Legislature(1995 - 1996)
04/19/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 314 CRIME VICTIMS & WITNESSES & DOMESTIC VIOL
RICHARD VITALE, legislative aide to Representative Parnell, sponsor
of the measure, explained the packet before committee members
contains all amendments except ".10" and ".3" as they were
duplicative. He explained the proposed amendments as follows.
Amendment .1 contains technical changes the Department of Law and
Representative Parnell felt were necessary for purposes of word
clarification. Amendment .4 corrects a drafting error. Amendment
.7 deletes certain protective order provisions from the emergency
and ex parte orders. The Department of Law has some concerns about
amendment .7 The amendment deletes only those sections that
address deadly weapons and guns for ex parte and emergency orders.
Amendment .12 narrows the conditions under which protective orders
can be issued: it does not apply to ex parte or emergency orders.
It asks the courts to make a finding that the respondent used, or
threatened to use, a deadly weapon before ordering the seizure or
the confiscation of the weapons. Amendment .2 was previously
discussed by the committee on Monday. The last two provisions in
Amendment .2 were crossed out because they would be replaced by
Amendment .12. Amendment .2 covers a case where the abuser used,
possessed, or threatened to use a deadly weapon. Amendment .9 adds
language that would give the judge more direction on when a
protective order could be issued. Currently of the 16 provisions
in the bill, four contain protective orders with no time limits,
the remainder have one year time limits. Amendment .9 clarifies
that in the case of protective orders with one-year time limits,
the judge may deny, based on lapse of time, the issuance of those
orders. Amendment .8 deletes the alcohol provision from protective
orders, and adds the alcohol provision as part of the probation
requirement.
CHAIRMAN TAYLOR asked if Amendment .8 still gives the court the
authority to order the person to refrain from consumption of
alcohol. MR. VITALE replied the court can not make that order
directly in the protective order, but that authority would still be
there.
CHAIRMAN TAYLOR believed the court has authority to do so anyhow,
but this bill more specifically delineates that authority in the
probationary portion. MR. VITALE replied this amendment retains
that authority in the probationary portion.
CHAIRMAN TAYLOR noted the mixing of the civil and criminal aspects
has been of concern to the committee and thanked Mr. Vitale for the
clarification.
MR. VITALE explained Amendment .11 is new language clarifying what
police officers can do when they approach a domestic violence
situation, and when, and how, they can seize a weapon. Amendment
.11 incorporates Amendment .10 which was a simpler version.
Number 296
CHAIRMAN TAYLOR questioned whether an officer could seize all
deadly weapons in the home if the abuser was using one weapon
because the weapons would be needed for evidence. He wondered if
the word "evidence" only involves the possibility of a criminal
charge being brought, or whether it also involves a pending civil
action. MR. VITALE explained his understanding is that it only
applies to criminal cases.
Number 350
LAURIE OTTO, Deputy Attorney General, Department of Law, discussed
the proposed amendments. Amendments .1 and .4 correct drafting
inconsistencies. Amendment .12 amends page 22, lines 5 and 7,
which lists certain protective orders the court can enter. The
Department of Law supports Amendment .12 as it is an appropriate
narrowing of the protective order. The Department of Law does not
support Amendment .7 however, because it says, after Amendment .12
has been incorporated, the court has made a finding that a
respondent has used, or threatened to use, a weapon in the domestic
violence. If a victim is requesting an ex parte order, a court
should be able to find that the respondent should be prohibited
from using or possessing a deadly weapon. These conditions are not
mandatory, they are entered in the court's discretion. If after
finding the respondent has used or threatened to use a weapon,
which is required by Amendment .12, it is dangerous to not also
give the court the ability to order those in emergency and ex parte
orders.
CHAIRMAN TAYLOR asked for further clarification.
Number 270
MS. OTTO explained that Amendment .7 amends page 23, line 22 and
page 24, line 6 which contain the ex parte and emergency protective
order statute. Amendment .7 cuts out the ability to order
paragraphs 6 or 7, which are using or possession deadly weapons or
surrendering firearms. It prevents the court from entering those
two orders for the emergency and ex parte protective orders. These
orders are only available in the full-blown protective order after
notice and hearing. The problem is that Amendment .12 says that in
any case, even the protective orders entered after notice and
hearing, the court can only enter the kinds of orders on paragraph
6 and 7 if the court makes a specific finding that the respondent
used or threatened to use a weapon in the domestic violence.
