02/23/1998 01:07 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 23, 1998
1:07 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 272
"An Act to permit a court to order a defendant who receives a
sentence of imprisonment for a misdemeanor to serve the sentence by
electronic monitoring; and relating to the crime of unlawful
evasion."
- RESCINDED ACTION OF 2/18/98; MOVED CSHB 272(JUD) OUT OF
COMMITTEE
* HOUSE JOINT RESOLUTION NO. 57
Relating to an amendment to the Constitution of the United States
prohibiting federal courts from ordering a state or a political
subdivision of a state to increase or impose taxes.
- MOVED HJR 57 OUT OF COMMITTEE
HOUSE BILL NO. 335
"An Act replacing the Uniform Child Custody Jurisdiction Act with
the Uniform Child Custody Jurisdiction and Enforcement Act; and
amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule
205, Alaska Rules of Appellate Procedure."
- MOVED HB 335 OUT OF COMMITTEE
HOUSE BILL NO. 87
"An Act relating to fines and bail forfeiture amounts for certain
offenses committed within highway work zones."
- MOVED HB 87 OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HB 272
SHORT TITLE: DO JAIL TIME BY ELECTRONIC MONITORING
SPONSOR(S): REPRESENTATIVES(S) GREEN
Jrn-Date Jrn-Page Action
05/06/97 1553 (H) READ THE FIRST TIME - REFERRAL(S)
05/06/97 1553 (H) JUDICIARY
01/21/98 (H) JUD AT 1:00 PM CAPITOL 120
01/21/98 (H) MINUTE(JUD)
01/26/98 (H) JUD AT 1:00 PM CAPITOL 120
01/26/98 (H) MINUTE(JUD)
02/18/98 (H) JUD AT 1:00 PM CAPITOL 120
02/18/98 (H) MINUTE(JUD)
BILL: HJR 57
SHORT TITLE: AMEND US CONSTIT. TO LIMIT FED. COURTS
SPONSOR(S): REPRESENTATIVES(S) GREEN
Jrn-Date Jrn-Page Action
02/12/98 2306 (H) READ THE FIRST TIME - REFERRAL(S)
02/12/98 2306 (H) JUDICIARY
02/23/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 335
SHORT TITLE: UNIFORM INTERSTATE CHILD CUSTODY ACT
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
Jrn-Date Jrn-Page Action
01/20/98 2090 (H) READ THE FIRST TIME - REFERRAL(S)
01/20/98 2090 (H) HES, JUDICIARY
01/29/98 (H) HES AT 3:00 PM CAPITOL 106
01/29/98 (H) MINUTE(HES)
02/05/98 (H) HES AT 3:00 PM CAPITOL 106
02/05/98 (H) MINUTE(HES)
02/06/98 2234 (H) HES RPT 6DP 1DNP
02/06/98 2234 (H) DP: DYSON, GREEN, BUNDE, PORTER,
02/06/98 2234 (H) KEMPLEN, BRICE; DNP: VEZEY
02/06/98 2234 (H) ZERO FISCAL NOTE (LAW)
02/06/98 2234 (H) REFERRED TO JUD
02/23/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 87
SHORT TITLE: TRAFFIC OFFENSES IN HIGHWAY WORK ZONES
SPONSOR(S): REPRESENTATIVES(S) ELTON, Sanders
Jrn-Date Jrn-Page Action
01/24/97 137 (H) READ THE FIRST TIME - REFERRAL(S)
01/24/97 137 (H) TRA, JUDICIARY, FINANCE
04/25/97 (H) TRA AT 1:00 PM CAPITOL 17
04/25/97 (H) MINUTE(TRA)
04/28/97 1364 (H) TRA RPT 5DP
04/28/97 1364 (H) DP: ELTON, KOOKESH, SANDERS, COWDERY,
04/28/97 1364 (H) HUDSON
04/28/97 1364 (H) ZERO FISCAL NOTE (DOT)
04/28/97 1364 (H) REFERRED TO JUDICIARY
01/30/98 2189 (H) COSPONSOR(S): SANDERS
02/09/98 (H) JUD AT 1:00 PM CAPITOL 120
02/09/98 (H) MINUTE(JUD)
02/23/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
POSITION STATEMENT: Testified on behalf of sponsor of HB 272.
JEFFREY LOGAN, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-6841
POSITION STATEMENT: Presented HJR 57 on behalf of sponsor.
PATRICIA SWENSON, Legislative Assistant
to Representative Con Bunde
Alaska State Legislature
Capitol Building, Room 106
Juneau, Alaska 99801
Telephone: (907) 465-6824
POSITION STATEMENT: Answered questions on HB 335.
