Legislature(1995 - 1996)
04/22/1995 11:12 AM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 22, 1995
11:12 a.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Con Bunde
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Joe Green, Vice Chairman
Representative Bettye Davis
COMMITTEE CALENDAR
HB 255: "An Act creating the crime of negligent vehicular
homicide."
PASSED OUT OF COMMITTEE
SSSB 27: "An Act relating to child visitation rights of
grandparents and other persons who are not the
parents of the child."
PASSED OUT OF COMMITTEE
CSSB 85(JUD) am: "An Act making corrective amendments to the
Alaska Statutes as recommended by the revisor of
statutes; and providing for an effective date."
PASSED OUT OF COMMITTEE
SB 7: "An Act relating to bail after conviction for
various felonies if the defendant has certain
previous felony convictions."
PASSED OUT OF COMMITTEE
HB 293: "An Act relating to the use of force in defense
of persons or property."
HEARD AND HELD
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
State Capitol, Room 409
Juneau, AK 99801-1182
Telephone: (907) 465-3878
POSITION STATEMENT: Sponsor of HB 255
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided information on HB 255 and SB 7
JAMES ARMSTRONG, Senate Researcher
to Senator Dave Donley
Alaska State Legislature
State Capitol, Room 11
Juneau, AK 99801-1182
Telephone: (907) 465-3892
POSITION STATEMENT: Introduced SSSB 27
SHERRIE GOLL
P.O. Box 22156
Juneau, AK 99801
Telephone: (907) 463-6744
POSITION STATEMENT: Testified in favor of SSSB 27 on behalf of
Lauree Hugonin, Executive Director, Alaska
Network on Domestic Violence and Sexual
Assault
MARLIS SCHMID, Grandparent
2513 Glenwood
Anchorage, AK 99508
Telephone: (907) 276-3787
POSITION STATEMENT: Testified in favor of SSSB 27
PAMELA FINLEY, Assistant Revisor
Legal Services Division
Legislative Affairs Agency
130 Seward Street, Room 409
Juneau, AK 99801
Telephone: (907) 465-2450
POSITION STATEMENT: Provided information on CSSB 85
BRUCE RICHARDS, Administrative Assistant
to Senator Judith E. Salo
Alaska State Legislature
State Capitol, Room 504
Juneau, AK 99801-1182
Telephone: (907) 465-4940
POSITION STATEMENT: Sponsored SB 7
JANE ANDREAN, Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Provided information on SB 7
LAURIE OTTO, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Opposed HB 293
DEL SMITH, Deputy Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Opposed HB 293
SENATOR DAVE DONLEY
Alaska State Legislature
State Capitol, Room 11
Juneau, AK 99801-1182
Telephone: (907) 465-3892
POSITION STATEMENT: Sponsor of SSSB 27
PREVIOUS ACTION
BILL: HB 255
SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE
SPONSOR(S): REPRESENTATIVE(S) OGAN, Kohring, Bunde
JRN-DATE JRN-PG ACTION
03/15/95 742 (H) READ THE FIRST TIME - REFERRAL(S)
03/15/95 742 (H) JUDICIARY, FINANCE
04/05/95 1039 (H) COSPONSOR(S): KOHRING, BUNDE
04/12/95 (H) JUD AT 01:00 PM CAPITOL 120
04/12/95 (H) MINUTE(JUD)
04/21/95 (H) JUD AT 01:00 PM CAPITOL 120
04/21/95 (H) MINUTE(JUD)
04/22/95 (H) JUD AT 11:00 AM CAPITOL 120
BILL: SB 27
SHORT TITLE: MISC. GRANDPARENT VISITATION RIGHTS
SPONSOR(S): SENATOR(S) DONLEY, Ellis, Lincoln, Pearce;
REPRESENTATIVE(S) Willis Robinson, Toohey, Ogan, Rokeberg, James
JRN-DATE JRN-PG ACTION
01/13/95 21 (S) PREFILE RELEASED - 1/13/95
01/16/95 21 (S) READ THE FIRST TIME - REFERRAL(S)
01/16/95 21 (S) HES, JUD
02/02/95 146 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
02/02/95 146 (S) HES, JUD
03/01/95 436 (S) HES RPT 3DP 2NR
03/01/95 436 (S) ZERO FISCAL NOTE (COURT)
03/01/95 (S) HES AT 09:00 AM BUTROVICH ROOM 205
03/01/95 (S) MINUTE(HES)
03/15/95 (S) JUD AT 02:30 PM BELTZ ROOM 211
03/17/95 (S) JUD AT 03:00 PM BELTZ ROOM 211
03/17/95 (S) MINUTE(JUD)
03/20/95 696 (S) JUD RPT 4DP 1NR
03/20/95 696 (S) PREVIOUS ZERO FN (COURT)
03/22/95 (S) RLS AT 12:30 PM FAHRENKAMP ROOM 203
03/22/95 (S) MINUTE(RLS)
03/23/95 766 (S) RULES TO CALENDAR 3/23/95
