HOUSE JUDICIARY STANDING COMMITTEE February 23, 1998 1:07 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 272 "An Act to permit a court to order a defendant who receives a sentence of imprisonment for a misdemeanor to serve the sentence by electronic monitoring; and relating to the crime of unlawful evasion." - RESCINDED ACTION OF 2/18/98; MOVED CSHB 272(JUD) OUT OF COMMITTEE * HOUSE JOINT RESOLUTION NO. 57 Relating to an amendment to the Constitution of the United States prohibiting federal courts from ordering a state or a political subdivision of a state to increase or impose taxes. - MOVED HJR 57 OUT OF COMMITTEE HOUSE BILL NO. 335 "An Act replacing the Uniform Child Custody Jurisdiction Act with the Uniform Child Custody Jurisdiction and Enforcement Act; and amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule 205, Alaska Rules of Appellate Procedure." - MOVED HB 335 OUT OF COMMITTEE HOUSE BILL NO. 87 "An Act relating to fines and bail forfeiture amounts for certain offenses committed within highway work zones." - MOVED HB 87 OUT OF COMMITTEE (* First public hearing) PREVIOUS ACTION BILL: HB 272 SHORT TITLE: DO JAIL TIME BY ELECTRONIC MONITORING SPONSOR(S): REPRESENTATIVES(S) GREEN Jrn-Date Jrn-Page Action 05/06/97 1553 (H) READ THE FIRST TIME - REFERRAL(S) 05/06/97 1553 (H) JUDICIARY 01/21/98 (H) JUD AT 1:00 PM CAPITOL 120 01/21/98 (H) MINUTE(JUD) 01/26/98 (H) JUD AT 1:00 PM CAPITOL 120 01/26/98 (H) MINUTE(JUD) 02/18/98 (H) JUD AT 1:00 PM CAPITOL 120 02/18/98 (H) MINUTE(JUD) BILL: HJR 57 SHORT TITLE: AMEND US CONSTIT. TO LIMIT FED. COURTS SPONSOR(S): REPRESENTATIVES(S) GREEN Jrn-Date Jrn-Page Action 02/12/98 2306 (H) READ THE FIRST TIME - REFERRAL(S) 02/12/98 2306 (H) JUDICIARY 02/23/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 335 SHORT TITLE: UNIFORM INTERSTATE CHILD CUSTODY ACT SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES Jrn-Date Jrn-Page Action 01/20/98 2090 (H) READ THE FIRST TIME - REFERRAL(S) 01/20/98 2090 (H) HES, JUDICIARY 01/29/98 (H) HES AT 3:00 PM CAPITOL 106 01/29/98 (H) MINUTE(HES) 02/05/98 (H) HES AT 3:00 PM CAPITOL 106 02/05/98 (H) MINUTE(HES) 02/06/98 2234 (H) HES RPT 6DP 1DNP 02/06/98 2234 (H) DP: DYSON, GREEN, BUNDE, PORTER, 02/06/98 2234 (H) KEMPLEN, BRICE; DNP: VEZEY 02/06/98 2234 (H) ZERO FISCAL NOTE (LAW) 02/06/98 2234 (H) REFERRED TO JUD 02/23/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 87 SHORT TITLE: TRAFFIC OFFENSES IN HIGHWAY WORK ZONES SPONSOR(S): REPRESENTATIVES(S) ELTON, Sanders Jrn-Date Jrn-Page Action 01/24/97 137 (H) READ THE FIRST TIME - REFERRAL(S) 01/24/97 137 (H) TRA, JUDICIARY, FINANCE 04/25/97 (H) TRA AT 1:00 PM CAPITOL 17 04/25/97 (H) MINUTE(TRA) 04/28/97 1364 (H) TRA RPT 5DP 04/28/97 1364 (H) DP: ELTON, KOOKESH, SANDERS, COWDERY, 04/28/97 1364 (H) HUDSON 04/28/97 1364 (H) ZERO FISCAL NOTE (DOT) 04/28/97 1364 (H) REFERRED TO JUDICIARY 01/30/98 2189 (H) COSPONSOR(S): SANDERS 02/09/98 (H) JUD AT 1:00 PM CAPITOL 120 02/09/98 (H) MINUTE(JUD) 02/23/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-4990 POSITION STATEMENT: Testified on behalf of sponsor of HB 272. JEFFREY LOGAN, Legislative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-6841 POSITION STATEMENT: Presented HJR 57 on behalf of sponsor. PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde Alaska State Legislature Capitol Building, Room 106 Juneau, Alaska 99801 Telephone: (907) 465-6824 POSITION STATEMENT: Answered questions on HB 335. DEBORAH BEHR, Assistant Attorney General Legislation and Regulations Section Civil Division (Juneau) Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Answered questions on HB 335. REPRESENTATIVE KIM ELTON Alaska State Legislature Capitol Building, Room 400 Juneau, Alaska 99801 Telephone: (907) 465-4947 POSITION STATEMENT: Sponsor of HB 87. ACTION NARRATIVE TAPE 98-23, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:07 p.m. Members present at the call to order were Representatives Green, Bunde, Porter and Rokeberg. Representatives Croft, James and Berkowitz arrived at 1:08 p.m., 1:12 p.m. and 1:35 p.m., respectively. HB 272 - DO JAIL TIME BY ELECTRONIC MONITORING Number 0039 CHAIRMAN GREEN announced the first item of business would be a revisit of HB 272, "An Act to permit a court to order a defendant who receives a sentence of imprisonment for a misdemeanor to serve the sentence by electronic monitoring; and relating to the crime of unlawful evasion." The committee had moved CSHB 272(JUD) out of committee on February 18, 1998. CHAIRMAN GREEN referred to the written conceptual amendment provided by the Department of Law on February 18, 1998, which replaced subsection (c) and which was adopted as Amendment 1 on that date. Chairman Green explained that the conceptual amendment had a problem with it; after modifying it, they had checked with Anne Carpeneti, who had agreed on the wording relating to relieving the person from imprisonment, which is not really a release if the person goes on electronic monitoring. Chairman Green said if