Legislature(2003 - 2004)
04/07/2004 08:09 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 308-DOMESTIC VIOLENCE PROTECTIVE ORDERS
SENATOR HOLLIS FRENCH, sponsor of SB 308, told members that he
reviewed the Rules of Professional Conduct in response to the
question of whether attorneys are or might encourage divorce
clients to run to court to get a restraining order against
their spouses. The rules state that a lawyer shall not counsel
or assist a client to engage in conduct that the lawyer knows
is criminal or fraudulent. Therefore, an attorney would be
risking his or her professional license if he or she engaged
in such activity.
SENATOR THERRIAULT asked how he would seek a remedy if he
suspected his wife's divorce attorney was recommending she get
a restraining order against him.
SENATOR FRENCH said he would file a complaint with the Alaska
Bar Association.
SENATOR THERRIAULT asked if he would have to hire an attorney
to do so.
SENATOR FRENCH said he would not have to but would probably be
better off doing so. He noted the Alaska Bar Association
prosecutes the complaints in-house. The bar collects
information from the complainant, asks the attorney for a
statement, looks into the matter and makes a decision.
CHAIR SEEKINS commented that domestic violence complaints seem
to show up very quickly in ugly divorces, especially with
young people. While it may be against the rules of
professional conduct for an attorney to encourage a client to
get a restraining order for bogus reasons, it might be
difficult to prove the attorney's motives. He added that
sometimes a spouse is even baited into an argument so that the
other spouse can get a restraining order. He said he would
lean toward giving the court discretion to determine what is
going on. He stated, "It just seems to me that any order that
would automatically be effective for one year may be leaning
outside of the discretion of the court. I don't have any
problem with the court saying that they have a leeway - they
can make that effective for six months to 12 months, rather
than making it one or the other."
SENATOR FRENCH offered the following amendment [Amendment 1]
to page 1, lines 13 and 14, to read:
(2) (c)(2)-(16) of this section are effective for a
minimum of six months or up to one year unless
earlier dissolved by court order.
CHAIR SEEKINS responded that makes him feel better because in
talking to some people off the record, they would prefer to
have some discretion rather than a fixed limit.
SENATOR FRENCH amended his amendment to change the word "or"
to "and" so that it reads "a minimum of six months and up to
one year...".
SENATOR THERRIAULT questioned the reason for the change.
SENATOR FRENCH withdrew the amendment to Amendment 1.
CHAIR SEEKINS announced that without objection, Amendment 1
was adopted.
SENATOR OGAN offered Amendment 2, which reads as follows:
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR OGAN
TO: SB 308
Page 1, line 1, following "Act":
Insert "relating to warnings on domestic violence forms
and"
Page 1, following line 14:
Insert a new bill section to read:
"* Sec. 2. AS 18.66.150 is amended by adding a new
subsection to read:
(e) Forms and instructions for petitions and
requests to modify petitions must contain a conspicuous
warning that the petitions and requests are submitted
under oath under penalty of perjury and that a person
making a false statement may be prosecuted for perjury
and, if found guilty, may be punished for violation of a
felony."
CHAIR SEEKINS objected for the purpose of hearing an
explanation.
SENATOR OGAN explained that Amendment 2 changes the title and
adds a new section that simply says that forms, instructions,
petitions, and requests to modify petitions must contain a
conspicuous warning, for the purpose of informing people that
if they make a false statement, they could be charged with
perjury and, if found guilty, could be punished for a felony.
He maintained that Amendment 2 would put people on notice so
that if they plan to manipulate the system by making a false
statement to gain an advantage, they are committing perjury.
SENATOR FRENCH believed that petition statements are sworn to
now so Amendment 2 would comport with the way the statements
are currently made and the penalty for false statements. He
was unsure whether protective order statements are given under
oath.
CHAIR SEEKINS said the key word in Amendment 2 is
"conspicuous" because the notice would have to stand out and
be easily noticed.
SENATOR OGAN affirmed that is his intent.
SENATOR THERRIAULT clarified that the [protective order] form
is signed before a notary.
CHAIR SEEKINS said the notary is notarizing the signature, not
the statement.
SENATOR THERRIAULT noted the petitioner swears or affirms
under penalty of perjury. He asked whether the font would be
made larger and/or bolder.
CHAIR SEEKINS said he doesn't read it to say the person could
be punished for the violation of a felony. He pointed out that
most conspicuous statements are required to be in larger,
bolder or a different font type that is easily recognizable.
SENATOR THERRIAULT said if the effect of Amendment 2 is to
flesh that statement out and make it bolder, he sees no
problem with it.
SENATOR OGAN affirmed that is his intent.
CHAIR SEEKINS removed his objection and, with no further
objection, Amendment 2 was adopted.
SENATOR OGAN moved to adopt Amendment 3, which reads as
follows:
A M E N D M E N T 3
OFFERED IN THE SENATE BY SENATOR OGAN
TO: SB 308
Page 1, line 1, following "Act":
Insert "relating to warnings on domestic violence and
stalking forms and"
Page 1, following line 3:
Insert a new bill section to read:
"* Section. 1. AS 18.65.865(b) is amended to read:
(b) The Alaska Court System shall prepare forms for
petitions and protective orders and instructions for
their use by a person seeking a protective order under
AS 18.65.850 - 18.65.860. The forms must conform to the
Alaska Rules of Civil Procedure, except that information
on the forms may be filled in by legible handwriting.
Filing fees may not be charged in any action seeking only
the relief provided in AS 18.65.850 - 18.65.870. Each
protective order form must contain the following warning
in boldface type: "Violation of this order may be a
misdemeanor, punishable by up to one year of
incarceration and a fine of up to $5,000." Forms and
instructions for petitions and requests to modify
petitions must contain a conspicuous warning that the
petitions and requests are submitted under oath under
penalty of perjury and that a person making a false
statement may be prosecuted for perjury and, if found
guilty, may be punished for violation of a felony."
Page 1, line 4:
Delete "Section 1"
Insert "Sec. 2"
Page 1, following line 14:
Insert a new bill section to read:
"* Sec. 3. AS 18.66.150 is amended by adding a new
subsection to read:
(e) Forms and instructions for petitions and
requests to modify petitions must contain a conspicuous
warning that the petitions and requests are submitted
under oath under penalty of perjury and that a person
making a false statement may be prosecuted for perjury
and, if found guilty, may be punished for violation of a
felony."
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR OGAN explained that Amendment 3 would add the same
conspicuous warning onto domestic violence stalking forms.
There being no discussion, CHAIR SEEKINS removed his
objection. With no further objection, Amendment 3 was adopted.
SENATOR THERRIAULT asked if the intent of the committee is
that any existing forms be thrown out on the effective date of
this bill or to allow existing forms to be used up.
SENATOR OGAN said to save state resources and trees, he would
not object to using up the existing forms within a reasonable
time but not to print new forms without the conspicuous
notice.
SENATOR THERRIAULT thought it would lower the fiscal note to
make the change when the next group of forms is printed.
No member objected.
SENATOR OGAN offered to draft a letter of intent from the
committee to address on the Senate floor.
CHAIR SEEKINS noted he would indicate the letter of intent is
the will of the committee.
There being no further discussion, SENATOR OGAN moved CSSB
308(JUD) from committee with individual recommendations and
attached fiscal notes.
CHAIR SEEKINS announced that with no objection, the motion
carried.
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