginning of the order when the
perpetrator is still trying to maintain that power and
control instead after months of it going by and they
found a way to maintain that separate situation.
I guess I would like to reiterate what Senator French
said, in that 41 states have a year or longer in
protective orders. Eighteen of them are one year, four
have no time limit, and the rest are anywhere in
between 18 and 5 years. Alaska, at six months, is
really on the more narrow, conservative short end of
this kind of protection for victims.
There [were] about 6,000 filings last year. About
3,000 of them were in Anchorage. A little over 600 of
them were in Fairbanks. A little over 500 of them were
in Palmer. It certainly affects folks all across the
state. I did want to just briefly mention the gun
issue. Protective orders don't just take away guns if
you're in possession of them. You have to be in
possession of them while you were committing the
domestic violence. Both the sixth [indisc.] provision,
it says, prohibit the respondent for using or
possessing a deadly weapon if the court finds the
respondent was in the actual possession of, or used a
weapon, during the commission of domestic violence.
And number seven, direct the respondent to surrender
any firearm owned or possessed by the respondent if
the court finds that the respondent was in the actual
possession of or used a firearm during the commission
of domestic violence. It's not just that you have
access to guns or that you have guns, it's that you
actually had them with you when you were committing
the domestic violence.
We also hear stories that are egregious about misuse
of protective orders. We don't condone that. We think
it's unfortunate that people choose to take something
that's supposed to be a lifesaving measure to increase
safety of victims of these crimes and use it for some
other purpose. We think that's wrong and unfortunate
that that happens. And it would be nice if there was
some way to hold attorneys accountable if, indeed,
they are just trying to have this race to the
courthouse to have their person be one step up in a
divorce. That is not what these orders are for. I
don't think that's what they're used for primarily or
most often and, you know, if there was a way to
penalize people for doing that we'd certainly support
looking into what that could be.
CHAIR SEEKINS indicated that he knows Judge Closuit and will ask
her opinion on this issue. He felt it is important to get a
recommendation from someone who deals with this on a daily basis
and whether she would like to have some leeway in the process.
SENATOR FRENCH thought that Judge Closuit may be constrained
from giving an opinion on pending legislation.
CHAIR SEEKINS said that may be the case but if not, he trusts
her to give a straightforward opinion.
SENATOR OGAN said he has concerns about the effect on children
when they are cut off from a parent because of custody disputes.
He said he worries about cutting a parent off from his or her
children for one year or having to involve a third party to make
visitation arrangements.
CHAIR SEEKINS said he would carry the bill over to another date
to provide time for further discussion.
HB 230-POLITICAL SIGNS ON PRIVATE PROPERTY
MR. TODD LARKIN, staff to Representative Holm, sponsor of HB
230, told members that in the state's zeal to hold onto federal
funds, it has set restrictions on free speech, specifically
political free speech in the form of signage. After conferring
with the Federal Highways Administration, Representative Holm
believes the state has gone farther than necessary. The current
restriction in Alaska took the form of the federal highway
beautification act, which requires an advertising free zone
between a roadway right-of-way and 660 feet. He suggested the
state could make some exceptions, especially on private
property, without endangering federal highway funds. HB 230
would allow the Department of Transportation and Public
Facilities (DOTPF) to allow landowners to advocate for or
against political candidates or issues but not to advertise
commercially.
CHAIR SEEKINS announced he would carry HB 230 forward and
schedule it expeditiously. He then adjourned the meeting at 9:56
a.m.
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