it was the committee's wish, they could rescind the action on that amendment and offer a new amendment to take its place. REPRESENTATIVE ERIC CROFT asked whether they could muck with it a little. CHAIRMAN GREEN said yes. Number 0132 REPRESENTATIVE CROFT made a motion to rescind the committee's action of February 18, 1998, which moved CSHB 272(JUD) from the House Judiciary Standing Committee. There being no objection, the bill was back before the committee. REPRESENTATIVE BRIAN PORTER made a motion to rescind adoption of the previously discussed amendment [Amendment 1] that replaced subsection (c) in the latter part of the bill. CHAIRMAN GREEN noted that there being no objection to either motion, those actions were rescinded. Number 0198 REPRESENTATIVE CON BUNDE made a motion to adopt Amendment B.1 [0-LS0821\B.1, Lu Page 3, lines 21 - 24: Delete all material and insert: "(c) A decision by the commissioner to designate a prisoner to serve a term of imprisonment or a period of temporary confinement, or a part of the term or period, by electronic monitoring does not create a liberty interest in that status for the prisoner. The prisoner may be returned to a correctional facility at the discretion of the commissioner." REPRESENTATIVE CROFT objected to discuss what he said is a small point but one he'd like to stay consistent on. He stated, "And it was Representative Porter's point, where it says, 'electronic monitoring does not create a liberty interest.' I think he was correct when he said, 'is not intended to create.' And we really aren't in the business of telling them. We're telling them what we're trying to do." REPRESENTATIVE PORTER said he would second that. Number 0243 CHAIRMAN GREEN indicated they need to decide which position to take, whether to actually tell the court or allow the court to determine whether this does create a liberty interest; there are two schools of thought on it. He said it was good that Representative Croft had brought that up. REPRESENTATIVE CROFT asked whether Ms. Carpeneti was present, then noted that she was not. CHAIRMAN GREEN asked Kevin Jardell to address it. Number 0274 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, advised members that he had spoken with Legislative Legal Services and with Ms. Carpeneti. He said although he wasn't speaking for Ms. Carpeneti, he believes it was the general consensus that "does not create a liberty interest" is stronger language and would not invite the court to jump in as quickly and play around with whether or not it does create a liberty interest. REPRESENTATIVE CROFT said it seems more accurate the way Representative Porter had said it, but it is not a big point. MR. JARDELL explained that the idea is that whether the legislature says it or intends it, the court will decide whether there is a liberty interest or not. By stating it as "we intend," the weak language may somehow cause the court to jump on it more quickly. Number 0368 REPRESENTATIVE PORTER stated that he doesn't intend to take this to the wall, either, then said, "But quite frankly, I would like to see, eventually, the courts get back to making decisions based on an interpretation of the law, and us getting back to writing laws and not trying to write a constitution." REPRESENTATIVE PORTER said he is inviting the notion that the legislature recognizes that the court interprets the constitution, by saying it is the legislature's intent that this not create a liberty interest, but a liberty interest is a constitutional provision. He asked, "If we criticize them for what we call writing laws, why shouldn't we return the favor and allow them to criticize us for interpreting the constitution?" MR. JARDELL replied that there is certainly something to be said for that. He stated, "In fact, it was my understanding, after speaking with both Law and Legal that it was Corrections that wanted this stated, that even the statement that it creates a liberty interest is -- it's either there or it's not. The whole statement is somewhat superfluous, when you really get down to the legal dynamics of it." Number 0530 REPRESENTATIVE CROFT removed his objection to Amendment B.1. CHAIRMAN GREEN asked whether there was any further objection. Hearing none, he announced that Amendment B.1 was adopted. Number 0555 CHAIRMAN GREEN brought up Amendment B.2 [0-LS0821\B.2, Luckhaupt, 2/20/98], which read: Page 3, following line 24: Insert a new subsection to read: "(d) The commissioner may require a prisoner designated to serve a term of imprisonment or a period of temporary confinement by electronic monitoring to pay all or a portion of the costs of the electronic monitoring." CHAIRMAN GREEN explained that this would merely provide funding and has been used nationwide, apparently quite effectively. The process suggested "to this committee that's been reviewing this" was apparently the most popular: One hour of the person's normal salary would be designated. While indigents could not pay, others of greater means would