03/23/95 768 (S) READ THE SECOND TIME
03/23/95 768 (S) ADVANCED TO THIRD READING UNAN CONSENT
03/23/95 768 (S) READ THE THIRD TIME SSSB 27
03/23/95 768 (S) COSPONSOR: PEARCE
03/23/95 768 (S) PASSED Y18 N- E2
03/23/95 772 (S) TRANSMITTED TO (H)
03/24/95 879 (H) READ THE FIRST TIME - REFERRAL(S)
03/24/95 879 (H) HES, JUDICIARY
03/24/95 920 (H) CROSS SPONSOR(S): WILLIS, ROBINSON
04/04/95 (H) HES AT 02:00 PM CAPITOL 106
04/04/95 (H) MINUTE(HES)
04/05/95 1022 (H) HES RPT 4DP
04/05/95 1022 (H) DP: BUNDE, TOOHEY, VEZEY, BRICE
04/05/95 1022 (H) SENATE ZERO FN (COURT) 3/1/95
04/10/95 1228 (H) COSPONSOR(S): TOOHEY
04/21/95 (H) JUD AT 01:00 PM CAPITOL 120
04/21/95 (H) MINUTE(JUD)
04/22/95 (H) JUD AT 11:00 AM CAPITOL 120
BILL: SB 85
SHORT TITLE: 1995 REVISOR BILL
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL
JRN-DATE JRN-PG ACTION
02/14/95 269 (S) READ THE FIRST TIME - REFERRAL(S)
02/14/95 269 (S) STA, JUD
02/14/95 269 (S) SECTIONAL ANALYSIS - (S) JOURNAL
SUPP #3
03/07/95 (S) STA AT 03:30 PM BELTZ ROOM 211
03/07/95 (S) MINUTE(STA)
03/08/95 536 (S) STA RPT CS 3DP SAME TITLE
03/08/95 536 (S) ZERO FISCAL NOTE (LAA/ALL DEPTS)
03/17/95 (S) JUD AT 03:00 PM BELTZ ROOM 211
03/17/95 (S) MINUTE(JUD)
03/22/95 (S) MINUTE(JUD)
03/23/95 764 (S) JUD RPT CS 5DP SAME TITLE
03/23/95 765 (S) PREVIOUS ZERO FN (LAA)
03/27/95 (S) RLS AT 11:35 AM FAHRENKAMP ROOM 203
03/27/95 (S) MINUTE(RLS)
03/30/95 845 (S) RULES TO CALENDAR 3/30/05
03/30/95 847 (S) READ THE SECOND TIME
03/30/95 848 (S) JUD CS ADOPTED UNAN CONSENT
03/30/95 848 (S) AM NO 1 ADOPTED UNAN CONSENT
03/30/95 848 (S) THIRD READING 4/5 CALENDAR
04/05/95 875 (S) READ THE THIRD TIME CSSB 85(JUD) AM
04/05/95 875 (S) PASSED Y17 N1 E2
04/05/95 875 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
04/05/95 879 (S) TRANSMITTED TO (H)
04/06/95 1046 (H) READ THE FIRST TIME - REFERRAL(S)
04/06/95 1046 (H) JUDICIARY
04/21/95 (H) JUD AT 01:00 PM CAPITOL 120
04/22/95 (H) JUD AT 11:00 AM CAPITOL 120
BILL: SB 7
SHORT TITLE: NO BAIL FOR FELONS W/PREVIOUS CONVICTIONS
SPONSOR(S): SENATOR(S) SALO, Halford, Green, Taylor, Miller, Leman,
Kelly, Donley, R.Phillips, Pearce; REPRESENTATIVE(S) Navarre
JRN-DATE JRN-PG ACTION
01/06/95 14 (S) PREFILE RELEASED - 1/6/95
01/16/95 14 (S) READ THE FIRST TIME - REFERRAL(S)
01/16/95 14 (S) STA,JUD, FIN
01/23/95 73 (S) STA REFERRAL WAIVED
03/08/95 (S) JUD AT 01:30 PM BELTZ ROOM 211
03/08/95 (S) MINUTE(JUD)
03/09/95 553 (S) JUD RPT 4DP 1NR
03/09/95 553 (S) ZERO FISCAL NOTES (ADM, DPS-2,
03/23/95 (S) FIN AT 09:00 AM SENATE FINANCE 532
03/23/95 (S) MINUTE(FIN)
03/24/95 553 (S) LAW, CORR)
03/23/95 764 (S) FIN RPT 5DP 2NR
03/23/95 764 (S) PREVIOUS ZERO FNS (ADM, DPS-2,
03/24/95 764 (S) LAW, CORR)
03/27/95 (S) RLS AT 11:35 AM FAHRENKAMP ROOM 203
03/27/95 (S) MINUTE(RLS)
03/30/95 845 (S) RULES TO CALENDAR 3/30/95
03/30/95 847 (S) READ THE SECOND TIME
03/30/95 847 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/30/95 847 (S) COSPONSOR(S): HALFORD, GREEN,
TAYLOR, MILLER, LEMAN, KELLY,
DONLEY, PHILLIPS, PEARCE
03/30/95 847 (S) READ THE THIRD TIME SB 7
03/30/95 847 (S) PASSED Y20 N-
03/30/95 850 (S) TRANSMITTED TO (H)
04/05/95 1014 (H) READ THE FIRST TIME - REFERRAL(S)
04/05/95 1015 (H) JUDICIARY, FINANCE
04/05/95 1040 (H) CROSS SPONSOR(S): NAVARRE
04/21/95 (H) JUD AT 01:00 PM CAPITOL 120
04/21/95 (H) MINUTE(JUD)
BILL: HB 293
SHORT TITLE: USE OF FORCE DEFENDING PERSON OR PROPERTY
SPONSOR(S): REPRESENTATIVE(S) VEZEY
JRN-DATE JRN-PG ACTION
04/05/95 1026 (H) READ THE FIRST TIME - REFERRAL(S)
04/05/95 1026 (H) JUDICIARY
04/21/95 (H) JUD AT 01:00 PM CAPITOL 120
04/21/95 (H) MINUTE(JUD)
ACTION NARRATIVE
TAPE 95-49, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 11:12
a.m. on Saturday, April 22, 1995. A quorum was present.
Representatives Green and Davis were absent. All other members
were present. CHAIRMAN BRIAN PORTER stated that the following
bills would be heard: HB 255, SSSB 27, CSSB 85(JUD) am, SB 7, and
HB 293.
HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE
REPRESENTATIVE SCOTT OGAN, bill sponsor, explained that he had
worked out a compromise with the Department of Law. The title also
needs to be amended, for the record. We are not creating the crime
of criminally negligent homicide, but Margot Knuth can adequately
address the change. The writer of the committee substitute (CS)
missed that one. The Department of Law took a look at the statutes
surrounding deaths involving automobiles and indicated they would
like criminally negligent homicide upgraded from a class C to a
class B felony. To address our concerns about the possibility of
the act we were trying to create before being included in a lesser
included offense, we settled for adding negligent driving to a type
of conviction that would mean grounds for revocation of a driver's
license. The charges brought against the driver who killed the
Campbell and Richardson boys was negligent driving. The judge did
not have the latitude to revoke the license. This would not
compromise in any way, the criminally negligent homicide
convictions and we feel this CS is an acceptable alternative.
There is a zero fiscal note attached.
Number 080
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, explained that this bill now does two different
things. The first is to raise criminally negligent homicide from
a class C to a class B felony, and the reason for that is that last
time we were discussing this bill we were talking about lesser
included offenses. Criminally negligent homicide is a lesser
included offense of manslaughter, which is a class A felony. The
Department of Law has long felt that the gap between the A felony
of manslaughter and the C felony of criminally negligent homicide
is too great, and they ought to be right next to each other. In
situations that were the motivation for this bill, if alcohol were
involved, or if the conduct was more culpable, it would constitute
this offense, and a class B felony is appropriate in that instance.
MS. KNUTH explained that the second thing this CS does is to amend
AS 21.15.181 so that driving privileges may be revoked in the
discretion of the court for the offense violation of negligent
driving. This is done by simply adding it to the list in AS
28.15.181. There is no mandatory minimum period of revocation. It
would be within the judge's discretion. In those instances where
it does not seem appropriate at all, it will not happen; but in
aggravated circumstances it will become an available option. There
are two minor problems with the work draft. One was eluded to
already, the title. Instead of an act creating the crime of
criminally negligent homicide, it probably should read, "An Act
raising the penalty for the crime of criminally negligent
homicide." The second matter is that there is a statute that says
you cannot revoke driving privileges for violations. That is AS
28.40.050(D). What is appropriate to do, is to add "except as
provided in AS 28.15.181."
REPRESENTATIVE CYNTHIA TOOHEY asked if they could make that a
friendly amendment which would do as Ms. Knuth described.
CHAIRMAN PORTER said they could do so.
REPRESENTATIVE DAVID FINKELSTEIN referred to the second page where
it refers to negligent driving and asked what would be the affect
if you said, "negligent driving resulting in serious bodily
injury?" This would be trying to get back to what the original
intent of the bill was.
MS. KNUTH had a concern about adding those words. She said that
would be an additional burden of what needs to be established in
the case. She did not feel the discretion was likely to be abused
in these cases.
REPRESENTATIVE TOOHEY also believed it would read more clearly if
we added, "resulted in physical injury."
MS. KNUTH said if we did that, it would put us back into a lesser
included offense situation which we would rather not do.
REPRESENTATIVE AL VEZEY wanted to know what the difference was
between reckless and negligent driving.
MS. KNUTH answered that the criminal code gives you definitions for
those. The distinction has to do with the level of disregard.
Recklessness is usually a gross disregard, and negligence is a
simple disregard. Reckless driving is a misdemeanor. Negligent
driving is a violation. In terms of seriousness, recklessness is
above negligence.
REPRESENTATIVE CON BUNDE moved to adopt the CS for HB 255, version
C. Hearing no objection, the CSHB 255(JUD) was adopted. He then
made a motion to adopt Amendment Number 1, which would change the
title to, "An Act raising the penalties for the crime of negligent
vehicular homicide." Hearing no objection, it was so ordered.
REPRESENTATIVE BUNDE moved Amendment Number 2 be adopted which
would create a Section 3 that would read, after "AS 28.40.050(d),"
"except as provided in AS 28.15.181(a). Hearing no objection,
Amendment Number 2 was adopted.
REPRESENTATIVE BUNDE made a motion to move CSHB 255(JUD) out of
committee with individual recommendations and attached fiscal
notes. Hearing no objection, it was so ordered.
Number 400
SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS
JAMES ARMSTRONG, Senate Researcher to Senator Dave Donley, bill
sponsor, gave the sponsor statement for SSSB 27. SSSB 27 would
give grandparents the legal status to petition the court for
visitation rights with their grandchildren. Under existing law,
the court can grant an order that provides for visitation by
grandparents in divorce and separation proceedings in cases where
one or both of the parents have died. Grandparents themselves are
not allowed to initiate such an action. SSSB 27 would give
grandparents this standing to ask for those visitation rights if
they were not initially provided for by the court. SSSB 27 does
not require that visitation rights be given. It is completely up
to the discretion of the judge, with the best interests of the
child being the primary factor for granting such rights.
REPRESENTATIVE CYNTHIA TOOHEY said she had been contacted by Lauree
Hugonin from Alaska Network on Domestic Violence and Sexual
Assault, and her concern was that the judge is not going to be
filled in on all information pertaining to violence committed by
the parents. The judge would possibly be granting these visitation
rights without having the knowledge. That was a concern raised,
but Representative Toohey did not believe that to be true. She
believed that in determining the best interests of the child, the
court should consider all relevant factors. She felt the bill was
fine.
MR. ARMSTRONG said that the terms for the best interests of the
child is laid out in AS 25.24.150, Section (c)(9), which also lists
other factors that the court finds pertinent. The judge does not
have to grant the privilege.
