HB 8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS  1:33:56 PM CHAIR COGHILL announced the consideration of HB 8. [SCS HB 8(CRA) was before the committee.] 1:34:16 PM TIM CLARK, Staff, Representative Bryce Edgmon, Alaska State Legislature, introduced HB 8 speaking to the following sponsor statement: In 2014, a bill sponsored by Sen. Lisa Murkowski and former Sen. Mark Begich eliminated the "Alaska Exemption" from the Violence Against Women Act (VAWA). This brought attention to the state's obligation to enforce protection orders issued by other jurisdictions, including other state, territorial, or tribal courts. As current statutes are written, law enforcement is only compelled to enforce a tribal or another state's protection order if it has been filed (that is, registered) in an Alaska court. However, with Alaska subject to the VAWA, the state is required to enforce protection orders issued in another jurisdiction even if the order has not been registered. SCS HB 8(CRA) follows the recommendation of the Department of Law to amend conflicting state statutes in order to bring Alaska into compliance with the federal law. SCS HB 8(CRA) will not only clarify the duties of law enforcement but also will eliminate potential for complications in prosecutions that could stem from the contradictions currently found in state statutes. Additionally, the bill adds a presumption of validity on the part of state law enforcement, so that they are required to enforce a protective order issued in another jurisdiction so long as it appears authentic on its face. SCS HB 8(CRA) also more clearly specifies in statute that "other states" and "other jurisdictions" include courts of another state or territory, United States military tribunals, and tribal courts. It's important to note that the state still encourages registration of protection orders from other jurisdictions. As the Department of Law has noted, the state's central registry "gives officers access to tribal and foreign protection orders anywhere in Alaska, even if the victim does not have a copy of the order at hand." MR. CLARK advised that the Senate Community and Regional Affairs Committee amended the bill prohibiting online publishing of a protective order, restraining order, or injunction in a case involving domestic violence, stalking, or sexual assault if doing so would likely reveal the identity or location of the individual protected under the order. According to the Alaska Court System, this will result in all information relating to protective orders being removed from CourtView. 1:38:32 PM SENATOR WIELECHOWSKI asked how many tribal protection orders are issued per year. MR. CLARK deferred the question to Nancy Meade. CHAIR COGHILL asked if the various jurisdictions include foreign governments. MR. CLARK clarified that the term "foreign" is legal parlance that refers to other U.S. states, U.S. territories, and tribal courts. CHAIR COGHILL asked Mr. Clark to go through a brief sectional analysis of HB 8. 1:39:49 PM MR. CLARK stated that the best way to summarized HB 8 is to first look at Sections 5 and 6. He read the following: Section 5 adds a new section to statute, AS 18.65.867, regarding the enforcement and recognition of protective orders issued in other jurisdictions that have to do with stalking or sexual assault but not with domestic violence. A protective order related to stalking or sexual assault issued "by a court of the United States, a court of another state or territory, a United States military tribunal, or a tribal court" has the same effect and must be recognized and enforced in the same manner as a protective order issued by an Alaska state court. This section also cites United States Code Title 18, Chapter 2265, which is the part of the Violence Against Women Act that addresses protection orders originating in other jurisdictions. Chapter 2265 expressly states that orders issued in other jurisdictions do not have to be filed (registered) in an Alaska state court in order to be enforced here. Chapter 2265 also describes certain criteria the issuing jurisdiction needs to meet in order for its protection order to be given full faith and credit by another jurisdiction. Section 5 further instructs law enforcement that a stalking- or sexual-assault-related protection order issued in another jurisdiction that appears authentic on its face should be presumed valid. (This might be characterized as erring on the side of caution when it comes to those in need of protection.) 1:41:01 PM SENATOR WIELECHOWSKI offered his understanding that under the Violence Against Women Act, the state is obligated to enforce a protective order issued in another state. He asked if the bill changes or clarifies that. MR. CLARK replied that law enforcement has been enforcing protective orders from other states since the Department of Law issued an opinion in 2015. State statute is in conflict with the superseding federal law. SENATOR WIELECHOWSKI asked if there has been a constitutional challenge to the existing law. MR. CLARK said his understanding is that the state is able to prosecute the violation of a protective order issued in another state because of the superseding federal law. However, the Department of Law did warn that the conflict in state statute is a potential liability in the event of litigation. CHAIR COGHILL suggested Mary Lundquist supplement the explanation. 1:44:40 PM MARY LUNDQUIST, Senior Assistant Attorney General, Civil Division, Opinions, Appeals & Ethics Section, Office of the Attorney General, Department of Law, Fairbanks, Alaska, said she is not aware of a constitutional challenge to the existing law. She agreed with Mr. Clark that the federal law overrides state law, so there could be a prosecution of a violation of a protective order. HB 8 will clarify that a foreign order would not need to be registered with the Court System to be enforced. CHAIR COGHILL asked if tribal orders were included as an MOU or as a matter of course. MS. LUNDQUIST replied tribal orders are recognized under VAWA; it requires the state to give full faith and credit to tribal protection orders. 