Legislature(2015 - 2016)CAPITOL 120
01/29/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB221 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 221 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 221-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS
1:05:06 PM
CO-CHAIR LEDOUX announced that the only order of business would
be HOUSE BILL NO. 221, "An Act relating to protective orders."
1:05:14 PM
REPRESENTATIVE BRYCE EDGMON, Alaska State Legislature, explained
that the bill is essentially a technical fix in its application.
He point out that he is an Alaska Native, born and raised in
Rural Alaska, and has had the opportunity as a legislator to
work directly with the criminal justice agencies overseeing the
Department of Corrections (DOC) and the Department of Public
Safety (DPS). The role of tribal courts is growing, he opined,
in terms of providing justice and other services out in the
"local" areas. Last year two resolutions passed from this
committee with tribal attached to them and, he explained, the
purpose of HB 221 is to allow tribal court to take an additional
step under Alaska law to increase its duties. He extended that
he is a strong proponent of the tribal courts that the Alaska
State Constitution permits.
CHAIR LEDOUX asked what tribal courts in Alaska might be able to
issue the orders under this bill.
1:08:13 PM
TIMOTHY CLARK, Staff, Representative Bryce Edgmon, Alaska State
Legislature, answered that over the years tribes have
demonstrated strong institutions and capacity, including the
Tanana Chiefs Conference in the Interior, the Central Council
Tlingit & Haida Indian Tribes of Alaska in the Southeast, and
others in several locations around Alaska. He opined that the
Department of Law (DOL) has been in close contact with tribal
courts in recent years, and that DOL attorneys may add to his
response.
MR. CLARK offered that the bill relates to the removal of the
"Alaska Exemption" to The Violence Against Women Act of 1994
(VAWA), that was repealed in 2014 due a bill sponsored by
Senators Lisa Murkowski and then Senator Begich. He said it
brought attention to the state's obligation to enforce
protection orders from other jurisdictions including other
state, territorial, and tribal courts. Under Alaska statute,
law enforcement is only compelled to enforce a tribal, or other
states, protection order when that order has first been filed
with a clerk of an Alaska court. However, he noted, with Alaska
now subject to VAWA, the federal law supersedes state law and a
protection order issued by a foreign jurisdiction (other states,
territory, or tribal court) no longer must be registered in an
Alaskan court before enforcement. He advised that in July 2015,
Attorney General Craig Richards at the behest of Commissioner
Gary Folger, Department of Public Safety, issued an opinion on
this subject discussing the state now being subject to the
federal law. Within that opinion, Attorney General Richards
recommended in two places that the state reconcile its statutes
with the now prevailing federal law obligation. Essentially, he
explained, HB 221 follows the attorney general's recommendations
for compliance that is hoped to clarify the duties of state law
enforcement by removing these conflicts, and lowering the risk
of potential lawsuits. In addition, he stated, HB 221 adds a
presumption of validity on the part of law enforcement so they
are encouraged to enforce a protective order issued by another
jurisdiction so long as it appears authentic on its face. He
described that provision as an error on the side of caution and
that presumption of validity does exist in other states
addressing these matters. He continued that Legislative Legal
and Research Services agreed that in no location was it stated
very clearly or all in one place what defines other
jurisdictions. He pointed out that this bill clearly states
that the other jurisdictions include another state, territory,
United States Military Tribunals, and tribal courts.
MR. CLARK, in response to Chair LeDoux, answered that HB 221
does not include foreign judgements. He related that as
Attorney General Richards emphasized in his opinion, "it gives
officers access to tribal and foreign protection orders anywhere
in Alaska, even if the victim does not have a copy of the order
at hand." Therefore, he said, the state continues to encourage
people to file protection orders with a clerk of an Alaska court
who then sends it to a central registry.
1:15:13 PM
UNIDENTIFIED SPEAKER in audience.
1:16:22 PM
MR. CLARK, in response to Chair LeDoux, stated that he is
unaware of anyone from the general public planning to testify.
He offered that Representative Gruenberg direct his questions to
him as he may be able to provide an answer if the Department of
Law (DOL) is unavailable.