SHERRIE GOLL, read the position paper written by Lauree Hugonin,
Executive Director of Alaska Network on Domestic Violence and
Sexual Assault, into the record:
"The Network supports the ability of grandparents or other
relatives to keep healthy, established, ongoing relationships with
children. We support the goal of allowing grandparents and others
to petition for visitation. We do have a concern for children's
safety when the perpetrator of domestic violence has access to the
child during grandparent visitation. Often in domestic violence
situations, the parents of the perpetrator, the grandparents, and
other family members provide opportunities for him to see the
children while the children are with them. This happens in many
cases even when the judge has ruled that the perpetrator is not to
have custody of or visitation with the children. Sometimes this
access allows the perpetrator to get the children, take them away
from their grandparents, and use them against the victim.
"The grandparents can also be at risk if the perpetrator perceives
them as colluding with the victim or with the court system. Many
people, judges included, perceive domestic violence as a private
matter between the perpetrator and the victim. Domestic violence
impacts the children and the extended family members as well, and
can put them all in danger.
"The Network's concern applies to the first section of the bill
where it says the court shall provide for visitation if it is in
the best interests of the child. In determining the best interests
of the child for custody, the court uses a list of criteria found
in AS 25.24.150(c). Item 7 states that in determining the best
interests of the child, the court shall consider any evidence of
domestic violence, child abuse, or child neglect in the proposed
custodial household, or history of violence between the parents.
"The Network believes in determining the best interests of the
child for visitation, the court should give heightened judicial
scrutiny to AS 25.24.150 (c)(7). Heightened scrutiny of this
particular item will add a layer of protection for children and
cause judges to carefully explore the potential for further danger
to the child."
MS. GOLL explained that the Network is concerned that this bill is
saying that the court SHALL, unless they can find that to do so
would not be in the best interests of the child. She is suggesting
that in cases where in the original custody decision, the court has
had to refer to AS 25.24.150(c)(7), because domestic violence or
child abuse was an issue in the original custody decision. Then
when grandparents or other persons are petitioning for visitation,
the court needs to add heightened scrutiny to the case, based on
the actual problems that people have while other people have had
visitation with the children and allow the person who is not
permitted to have visitation with the children to have access to
the children in that way.
REPRESENTATIVE TOOHEY asked if this had been discussed with Senator
Donley.
MS. GOLL answered that yes, as James inferred, Lauree did have an
opportunity to speak to James and to the senator, and the senator
did not agree with the logic of this, but she still wished the
committee to understand her concerns.
REPRESENTATIVE TOOHEY Ms. Goll if she did not believe the words "in
the best interests of the child" would be sufficient.
MS. GOLL answered that no, she did not. When changes were made to
divorce and dissolution laws several years ago, one of the things
that was introduced into dissolutions was the concept of heightened
scrutiny. Custody and divorce cases take up a lot of court time.
The court could place some parameters on the visitation rights in
order to protect the child better in situations where domestic
violence or child abuse has been an issue in the original custody
decision.
CHAIRMAN PORTER asked Ms. Goll if what she was saying is that on
page 1, she would suggest that they add something to the effect,
"In determining the best interests of the child, the court shall
consider all relevant factors including those factors enumerated in
AS 25.24.150(c) with heightened scrutiny of (c)(7)."
MS. GOLL answered that was the basic concept. She would have it
say, "If in the custody decision, Item (c)(7) was an issue, then
the court would give heightened scrutiny to this determination
about the other person's visitation."
Number 550
CHAIRMAN PORTER said they could consider that when looking at
amendments.
MARLIS SCHMID, testified via teleconference. She is the
grandmother of two children, ages eight and ten. The children want
to see her but are not allowed since the stepfather is in the life
of her daughter. The stepfather adopted the children a year after
her daughter married him, and that she can prove was fraud. The
children's father has always been in contact with the children on
her telephone. She had raised these children and had them 70
percent of the time, because her daughter was working. The
children's father called her number, since the telephone was hung
up on him if her daughter was home, by her (at that time)
boyfriend. Her daughter went to court, claiming that the father
had no contact with the children. She asked her daughter at that
time, "Tanya, how can you say that? You know this is not true."
She said she did not want to hear about it. The father had always
been in contact with the children, but her daughter did not want to
hear about it. That is how the stepfather was allowed to adopt the
children. She could not locate the father at the time before the
adoption was final. She is being punished now. It has been two
years in June since she has been allowed to see her grandchildren.
The father always stayed in touch with his children. He wanted to
see them. She kept her mouth shut. He came up from Oregon and she
took the children to Soldotna to spend a week with their father,
and she was there too. When she brought the children home,
(indisc.) her own daughter came to her house and beat the heck out
of her. Ever since then, she is being punished not to see the
children. She has had the children overnight once. She is not
even allowed to have phone contact. She feels that the children
are being verbally abused by their stepfather. They hear her voice
on the record-a-phone, but are not allowed to pick up the phone and
talk to her. He laughs at them instead, and says, "Ha Ha, what are
you going to do about it?" This kind of abuse is constant. She
told them to tell her mother, and they say they do, but she tells
them she does not want to hear about it. Her court order has been
temporarily denied, and she cannot see her grandchildren. Her
contact with them is limited to the telephone. She does not know
what to do anymore, and hopes the Legislature can help her. Her
grandchildren need to see her, she raised them and they know they
are her number one.
Number 665
CHAIRMAN PORTER thought if this bill were passed into law, she
would have the opportunity, not a guarantee, to visit her
grandchildren. If they are now out of state, that would probably
further complicate it, but, this bill certainly would not hurt.
He then asked Mr. Armstrong about Section 1, which seems to set up
a standard of "in the best interests". Section 2 adds that the
grandparent has established or attempted to established ongoing
personal contact, and "in the best interests."