pay more. CHAIRMAN GREEN indicated the actual cost per person is somewhere around $5 or $6 per day. The concept with Amendment B.2 is to leave the commissioner or the department to determine however they want to fund it, but that they fund it, rather than creating an additional burden to the general fund. "Wherever it's been used, it's been quite successful," he added. Number 0638 REPRESENTATIVE BUNDE made a motion to adopt Amendment B.2. REPRESENTATIVE CROFT indicated that materials provided by the sponsor suggest that sometimes rich defendants pay more than the cost, to make up for the poor defendants. He asked whether this is limited to the costs. CHAIRMAN GREEN replied that they are saying they will let the department determine what they want to do. REPRESENTATIVE CROFT asked whether it could be twice the cost. CHAIRMAN GREEN replied, "Twice? I don't know about that." REPRESENTATIVE PORTER said he interprets it to say they can pay all or a portion of the costs of the electronic monitoring program. CHAIRMAN GREEN agreed. REPRESENTATIVE CROFT asked whether the cost, then, was not for each particular person. Number 0716 CHAIRMAN GREEN confirmed that. He then asked whether there was further discussion or any objection. There being no objection, Amendment B.2 was adopted. Number 0727 REPRESENTATIVE BUNDE made a motion to move CSHB 272(JUD), as amended, from committee with the attached fiscal notes. CHAIRMAN GREEN asked whether there was any objection. There being none, CSHB 272(JUD) moved from the House Judiciary Standing Committee. HJR 57 - AMEND US CONSTIT. TO LIMIT FED. COURTS Number 0757 CHAIRMAN GREEN announced the next item of business would be HJR 57, relating to an amendment to the Constitution of the United States prohibiting federal courts from ordering a state or a political subdivision of a state to increase or impose taxes. As sponsor, Chairman Green called on Jeff Logan to present the resolution. Number 0776 JEFFREY LOGAN, Legislative Assistant to Representative Joe Green, Alaska State Legislature, explained that HJR 57 requests Congress to prepare and present to the legislatures of all states an amendment to the Constitution of the United States that would prohibit a federal court from ordering a state, or a political subdivision of a state, from increasing or imposing taxes. This is a nationwide effort in response to a 1990 U.S. Supreme Court decision, Missouri v. Jenkins, which upheld the right of a federal district court to order a $1.95 property tax increase in Kansas City, Missouri; that tax increase was upheld despite the fact that the Missouri state constitution says that local property taxes may not be raised without a vote of the citizens. MR. LOGAN stated, "This similar language in this resolution first passed the Missouri legislature. It has since passed in 12 legislatures, and I have the names of those if anyone is interested. ... They need 22 more states to meet the 34-state threshold for Congress to act. This language was passed by the Nineteenth Alaska Legislature, in the form of HJR 30. We've been asked to do it again, to keep it current. I can tell you ... that this is also being considered in New Hampshire, Arizona, Wyoming, Utah, Georgia, Mississippi, Kentucky, Maryland, Indiana, Hawaii, Oklahoma, Illinois, Rhode Island, Florida and Montana." Number 0910 REPRESENTATIVE CROFT asked whether these requests to Congress run out. For example, if the 34th state came on-line in 50 years, would this go into effect? MR. LOGAN replied that the opinion of Legislative Legal Services is that there is no time limit. He added, "Congress could always say, in 50 years, that the first two or ten or twenty were stale, but there is nothing from the courts, or from Congress, to say that there is a time limit. On the other side, once Congress does submit something to the states, the last time, with the equal rights amendment, they put a ten-year time limit on it." He said that is still an open question. REPRESENTATIVE CROFT asked where Congress had put the ten-year time limit. MR. LOGAN replied, "Congress did that when they submitted the equal rights amendment to the states, for approval by the states." REPRESENTATIVE CROFT asked whether this was a request from Congress. MR. LOGAN answered, "This was actually requested by the Missouri legislature. There are two legislators in the state of Missouri, one a Democrat and one a Republican, who, after - in their opinion - their constitutional rights were violated, they have asked for help from other states in defending their states rights. So, it's going in to Congress, requesting Congress to act to prepare and present back to the legislatures language for an amendment." Number 1004 REPRESENTATIVE CROFT expressed appreciation for the inclusion of Article V in the committee packets. He stated, "It seems to me that either Congress acts with two-thirds, or we submit with three-quarters. A Can Congress refuse if 34 states urge them to have a convention?" MR. LOGAN replied, "According