DEBORAH BEHR, Assistant Attorney General
Legislation and Regulations Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Answered questions on HB 335.
REPRESENTATIVE KIM ELTON
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
Telephone: (907) 465-4947
POSITION STATEMENT: Sponsor of HB 87.
ACTION NARRATIVE
TAPE 98-23, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:07 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and Rokeberg.
Representatives Croft, James and Berkowitz arrived at 1:08 p.m.,
1:12 p.m. and 1:35 p.m., respectively.
HB 272 - DO JAIL TIME BY ELECTRONIC MONITORING
Number 0039
CHAIRMAN GREEN announced the first item of business would be a
revisit of HB 272, "An Act to permit a court to order a defendant
who receives a sentence of imprisonment for a misdemeanor to serve
the sentence by electronic monitoring; and relating to the crime of
unlawful evasion." The committee had moved CSHB 272(JUD) out of
committee on February 18, 1998.
CHAIRMAN GREEN referred to the written conceptual amendment
provided by the Department of Law on February 18, 1998, which
replaced subsection (c) and which was adopted as Amendment 1 on
that date. Chairman Green explained that the conceptual amendment
had a problem with it; after modifying it, they had checked with
Anne Carpeneti, who had agreed on the wording relating to relieving
the person from imprisonment, which is not really a release if the
person goes on electronic monitoring. Chairman Green said if it
was the committee's wish, they could rescind the action on that
amendment and offer a new amendment to take its place.
REPRESENTATIVE ERIC CROFT asked whether they could muck with it a
little.
CHAIRMAN GREEN said yes.
Number 0132
REPRESENTATIVE CROFT made a motion to rescind the committee's
action of February 18, 1998, which moved CSHB 272(JUD) from the
House Judiciary Standing Committee. There being no objection, the
bill was back before the committee.
REPRESENTATIVE BRIAN PORTER made a motion to rescind adoption of
the previously discussed amendment [Amendment 1] that replaced
subsection (c) in the latter part of the bill.
CHAIRMAN GREEN noted that there being no objection to either
motion, those actions were rescinded.
Number 0198
REPRESENTATIVE CON BUNDE made a motion to adopt Amendment B.1 [0-LS0821\B.1, Lu
Page 3, lines 21 - 24:
Delete all material and insert:
"(c) A decision by the commissioner to designate a
prisoner to serve a term of imprisonment or a period of
temporary confinement, or a part of the term or period, by
electronic monitoring does not create a liberty interest in
that status for the prisoner. The prisoner may be returned to
a correctional facility at the discretion of the
commissioner."
REPRESENTATIVE CROFT objected to discuss what he said is a small
point but one he'd like to stay consistent on. He stated, "And it
was Representative Porter's point, where it says, 'electronic
monitoring does not create a liberty interest.' I think he was
correct when he said, 'is not intended to create.' And we really
aren't in the business of telling them. We're telling them what
we're trying to do."
REPRESENTATIVE PORTER said he would second that.
Number 0243
CHAIRMAN GREEN indicated they need to decide which position to
take, whether to actually tell the court or allow the court to
determine whether this does create a liberty interest; there are
two schools of thought on it. He said it was good that
Representative Croft had brought that up.
REPRESENTATIVE CROFT asked whether Ms. Carpeneti was present, then
noted that she was not.
CHAIRMAN GREEN asked Kevin Jardell to address it.
Number 0274
KEVIN JARDELL, Legislative Administrative Assistant to
Representative Joe Green, Alaska State Legislature, advised members
that he had spoken with Legislative Legal Services and with Ms.
Carpeneti. He said although he wasn't speaking for Ms. Carpeneti,
he believes it was the general consensus that "does not create a
liberty interest" is stronger language and would not invite the
court to jump in as quickly and play around with whether or not it
does create a liberty interest.
REPRESENTATIVE CROFT said it seems more accurate the way
Representative Porter had said it, but it is not a big point.
MR. JARDELL explained that the idea is that whether the legislature
says it or intends it, the court will decide whether there is a
liberty interest or not. By stating it as "we intend," the weak
language may somehow cause the court to jump on it more quickly.
Number 0368
REPRESENTATIVE PORTER stated that he doesn't intend to take this to
the wall, either, then said, "But quite frankly, I would like to
see, eventually, the courts get back to making decisions based on
an interpretation of the law, and us getting back to writing laws
and not trying to write a constitution."