MR. ARMSTRONG stated that currently the judge has the authority to
put a qualifier on it, in Section 9, where it says, "This parent
has committed domestic violence or assault." The judge can look at
other pertinent information, other factors.
REPRESENTATIVE CON BUNDE assumed a judge would be wise enough to
look at the whole record before determining what is in the best
interests of the child.
CHAIRMAN PORTER asked about Section (b) on page 2, which adds to
the proceedings that a grandparent may petition to join the
adoption. Are you assuming the standards are going to be the same
for the judge's determination during that proceeding as they were
in the divorce proceedings?
MR. ARMSTRONG answered that it sort of gives a general provision in
other states and judging by the way section (2) was explained to
him, Chairman Porter's assumption would be correct. Section 3 adds
dissolutions.
CHAIRMAN PORTER said he would like to ask the Senator about the
adoption hearing, which is a new addition, but the Senator had to
step out. He asked Mr. Armstrong if the established standards for
a judge's decision in grandparent rights for divorces and custody
hearings attach to adoption procedures?
MR. ARMSTRONG answered that it seems to read that way, but he could
not say for sure.
Number 740
CHAIRMAN PORTER said that Subsection (b) is the one that adds the
ability to intercede in an adoption procedure, and his concern is
that unless we specifically mention it, that the standards to be
used by the court to establish the best interests of the child, are
not necessarily there.
REPRESENTATIVE FINKELSTEIN understood Subsection (b) as just a
limitation, not adding anything additional, but just to say that
you cannot go and petition if you have already tried to request the
court to do it previously, you cannot go and do it again, unless
there has been a change in circumstances.
CHAIRMAN PORTER clarified that Section 1 deals only with custody
determinations. Is an adoption a custody determination?
REPRESENTATIVE CON BUNDE said indeed it talks about relating to
child custody and relating to adoption. That lead him to believe
that they are two separate things.
MR. ARMSTRONG said that in AS 25.24.150, is your concern as to
whether there is a "best interests of the child" clause?
CHAIRMAN PORTER answered yes.
MR. ARMSTRONG assured him that AS 24.25.150 contains the whole list
of what the judge should look at in determining the "best interests
of the child."
CHAIRMAN PORTER'S concern was that those were separated by an "or."
That is the problem. He stated the committee would set this aside,
and ask the Senator about that, and then come back to SSSB 27
before the meeting ends.
MR. ARMSTRONG agreed to do that.
CHAIRMAN PORTER noted that the language in Section 1 allows a
grandparent or other person to intercede. He wondered what was
implied by the other person, but this "other person" language does
not follow into the other section. Is that intentional?
MR. ARMSTRONG asked if he was referring to Section 2.
CHAIRMAN PORTER answered yes. Getting back to the concern about
domestic violence situations, he did not feel it would be offensive
to the bill to add that language.
REPRESENTATIVE CYNTHIA TOOHEY did not think so either.
CHAIRMAN PORTER suggested on line 9, after AS 25.24.150 (c) that an
amendment could be made to eliminate the period and add "with
heightened scrutiny of (c)(7) if appropriate."
MR. ARMSTRONG noted that he did have an amendment that addresses
those concerns.
CHAIRMAN PORTER asked Mr. Armstrong to first go get the answers to
those two questions, and then the committee could deal with the
amendment when Mr. Armstrong returned.
Number 800
SB 85 - 1995 REVISOR BILL
PAMELA FINLEY, Assistant Revisor, Legal Services Division,
Legislative Affairs Agency, explained that SB 85 is of very little
of importance to anybody, but it does clean up the statute to deal
with a few errors they have caught. She did not want to go through
it section by section since it is so boring, but was happy to
answer questions.
REPRESENTATIVE TOOHEY asked if there was a fiscal note.
MS. FINLEY believed there was not, or it was zero.
REPRESENTATIVE FINKELSTEIN asked if there would be anyone in the
House to answer questions when it comes up on the floor. He would
like to bring something up there.
MS. FINLEY said she could certainly be there on the House floor, as
she was for the Senate.
REPRESENTATIVE FINKELSTEIN made a motion to move the revisor bill,
CSSB 85(JUD) am, out of committee with individual recommendations
and the zero fiscal note. Seeing no objection, it was so ordered.
Number 830
SB 7 - NO BAIL FOR FELONS W/ PREVIOUS CONVICTIONS
BRUCE RICHARDS, Administrative Assistant to Senator Judith E. Salo,
bill sponsor, introduced SB 7. This bill says that if you are
convicted of a class B or class C felony, and prior to this
conviction you have been convicted of an unclassified or class A
felony, stalking in the first degree, sexual assault in the second
or third degree, or sexual abuse of a minor in the second and third
degree, you will not be eligible for bail. Included in your
packets is information about a man who was convicted in 1993 of a
felony drug charge. He had a previous record, and a very long
sentence. He had been convicted of three rapes, several grand
theft auto charges, concealed weapon assaults, and upon conviction
of this felony drug charge, was released on bail for $5,000.
TAPE 95-49, SIDE B
Number 000
MR. RICHARDS continued. He said Senator Salo felt that since this
man had already been convicted, he should have been held in jail.
Many times a judge will not let these types of people out of jail,
but she felt that once was one too many times. That is why we have
this bill before you.
JANE ANDREAN, Director, Council on Domestic Violence and Sexual
Assault, Department of Public Safety, supported the bill. What
they really like to look back at is prior convictions for class B
and C in sexual assault, child sexual abuse, and stalking cases.
This bill will do two things. It will protect future victims, as
well as send a very clear statement that these types of crimes are
not okay.
REPRESENTATIVE BUNDE asked Ms. Knuth if the Department of Law would
have concerns about unequal protection.