to the person in Legal I spoke with, once Congress has 34 resolutions from the states, they must act. It's a self-executing provision." Number 1047 REPRESENTATIVE ROKEBERG asked Chairman Green and Mr. Logan whether they had considered the Cleary settlement in light of this constitutional amendment and what impacts that might have. MR. LOGAN replied that no, he had not considered that. Number 1070 REPRESENTATIVE BUNDE referred to previous activities in the Lower 48 about school funding. He stated, "Texas comes to mind, where there were some differences in fairness in funding. And I believe the courts intervened and required people to basically be equitable in their funding. This would prevent that, wouldn't it?" MR. LOGAN replied, "I believe so." He explained that this effort is in response to a very similar situation, in Missouri v. Jenkins, which dealt with school funding and differences between conditions in schools in the state of Missouri. Number 1146 REPRESENTATIVE ROKEBERG pointed out that Arizona had the same type of problem regarding allocation of funds between poorer and more wealthy areas of the state, but also relating to deferred maintenance of school buildings. "So, the courts there directed the legislature to spend money," he said. "But I think it's still an unconstitutional separation of powers at issue, about appropriations. It's all we've got, purse strings." Number 1182 REPRESENTATIVE CROFT referred to the mention of equity issues relating to schools in other states. He asked whether the Missouri case is the only one where all other avenues failed and the federal court finally ordered the tax. MR. LOGAN said he didn't know. Number 1199 REPRESENTATIVE CROFT suggested these would be extremely rare situations. But if the federal court came to the conclusion that the only way left to redress a constitutional problem - racial or other inequities - was the tax, this would take that power away; that is its purpose. MR. LOGAN responded, "I believe it would take that power away from the court, but it would still properly rest with the legislature." Number 1240 REPRESENTATIVE ROKEBERG asked how many votes it requires to move this from the state House of Representatives, as it applies to changing the U.S. constitution. CHAIRMAN GREEN said he believes it is a simple majority. He pointed out that it is not to change Alaska's constitution. Number 1298 REPRESENTATIVE PORTER commented that he liked this the first time he voted on it, and he likes it now. He made a motion to move HJR 57 from committee, with individual recommendations and attached fiscal note(s). CHAIRMAN GREEN asked whether there was an objection. Hearing none, he announced that HJR 57 was moved from the House Judiciary Standing Committee. Number 1346 REPRESENTATIVE JAMES asked why there is a fiscal note. CHAIRMAN GREEN said it is for printing, for the ballot. REPRESENTATIVE JAMES asked why this need to go on the ballot, as it doesn't amend Alaska's constitution but only sends a message to Congress. Number 1359 CHAIRMAN GREEN said that is a good question. He observed that the fiscal note was from the Office of the Governor. REPRESENTATIVE JAMES suggested perhaps that office had made a mistake, thinking this was for a state constitutional amendment. CHAIRMAN GREEN said if that was corrected, the resolution wouldn't need to go to the House Finance Committee. Number 1383 REPRESENTATIVE ROKEBERG made a motion to rescind the action moving HJR 57 out of committee, for the purpose of addressing the fiscal note. CHAIRMAN GREEN asked whether there was any objection; there being none, HJR 57 was back before the committee. REPRESENTATIVE CROFT agreed it was probably a mistake but suggested checking AS 15.58 to make sure there is no requirement that this go on the ballot. REPRESENTATIVE JAMES said it just takes a majority vote, and it is a message. Number 1444 REPRESENTATIVE BUNDE advised members that in another committee, they had a fiscal note that was germane but that was also a "huge statement of philosophy," and they had simply moved the bill without attaching the fiscal note. Number 1477 CHAIRMAN GREEN called an at-ease at 1:30 p.m. He called the meeting back to order at 1:31 p.m. Number 1480 REPRESENTATIVE PORTER made a motion to move from committee HJR 57 with individual recommendations, but without the fiscal note. CHAIRMAN GREEN asked whether there was an objection. There being none, HJR 57, without a fiscal note, moved from the House Judiciary Standing Committee. HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT CHAIRMAN GREEN announced the next item of business would be HB 335, "An Act replacing the Uniform Child Custody Jurisdiction Act with the Uniform Child Custody Jurisdiction and Enforcement Act; and amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule 205, Alaska Rules of Appellate Procedure." He called on Representative Bunde, chairman of the House Health and Social Services Standing Committee, which sponsored HB 335, to present the