REPRESENTATIVE GRUENBERG said he would prefer an attorney.
1:17:46 PM
REPRESENTATIVE CLAMAN asked whether Mr. Clark had received
comments from any of the tribes or Native organizations.
MR. CLARK answer no.
REPRESENTATIVE CLAMAN questioned whether any comments had been
received from individuals objecting to this change.
MR. CLARK responded no.
1:18:29 PM
UNIDENTIFIED SPEAKER in audience.
1:20:00 PM
REPRESENTATIVE GRUENBERG noted that the attorney general
suggests that the legislature amend conflicting statutes to
bring Alaska into compliance with VAWA, as most legislatures
have done. He asked whether there is anything within that
statement the department wants to bring into compliance with
VAWA that is not contained in the bill.
MR. CLARK answered that months ago he provided this version of
the bill to DOL, who performed a thorough evaluation, and its
response was that it had no problem with the bill.
REPRESENTATIVE GRUENBERG asked John Skidmore or Mary Lundquist
whether there is anything the department now feels should, or
should not, be included in the bill.
1:21:11 PM
MARY LUNDQUIST, Senior Assistant Attorney General, Opinions,
Appeals & Ethics Section, Office of the Attorney General,
Department of Law (DOL), answered that she is unaware of
anything in VAWA that would require other changes to state
statute.
REPRESENTATIVE GRUENBERG asked whether there is anything in the
bill that should not be included.
MS. LUNDQUIST opined that there is nothing in the bill that
should not be included to bring Alaska into compliance with
VAWA.
1:22:15 PM
REPRESENTATIVE GRUENBERG asked that Ms. Lundquist provide a list
of tribal courts that could try cases subject to full faith and
credit under this bill.
MS. LUNDQUIST offered that the list of tribes able to issue
protective orders under this bill would be all federally
recognized tribes in the State of Alaska. She advised that a
new list on the federal register was issued and she could
provide the list to the committee, if so desired. She stated
there are 229 tribes in the State of Alaska and whether each of
those tribes issue protective orders, or not, is another
question because there are various degrees of sophistication
amongst the tribes.
REPRESENTATIVE GRUENBERG asked Ms. Lundquist to send the list of
229 tribes to the committee.
MS. LUNDQUIST agreed.
REPRESENTATIVE GRUENBERG asked whether DOL will receive, as
tribes assume this responsibility, an indication from individual
tribes that they are taking on this responsibility.
MS. LUNDQUIST opined that DOL will not be separately notified as
the tribes have been issuing protective orders for many years
and the state recognizes those orders. She said there will not
be any special notification provisions when a tribe decides to
issue protective orders, or even if it has issued a protective
order.
1:24:26 PM
REPRESENTATIVE GRUENBERG asked whether, currently, there is a
mechanism requiring tribes assuming this responsibility to
notify the State of Alaska so the state is aware in order to
assure this is not a fraud.
MS. LUNDQUIST replied that, currently, there is no mechanism by
which a tribe would notify the state that it is exercising its
authority to issue tribal protection orders. She offered that
the tribe would be issuing protective orders under its inherent
jurisdiction.
1:25:39 PM
CHAIR LEDOUX asked Representative Gruenberg where he is going
with this line of questions.
REPRESENTATIVE GRUENBERG said he is exploring whether there
should be some mechanism to require the tribes to notify that
they are undertaking this jurisdiction.
CHAIR LEDOUX asked whether this includes other tribes outside of
Alaska.
MR. CLARK answered "Yes it does."
CHAIR LEDOUX questioned whether, conceivably, there could even
be a mechanism for every tribe in the United States to notify
the State of Alaska that it might at some point in the future
issue protective orders.
MR. CLARK stated that such a requirement would be counter-
productive to the provision in the Violence Against Women Act
(VAWA) that is meant to stream-line the ability of tribes and
other jurisdictions to have its protection orders enforced. He
pointed out that HB 221 eliminates the current statute step of
the requirement that protective orders be filed in a state
court. The idea, he emphasized, is that an individual facing
danger from a person against whom they had a protective order
could receive more immediate law enforcement support.