REPRESENTATIVE PORTER said he is inviting the notion that the
legislature recognizes that the court interprets the constitution,
by saying it is the legislature's intent that this not create a
liberty interest, but a liberty interest is a constitutional
provision. He asked, "If we criticize them for what we call
writing laws, why shouldn't we return the favor and allow them to
criticize us for interpreting the constitution?"
MR. JARDELL replied that there is certainly something to be said
for that. He stated, "In fact, it was my understanding, after
speaking with both Law and Legal that it was Corrections that
wanted this stated, that even the statement that it creates a
liberty interest is -- it's either there or it's not. The whole
statement is somewhat superfluous, when you really get down to the
legal dynamics of it."
Number 0530
REPRESENTATIVE CROFT removed his objection to Amendment B.1.
CHAIRMAN GREEN asked whether there was any further objection.
Hearing none, he announced that Amendment B.1 was adopted.
Number 0555
CHAIRMAN GREEN brought up Amendment B.2 [0-LS0821\B.2, Luckhaupt,
2/20/98], which read:
Page 3, following line 24:
Insert a new subsection to read:
"(d) The commissioner may require a prisoner designated
to serve a term of imprisonment or a period of temporary
confinement by electronic monitoring to pay all or a portion
of the costs of the electronic monitoring."
CHAIRMAN GREEN explained that this would merely provide funding and
has been used nationwide, apparently quite effectively. The
process suggested "to this committee that's been reviewing this"
was apparently the most popular: One hour of the person's normal
salary would be designated. While indigents could not pay, others
of greater means would pay more.
CHAIRMAN GREEN indicated the actual cost per person is somewhere
around $5 or $6 per day. The concept with Amendment B.2 is to
leave the commissioner or the department to determine however they
want to fund it, but that they fund it, rather than creating an
additional burden to the general fund. "Wherever it's been used,
it's been quite successful," he added.
Number 0638
REPRESENTATIVE BUNDE made a motion to adopt Amendment B.2.
REPRESENTATIVE CROFT indicated that materials provided by the
sponsor suggest that sometimes rich defendants pay more than the
cost, to make up for the poor defendants. He asked whether this is
limited to the costs.
CHAIRMAN GREEN replied that they are saying they will let the
department determine what they want to do.
REPRESENTATIVE CROFT asked whether it could be twice the cost.
CHAIRMAN GREEN replied, "Twice? I don't know about that."
REPRESENTATIVE PORTER said he interprets it to say they can pay all
or a portion of the costs of the electronic monitoring program.
CHAIRMAN GREEN agreed.
REPRESENTATIVE CROFT asked whether the cost, then, was not for each
particular person.
Number 0716
CHAIRMAN GREEN confirmed that. He then asked whether there was
further discussion or any objection. There being no objection,
Amendment B.2 was adopted.
Number 0727
REPRESENTATIVE BUNDE made a motion to move CSHB 272(JUD), as
amended, from committee with the attached fiscal notes.
CHAIRMAN GREEN asked whether there was any objection. There being
none, CSHB 272(JUD) moved from the House Judiciary Standing
Committee.
HJR 57 - AMEND US CONSTIT. TO LIMIT FED. COURTS
Number 0757
CHAIRMAN GREEN announced the next item of business would be HJR 57,
relating to an amendment to the Constitution of the United States
prohibiting federal courts from ordering a state or a political
subdivision of a state to increase or impose taxes. As sponsor,
Chairman Green called on Jeff Logan to present the resolution.
Number 0776
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, explained that HJR 57 requests Congress
to prepare and present to the legislatures of all states an
amendment to the Constitution of the United States that would
prohibit a federal court from ordering a state, or a political
subdivision of a state, from increasing or imposing taxes. This is
a nationwide effort in response to a 1990 U.S. Supreme Court
decision, Missouri v. Jenkins, which upheld the right of a federal
district court to order a $1.95 property tax increase in Kansas
City, Missouri; that tax increase was upheld despite the fact that
the Missouri state constitution says that local property taxes may
not be raised without a vote of the citizens.
MR. LOGAN stated, "This similar language in this resolution first
passed the Missouri legislature. It has since passed in 12
legislatures, and I have the names of those if anyone is
interested. ... They need 22 more states to meet the 34-state
threshold for Congress to act. This language was passed by the
Nineteenth Alaska Legislature, in the form of HJR 30. We've been
asked to do it again, to keep it current. I can tell you ... that
this is also being considered in New Hampshire, Arizona, Wyoming,
Utah, Georgia, Mississippi, Kentucky, Maryland, Indiana, Hawaii,
Oklahoma, Illinois, Rhode Island, Florida and Montana."