MS. KNUTH answered that no, not in that regard, considering that we
already deny bail upon conviction for class A and unclassified
felony offenses, this is simply extending it for a person who has
a prior class A or unclassified felony offense, even if they are
now before the court, being convicted of a class B or class C
felony offense.
REPRESENTATIVE TOOHEY asked where the sexual predator law would fit
into this.
MS. KNUTH answered that we do not have the sexual predator law yet.
We do have the stalking offense, but sexual predator has not
passed.
REPRESENTATIVE TOOHEY asked if it is floating around in our system
somewhere.
MS. KNUTH answered that Representative Parnell has introduced it
and not moved on it this session. She expected we would see it
next session.
REPRESENTATIVE BUNDE made a motion to move SB 7 out of committee
with individual recommendations and fiscal notes as attached.
Hearing no objection, SB 7 moved.
Number 200
HB 293 - USE OF FORCE DEFENDING PERSON OR PROPERTY
REPRESENTATIVE VEZEY, bill sponsor, introduced HB 293. It is
intended to change a tendency we are seeing in the direction the
law is going. It has been a premise in this country for many
years, that a person's home is their castle, and that a person has
the right to feel safe and secure in their home. There have been
an increasing number of court decisions which have limited a home
owner, or a rightful occupant of a home the right to protect
themselves in their home, to the point where in some court rulings,
you virtually have to avoid confrontation if it is at all possible,
which puts an extreme burden of proof on the rightful occupant of
a home, if they are facing an intruder. It is the intent of this
bill to clarify that a person has a right to defend themselves,
their family and their home. The burden of proof in this would
shift to the intruder having to prove that the use of force or
deadly force was just not justified. We do not have a Supreme
Court decision in the State of Alaska that is contrary to this. We
have had a lower court ruling that was contrary to that. In many
states, we are seeing the law evolve more toward the rightful
occupant having to avoid the use of force if it is at all possible.
This puts a tremendous burden of proof upon the rightful occupant
of a home. He felt the burden of proof ought to be on the person
who is not rightfully there. He felt the rightful occupant of a
home should have the right to exceed the right of the intruder who
is violating the law.
REPRESENTATIVE FINKELSTEIN was not real familiar with the current
rules we operate under, and would like the Department to explain
those. What is an example of a particular circumstance that is not
covered under existing law?
REPRESENTATIVE VEZEY did not feel this legislation to be contrary
to any decisions that have come down from the Supreme Court. It is
contrary to some appeals court decisions, which establishes that
force has to be avoided if at all possible.
REPRESENTATIVE FINKELSTEIN asked for a hypothetical example where
someone would now be possibly subject to prosecution for shooting
an intruder, that this change would make it so that they would not
be subject to prosecution.
REPRESENTATIVE VEZEY said if you look at the sponsor statement,
there are a number of nationwide cases that are cited. There was
a case a court of appeals decision in the State of Alaska called
Van Ha v. the State of Alaska, Alaska Court of Appeals, Op. No.
1400, March 31, 1995. In that case, the opinion stated that a
defendant claiming self defense in justification for the use of
force, must prove that he/she acted to avoid use of force. What
this bill would do is to say that a rightful owner of a home would
no longer have to prove anything. It would be up to the intruder
to prove that the rightful occupant of the home was not justified
in their actions.
REPRESENTATIVE FINKELSTEIN was trying to recall the case where a
Japanese student got shot because it was Halloween.
REPRESENTATIVE VEZEY believed that case occurred in the State of
Louisiana.
CHAIRMAN PORTER did not believe the victim was inside the home.
REPRESENTATIVE FINKELSTEIN remembered that they were on the
doorstep, on the property, and they were shot because the person
believed they were a danger but did not have a weapon, and this
would take the burden and switch it from the home owner to the
student, in this case.
REPRESENTATIVE VEZEY said he could not give a hypothetical answer
in that case, because those decisions were made by a jury. This
bill requires an unlawful entry, so he did not feel that fact
situation would be covered by this bill.
CHAIRMAN PORTER said this bill requires unlawful entry, so he did
not think that fact situation would be covered by this bill. We
have someone from the Department of Law and also Public Safety to
testify.
LAURIE OTTO, Assistant Attorney General, Criminal Division,
Department of Law, spoke in opposition to the bill. It would be
very difficult to overstate their opposition to this bill, and in
listening to the sponsor she felt that the bill goes far beyond
what she hears the sponsor describing as his intent. The sponsor
talked about what sounded to her like civil actions against the
owner by a person who was shot by the owner or the family of the
person who was shot by the owner. This bill applies in criminal
prosecutions as well. The information the sponsor has been given,
both about the Van Ha case, and about the burden of proof, is
incorrect.
Ms. OTTO described what occurred in the Van Ha case. It was a
Dillingham case involving two Vietnamese fishermen. The guy who
ended up getting killed went over to the house of the person who
was eventually prosecuted. They were drinking together and got
into a fight and the person who was killed beat up the person who
ended up being the defendant, and then left. The defendant started
thinking about this and thinking it was not right, and thinking
that this guy should not have been able to beat him up, and
thinking about threats that he had made to him. So the next day,
the defendant got a shotgun and started stalking the person who had
beat him up, tracked him down, shot him nine times in the back.
This was many many hours after the altercation that started him
thinking about killing the person. What the court said had nothing
to do with being in the house or killing somebody in the home, or
the burden of proof. The ruling in that case, said you cannot
claim self defense when there is no eminent threat of harm. That
is not something that would be changed in this bill, it is
something that is inherent in the definition of force in our
statutes, which requires that there be an eminent threat of harm.
That case does not have anything to do with somebody being able to
use self defense in their home. She felt if somebody told
Representative Vezey that, he was given misinformation.