bill. Number 1515 REPRESENTATIVE BUNDE informed members that HB 335 is necessitated by the highly mobile population in Alaska; it had been requested by the federal government to provide uniformity throughout all 50 states. It reduces the incentive for parental noncustodial kidnapping. It also it reduces the opportunity to go to another jurisdiction and have a different custody order written, with resultant in-fighting where children are used by parents to attack each other. Furthermore, it encourages better enforcement of child custody and visitation orders, and it provides uniformity throughout the nation. Representative Bunde characterized HB 335 as a relatively simple bill. He advised members that his staff member, Patti Swenson, could answer questions. Number 1540 REPRESENTATIVE JAMES stated her understanding that if someone obtained child custody through a California court, for example, the parties would have to go back to that California court to make any changes. Number 1596 PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde, Alaska State Legislature, answered that she believes so, then deferred to Deborah Behr. REPRESENTATIVE BUNDE pointed out that orders from another state are not subject to modification, unless there are child abuse issues, for example. REPRESENTATIVE JAMES asked whether this child custody involves child support. Number 1637 DEBORAH BEHR, Assistant Attorney General, Legislation and Regulations Section, Civil Division (Juneau), Department of Law, advised members that she is also a uniform law commissioner for the state, and she was one of nine attorneys nationwide selected to work with the national conference on uniform state laws on this issue. She stated, "It's not a federal organization. Each state sends representatives to it, and I'm pleased to report that of the 52 states and territories that participated, we did not get a negative vote on this bill." MS. BEHR said to answer Representative James's question, they are talking about modification. She referred members to page 3, lines 16 through 27, which basically sets out the standard for that. She suggested the best example would be an Alaska divorce where the mother and child move to California and then subsequently decide the child would be better off with the noncustodial parent in Alaska. Ms. Behr explained, "If they want to back and do modification, they've got to come back to Alaska to do that modification. As long as there is one parent in the state of Alaska, Alaska continues to have what is called home state jurisdiction, and they continue to have jurisdiction to modify the order. So, if they reverse it, what you were saying, with everyone being in California and somebody moving to Alaska, whatever state did the original order, they're the ones that get to do the modification, until a point that everyone's left or the original state relinquishes jurisdiction; and at some point, I could see the Alaska court saying, 'Look, this child's been out of state too long; it just makes sense to have it in another place.'" Number 1715 MS. BEHR informed members there is a Uniform Child Custody Jurisdiction Act in place in all 50 states. The problem with the way it is written is that it isn't always clear which state is supposed to do it, resulting in lengthy litigation. She had asked someone in private practice about the latest costs, which turned out to be $7,000 just to figure out which state will do it. Ms. Behr explained that it is not in any child's best interest to have a long, drawn-out discussion over which state is going to decide the order. Number 1747 REPRESENTATIVE JAMES said her concern isn't so much over the custody as it is over child support. Situations can change drastically and rapidly after child support levels are set, and when people live across the nation, it may be difficult to get back to the original court. She posed a situation where the noncustodial parent is still in California, and the custodial parent takes the child to Maine; she noted that a desire to change child support could come from either side. She asked, "Are you saying, then, that this bill, as long as one of the parents involved in this issue was still in California, that the whole thing would have to go back to the original court ... where it was handled?" Number 1801 MS. BEHR specified that this bill doesn't deal with child support; there is a uniform law on child support that the state of Alaska has adopted. All this bill deals with is the jurisdiction for the initial child custody proceeding, and for modifications of it and for how to enforce child custody. Changes in child support would be under existing law, and there is a uniform law on child support. REPRESENTATIVE JAMES said custody and child support go hand-in-hand sometimes, when there is shared custody or if one parent lets the other parent take the child for a while, which happens in teenage years. Her own experience has been with the person who pays child support not being treated fairly, perhaps