Legislature(1995 - 1996)

04/19/1996 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       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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