02/28/2019 03:00 PM House STATE AFFAIRS

                    HB  12-PROTECTIVE ORDERS                                                                                
                                                                                                                              
3:10:32 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  KREISS-TOMKINS   announced  that  the  next   order  of                                                               
business  would  be  HOUSE  BILL  NO. 12,  "An  Act  relating  to                                                               
protective orders."                                                                                                             
                                                                                                                                
3:11:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CHUCK  KOPP,   Alaska  State  Legislature,  prime                                                               
sponsor of HB  12, paraphrased from the  sponsor statement, which                                                               
read as follows [original punctuation provided]:                                                                                
                                                                                                                                
     Last summer,  the Alaska Supreme Court  ruled in Whalen                                                                    
     v. Whalen that victims  of domestic violence are unable                                                                    
     to  get  an  extension   or  renewal  for  an  existing                                                                    
     protective  order   based  on  the  same   incident  of                                                                    
     violence of  the original order. This  is regardless of                                                                    
     whether they  are still in  fear of  their perpetrators                                                                    
     or whether  their perpetrators continue to  pose a risk                                                                    
     to their safety.                                                                                                           
                                                                                                                                
     The  Court's holding  turned on  the interpretation  of                                                                    
     the protective  order statutes which fail  to expressly                                                                    
     allow   for   extensions,   renewals,   or   subsequent                                                                    
     protective  orders. The  Court ruled  the statutes  are                                                                    
     unclear and thus, do not allow for the extensions.                                                                         
                                                                                                                                
     The purpose of  House Bill 12 is  to clearly articulate                                                                    
     that victims  may request an extension  of a protective                                                                    
     order  30  days  before  or within  60  days  after  it                                                                    
     expires.                                                                                                                   
                                                                                                                                
     The  bill  also  extends   this  clarification  to  the                                                                    
     statute  that  covers   protective  orders  for  sexual                                                                    
     assault and stalking.                                                                                                      
                                                                                                                                
     HB  12  clarifies  that  a court  is  not  barred  from                                                                    
     ordering  relief to  victims based  on an  incident for                                                                    
     which relief has previously  been issued or considered,                                                                    
     thus preventing a situation in  which survivors must be                                                                    
     a victim again before receiving judicial assistance.                                                                       
                                                                                                                                
REPRESENTATIVE   KOPP   summarized   by   saying   the   proposed                                                               
legislation would  amend two areas  of law that  address domestic                                                               
violence   protective   orders   and  sexual   assault   stalking                                                               
protective orders to make it  very clear that renewals may happen                                                               
without revictimization;  protective orders may be  renewed based                                                               
on one's  continuing fear of  domestic violence,  sexual assault,                                                               
or stalking, as  long as a court finds the  continuing fear to be                                                               
reasonable.  He added that under  HB 12, the accused would not be                                                               
denied due process,  would still be advised of a  hearing 10 days                                                               
in advance; and would be given the opportunity to testify.                                                                      
                                                                                                                                
3:15:25 PM                                                                                                                    
                                                                                                                                
CO-CHAIR FIELDS moved adopt the  committee substitute (CS) for HB
  [Version  31-LS0103\S, Radford,  1/24/19]  as  a work  draft.                                                               
There being no objection, Version S was before the committee.                                                                   
                                                                                                                                
3:15:55 PM                                                                                                                    
                                                                                                                                
KEN  TRUIT,  Staff,  Representative   Chuck  Kopp,  Alaska  State                                                               
Legislature, on  behalf of Representative Kopp,  prime sponsor of                                                               
HB  12,  referred  the  committee's attention  to  Section  1  of                                                               
Version  S  [page 1,  lines  3-10]  and  relayed that  under  the                                                               
proposed legislation,  AS 18.65.850(e) would be  split into three                                                               
separate sections.  The proposed  new paragraph (1), [lines 5-6],                                                               
prepares  the existing  statute for  a  list that  follows.   The                                                               
proposed new [paragraph]  (2), [lines 7-8], is  the operative fix                                                               
to  the problem  stated in  the Whalen  v. Whalen  Alaska Supreme                                                               
Court case [of  2018, "Whalen"]; the new  language would instruct                                                               
the court that it may not  deny a petition for a protective order                                                               
solely because the  act that gave rise to  the initial protective                                                               
order is the same one for  which the extension is petitioned.  He                                                               
said  that the  new paragraph  (3), [lines  9-10], is  a proposed                                                               
policy for  protective orders.   It states  that a court  may not                                                               
deny  issuing a  protective order  solely because  the court  had                                                               
previously found that the petitioner  was a victim of stalking or                                                               
sexual assault but declined to order relief under [Section 1].                                                                  
                                                                                                                                