having the child and yet paying child support. She asked whether such a person might have to go some other state to address that. Number 1854 MS. BEHR replied that this Act is intended to give swift, sure enforcement of a court order, right now. She explained, "If a noncustodial parent has a right to see a child - the judge has said they're an appropriate person to see that child, there are no intervening domestic violence orders, CINA [child-in-need-of-aid] orders, whatever - well, then, that person should have a right to be able to bring ... that order quickly into an enforcing court and say, 'I have a valid order, I want to see my child.' And the goal of this is that it can be quickly done, inexpensively and, ... we're hoping, without a lawyer." She restated that child support issues would have to be filed through a separate mechanism, which HB 335 has nothing to do with. Number 1890 REPRESENTATIVE JAMES said her case would involve change of custody. MS. BEHR responded that if it was originally an Alaska divorce and the person was living out of state with the child, Alaska would continue to have home state jurisdiction to be able to modify that order. A person in another state wanting to modify that Alaska order would have to come back to Alaska, or show that there is no party in the state of Alaska now, or show that it is an inappropriate forum and that the modification should be done in the other state. Number 1925 REPRESENTATIVE CROFT noted that Ms. Behr had mentioned two ways that there might be a modification. He indicated he reads it to have a third, which is temporary emergency jurisdiction because of a showing of some immediate harm to the child. MS. BEHR said that is a very strong provision of the Act. She stated, "We were observed by domestic violence groups nationwide, and they wanted to make sure that although we're preserving this home state jurisdiction, that if a judge is faced with a difficult situation of abuse and neglect, the court can act. So, yes, ... the court can act on that kind of a situation." MS. BEHR pointed out that in a typical case where there is a court order and one parent is frustrated because of maybe not getting what they wanted from the judge, the divorce and the enforcement state would not be relitigated. REPRESENTATIVE CROFT commented, "This is not a federal edict. This is, in fact, I guess, the way we'd prefer it to happen. They set up a uniform rule that works well, and we all adopt it voluntarily, with the same protocols and all that. This is, in fact, the antithesis of the federal government just saying, 'Everyone abide by these rules.' This is all of us doing it voluntarily." Number 1994 REPRESENTATIVE JAMES restated her earlier concern about a mother and child living in California, where the divorce was, and the father being in Alaska. If the mother needs help with a teenager who is not behaving, and if the father is currently paying child support to the mother, he may refuse to take the child until there is a change of custody. Representative James said it may be an emergency situation, which has happened, where the child custody never got changed until it was really a mess. But there is nothing the man could do from Alaska, save going to California himself and requesting the change. MS. BEHR pointed out that although they would have to go to California, they don't have to go there physically. This Act sets up and recognizes telephonic communications, TV, and all the modern communications. It is entirely likely that the person could participate from Juneau or Fairbanks, for example, without necessarily having to travel. MS. BEHR explained that the goal of this Act is to set up one court to make the decision, so that people won't litigate over which court makes the decision but rather over what is in the best interest of the children. She stated, "If you have two courts that arguably both have jurisdiction, it's possible for a person to be subject to two orders, and then they don't know exactly what they're supposed to do. So, that's what it's designed to address." Number 2072 MS. BEHR mentioned her earlier testimony that the bill resulted from a process involving representatives from 52 states and territories. She said the representatives voting on it from the states were legislators, judges and executive branch people with a wide range of backgrounds. The bill was two years in the drafting. Ms. Behr said that to her, it is a bill of advantage to both custodial and noncustodial parents. For example, a custodial parent sending a child to another state, who worries that the noncustodial parent won't return the child, could use the Act for that purpose. MS. BEHR reminded members that all states have adopted the Uniform Child Custody Jurisdiction Act, which hasn't been updated in 20 years. This present Act updates that to address modern communications, domestic violence orders that are out there, and the Parental Kidnapping Prevention Act, and brings it in step with the times. She