Number 0910
REPRESENTATIVE CROFT asked whether these requests to Congress run
out. For example, if the 34th state came on-line in 50 years,
would this go into effect?
MR. LOGAN replied that the opinion of Legislative Legal Services is
that there is no time limit. He added, "Congress could always say,
in 50 years, that the first two or ten or twenty were stale, but
there is nothing from the courts, or from Congress, to say that
there is a time limit. On the other side, once Congress does
submit something to the states, the last time, with the equal
rights amendment, they put a ten-year time limit on it." He said
that is still an open question.
REPRESENTATIVE CROFT asked where Congress had put the ten-year time
limit.
MR. LOGAN replied, "Congress did that when they submitted the equal
rights amendment to the states, for approval by the states."
REPRESENTATIVE CROFT asked whether this was a request from
Congress.
MR. LOGAN answered, "This was actually requested by the Missouri
legislature. There are two legislators in the state of Missouri,
one a Democrat and one a Republican, who, after - in their opinion
- their constitutional rights were violated, they have asked for
help from other states in defending their states rights. So, it's
going in to Congress, requesting Congress to act to prepare and
present back to the legislatures language for an amendment."
Number 1004
REPRESENTATIVE CROFT expressed appreciation for the inclusion of
Article V in the committee packets. He stated, "It seems to me
that either Congress acts with two-thirds, or we submit with three-quarters. A
Can Congress refuse if 34 states urge them to have a convention?"
MR. LOGAN replied, "According to the person in Legal I spoke with,
once Congress has 34 resolutions from the states, they must act.
It's a self-executing provision."
Number 1047
REPRESENTATIVE ROKEBERG asked Chairman Green and Mr. Logan whether
they had considered the Cleary settlement in light of this
constitutional amendment and what impacts that might have.
MR. LOGAN replied that no, he had not considered that.
Number 1070
REPRESENTATIVE BUNDE referred to previous activities in the Lower
48 about school funding. He stated, "Texas comes to mind, where
there were some differences in fairness in funding. And I believe
the courts intervened and required people to basically be equitable
in their funding. This would prevent that, wouldn't it?"
MR. LOGAN replied, "I believe so." He explained that this effort
is in response to a very similar situation, in Missouri v. Jenkins,
which dealt with school funding and differences between conditions
in schools in the state of Missouri.
Number 1146
REPRESENTATIVE ROKEBERG pointed out that Arizona had the same type
of problem regarding allocation of funds between poorer and more
wealthy areas of the state, but also relating to deferred
maintenance of school buildings. "So, the courts there directed
the legislature to spend money," he said. "But I think it's still
an unconstitutional separation of powers at issue, about
appropriations. It's all we've got, purse strings."
Number 1182
REPRESENTATIVE CROFT referred to the mention of equity issues
relating to schools in other states. He asked whether the Missouri
case is the only one where all other avenues failed and the federal
court finally ordered the tax.
MR. LOGAN said he didn't know.
Number 1199
REPRESENTATIVE CROFT suggested these would be extremely rare
situations. But if the federal court came to the conclusion that
the only way left to redress a constitutional problem - racial or
other inequities - was the tax, this would take that power away;
that is its purpose.
MR. LOGAN responded, "I believe it would take that power away from
the court, but it would still properly rest with the legislature."
Number 1240
REPRESENTATIVE ROKEBERG asked how many votes it requires to move
this from the state House of Representatives, as it applies to
changing the U.S. constitution.
CHAIRMAN GREEN said he believes it is a simple majority. He
pointed out that it is not to change Alaska's constitution.
Number 1298
REPRESENTATIVE PORTER commented that he liked this the first time
he voted on it, and he likes it now. He made a motion to move HJR
57 from committee, with individual recommendations and attached
fiscal note(s).
CHAIRMAN GREEN asked whether there was an objection. Hearing none,
he announced that HJR 57 was moved from the House Judiciary
Standing Committee.
Number 1346
REPRESENTATIVE JAMES asked why there is a fiscal note.
CHAIRMAN GREEN said it is for printing, for the ballot.
REPRESENTATIVE JAMES asked why this need to go on the ballot, as it
doesn't amend Alaska's constitution but only sends a message to
Congress.
Number 1359
CHAIRMAN GREEN said that is a good question. He observed that the
fiscal note was from the Office of the Governor.
REPRESENTATIVE JAMES suggested perhaps that office had made a
mistake, thinking this was for a state constitutional amendment.
CHAIRMAN GREEN said if that was corrected, the resolution wouldn't
need to go to the House Finance Committee.