MR. TRUIT related that HB 12  is very narrowly focused to fix the                                                               
Whalen issue and  to propose a new policy  for protective orders;                                                               
everything  else  in  the   proposed  legislation  maintains  the                                                               
protective order policy as "everybody  thought it was" before the                                                               
Whalen decision.                                                                                                                
                                                                                                                                
MR. TRUIT continued  by say that Section 2 of  Version S explains                                                               
how  HB 12  would be  implemented  in practice  and provides  the                                                               
process.   He  directed attention  to subsection  (f) on  page 1,                                                               
starting  on line  12,  which  states in  part,  "Within 30  days                                                               
before, or within  60 days after, the expiration  of a protective                                                               
order issued  or extended under  this section ..." and  said that                                                               
this language  instructs that the  extensions are not  limited to                                                               
just one.   He relayed that the remainder of  Section 2 addresses                                                               
the  notice to  the  respondent; the  judge  still exercises  the                                                               
discretion  [for  issuing the  order];  nothing  in the  proposed                                                               
legislation  alters  the   preponderance  of  evidence  standard,                                                               
already in statute,  required for the petitioner  to convince the                                                               
judge  and the  court to  issue the  order; and  the court  would                                                               
still  be required  to  make  a determination  based  on what  is                                                               
submitted by the petitioner.                                                                                                    
                                                                                                                                
3:20:13 PM                                                                                                                    
                                                                                                                                
MR.  TRUIT relayed  that Sections  3 and  4 represent  provisions                                                               
identical to  Section 1 and  2 but address the  domestic violence                                                               
protective order statute.                                                                                                       
                                                                                                                                
MR.  TRUIT said  that Section  5 is  the applicability  clause to                                                               
make  it clear  that should  HB 12  become law,  it would  affect                                                               
existing  domestic   violence  orders,   orders  issued   on  the                                                               
effective date of the law, and any orders thereafter.                                                                           
                                                                                                                                
3:20:46 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX asked  why the orders are not  issued for a                                                               
reasonable  lengthy time  as a  regular course  of action  in the                                                               
criminal proceedings.  She expressed  her belief that even though                                                               
the  protective  orders  may  involve   criminal  action  by  the                                                               
respondent, the orders  are within the civil  jurisdiction of the                                                               
court.   She  asked why  the court  doesn't issue  the protective                                                               
orders in  the event someone  has been incarcerated  for domestic                                                               
violence, sexual assault, or stalking.                                                                                          
                                                                                                                                
REPRESENTATIVE KOPP explained that  there are ex parte protective                                                               
orders, which  are 20-day orders  issued without the  presence of                                                               
the  defender; and  there is  an emergency  72-hour order  that a                                                               
police officer can request to  allow collection of evidence for a                                                               
hearing.   He  maintained that  what is  under discussion  in the                                                               
proposed legislation  is the  long-term protective  orders, which                                                               
have been  in state statute  for about 40  years.  It  is unclear                                                               
how the  length of time  for a protective  order - six  months or                                                               
one  year  -  was  determined;  these  time  periods  are  fairly                                                               
standard  from state  to  state.   He  mentioned  that the  court                                                               
issues  protective orders;  the court  determines probable  cause                                                               
for  restraining  someone;  and  there is  due  process  for  the                                                               
petitioner and the  respondent to make their  cases regarding the                                                               
long-term orders.                                                                                                               
                                                                                                                                
3:23:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked  whether  the  situation  discussed                                                               
involves someone accusing  another of sexual assault  but has not                                                               
made a report with police.                                                                                                      
                                                                                                                                
REPRESENTATIVE KOPP  offered that  someone from the  Alaska Court                                                               
System (ACS)  should answer  the question  definitively; however,                                                               
he expressed his  belief that it would be  profoundly unusual for                                                               
a court to  issue a sexual assault protective  order unless there                                                               
was a formal [police] report.                                                                                                   
                                                                                                                                
3:24:21 PM                                                                                                                    
                                                                                                                                
NANCY  MEADE,  General  Counsel,  Office  of  the  Administrative                                                               
Director, Alaska  Court System, responded that  protective orders                                                               
for sexual  assaults are relatively  rare compared  with domestic                                                               
violence   protective  orders.      She   confirmed  that   these                                                               
proceedings are  completely civil proceedings.   There must  be a                                                               
household relationship  between the two individuals;  they have a                                                               
dispute; they  go to court.   She said that there  is no district                                                               
attorney   involved;  it   is  citizen   versus  citizen.     The                                                               
proceedings  are  civil proceedings;  if  the  court finds  by  a                                                               
preponderance  of evidence  that there  was a  crime of  domestic                                                               
violence and the order is necessary, the court will issue it.                                                                   
                                                                                                                                