1:46:06 PM MR. CLARK continued to read Section 6: Section 6 addresses protective orders relating to domestic violence. It amends AS 18.66.140 to state that (just as with protective orders relating to stalking and sexual assault in the absence of domestic violence, addressed in Section 5) a protection order related to domestic violence issued in another jurisdiction must be recognized and enforced just as if it were issued by an Alaskan court, regardless of whether the protection order has been filed (registered) with an Alaskan court. This section also cites United States Code Title 18, Chapter 2265, which includes certain criteria the issuing jurisdiction needs to meet in order for its protection order to be given full faith and credit. CHAIR COGHILL referenced Section 7 and asked if the language in the new subsection, [AS 18.66.140(d)], is unique. It says that a protection order issued in another jurisdiction that appears authentic on its face should be presumed valid. He asked, "What caused this to have to be in here?" MR. CLARK said that language exists in laws in other states. Including it here is an effort to err on the side of caution and protect the person who is holding the order. 1:48:09 PM MR. CLARK continued reading from the following sectional analysis for HB 8. Section 1 addresses statutes defining what constitutes the crime of violating a protective order. HB 8 amends AS 11.56.740(a) to add language to include recognition of protection orders issued by another jurisdiction, in accordance with the provisions outlined in Sections 5 and 6 of the bill. Section 2 further amends AS 11.56.740, in paragraph (c), to conform to Sections 5 and 6 of the bill. Section 3 relates to release conditions of a person charged with or convicted of a crime involving domestic violence. It amends AS 12.30.027(b) to make sure that protective orders issued by other jurisdictions are recognized in cases where a judicial officer may not allow a released person to return to the residence or place of employment of someone who has taken out a protective order against them. Section 4 addresses statutes related to the requirement that the Child Fatality Review Team, housed in the Department of Health and Social Services, reviews a report of a death of a child if anyone in the child's immediate household was a petitioner or respondent of a protection order within the previous year. Specifically, it amends AS 12.65.130(c) to conform to Section 6 of the bill. MR. CLARK noted that Section 7 was discussed previously. Section 8 amends AS 22.35.030, statutes detailing what the Court System is prohibited from publishing on a publically available website. At AS 22.35.030(2), section 8 adds a prohibition against publishing "…a protection order under AS 18.65.850 - AS 18.65.870 or AS 18.66.100 - AS 18.66.180, restraining order, or injunction in a case involving domestic violence, stalking, or sexual assault if the publication would likely reveal the identity or location of the party protected under the order." According to the Alaska Court System, this will result in all information relating to protection orders being removed from CourtView, the system's online index of trial court cases. This includes both the name of the person being protected as well as the name of the person from whom protection is sought. MR. CLARK reiterated that the prohibition against online publishing was added in the Senate Community and Regional Affairs Committee. It conforms to a section of VAWA. Sections 9 and 10 add recognition of domestic- violence-related protection orders issued by another jurisdiction in statutes concerned with divorce and dissolution of marriage. In Section 8, under AS 25.24.210(e)(7)(D), a petition for dissolution of a marriage must state whether during the marriage either spouse was either the petitioner or respondent of a domestic-violence- related protection order issued in another jurisdiction. The change in Section 8 specifies that the protection order in question need not have been filed with a state court. In Section 9, a court is instructed to use a heightened level of scrutiny of agreements relating to a dissolution of marriage if during the marriage one or the other spouse was either the petitioner or respondent for a domestic-violence-related protection order issued in another jurisdiction. Similar to Section 8, Section 9 specifies that the protection order issued in another jurisdiction need not have been filed with a state court. CHAIR COGHILL asked Ms. Meade if Section 7 is a new methodology. It says that a protection order issued in another jurisdiction that appears authentic on its face should be presumed valid. 1:53:27 PM NANCY MEADE, General Counsel, Alaska Court System, advised that Section 7 uses language in existing statute for stalking and sexual assault protective orders. Law enforcement will enforce a protective order somebody presents, as long as there is nothing obviously wrong with it. 1:54:56 PM SENATOR COSTELLO asked how law enforcement handles it when someone says they have a protective order but it's not on their person. MS. MEADE deferred to the Department of Law. 1:55:26 PM MS. LUNDQUIST said that emphasizes why a protective order should be registered. "Without a written protective order, there would be no full faith and credit to that protection order." CHAIR COGHILL offered his understanding that while it is good practice to register protective orders, it is not required. MS. LUNDQUIST said that's correct. CHAIR COGHILL asked Ms. Meade to discuss the different kinds of protective orders. MS. MEADE explained that Title 18 allows for three kinds of protective orders: stalking, sexual assault, and domestic violence. Domestic violence protective orders are the most common. The first step to get the order is for the petitioner to file an ex parte (one-sided) order either in person or at home using the court's petition wizard. The petitioner would need to show that they currently have or did have a domestic relationship, allege that that a crime of domestic violence occurred, and that protection is necessary. If the judge finds probable cause to believe that domestic violence has occurred, the ex parte order would be issued. That order can last a maximum of 20 days. The petitioner can also ask for a long-term order, which can last up to a year. In that circumstance, there is a hearing and the respondent is given a 10-day notice to appear, with or without an attorney. If the judicial officer finds by a preponderance of the evidence that a crime of domestic violence has occurred and a protection order is necessary, then a long- term protective violence order can be granted. 2:00:30 PM CHAIR COGHILL stated he would hold HB 8 in committee for further review.