Number 1383
REPRESENTATIVE ROKEBERG made a motion to rescind the action moving
HJR 57 out of committee, for the purpose of addressing the fiscal
note.
CHAIRMAN GREEN asked whether there was any objection; there being
none, HJR 57 was back before the committee.
REPRESENTATIVE CROFT agreed it was probably a mistake but suggested
checking AS 15.58 to make sure there is no requirement that this go
on the ballot.
REPRESENTATIVE JAMES said it just takes a majority vote, and it is
a message.
Number 1444
REPRESENTATIVE BUNDE advised members that in another committee,
they had a fiscal note that was germane but that was also a "huge
statement of philosophy," and they had simply moved the bill
without attaching the fiscal note.
Number 1477
CHAIRMAN GREEN called an at-ease at 1:30 p.m. He called the
meeting back to order at 1:31 p.m.
Number 1480
REPRESENTATIVE PORTER made a motion to move from committee HJR 57
with individual recommendations, but without the fiscal note.
CHAIRMAN GREEN asked whether there was an objection. There being
none, HJR 57, without a fiscal note, moved from the House Judiciary
Standing Committee.
HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT
CHAIRMAN GREEN announced the next item of business would be HB 335,
"An Act replacing the Uniform Child Custody Jurisdiction Act with
the Uniform Child Custody Jurisdiction and Enforcement Act; and
amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule
205, Alaska Rules of Appellate Procedure." He called on
Representative Bunde, chairman of the House Health and Social
Services Standing Committee, which sponsored HB 335, to present the
bill.
Number 1515
REPRESENTATIVE BUNDE informed members that HB 335 is necessitated
by the highly mobile population in Alaska; it had been requested by
the federal government to provide uniformity throughout all 50
states. It reduces the incentive for parental noncustodial
kidnapping. It also it reduces the opportunity to go to another
jurisdiction and have a different custody order written, with
resultant in-fighting where children are used by parents to attack
each other. Furthermore, it encourages better enforcement of child
custody and visitation orders, and it provides uniformity
throughout the nation. Representative Bunde characterized HB 335
as a relatively simple bill. He advised members that his staff
member, Patti Swenson, could answer questions.
Number 1540
REPRESENTATIVE JAMES stated her understanding that if someone
obtained child custody through a California court, for example, the
parties would have to go back to that California court to make any
changes.
Number 1596
PATRICIA SWENSON, Legislative Assistant to Representative Con
Bunde, Alaska State Legislature, answered that she believes so,
then deferred to Deborah Behr.
REPRESENTATIVE BUNDE pointed out that orders from another state are
not subject to modification, unless there are child abuse issues,
for example.
REPRESENTATIVE JAMES asked whether this child custody involves
child support.
Number 1637
DEBORAH BEHR, Assistant Attorney General, Legislation and
Regulations Section, Civil Division (Juneau), Department of Law,
advised members that she is also a uniform law commissioner for the
state, and she was one of nine attorneys nationwide selected to
work with the national conference on uniform state laws on this
issue. She stated, "It's not a federal organization. Each state
sends representatives to it, and I'm pleased to report that of the
52 states and territories that participated, we did not get a
negative vote on this bill."
MS. BEHR said to answer Representative James's question, they are
talking about modification. She referred members to page 3, lines
16 through 27, which basically sets out the standard for that. She
suggested the best example would be an Alaska divorce where the
mother and child move to California and then subsequently decide
the child would be better off with the noncustodial parent in
Alaska. Ms. Behr explained, "If they want to back and do
modification, they've got to come back to Alaska to do that
modification. As long as there is one parent in the state of
Alaska, Alaska continues to have what is called home state
jurisdiction, and they continue to have jurisdiction to modify the
order. So, if they reverse it, what you were saying, with everyone
being in California and somebody moving to Alaska, whatever state
did the original order, they're the ones that get to do the
modification, until a point that everyone's left or the original
state relinquishes jurisdiction; and at some point, I could see the
Alaska court saying, 'Look, this child's been out of state too
long; it just makes sense to have it in another place.'"
Number 1715
MS. BEHR informed members there is a Uniform Child Custody
Jurisdiction Act in place in all 50 states. The problem with the
way it is written is that it isn't always clear which state is
supposed to do it, resulting in lengthy litigation. She had asked
someone in private practice about the latest costs, which turned
out to be $7,000 just to figure out which state will do it. Ms.
Behr explained that it is not in any child's best interest to have
a long, drawn-out discussion over which state is going to decide
the order.