MS. MEADE  restated the  question:   If there is  a finding  by a                                                               
court of  a crime of  domestic violence, where does  the criminal                                                               
law come into it?  She  said that the petitioner in that scenario                                                               
can  report the  incident  to  the police,  but  he/she does  not                                                               
usually do  that.  There  are far more citizens  seeking domestic                                                               
violence protective  orders than  criminal cases  against someone                                                               
for  the crime  of  domestic  violence.   There  are about  eight                                                               
different crimes of domestic  violence, including trespassing and                                                               
vandalism.   She confirmed Representative Kopp's  assessment that                                                               
it  would be  quite  unusual  for the  court  to  issue a  sexual                                                               
assault protective  order, because it  would be making  a finding                                                               
that there  was a crime  of sexual  assault, which is  a distinct                                                               
thing, as opposed to domestic violence,  which can be one of many                                                               
things.  She  mentioned that in most sexual  assault cases, there                                                               
is a corresponding criminal case.                                                                                               
                                                                                                                                
REPRESENTATIVE LEDOUX asked whether  in the situation where there                                                               
is  a  corresponding criminal  case  for  the sexual  assault,  a                                                               
separate  protective  order is  issued  in  conjunction with  the                                                               
criminal case.                                                                                                                  
                                                                                                                                
MS. MEADE  responded that the  court wouldn't decide to  issue an                                                               
order on its own, but "no  contact with the victim" is very often                                                               
a bail condition  of the person released.  When  the person is in                                                               
jail, no  protective order  is needed;  after release,  the court                                                               
can issue a protective order during probation.                                                                                  
                                                                                                                                
3:27:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WOOL stated  his understanding  that there  was a                                                               
historical basis for  the discrepancy between six  months and one                                                               
year; and  the protective orders  could be  successively extended                                                               
or renewed pending approval of a judge.                                                                                         
                                                                                                                                
MS. MEADE responded that his  understanding was correct as far as                                                               
the intent of  the wording of HB 12.   She further explained that                                                               
the six  months and  one-year time frames  were based  on federal                                                               
standards  and  were  consistent  across  states.    She  stated,                                                               
"There's that  balance of  limiting in many  ways the  liberty of                                                               
the respondent in  these cases for longer than  is necessary, and                                                               
in most, if not all, cases  the petitioner's fear is abated after                                                               
six months  or a year, and  as Representative Kopp is  saying, if                                                               
not, they can come back."                                                                                                       
                                                                                                                                
REPRESENTATIVE WOOL  asked whether there was  a historical reason                                                               
for domestic  violence incurring a one-year  protective order and                                                               
sexual assault incurring a six-month protective order.                                                                          
                                                                                                                                
MS. MEADE  expressed her belief  that the  length of time  of the                                                               
protective order was changed in 2004.   It used to be a six-month                                                               
time  period   for  domestic   violence  protective   orders  and                                                               
resulting  from a  federal Act  - possibly  the Violence  Against                                                               
Women Act  (VAWA) of  1994 - states  generally moved  to one-year                                                               
protective orders and Alaska followed in 2004.                                                                                  
                                                                                                                                
3:29:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE STORY referred to Section  1 on page 1, lines 5-6,                                                               
of Version  S, which discusses the  lapse of time between  an act                                                               
of sexual  assault and the filing  [of the petition].   She asked                                                               
whether  "stalking"  should  be  added to  the  language  in  the                                                               
paragraph.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  KOPP replied  that  stalking  is different  [from                                                               
sexual  assault]  because  it  refers  to  a  course  of  conduct                                                               
occurring over  time; it  is not one  event, but  many individual                                                               
events that, collectively,  put a person in fear.   He added that                                                               
the  legal definition  refers to  a process  over time  which, in                                                               
summation, constitutes stalking.   That stalking is not "specific                                                               
event" oriented,  but "course of  conduct oriented"  explains the                                                               
language  of   the  proposed  legislation.     He   offered  that                                                               
Legislative Legal Services could provide additional information.                                                                
                                                                                                                                
REPRESENTATIVE  STORY   mentioned  that   she  could   imagine  a                                                               
situation in which stalking is resumed after a lapse in time.                                                                   
                                                                                                                                
MR.  TRUIT responded  that the  language cited  is from  existing                                                               
statute; Version S  does not propose any  alterations to existing                                                               
language but adds language.                                                                                                     
                                                                                                                                
REPRESENTATIVE  STORY  maintained  that   there  is  no  stalking                                                               
language included on line 5.                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOPP  answered that  he  is  fully supportive  of                                                               
making the  proposed legislation  as inclusive  as possible.   In                                                               
discussion with  Legislative Legal Services there  was a drafting                                                               
issue  with  adding  "stalking"  because  of  the  event-specific                                                               
nature of  a crime of  assault versus stalking, which  is defined                                                               
in law  as a  course of  conduct over time.   He  maintained that                                                               
that although  his focus was  to address the Whalen  decision, he                                                               
is empathetic to Representative Story's concern.                                                                                
                                                                                                                                
[HB 12 was held over.]