1:28:11 PM
REPRESENTATIVE GRUENBERG said that other state courts have the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
and federally the Parental Kidnapping Prevention Act (PKPA). He
explained that normally a child must be in the State of Alaska
for six months before the court can entertain anything
concerning its jurisdiction, with an exception being an
emergency situation for the protection of the child. He asked
about the interplay between that body of state and federal law
and HB 221, because there is a narrow exception permitted of the
above-statutes. He expressed concern regarding someone bringing
a child into Alaska and moving into a tribal jurisdiction, and
thereby evading the normal requirements of the other state law.
1:29:52 PM
MS. LUNDQUIST advised that she is not intimately familiar with
UCCJEA or PKPA. She surmised that Representative Gruenberg's
concern was about taking a child into a jurisdiction in which a
tribe could issue a protective order. She advised that the
protective orders issued by tribes in Alaska "would be ... by
the tribe and whether it involved a tribal member that held a
subject matter jurisdiction of the tribe would be determined."
CHAIR LEDOUX reiterated to Representative Gruenberg that she
does not understand his line of questioning in that all HB 221
does is remove the requirement that the protective order be
filed [with a state court], and stressed that she does not see
how his questioning is germane to this particular bill.
REPRESENTATIVE GRUENBERG said that he wants to be sure that this
cannot be used as an "end run" over the other jurisdictional
requirements of the law.
CHAIR LEDOUX reiterated that she does not see how taking out the
word "filing" changes things.
1:31:53 PM
REPRESENTATIVE CLAMAN asked whether there is anything in federal
law requiring a tribe to register with the federal government or
provide notice that it has established a tribal court and the
tribal court is now issuing [protective] orders relating to the
Violence Against Women Act (VAWA).
MS. LUNDQUIST opined there is nothing in VAWA requiring a tribe
to give prior notice to the federal government that it will
exercise its inherent authority to issue protective orders.
Under VAWA, 18 USC 2265(e) which read as follows:
(e) Tribal Court Jurisdiction.-
For purposes of this section, a court of an Indian
tribe shall have full civil jurisdiction to issue and
enforce protection orders involving any person,
including the authority to enforce any orders through
civil contempt proceedings, to exclude violators from
Indian land, and to use other appropriate mechanisms,
in matters arising anywhere in the Indian country of
the Indian tribe (as defined in section 1151) or
otherwise within the authority of the Indian tribe.
MS. LUNDQUIST explained that the law recognizes broad
jurisdiction on behalf of the tribes to issue protective orders
in that tribes have full civil jurisdiction to issue and enforce
protective orders involving any person.
1:33:09 PM
REPRESENTATIVE CLAMAN surmised that the only requirement of a
tribe is to be federally recognized, and that there is a means
by which the federal government or U.S. Department of Interior
recognizes tribes. He further surmised that once a tribe is
federally recognized, the tribe has inherent power that it may,
or may not, exercise.
MS. LUNDQUIST answered that Representative Claman is correct in
that if the tribe is federally recognized it holds inherent
jurisdiction. She pointed out that the U.S. Supreme Court
federal case law recognizes tribal jurisdiction over tribal
lands and tribal members. In the event there was one person who
was a member of the tribe that was subject to the protective
order, she opined, the tribe would have inherent jurisdiction
over that.
REPRESENTATIVE CLAMAN pointed out that federal tribal
recognition doesn't require a tribe to give notice it is issuing
orders to the federal government. He questioned whether there
would be a conflict between a state law requiring such notice
and federal law that doesn't.
MS. LUNDQUIST opined that it would be somewhat inconsistent to
require prior notice by the tribe, and noted that it runs
counter to the intent of VAWA to remove restraints on issuance
of tribal protection orders, and even foreign orders in having
those foreign orders recognized in other states.
1:35:11 PM
REPRESENTATIVE GRUENBERG said that this uses the term
"protective order" loosely. Under AS 18, Alaska Domestic
Violence and Sexual Assault orders are specifically defined and
opined that six months can be extended to 12 months. He stated
he does not see anything here that is similarly definitional as
to what a tribal protection order is, and that he could
conceivably see a system where a protective order could be
permanent. He asked what is there that defines what a tribal
order might be.