Number 1747
REPRESENTATIVE JAMES said her concern isn't so much over the
custody as it is over child support. Situations can change
drastically and rapidly after child support levels are set, and
when people live across the nation, it may be difficult to get back
to the original court. She posed a situation where the
noncustodial parent is still in California, and the custodial
parent takes the child to Maine; she noted that a desire to change
child support could come from either side. She asked, "Are you
saying, then, that this bill, as long as one of the parents
involved in this issue was still in California, that the whole
thing would have to go back to the original court ... where it was
handled?"
Number 1801
MS. BEHR specified that this bill doesn't deal with child support;
there is a uniform law on child support that the state of Alaska
has adopted. All this bill deals with is the jurisdiction for the
initial child custody proceeding, and for modifications of it and
for how to enforce child custody. Changes in child support would
be under existing law, and there is a uniform law on child support.
REPRESENTATIVE JAMES said custody and child support go hand-in-hand
sometimes, when there is shared custody or if one parent lets the
other parent take the child for a while, which happens in teenage
years. Her own experience has been with the person who pays child
support not being treated fairly, perhaps having the child and yet
paying child support. She asked whether such a person might have
to go some other state to address that.
Number 1854
MS. BEHR replied that this Act is intended to give swift, sure
enforcement of a court order, right now. She explained, "If a
noncustodial parent has a right to see a child - the judge has said
they're an appropriate person to see that child, there are no
intervening domestic violence orders, CINA [child-in-need-of-aid]
orders, whatever - well, then, that person should have a right to
be able to bring ... that order quickly into an enforcing court and
say, 'I have a valid order, I want to see my child.' And the goal
of this is that it can be quickly done, inexpensively and, ...
we're hoping, without a lawyer." She restated that child support
issues would have to be filed through a separate mechanism, which
HB 335 has nothing to do with.
Number 1890
REPRESENTATIVE JAMES said her case would involve change of custody.
MS. BEHR responded that if it was originally an Alaska divorce and
the person was living out of state with the child, Alaska would
continue to have home state jurisdiction to be able to modify that
order. A person in another state wanting to modify that Alaska
order would have to come back to Alaska, or show that there is no
party in the state of Alaska now, or show that it is an
inappropriate forum and that the modification should be done in the
other state.
Number 1925
REPRESENTATIVE CROFT noted that Ms. Behr had mentioned two ways
that there might be a modification. He indicated he reads it to
have a third, which is temporary emergency jurisdiction because of
a showing of some immediate harm to the child.
MS. BEHR said that is a very strong provision of the Act. She
stated, "We were observed by domestic violence groups nationwide,
and they wanted to make sure that although we're preserving this
home state jurisdiction, that if a judge is faced with a difficult
situation of abuse and neglect, the court can act. So, yes, ...
the court can act on that kind of a situation."
MS. BEHR pointed out that in a typical case where there is a court
order and one parent is frustrated because of maybe not getting
what they wanted from the judge, the divorce and the enforcement
state would not be relitigated.
REPRESENTATIVE CROFT commented, "This is not a federal edict. This
is, in fact, I guess, the way we'd prefer it to happen. They set
up a uniform rule that works well, and we all adopt it voluntarily,
with the same protocols and all that. This is, in fact, the
antithesis of the federal government just saying, 'Everyone abide
by these rules.' This is all of us doing it voluntarily."
Number 1994
REPRESENTATIVE JAMES restated her earlier concern about a mother
and child living in California, where the divorce was, and the
father being in Alaska. If the mother needs help with a teenager
who is not behaving, and if the father is currently paying child
support to the mother, he may refuse to take the child until there
is a change of custody. Representative James said it may be an
emergency situation, which has happened, where the child custody
never got changed until it was really a mess. But there is nothing
the man could do from Alaska, save going to California himself and
requesting the change.
MS. BEHR pointed out that although they would have to go to
California, they don't have to go there physically. This Act sets
up and recognizes telephonic communications, TV, and all the modern
communications. It is entirely likely that the person could
participate from Juneau or Fairbanks, for example, without
necessarily having to travel.
MS. BEHR explained that the goal of this Act is to set up one court
to make the decision, so that people won't litigate over which
court makes the decision but rather over what is in the best
interest of the children. She stated, "If you have two courts that
arguably both have jurisdiction, it's possible for a person to be
subject to two orders, and then they don't know exactly what
they're supposed to do. So, that's what it's designed to address."
Number 2072
MS. BEHR mentioned her earlier testimony that the bill resulted
from a process involving representatives from 52 states and
territories. She said the representatives voting on it from the
states were legislators, judges and executive branch people with a
wide range of backgrounds. The bill was two years in the drafting.