MS. OTTO said this does not just address when you can use deadly
force in the house. It talks about all of the circumstances under
which you can use deadly force. She gave an example to make her
point. Her great great grandfather was a sheriff at the height of
the silver mining boom on the California Nevada border and ended up
dying in the line of duty, and so in her family, they have a lot of
stories about the code of the west, and how people were supposed to
behave. She admitted her personal favorite author is Louis Lamour,
but one of the things that was true of the code of the West was
that if somebody threatens to hit you or punches you in the nose,
and they are not armed, you cannot kill them. In the code of the
West you do not kill an unarmed man. This bill, if you look at
lines 8 through 13, right now under current law, you can use deadly
force if you reasonably believe that the use of force is necessary
to prevent any one of a number of serious crimes. What you see on
line 9 is that this expands it to say that you can use deadly force
against the threat of assault in any degree or any crime in AS
11.41. Section 3 is the section of the current statute that spells
out when you have a duty to retreat. Under current law, if you are
in your home, there is no duty to retreat, but under current law,
if you are in a public place, and you can retreat with complete
safety to yourself and to everybody else, you cannot use deadly
force. Under this bill, as a result of these proposed changes, if
you were standing outside of a police station with the doors
unlocked where you could go in at any time and somebody walked up
and said, "I am going to punch you in the nose," this would be
fourth degree assault which provides that by words or other
conduct, one places somebody in fear of physical injury, you can
kill them. If somebody commits the crime of custodial
interference, which is a crime against a person under 11.41, in
other words, you have a divorced couple and the wife keeps the kids
two hours past when she is supposed to turn them over to her
husband, under a joint custody agreement, and he goes over to her
house and says he wants the kids back and she says, "Let them
finish watching Sesame Street," he can kill her. If you have a
batterer situation, whoever is being battered can kill the other
person. This is an invitation to legitimate, legal, justifiable
homicide, in a vast array of circumstances that she just does not
believe from reading the sponsor statement or from listening to the
sponsor is what he intended.
MS. OTTO went through the sections of the bill that directly deal
with when you can use force in a dwelling. She gave another
example of a circumstance where it would be perfectly legitimate to
kill somebody under this bill. If a husband and a wife were
married for ten years and they own the house together, they lived
in it together and she got a domestic violence injunction against
him, and he decided he wanted to get back in and get his clothing
and waited until he saw her going to the store, and went in the
house, and she came back, she could kill him. The reason she
started by talking about Louis Lamour and the code of the West, and
all that, is because in our society, once we organized into cities,
and once we organized into states and into communities, what we did
is design a set of laws to resolve disputes, and hire police
officers to intervene to help solve disputes, and hire district
attorneys so what we would not have is people just killing each
other all the time because one of the things they found in the old
west is that people got caught in the crossfire very frequently.
If you make it legal to use guns, under a wide array of
circumstances, she guaranteed there would be innocent bystanders
being killed on a regular basis.
MS. OTTO closed by talking about the burden of proof which very
much concerned the sponsor. In criminal cases, once somebody
raises the defense of self defense by even the most minimal amount
of evidence, the state has the burden of proving beyond reasonable
doubt that it was not self defense. In the sponsor statement the
Paul case was cited. That was a case in which the court ruled that
even if the judge does not believe that there was self defense, if
the defendant raises it, he has to inspect the jury on self defense
and the prosecutor has to bear the burden of proving that it was
not self defense, and the prosecutor has to bear the burden of
proving beyond a reasonable doubt that it was not self defense.
She thought the burden of proof is in fact, not on the home owner
in criminal cases. That is not the case in civil cases, and
perhaps the sponsor's concern then is that the case related by
Representative Finkelstein and some of the other cases around the
country, from what she can see, are civil cases, where someone got
shot, or their families and there was a lawsuit. Perhaps the way
to address the issues is to try to do something in the civil arena,
but in the criminal context, the Department is very, very opposed
to this bill.
REPRESENTATIVE BUNDE said he is very sympathetic to what
Representative Vezey is trying to achieve. He has to agree that
the Van Ha case, which he followed very closely because he knew
some people on the jury and we discussed it only after it was over,
he was not sure that was a good example, but on the other hand he
has been in situations where he has been told by law enforcement
officials, and he has been in situations where he has anticipated
having to defend the lives of family and property, mostly family,
and he said if you have to shoot someone, and they fall outside of
the house, run outside and pull them in, and you better make sure
that they are dead. Now that puts the burden of proof on the
aggrieved person. Maybe it is the civil thing that needs to be
addressed, but how do we protect people who are protecting
themselves?
MS. OTTO thinks the law does protect people that are protecting
themselves. Because there is such intense interest in homicide
cases on the part of both the community and family members, people
tend to run them by her before they decline prosecution, and we do
regularly decline prosecution on what would otherwise be homicide
cases, because somebody is claiming self defense. As a result, it
is the state's burden of proving that something was not self
defense. Her feeling is that we do not have a problem in Alaska.
Nobody has ever identified a case to her in which we did have a
problem, or prosecuted somebody inappropriately. Our criminal law
strikes a fair balance between the rights of the homeowner and the
rights of society.
REPRESENTATIVE BUNDE said he did not think the law enforcement
officials that he has talked to would agree with her.
MS. OTTO said she has actually heard those comments. The comments
she has heard are tied to people being afraid of being sued, and
not afraid of being prosecuted.
Number 600
DEL SMITH, Deputy Commissioner, Department of Public Safety, spoke
in opposition to HB 293. It seems to go far beyond what he hears
the sponsor intending in a home to the extent that there are any
number of misdemeanors, including assault that Ms. Otto referred to
that would allow the use of deadly force, we are opposed to opening
that up. A person claiming self defense and defending themselves
against an arrest that they perceived, does concern hi, because
there are circumstances where you could use non-deadly force to try
to prevent an arrest, but this might open Pandora's box and allow
deadly force. He would be concerned about that, though he has not
done enough research to determine that exactly. He is not as
eloquent as Ms. Otto was in this, but does oppose the bill as
written, for the reasons stated.