1:36:04 PM
JOHN SKIDMORE, Division Director, Legal Services Section,
Criminal Division, Department of Law (DOL), explained the answer
to the question is found within VAWA where it defines a
protective order and it contemplates the precise notion
Representative Gruenberg asked about. He said there could be a
permanent and lifetime protective order, and with regard to what
the protective order says, the law controlling it is the
jurisdiction issuing it. For example, he offered, should the
State of Washington have a lifetime protective order it would be
in existence for that person's lifetime. The way it works in
Alaska, he explained, is that Alaska is the enforcing state and
Alaska looks at whether there is a crime on its books for a
violation of that order and the answer is yes. He noted that
Alaska does not care what Washington says about the length of
the protective order, Alaska enforces it as Washington says that
it is a valid order. However, Alaska does analyze whether
"that" is a crime in Alaska. He referred back to the question
regarding custody, and advised that Alaska does not have
violations of protective orders based on child custody, which
are the other two federal acts Representative Gruenberg referred
to. He explained that Alaska is only interested in contact,
threats, or whether or not a person has weapons because those
are the violations of protective orders Alaska enforces -
nothing to do with child custody.
REPRESENTATIVE GRUENBERG surmised that the only portions of the
protective order Alaska enforces are injunctive and not
custodial.
MR. SKIDMORE answered yes, under Alaska criminal law the state
enforces the injunctive. He then pointed out that the custodial
is enforced under Alaska law, but [custodial] is not an enforced
criminal charge as enforcing a protective order. He said there
are other statutes Alaska looks at for child custody, but those
are not the statutes implicated by the charge of violating a
protective order.
1:38:47 PM
REPRESENTATIVE GRUENBERG asked whether HB 221 will limit it to
criminal enforcement or also govern civil enforcement.
MR. SKIDMORE responded that both types of enforcement would be
available.
REPRESENTATIVE GRUENBERG said his question is related to civil
enforcement.
1:39:33 PM
MS. LINDQUIST replied that she is in the civil division of the
Attorney General's office, and asked to have the question
repeated.
REPRESENTATIVE GRUENBERG stated his question, from a civil
custodial point of view in seeking a civil enforcement of a
domestic violence protective order enforced in a tribal court.
He offered a scenario of the State of Idaho issuing a five year
protective order adjudicating custody of the child that remains
on the books and effective for five years. In that Alaska's
order is normally six to 12 months, he asked whether HB 221
would require the Alaska court, tribal or otherwise, to extend
that child custody protective order for the period of Idaho's
five years rather than Alaska's six to twelve months.
1:41:52 PM
MS. LUNDQUIST advised she is not familiar with child custody
laws and does not know the answer to that question.
CHAIR LEDOUX asked whether Representative Gruenberg's question
goes to this bill or simply to current law. She stressed that
the discussion in this committee should only relate to the
changes to the law promulgated in this specific bill and not to
general questions with respect to the law of restraining orders,
protective orders, etcetera. She asked Ms. Lundquist or Mr.
Skidmore to answer the question.
MS. LUNDQUIST responded that VAWA has preempted certain
provisions of state law and HB 221 is designed to bring state
law into conformance with VAWA. She agreed with Chair LeDoux
that the questions regarding any interplay between child custody
orders and protective orders are a bit astray. She advised that
if there is a conflict, it currently exists and this bill won't
have any effect on that.
CHAIR LEDOUX, in response to Representative Gruenberg's request
to continue, asked whether his follow up question relates to the
changes in the law from this bill.
1:44:09 PM
REPRESENTATIVE GRUENBERG referred to page 4, lines 16-17, which
read as follows:
(1) issued by a court of the United States,
a court of another state or territory, a United States
military tribune, or a tribal court;
REPRESENTATIVE GRUENBERG said it discusses the petition filed in
divorce or dissolution statutes under AS 25.24.200, which is not
particularly dealing with state custody under Title 47, or
criminal law under Title 11. He said, "It changes that the
dissolution statute must consider a protective order filed in
another jurisdiction and recognized in this state." He
explained that it has to be recognized and that it draws in
these jurisdictional issues, and it is the same in Sec. 9. He
further explained that with his line of questioning he would
like to ascertain the effect this has in the adjudication of
dissolution cases. It very definitely is civil and these are
private custody disputes, he said.