Ms. Behr said that to her, it is a bill of advantage to both
custodial and noncustodial parents. For example, a custodial
parent sending a child to another state, who worries that the
noncustodial parent won't return the child, could use the Act for
that purpose.
MS. BEHR reminded members that all states have adopted the Uniform
Child Custody Jurisdiction Act, which hasn't been updated in 20
years. This present Act updates that to address modern
communications, domestic violence orders that are out there, and
the Parental Kidnapping Prevention Act, and brings it in step with
the times. She noted that there have been problems where people
have been subject to two orders.
Number 2113
MS. BEHR next discussed enforcement proceedings. Right now,
depending on where a child is, when a parent or custodial parent
wants to get the child back and has a valid order, there is no
cheap enforcement mechanism to do that. This bill intends to allow
somebody who has a valid order to get it registered, to give a
certified copy to the other court, and for the court to quickly
hold a hearing on whether there was due process and whether the
court had jurisdiction to enter it. Ms. Behr stated, "You don't
relitigate whether it's a good order or bad order. And then the
court just basically tells the parents to go ahead and honor this
order, or go back to the first state and get it modified."
MS. BEHR continued, "Right now, each state has their own procedure
for getting orders modified. In Alaska, we do an order to show
cause. In Texas, they do a writ of habeas corpus. Other states do
some other mechanism. ... And a lawyer that is dealing in family
law, you have to go associate yourself with a lawyer in another
state - which is a cost that the Alaska has to incur - and then you
have to figure out their paperwork, make their time frame. This --
it's going to have one uniform paperwork - time frames, that sort
of thing - provision."
Number 2169
MS. BEHR said they want parents to follow the orders, so the
children will have the visitation to which they are entitled. One
mechanism is that whoever doesn't abide by the order without a good
reason would be responsible for attorney fees and costs. It is
also possible for a judge to order the child to come into court, so
the judge can ensure that custody turns over to the correct person.
In addition, in extraordinary circumstances involving avoidance, it
is possible to have the troopers pick up the person. "We don't
intend to do that," Ms. Behr added. She concluded by saying the
goal is to Alaskanize it and make it predictable, so that parents
abide by the orders and so that children can spend more time with
their parents and less time in court.
Number 2211
REPRESENTATIVE BERKOWITZ referred to the international application
of this chapter and asked Ms. Behr to describe some of the
background behind this provision.
MS. BEHR noted that it is an important provision, and generally a
lot of people misunderstand it. She said, "But we had people from
the State Department watching our proceedings, and they brought
some tremendous, terrible cases where people had valid orders and
then one person would take a child ... and go to a foreign country.
And it was very difficult to get quick enforcement." Ms. Behr
indicated that when Congress enters into a compact under the Hague
Convention [on the Civil Aspects of International Child Abduction]
with these other countries, this provision allows a court of that
state to accept and be recognized under the Uniform Child Custody
Jurisdiction Act; it will be a cheap, easy way for them to do it.
She said she could see Canada and the United States having routine
visitation provisions and following this, for example, and she
thinks it may help people in this area. She added that an
international abduction is one of the most difficult cases.
Number 2263
REPRESENTATIVE BERKOWITZ asked Ms. Behr to go over what the Hague
Convention covers.
MS. BEHR referred members to page 9, lines 25 through 28, which
addresses enforcement under the Hague Convention. She stated her
understanding that it is Congress and the State Department that
decide to enter into the Hague Convention; it is entered into with
countries that wish to be in it and that have jurisdiction systems
similar to ours. The parties agree to honor each others' orders,
which makes sense. Ms. Behr commented that that is the goal of
this and cited some examples.
Number 2303
REPRESENTATIVE BERKOWITZ observed that Ms. Behr had picked
countries similar to ours. He stated, "But the horror cases that
I've heard involved countries that are very different culturally.
Would the failure to become party to the Hague Convention
necessarily lead to the conclusion that the child custody of the
other country violates fundamental principles of human rights?"
MS. BEHR replied that there is a provision in here about allowing
the court to look at whether the child custody order itself
violates human rights. She apologized for not being able to find
it quickly, then indicated there had been discussion about concern
over countries where child laws and due process are dissimilar to
our own; she said that is only a handful of countries. She
concluded, "I'm sorry, I'm not a Hague Convention expert. But the
people who came were people who talked about Canada, and people in
the military in Germany and France, and things like this. And this
will help out with that."