CHAIRMAN TAYLOR asked how this would affect a domestic violence
situation, which might be an argument involving pushing, but there
is no threat with a deadly weapon.
MS. OTTO explained if a person pushed somebody, but never used, or
threatened to use, a weapon, Amendment .12 would prohibit the court
from ordering, in any context, the kinds of protections listed in
paragraphs 6 and 7. If Amendment .7 is adopted, and the person
shoots at somebody, the court can only order that person to not use
or possess a deadly weapon after a hearing and notice has occurred
and a protective order has been issued. Even if a person was shot,
the court could not prohibit the use or possession of a deadly
weapon if an emergency or ex parte order were issued.
CHAIRMAN TAYLOR asked how the court would be limited. MS. OTTO
stated the omission of paragraphs 6 and 7 in Amendment .7 only
allows the court to order the kind of protection in (c)(1)-(5) and
(8)-(12). CHAIRMAN TAYLOR asked if that is in one form of hearing.
MS. OTTO clarified the court cannot order the person to refrain
from using, or threatening to use, a deadly weapon in the 72-hour
emergency order, and the 20-day ex parte order.
CHAIRMAN TAYLOR asked if, once a hearing is held, the third phase
would apply, and why a victim would not want to have a hearing.
MS. OTTO responded if a person uses a weapon against another, we
should allow the court to take emergency action to prevent that
from happening again.
CHAIRMAN TAYLOR asked if there is an amendment that allows a police
officer to charge a person criminally if someone used or threatened
to use a weapon. MS. OTTO replied the police officer can charge
criminally, but may not. The removal of Amendment .7 will provide
extra protection. There are cases where the victim does not want
the police involved, or to file criminal charges, but may want a
court order to protect herself against future domestic violence.
CHAIRMAN TAYLOR questioned whether this legislation goes further
than that, since even though the victim may not wish to bring
criminal charges, the fact that an officer investigates gives the
officer the authority to seize all weapons the abuser may control.
That authority would be given in civil matters, and overlaying that
is the existing criminal law. He questioned the very narrow area
in which Ms. Otto was suggesting the victim would not be
protected.
MS. OTTO said there is a tremendous amount of domestic violence
that occurs in Alaska, including domestic violence involving the
use of weapons, where women do not involve the police or criminal
justice system, but do want to protect themselves. CHAIRMAN TAYLOR
asked if that is what a civil protective order is designed to
cover. MS. OTTO replied it is. She explained the weapon can only
be seized if the victim asks for a full blown hearing and a
protective order is issued: the court cannot do anything about the
weapon if the victim requests a 20 day ex parte order the day after
the domestic violence occurs.
Number 214
SENATOR GREEN asked for a definition of ex parte. MS. OTTO replied
that it means only one side appears before the court.
CHAIRMAN TAYLOR stated that there are three different hearings that
can occur: an emergency order in which a person goes in alone and
asks for a 72 hour protective order; an ex parte order which lasts
for 20 days and then automatically terminates; and the protective
order which requires a hearing in which both sides must appear and
testify. MS. OTTO clarified the change the sponsor has recommended
prevents the court from issuing, as part of its ex parte or
emergency order, an order that would prohibit the respondent from
possessing or using a deadly weapon or directing the respondent to
surrender the firearm.
MS. OTTO emphasized the weapons orders are not mandatory: the judge
would be given the discretion to enter the order in appropriate
cases, if Amendment .7 is not adopted. Further, if Amendment .12
is adopted, the court would have to have a finding that the
defendant used or threatened to use a weapon in the domestic
violence.
SENATOR GREEN asked for a definition of the word "respondent." MS.
OTTO replied the "respondent" is the person against whom a
protective order is issued. The petitioner is the person who seeks
the protective.
SENATOR GREEN asked at what point a person becomes a respondent.
MS. OTTO answered that occurs when a petition for a protective
order is filed but no orders can be entered against the respondent
until the protective order is issued by the court.