REPRESENTATIVE GRUENBERG opined that the 7/30/15 letter from
Attorney General Craig Richards to Commissioner Gary Folger is
at the heart of what the committee is discussing. He then asked
about the "Alaska Exemption" and whether it was from federal
law.
1:47:10 PM
MR. CLARK advised that the Alaska Exemption is an exemption from
Chapter 2265 of the Violence Against Women Act (VAWA). He
explained that it removes the requirement that a protection
order from another jurisdiction is no longer required to be
filed in Alaska state court in order to be enforced.
REPRESENTATIVE GRUENBERG surmised that the exemption existed and
then it was done away with the exemption to require it to be
filed.
1:48:00 PM
MR. CLARK explained that it is just the opposite. He said that
by doing away with the Alaska Exemption from Chapter 2265 of the
Violence Against Women Act, Alaska can no longer require that a
protection order from another jurisdiction is filed with a state
court clerk before state law enforcement is compelled to enforce
that protection order.
1:48:35 PM
CHAIR LEDOUX commented that this line of questioning is totally
beyond the discussion of this bill.
REPRESENTATIVE GRUENBERG referred to Mr. Clark's comment that it
only applies to other states and not to foreign custody orders,
such as Canada. He asked where it is so limiting that the
orders this relates to are only domestic foreign orders.
MR. CLARK advised that Attorney General Richards and he have
been using "foreign jurisdictions" as a term of art, and not
being an attorney he may be in error.
CHAIR LEDOUX expressed that his question seems to apply to the
entirety of the statute, and HB 221 is simply eliminating the
phrase "filed." She stressed that the statute currently exists
and further stressed that he limit his questions to the changes
made by eliminating the requirement for the filing of the
protective order.
REPRESENTATIVE GRUENBERG responded that he understands, and
asked where it says this only applies to protective orders from
another state or territory of the United States, and wouldn't
apply to a foreign order from Morocco.
1:50:47 PM
MR. SKIDMORE pointed out that the language is located in Section
2 of HB 221, page 2, lines 2-4, which read:
(c) In this section, "protective order"
means an order issued, [OR] filed, or recognized under
AS 13.26.207 - 13.26.209, AS 18.65.850 - 18.65.870, or
AS 18.66.100 - 18.66.180.
MR. SKIDMORE advised that the Alaska Statutes discuss only
protective orders filed within the United States and not from a
foreign county.
CHAIR LEDOUX opened public testimony and after ascertaining no
one wished to testify, closed public testimony.
1:52:09 PM
The committee took a brief at ease.
1:53:00 PM
REPRESENTATIVE GRUENBERG referred to AS 13.26.207 - 13.26.209
and commented that he did not see anything that "limits it like
that" and wanted it on the record. He commented that he has no
reason to dispute Mr. Skidmore, but he could not find it at this
point.
CHAIR LEDOUX reiterated that HB 221 is only changing the
requirement of filing. She opined that Representative Gruenberg
was interested in a discussion regarding the whole idea of who
honors protective orders, from which jurisdictions, and when,
which does not relate to the subject of this particular bill.
CHAIR LEDOUX advised that HB 221 would be held in committee.
REPRESENTATIVE GRUENBERG noted his question is that the intent
of the bill ...
CHAIR LEDOUX reiterated that the bill is held in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 221 - Sponsor Statement.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |
| HB 221 - Sectional Summary.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |
| HB 221 - Version W.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |
| HB 221 - Supporting Documents - VAWA Enforcement AG Opinion 7.30.15.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |
| HB 221 - Supporting Documents - USCODE Title 18 Chapter 2265.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |
| HB 221 - Fiscal Note - DPS-CDVSA-01-23-16.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |
| HB 221 - Fiscal Note - LAW-CRIM-01-23-16.pdf |
HJUD 1/29/2016 1:00:00 PM |
HB 221 |