Number 2352
REPRESENTATIVE BERKOWITZ responded, "I just want to make sure that
our courts don't have to turn children over to countries where the
other parent will never see them, or the jurisdiction exercised by
a country like that would preclude a parent from getting that kind
of custody. And I've heard of cases where mothers in particular
have been cut off from access to their children because the
foreign-national father spirits them abroad and that's the end of
it."
MS. BEHR referred to page 17, lines 13 through 15, and said that is
the provision she remembers. It says, "A court of this state is
not required to apply this chapter to a child custody determination
made in a foreign country when the child custody law of the other
country violates fundamental principles of human rights." Ms. Behr
suggested that may answer Representative Berkowitz' question. She
added that it basically deals with due process, saying, "you want
to make sure that the person had notice of it and an opportunity to
be heard."
CHAIRMAN GREEN asked whether there were further questions, then
noted that no one else had signed up to testify.
Number 2393
REPRESENTATIVE JAMES made a motion to move HB 335 from committee
with individual recommendations and the attached fiscal zero note.
CHAIRMAN GREEN asked whether there was any objection. There being
none, HB 335 moved from the House Judiciary Standing Committee.
CHAIRMAN GREEN called an at-ease at 1:52 p.m. He called the
meeting back to order at 1:57 p.m.
HB 87 - TRAFFIC OFFENSES IN HIGHWAY WORK ZONES
Number 2412
CHAIRMAN GREEN announced the final item of business would be HB 87,
"An Act relating to fines and bail forfeiture amounts for certain
offenses committed within highway work zones."
REPRESENTATIVE KIM ELTON, sponsor, characterized HB 87 as
straightforward. It doubles the fines for speeding, and for
reckless or negligent driving, in a highway construction zone. It
is designed to lessen the danger that these workers face every day
in construction zones. It is similar to legislation that has
recently been passed in New York, Delaware, Iowa and Virginia.
REPRESENTATIVE ELTON advised members that he had a videotaped news
story from the state of Washington, which showed a motor vehicle
accident in a highway working zone that happened the same day that
state's law went into effect. Hawaii has something even more
stringent, requiring that a police officer be posted in each work
zone, which is probably one step further than this bill goes.
Number 2462
REPRESENTATIVE ELTON referred to committee packets and informed
members that although the department does not track accidents in
work zones, they had provided anecdotal material.
TAPE 98-23, SIDE B
Number 0006
REPRESENTATIVE ELTON mentioned problems that had occurred in
Alaska, including 11 accidents in a work zone on the Glenn Highway
in 1995, a death in a highway work zone in North Pole five or six
years ago, and a serious injury in a work zone in the Tudor Road
area in Anchorage. Noting that packets did not contain that
information sheet, Representative Elton said he would provide it so
that it could go with the bill if it moved out.
Number 0058
REPRESENTATIVE BERKOWITZ said these are for state statutes. He
asked, "But if there's a municipal ordinance that covers the same
behavior - in Anchorage, I think it's careless driving - would this
reach out and touch that kind of conduct?"
REPRESENTATIVE ELTON said no, this applies only to projects that
are occurring in work zones on state highways and state-maintained
road systems. He suggested the question is local option, that if
a municipality wants to extend that type of enhanced penalty in
their projects, they could do that.
CHAIRMAN GREEN suggested that where that highway runs through a
municipality, it still is in effect.
REPRESENTATIVE ELTON said that is correct. He said a good example
is the accident on the Seward Highway accident near Tudor, noting
that that is a state-maintained road.
Number 0096
REPRESENTATIVE PORTER said that if the Anchorage Police Department
(APD) investigated the accident in that case, the APD would make a
citation under the city traffic code, which to his knowledge
doesn't have this provision.
REPRESENTATIVE ELTON responded, "I think that's right. I mean,
Representative Porter would know more about this. But wouldn't the
municipality also have the option, if it happened in a state area,
to make the citation under the state code also?"
REPRESENTATIVE PORTER replied that they have that option, but they
use the municipal code.
CHAIRMAN GREEN asked whether there were further questions.
Number 0119
REPRESENTATIVE JAMES made a motion to move HB 87 out of committee
with individual recommendations and the attached zero fiscal notes.
CHAIRMAN GREEN asked whether there was any objection.
REPRESENTATIVE BUNDE objected to comment that there is so little
road construction in Alaska that he doesn't think this bill will
have much impact. He then removed his objection.
Number 0144
CHAIRMAN GREEN announced that hearing no objection, HB 87 was moved
from the House Judiciary Standing Committee.
ADJOURNMENT
Number 0151
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
2:02 p.m.
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