MS. OTTO continued discussing the remaining proposed amendments.
The Department of Law supports Amendment .2. Amendment .9 amends
page 23, line 11 which says that a court cannot deny a petition for
a protective order solely based on a lapse of time between an act
of domestic violence and the filing of the petition. That was
included for several reasons, for example a person may not seek a
protective order because the abuser goes to jail for an extended
period of time, but may request one upon release. Also, in rural
Alaska, it might take weeks for a person to travel to a place where
a magistrate is available. After discussing with Representative
Parnell different circumstances the lapse of time should apply to,
Amendment .9 was drafted to allow a person to file a petition for
up to one year.
CHAIRMAN TAYLOR asked if that provision impacts all three forms of
protective orders or only the form that requires a hearing. MS.
OTTO replied it would affects the ex parte and protective order
that requires a hearing. The reason it is important to have it
affect both is that sometimes what triggers people to file a
petition for a protective order is a past act of domestic and a
current immediate threat. If a hearing is required, the person may
not be served in time.
CHAIRMAN TAYLOR asked what current law is on lapse of time. MS.
OTTO stated the law is silent in most places in the state. Judges
usually grant a protective order regardless of whether there has
been a lapse of time. Certain locations with certain magistrates
deny protective orders based on lapse of time. CHAIRMAN TAYLOR
stated he considers that awfully abhorrent on behalf of a
magistrate and perhaps training is necessary. He questioned
whether this provision will change those practices. MS. OTTO
believed it will, since this provision will articulate in law that
lapse of time is not sufficient basis for denying a protective
order.
CHAIRMAN TAYLOR explained his reluctance on this issue is because
he does not believe judges use a short period of time for a
standard, and in fact, if there is a history of domestic violence
in a relationship, a judge needs to use that history to determine
the individual's propensity for violence. The abusive person may
be a seasonal worker who is out of town for months at a time, and
hasn't abused the same victim for 13 months. If this provision is
put in law, a judge could not grant an order under those conditions
or an opposite situation could occur in which a judge might
determine a protective order is not necessary.
MS. OTTO agreed completely and stated she prefers the bill as
written for the reasons Senator Taylor discussed. CHAIRMAN TAYLOR
commented he always finds, when specific time limits are imposed,
a case arises to which the law doesn't quite apply.
TAPE 96-41, SIDE A
Number 000
MS. OTTO indicated the Department of Law supports Amendment .8.
Amendment .11 would require the phrase " in a criminal case" to be
inserted on line 11 of the actual amendment.
SENATOR GREEN questioned whether that language also needs to be
inserted on line 9. MS. OTTO felt it wouldn't hurt but might be
redundant.
SENATOR GREEN asked if Chairman Taylor's conclusion was that it
would be better not to adopt Amendment .9. CHAIRMAN TAYLOR
explained line 11 prohibits the court from denying a petition based
solely on a lapse of time. He believed it is better to allow the
court to determine what a reasonable lapse of time would be.
SENATOR MILLER asked if it is Chairman Taylor's intent to not adopt
Amendment .9. CHAIRMAN TAYLOR replied affirmatively.
LAURIE HUGONIN, Alaska Council on Domestic Violence and Sexual
Assault ACDVSA, testified the council prefers the bill as is, in
respect to the lapsed time provision. ACDVSA is not opposed to the
other proposed amendments with the exception of Amendment .7.
JAYNE ANDREEN, Council on Domestic Violence and Sexual Assault
(CDVSA) concurred with Ms. Hugonin's testimony.
SENATOR ELLIS noted he prepared an amendment to propose which
eliminates a portion of the language in the bill dealing with
mediation.
CHAIRMAN TAYLOR noted the Court System has submitted an amendment
on mediation.
Number 094
CHRIS CHRISTENSEN, General Counsel to the Judicial Branch,
explained the legislation significantly restricts a judge's right
to order mediation. The court believes the legislation goes too
far in that it bans a judge's authority to even suggest mediation.
The proposed amendment gives a judge the ability to suggest
mediation, but gives the victim the right to decline.