noted that there have been problems where people have been subject to two orders. Number 2113 MS. BEHR next discussed enforcement proceedings. Right now, depending on where a child is, when a parent or custodial parent wants to get the child back and has a valid order, there is no cheap enforcement mechanism to do that. This bill intends to allow somebody who has a valid order to get it registered, to give a certified copy to the other court, and for the court to quickly hold a hearing on whether there was due process and whether the court had jurisdiction to enter it. Ms. Behr stated, "You don't relitigate whether it's a good order or bad order. And then the court just basically tells the parents to go ahead and honor this order, or go back to the first state and get it modified." MS. BEHR continued, "Right now, each state has their own procedure for getting orders modified. In Alaska, we do an order to show cause. In Texas, they do a writ of habeas corpus. Other states do some other mechanism. ... And a lawyer that is dealing in family law, you have to go associate yourself with a lawyer in another state - which is a cost that the Alaska has to incur - and then you have to figure out their paperwork, make their time frame. This -- it's going to have one uniform paperwork - time frames, that sort of thing - provision." Number 2169 MS. BEHR said they want parents to follow the orders, so the children will have the visitation to which they are entitled. One mechanism is that whoever doesn't abide by the order without a good reason would be responsible for attorney fees and costs. It is also possible for a judge to order the child to come into court, so the judge can ensure that custody turns over to the correct person. In addition, in extraordinary circumstances involving avoidance, it is possible to have the troopers pick up the person. "We don't intend to do that," Ms. Behr added. She concluded by saying the goal is to Alaskanize it and make it predictable, so that parents abide by the orders and so that children can spend more time with their parents and less time in court. Number 2211 REPRESENTATIVE BERKOWITZ referred to the international application of this chapter and asked Ms. Behr to describe some of the background behind this provision. MS. BEHR noted that it is an important provision, and generally a lot of people misunderstand it. She said, "But we had people from the State Department watching our proceedings, and they brought some tremendous, terrible cases where people had valid orders and then one person would take a child ... and go to a foreign country. And it was very difficult to get quick enforcement." Ms. Behr indicated that when Congress enters into a compact under the Hague Convention [on the Civil Aspects of International Child Abduction] with these other countries, this provision allows a court of that state to accept and be recognized under the Uniform Child Custody Jurisdiction Act; it will be a cheap, easy way for them to do it. She said she could see Canada and the United States having routine visitation provisions and following this, for example, and she thinks it may help people in this area. She added that an international abduction is one of the most difficult cases. Number 2263 REPRESENTATIVE BERKOWITZ asked Ms. Behr to go over what the Hague Convention covers. MS. BEHR referred members to page 9, lines 25 through 28, which addresses enforcement under the Hague Convention. She stated her understanding that it is Congress and the State Department that decide to enter into the Hague Convention; it is entered into with countries that wish to be in it and that have jurisdiction systems similar to ours. The parties agree to honor each others' orders, which makes sense. Ms. Behr commented that that is the goal of this and cited some examples. Number 2303 REPRESENTATIVE BERKOWITZ observed that Ms. Behr had picked countries similar to ours. He stated, "But the horror cases that I've heard involved countries that are very different culturally. Would the failure to become party to the Hague Convention necessarily lead to the conclusion that the child custody of the other country violates fundamental principles of human rights?" MS. BEHR replied that there is a provision in here about allowing the court to look at whether the child custody order itself violates human rights. She apologized for not being able to find it quickly, then indicated there had been discussion about concern over countries where child laws and due process are dissimilar to our own; she said that is only a handful of countries. She concluded, "I'm sorry, I'm not a Hague Convention expert. But the people who came were people who talked about Canada, and people in the military in Germany and France, and things like this. And this will help out with that." Number 2352 REPRESENTATIVE BERKOWITZ responded, "I just want to make sure that our courts don't have to turn children over to countries where the other parent will never see them, or