Legislature(1995 - 1996)

04/15/1996 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                         April 15, 1996                                        
                           1:30 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
  MEMBERS ABSENT                                                               
  COMMITTEE CALENDAR                                                           
 CS FOR SENATE BILL NO. 191(STA)                                               
 "An Act relating to election campaigns, election campaign                     
 financing, the oversight and regulation of election campaigns by              
 the Alaska Public Offices Commission, the activities of lobbyists             
 that relate to election campaigns, the definitions of offenses of             
 campaign misconduct, and to the use of the net proceeds of                    
 charitable gaming activities in election campaigns; and providing             
 for an effective date."                                                       
 CS FOR HOUSE BILL NO. 341(FIN)                                                
 "An Act relating to administrative adjudication and judicial                  
 appeals and to the informal resolution of certain factual disputes            
 between taxpayers and the Department of Revenue; establishing the             
 office of tax appeals as a quasi-judicial agency in the Department            
 of Administration; revising the procedures for hearing certain tax            
 appeals, including appeals regarding seafood marketing assessments;           
 relating to consideration and determination by the superior court             
 of disputes involving certain taxes and penalties due, and amending           
 provisions relating to the assessment, levy, and collection of                
 taxes and penalties by the state and to the tax liability of                  
 taxpayers; providing for the release of agency records relating to            
 formal administrative tax appeals; relating to litigation                     
 disclosure of public records; clarifying administrative subpoena              
 power in certain tax matters; and providing for an effective date."           
 CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 387(JUD) am                      
 "An Act rearranging existing provisions of AS 47.10 into chapters             
 separately addressing the topics of children in need of aid,                  
 delinquent minors, and the institutions, facilities, and                      
 management, administration, and oversight of programs relating to             
 minors, and conforming references and making other conforming                 
 changes due to that rearrangement; amending the manner of                     
 determining support obligations for children in need of aid and               
 delinquent minors; amending the purpose of delinquency provisions;            
 amending hearing procedures used in delinquency proceedings;                  
 amending provisions relating to enforcement of a restitution order            
 entered against a minor; setting out the considerations to be given           
 by a court in making its dispositional orders for minors                      
 adjudicated delinquent; authorizing municipalities to establish               
 curfews for minors by ordinance; relating to enforcement of truancy           
 under the compulsory school attendance law; and amending Rule                 
 23(d), Alaska Delinquency Rules."                                             
 CS FOR HOUSE BILL NO. 314(JUD) am                                             
 "An Act relating to domestic violence and to crime victims and                
 witnesses; and amending Rule 613, Alaska Rules of Evidence."                  
 HOUSE BILL NO. 18                                                             
 "An Act amending the statute of limitations applicable to civil               
 actions brought against peace officers and coroners."                         
 SENATE BILL NO. 296                                                           
 "An Act requiring fingerprint criminal background checks before               
 certain persons may be employed in a nursing home or assisted                 
 living facility; and prohibiting the hiring or retention of certain           
 nursing home and assisted living facility employees convicted of              
 specified offenses."                                                          
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 191 - See State Affairs minutes dated 1/25/96, 3/12/96,                    
   and 3/19/96.                                                                
 HB 341 - See Judiciary minutes dated 4/12/96.                                 
 HB 314 - No previous Senate committee action.                                 
 HB 387 - See Judiciary minutes dated 4/12/96.                                 
 HB 18 -  No previous Senate committee action.                                 
 SB 296 - See Community & Regional Affairs minutes dated 3/20/96.              