SENATOR ELLIS commented his amendment deletes any references to
mediation from the bill at the request of the groups that deal
directly with domestic violence.
CHAIRMAN TAYLOR asked Mr. Christensen to address strong concerns
expressed about the danger to people working with domestic violence
cases, and that people involved in the business do not believe
mediation works.
MR. CHRISTENSEN stated nationwide there is more violence in
courtrooms as a result of family law matters than there is during
criminal cases. At present, the Supreme Court has a rule on
mediation which allows a judge to order mediation, but he judge is
required to consider first whether or not it is appropriate. The
bill, as now drafted, reduces a judge's authority dramatically, and
gives the victim the ability to refuse to mediate. There is a
proposal to prohibit judges from ever allowing mediation to occur
in domestic violence cases. The court opposes an absolute ban on
mediation because there are many different kinds of domestic
violence. The Court System believes such a proposal is
paternalistic and essentially prevents the victim from making
her/his own decisions, even when the victim makes the request. It
also has the effect of revictimizing the victim. The Court System
does believe significant limitations on mediation are appropriate,
given the danger of the situation. The Court System has limits
in its current rule: the bill imposes a number of additional limits
the Court System finds inappropriate.
SENATOR ELLIS stated, for the record, that he has supported
mediation in other contexts, but when domestic violence is
involved, he disagrees with placing people in a confrontational
situation.
CHAIRMAN TAYLOR noted the amendment proposed by the Court System
would only work if either the Court or victim requests mediation,
and the victim agrees to it.
MS. HUGONIN stated according to Civil Rule 100, judges may consider
mediation, but are not required to consider it. She is not asking
that all mediation be banned, but rather that court ordered
mediation or referrals be banned, so that if a victim does want to
voluntarily engage in mediation, he/she could do so.
CHAIRMAN TAYLOR noted that is what the court system's amendment
does. MS. HUGONIN maintained her opposition because when a judge
refers a person to do something, the person may construe that as
mandatory. ANDVSA's additional concerns with mediation are that
there are no standards or requirements for mediation in Alaska; and
there is no research that suggests that mediation used to resolve
domestic violence issues is safe or satisfactory. Research has
shown it can be harmful. People who enter into mediation will give
away whatever is necessary if they believe that will help them to
stay safe. One study has shown that an adversarial approach toward
ending marriage is more helpful to victims than a conciliatory
approach. With an adversarial approach, a lawyer represents the
victim's best interests. ANDVSA believes in domestic violence
cases, mediation focusses on the violence because the victim views
the procedure from what will keep her safe. The process is also
unsafe for mediators, and mediation proceedings in California
require armed guards be present.
CHAIRMAN TAYLOR asked if mediation is mandatory in California. MS.
HUGONIN replied it is required.
MS. HUGONIN asked the committee to consider the fact that it is
dangerous for judges to be placed in these situations, and asked
committee members to place themselves in the victim's shoes. The
victim would be very vulnerable in situations where there are not
protections the court can afford. ANDVSA believes mediation is
extremely dangerous and very much supports Senator Ellis'
amendment.
CHAIRMAN TAYLOR repeated ANDVSA is opposed to mediation even when
requested by the victim. MS. HUGONIN agreed, and added the victim
could voluntarily engage in mediation if so desired without a court
order or referral. CHAIRMAN TAYLOR asked if that wouldn't be more
dangerous. MS. HUGONIN replied if ANDVSA had the opportunity to
talk with a victim considering mediation, it would point out the
dangers and consequences and would hope the victim would choose a
different method.
CHAIRMAN TAYLOR believed government agencies can only go so far in
directing people's lives, and at some point in time, the victim
needs the opportunity to control his/her own life. If the victim
requests mediation, he suspected it would be better to do so
through the court. He also agreed with Mr. Christensen's
testimony that it would be patronizing to suggest to a victim that
they do not know what they want.
MS. HUGONIN believed that this is not an area where the court
should intervene. Only allowing judges to tell victims to go to
mediation would be patronizing. CHAIRMAN TAYLOR commented under
Mr. Christensen's proposed amendment, the mediation could occur
only if the victim agrees. MS. HUGONIN repeated ANDVSA prefers
that the court not be able to recommend it because it would put the
victim in the dangerous position of having to say, in front of her
abuser, or at any point, that she refuses, when the abuser knows
that she could make it happen.