the jurisdiction exercised by a country like that would preclude a parent from getting that kind of custody. And I've heard of cases where mothers in particular have been cut off from access to their children because the foreign-national father spirits them abroad and that's the end of it." MS. BEHR referred to page 17, lines 13 through 15, and said that is the provision she remembers. It says, "A court of this state is not required to apply this chapter to a child custody determination made in a foreign country when the child custody law of the other country violates fundamental principles of human rights." Ms. Behr suggested that may answer Representative Berkowitz' question. She added that it basically deals with due process, saying, "you want to make sure that the person had notice of it and an opportunity to be heard." CHAIRMAN GREEN asked whether there were further questions, then noted that no one else had signed up to testify. Number 2393 REPRESENTATIVE JAMES made a motion to move HB 335 from committee with individual recommendations and the attached fiscal zero note. CHAIRMAN GREEN asked whether there was any objection. There being none, HB 335 moved from the House Judiciary Standing Committee. CHAIRMAN GREEN called an at-ease at 1:52 p.m. He called the meeting back to order at 1:57 p.m. HB 87 - TRAFFIC OFFENSES IN HIGHWAY WORK ZONES Number 2412 CHAIRMAN GREEN announced the final item of business would be HB 87, "An Act relating to fines and bail forfeiture amounts for certain offenses committed within highway work zones." REPRESENTATIVE KIM ELTON, sponsor, characterized HB 87 as straightforward. It doubles the fines for speeding, and for reckless or negligent driving, in a highway construction zone. It is designed to lessen the danger that these workers face every day in construction zones. It is similar to legislation that has recently been passed in New York, Delaware, Iowa and Virginia. REPRESENTATIVE ELTON advised members that he had a videotaped news story from the state of Washington, which showed a motor vehicle accident in a highway working zone that happened the same day that state's law went into effect. Hawaii has something even more stringent, requiring that a police officer be posted in each work zone, which is probably one step further than this bill goes. Number 2462 REPRESENTATIVE ELTON referred to committee packets and informed members that although the department does not track accidents in work zones, they had provided anecdotal material. TAPE 98-23, SIDE B Number 0006 REPRESENTATIVE ELTON mentioned problems that had occurred in Alaska, including 11 accidents in a work zone on the Glenn Highway in 1995, a death in a highway work zone in North Pole five or six years ago, and a serious injury in a work zone in the Tudor Road area in Anchorage. Noting that packets did not contain that information sheet, Representative Elton said he would provide it so that it could go with the bill if it moved out. Number 0058 REPRESENTATIVE BERKOWITZ said these are for state statutes. He asked, "But if there's a municipal ordinance that covers the same behavior - in Anchorage, I think it's careless driving - would this reach out and touch that kind of conduct?" REPRESENTATIVE ELTON said no, this applies only to projects that are occurring in work zones on state highways and state-maintained road systems. He suggested the question is local option, that if a municipality wants to extend that type of enhanced penalty in their projects, they could do that. CHAIRMAN GREEN suggested that where that highway runs through a municipality, it still is in effect. REPRESENTATIVE ELTON said that is correct. He said a good example is the accident on the Seward Highway accident near Tudor, noting that that is a state-maintained road. Number 0096 REPRESENTATIVE PORTER said that if the Anchorage Police Department (APD) investigated the accident in that case, the APD would make a citation under the city traffic code, which to his knowledge doesn't have this provision. REPRESENTATIVE ELTON responded, "I think that's right. I mean, Representative Porter would know more about this. But wouldn't the municipality also have the option, if it happened in a state area, to make the citation under the state code also?" REPRESENTATIVE PORTER replied that they have that option, but they use the municipal code. CHAIRMAN GREEN asked whether there were further questions. Number 0119 REPRESENTATIVE JAMES made a motion to move HB 87 out of committee with individual recommendations and the attached zero fiscal notes. CHAIRMAN GREEN asked whether there was any objection. REPRESENTATIVE BUNDE objected to comment that there is so little road construction in Alaska that he doesn't think this bill will have much impact. He then removed his objection. Number 0144 CHAIRMAN GREEN announced that hearing no objection, HB 87 was moved from the House Judiciary Standing Committee. ADJOURNMENT Number 0151 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at 2:02 p.m.