  WITNESS REGISTER                                                             
 Senator Tim Kelly                                                             
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Sponsor of SB 191                                      
 Jack Chenoweth                                                                
 Division of Legal Services                                                    
 Legislative Affairs Agency                                                    
 130 Seward St., Ste. 409                                                      
 Juneau, AK  99801-2105                                                        
  POSITION STATEMENT:   Testified on SB 191                                    
 Bruce Campbell                                                                
 c/o Rep. Kelly                                                                
 Alaska State Capitol                                                          
 Juneau, Alaska 99801-1182                                                     
  POSITION STATEMENT:   Testified for sponsor of HB 387                        
 Representative Pete Kelly                                                     
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Sponsor of HB 387                                      
 Laurie Otto                                                                   
 Deputy Attorney General                                                       
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
  POSITION STATEMENT:   Supports HB 387 and HB 314                             
 L. Diane Worley                                                               
 Division of Family and Youth Services                                         
 Dept. of Health and Social Services                                           
 P.O. Box 110630                                                               
 Juneau, AK  99811-0630                                                        
  POSITION STATEMENT:   Supports HB 387                                        
 Wilda Whitaker                                                                
 c/o Rep. Therriault                                                           
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Testified for sponsor of HB 18                         
 Kathleen Strasbaugh                                                           
 Assistant Attorney General                                                    
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
  POSITION STATEMENT:   Commented on SB 296                                    
 Connie Sipe                                                                   
 Division of Senior Services                                                   
 Department of Administration                                                  
 3601 C St., Suite 380                                                         
 Anchorage, AK  99503-5984                                                     
  POSITION STATEMENT:   Supports SB 296                                        
 Representative Joe Green                                                      
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Sponsor of HB 341                                      
 Robert Briggs                                                                 
 Assistant Attorney General                                                    
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
  POSITION STATEMENT:   Commented on proposed amendments to HB 341             
 Deborah Vogt                                                                  
 Deputy Commissioner                                                           
 Department of Revenue                                                         
 P.O. Box 110405                                                               
 Juneau, AK  99811-0400                                                        
  POSITION STATEMENT:   Supports HB 341 but opposes a proposed                 
 Representative Sean Parnell                                                   
 Alaska State Capitol                                                          
 Juneau, AK  99801-1182                                                        
  POSITION STATEMENT:   Sponsor of HB 314                                      
 Jayne Andreen                                                                 
 Council on Domestic Violence and                                              
   Sexual Assault                                                              
 P.O. Box 111200                                                               
 Juneau, AK  99811-1200                                                        
  POSITION STATEMENT:   Supports HB 314                                        
 Chris Christensen                                                             
 Alaska Court System                                                           
 303 K St.                                                                     
 Anchorage, AK  99501-2084                                                     
  POSITION STATEMENT:   No position taken on HB 314 but offered an             
 Lauree Hugonin                                                                
 130 Seward St., Rm. 501                                                       
 Juneau, AK  99801                                                             
  POSITION STATEMENT:   Supports HB 314 but opposes mediation                  
  ACTION NARRATIVE                                                             
 TAPE 96-38, SIDE A                                                            
 Number 001                                                                    
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:37 p.m.  Also present were Senators Green and Miller.              
            SB 191 ELECTION CAMPAIGN FINANCE REFORM                           
 SENATOR TIM KELLY, prime sponsor of SB 191, stated 33,000 Alaskans            
 signed an initiative to put a campaign finance reform vote on the             
 ballot in November if the legislature does not pass similar                   
 legislation.  Three legal opinions on SB 191 have been solicited;             
 all raise constitutional questions.  In his opinion, if the                   
 legislature attempts to fix all of the constitutional questions, a            
 disservice will be done to the 33,000 Alaskans who voted for                  
 campaign finance reform, and the legislation will not be                      
 substantially similar to the initiative.  U.S. Representative Don             
 Young is conducting his annual benchmark poll at this time.  At               
 Senator Kelly's request, the poll contains a question about                   
 campaign finance reform.  So far 80.4 percent of those polled favor           
 reform.  He recommended the committee work on version M of SB 191.            
 Number 051                                                                    
 JACK CHENOWETH, Division of Legal Services, described a draft                 
 committee substitute (version M) of SB 191.  Version M accommodates           
 changes made by the Senate State Affairs, House State Affairs, and            
 House Judiciary Committees.  The starting point for SB 191 was the            
 initiative that appeared on the ballot.  Version M addresses                  
 questions that came up in the committee process, and was directed             
 by a working group comprised of Senator Kelly, Representatives                
 James and Finkelstein, and APOC members.  The changes in version M            
 are as follows.                                                               
 The initiative included an indexing feature so that at five-year              
 intervals the dollar amounts would be recalculated to account for             
 inflation: that feature was deleted.  The provision in the                    
 initiative requiring individuals to register before making campaign           
 contributions was also deleted.  The cash contribution limit of               
 $100 was reduced to $25 in the initiative, but restored to $100 in            
 version M.  The prohibition on honoraria payments during the course           
 of a campaign was changed to allow a limited payment comparable to            
 honoraria based upon services actually provided by a candidate.               
 Campaign funds may not be raised in years in which there is no                
 election.  If running for election or re-election for Governor,               
 funds may be raised during the period beginning January 1 of the              
 election year.  Candidates for legislative offices may raise funds            
 beginning June 1 of the year in which re-election is sought.  For             
 other offices (state special elections and municipal elections)               
 there is a five month window period before the date of the                    
 The initiative allows candidates to accept and expend loans from              
 family members.  That provision is not included in version M.                 
 Technical changes were made to the APOC report filing procedure.              