CHAIRMAN TAYLOR reiterated that even though the victim requests
mediation, ANDVSA does not want the court to have the authority to
grant that request. MS. HUGONIN replied affirmatively.
There being no further discussion, SENATOR GREEN moved the original
packet of amendments with the exception of Amendment .9, and with
the changes made to Amendment .11. CHAIRMAN TAYLOR objected for
purposes of clarification. SENATOR ELLIS objected because
Amendment .7 would remain in the packet.
CHAIRMAN TAYLOR moved to divide the question to exclude Amendment
.7. There was no objection.
There being no objection to adopting the packet of amendments with
the exceptions of Amendments .7 and . 9 and the language change to
Amendment .11, the motion carried.
CHAIRMAN TAYLOR announced the motion to adopt Amendment .7 was
before the committee. SENATOR ELLIS objected. The motion to adopt
Amendment .7 carried with Senator Ellis voting "nay," and Senators
Green, Taylor, and Miller voting "yea."
SENATOR MILLER moved the amendment on mediation proposed by Mr.
Christensen. SENATOR ELLIS objected and asked if his amendment
dealing with mediation should be handled first. SENATOR MILLER
withdrew his motion.
SENATOR ELLIS moved his amendment to delete mediation from the
bill. SENATOR GREEN objected.
CHAIRMAN TAYLOR stated the intent of the amendment is to preclude
the court from ever ordering mediation in domestic violence
circumstances. SENATOR ELLIS explained the bill would be silent on
that point. CHAIRMAN TAYLOR replied that is his concern, because
if the bill is silent on that point, Court Rule 100 would still
apply. SENATOR ELLIS clarified Chairman Taylor is correct, because
the amendment would preclude the court from ordering mediation, and
not just be silent. MS. OTTO indicated the last part of Senator
Ellis' amendment amends Civil Rule 100.
SENATOR GREEN explained her opposition to the amendment is based on
the fact that she does not want the opportunity for mediation taken
away from a person who does want to use it.
The motion to adopt Senator Ellis' amendment to delete mediation
failed with Senators Green, Miller, and Taylor voting "nay" and
Senator Ellis voting "yea."
SENATOR MILLER renewed his motion to adopt the amendment proposed
by Mr. Christensen. SENATOR ELLIS objected. CHAIRMAN TAYLOR
stated this amendment would allow the court to refer a matter for
mediation only if the victim agreed to it. MS. OTTO agreed the
effect is to narrow existing law, but the amendment is a little
more expansive than the provision contained in the committee
substitute. SENATOR GREEN asked for the sponsor's opinion.
MR. VITALE responded Representative Parnell prefers the language as
it exists in the committee substitute.
SENATOR MILLER stated he believes judges should have the latitude
to propose mediation because most judges dealing with this issue
have had substantial experience with it, and they should be given
the option to propose it, especially in light of the fact the
victim must agree.
CHAIRMAN TAYLOR indicated the language in the amendment proposed by
the Court System is the same as existing law and provides that the
victim must request mediation. MS. OTTO stated the existing bill
requires the victim to request mediation; the amendment would allow
the court to propose mediation but the victim would have to agree.
The concern with the amendment is that if a judge proposes
mediation to a victim, most victims will believe they should comply
with the judge's advice and might put themselves in a risky
situation.
CHAIRMAN TAYLOR believed lines 24 and 25 on page 34 restrict the
court substantially.
The question to adopt the proposed amendment by Mr. Christensen was
called with Senators Green, Miller and Taylor voting "yea," and
Senator Ellis voting "nay."
SENATOR MILLER moved HB 314 as amended out of committee with
individual recommendations with any accompanying fiscal notes.
There being no objection, the motion carried.
BRANT MCGEE, Office of Public Advocacy, testified via
teleconference, and informed the committee there is a fiscal impact
to HB 314. CHAIRMAN TAYLOR indicated the bill will go to the
Senate Finance Committee, and stated in the interest of time, it is
important that any further testimony be taken by that committee.
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