MR. SMITH added that he tried to arrange for the Anchorage Police
Department to testify but the witness slipped out of his grasp. He
had also indicated that they were opposed to this bill as currently
written. He agreed with the sponsor relative to the home, but he
feels that is adequately covered. In response to the comment about
dragging the body inside, he really does believe that probably
refers to a civil case, and making sure someone is dead so that
they cannot sue. He is not exactly sure that is absolute
professional advice, it may be frustration sometimes on the part of
an officer who might state that, but he certainly understands it.
REPRESENTATIVE BUNDE clarified that was not given to him on the
record and as official advice.
CHAIRMAN PORTER closed the public hearing on HB 293.
REPRESENTATIVE VEZEY said this is the only committee hearing in the
House, and is of course, the most appropriate committee. It is not
his intention to rush this through. He did spend a respectable
amount of time researching it and it is not intended to be a shell
of a potential statute, but he does recognize there could be other
facts that could be entering into this, and he asked if there could
be a subcommittee assigned to the bill.
CHAIRMAN PORTER said he would not be opposed to that idea, and
asked Representative Bunde and Representative Finkelstein if they
would be willing to look at it, with the sponsor most likely being
the chairman of the subcommittee. They agreed to do so.
Number 650
SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS (CONTINUED)
CHAIRMAN PORTER held the bill for subcommittee referral. He then
announced that they would continue the hearing on SSSB 27.
SENATOR DAVE DONLEY, bill sponsor, came forward to address the
committee's concerns. He understood there was a concern as to why
the bill mentions other persons in the text, but not in the
following section. The simple answer to that is because all
through the statutes, other persons, as well as grandparents, can,
not petition, but at the court's alone choice be granted visitation
rights. But this bill does not give other persons the right to
petition, it only gives grandparents the right to petition. While
we only give grandparents the right to petition, every where we
talk about what the court decides to do, we have to include other
persons because the court already has the authority to give that to
other persons, as well as grandparents.
CHAIRMAN PORTER said the next question dealt with page 2, lines 6
and 7, where it seemed to be bringing in the ability to petition to
be included in the hearing of an adoption for the first time, on
page 2, line 7. The standards in the previous section, "the
grandparent has established or attempted to establish ongoing
contact." He asked Senator Donley if it was his interpretation
that these standards would apply to this adoption.
SENATOR DONLEY answered that it would only be "in the best
interests of the child." That is the standard the judge should
always use in order to grant the petition. We do not change that
standard anywhere, that is real consistent in existing law. All
this bill does is allow the grandparents the standing to ask for
that for the first time. This is the same thing we have in every
other state in the United States, it is just standing to ask. This
bill does not affect the standard that the judge uses to determine
whether he is going to grant that request from them.
CHAIRMAN PORTER said his only concern is that it does not
specifically say that is the standard when it deals with the
adoption as it is stated in (b). 'After decree or final order
relating to child custody is entered under those two statutes,"
then "OR relating to an adoption under AS 25.23, a grandparent may
petition, only if," and then these are two other considerations.
He understood that we want the ability to exclude that in an
adoption if they have already petitioned and been denied at the
original custody hearing.
SENATOR DONLEY stated his staff had pointed out that in the
adoption statutes, AS 25.23.125, it has a description of the
interests of the minor to be adopted, and subsection (c) says the
court may issue a protective order or other order that is in the
best interests of the minor who is to be adopted. So clearly, the
court could, if it was in the best interests of the minor, decline
to allow visitation, or in fact issue an order to prevent
visitation. He said his staff had prepared an amendment in case
additional language was requested. His personal opinion was that
it was just not needed. It is really doing something that is not
addressed by this bill. It is really adding something that is very
much a stand alone concern, because clearly, all that amendment
does is create a new heightened scrutiny for the issue of potential
dangers to the children from relatives, and that is clearly already
provided for in the things the judge is supposed to look at in
determining visitation, and would be or not be relevant with or
without this bill because there are a lot of other people other
than grandparents, and once again this does not change anything as
far as the judge giving these visitation rights, or the standard
the judge uses, it only says that grandparents may ask. He did not
believe the amendment to be necessary, but if the committee feels
this is something they really want to do, we went ahead and had the
language prepared just to expedite the process.
REPRESENTATIVE TOOHEY stated it was very clear to her that it is
attributed to the grandparents' son or daughter, so you are
flagging the possibility that the parents of a child who are
accused of child abuse are going to come to the grandparents' house
and abuse the child. It is not going to do anything except make it
one step closer to safety for the child, and she would hate to be
on the hot seat, saying that we did not do this, and this child was
abused. She felt the amendment language would be the best way to
go. She made a motion to adopt Amendment Number 1, which is as
follows:
Page 2, after line 13:
Insert a new subsection to read:
"(c) When determining whether to grant rights of visitation
between a grandparent and grandchild under this section, AS
25.20.060, or AS 25.24, and when determining the terms and
conditions to be attached to a right of grandparent visitation, the
court shall consider whether there is a history of child abuse or
domestic violence attributable to the grandparent's son or daughter
who is a parent of the grandchild."
Hearing no objection, the amendment was adopted.
Number 730
REPRESENTATIVE TOOHEY made a motion to move HCS SSSB 27(JUD) out of
committee with Amendment Number 1, individual recommendations and
zero fiscal notes as attached. Hearing no objection, it was so
ordered.
ADJOURNMENT
The House Judiciary Committee Adjourned at 12:30 p.m.
| Document Name | Date/Time | Subjects |
|---|