 The use of surplus campaign funds was expanded to allow return of             
 contributions to contributors, to allow a carry-forward, or to                
 allow a portion of a contribution to a legislative office                     
 allowance.  Felony criminal penalty provisions were removed so that           
 all violations are misdemeanor offenses.  The "paid for by"                   
 requirements were loosened in light of a U.S. Supreme Court                   
 decision within the last year.  The bill includes definitions for             
 terms used within the initiative such as "publically funded                   
 entities."  The use of charitable gaming, with the exception of               
 raffles and lotteries, for the support of political activities,               
 would be banned.  The ban on contributions from out-of-state                  
 sources was modified to allow a limited contribution.  The maximum            
 amounts that can be contributed to campaigns was increased and                
 altered depending upon the nature of the campaign.  The procedures            
 for placing questions on campaign practices before APOC and the               
 Superior Court were amended.  The small campaign exemption in which           
 disclosure is not necessary was raised from $1,000 to $2,500.  The            
 severability provision, which appears in the initiative, was                  
 included.  The bill has an immediate effective date, and requires             
 the Lt. Governor to place the initiative on the ballot if this                
 legislation is not found to be substantially similar to the                   
 Number 186                                                                    
 CHAIRMAN TAYLOR commented the legislation is an attempt to mirror             
 the initiative, however most people who signed the initiative did             
 not understand its contents.  He asked if the legislation contains            
 provisions that are patently unconstitutional.                                
 MR. CHENOWETH replied there are provisions in the initiative that             
 were carried forward to the legislation that are constitutionally             
 questionable.  The law in this area is changing as the Supreme                
 Court wrestles with various issues and has made only a few key                
 decisions to date.                                                            
 CHAIRMAN TAYLOR questioned whether the legislature has the                    
 responsibility to review the initiative and craft a bill that is              
 constitutional, to rubber stamp the legislation, or let the                   
 initiative appear on the ballot for a vote, knowing full well there           
 are provisions within it that are unconstitutional.  He believed              
 that would be fraud on the public since the average voter will not            
 understand the constitutional ramifications of the initiative.                
 MR. CHENOWETH responded the alternative to passing legislation is             
 to allow the initiative to go forward as presented.  It appears the           
 Attorney General's Office is prepared to defend the provisions                
 within the initiative.  The Division of Legal Services has                    
 attempted, in response to opinions from Av Gross and Mike Frank, to           
 pick up the most troublesome features in the initiative and address           
 them to reduce or eliminate the possibility that those provisions             
 will be found unconstitutional as a violation of the First                    
 Amendment.  He could not guarantee version M will succeed, but                
 believed the constitutional questions that remain are no worse than           
 what came to the legislature in the form of the initiative.                   
 CHAIRMAN TAYLOR felt if the legislature knows that something is               
 patently unconstitutional, it has an obligation to remove it, no              
 matter how many people signed the initiative.  Most of the people             
 who signed the initiative are most likely unaware that it will                
 forfeit a good portion of one's constitutional rights.                        
 SENATOR ADAMS arrived at 1:52 p.m.                                            
 There being no one else wishing to testify on SB 191, CHAIRMAN                
 TAYLOR announced the bill would be held until Friday to enable more           
 work to be done on the measure.                                               
         HB 341 TAX APPEALS/ASSESSMENT/LEVY/COLLECTION                        
 CHAIRMAN TAYLOR announced that although HB 341 is scheduled on                
 today's calendar, it is not his intent to move the bill out of                
 committee at this time.  The committee will take up amendments                
 later in the meeting, and a committee substitute will be drafted              
 for consideration on April 19.                                                
                 HB 387 JUVENILE CODE REVISION                                
 BRUCE CAMPBELL, staff to Representative Kelly, sponsor of HB 387,             
 informed committee members the tabbed version of the bill shows the           
 seven new pages added to the juvenile code.                                   
 REPRESENTATIVE PETE KELLY, sponsor of the measure, arrived and                
 stated in spite of the length of the bill, there are only four or             
 five policy changes in the legislation.  HB 387 gives school                  
 districts statutory authority to address truancy in Title 29.                 
 Existing truancy provisions are too cumbersome for school districts           
 to enforce effectively.  The purposes section of the new                      
 delinquency code, on page 22, establishes a new chapter in statute            
 that deals specifically with delinquents and establishes a policy             
 allowing sanctions to be imposed for delinquent behavior.  On page            
 25, line 31, an existing court rule is placed in statute.  A more             
 significant change is on page 32 regarding court dispositional                
 orders and requires a court rule change.  At present, the court,              
 when considering detention for a minor, is instructed to act in the           
 best interest of the minor and the public.  A much longer list of             
 criteria has been added in HB 387 for judges to use when                      
 considering detention.  The term "least restrictive alternative"              
 was changed to allow judges to consider what may be most conducive            
 to the minor's rehabilitation and in the best interest of the                 
 public.  According to many caseworkers in the field, the "least               
 restrictive alternative" has been a detriment to providing                    
 consequences to minors in detention.  On page 35, there is a                  
 provision for the enforcement of restitution that would apply to              
 those aged 19 or older.                                                       
 SENATOR GREEN asked if the automatic continuation of restitution              
 would be required in every event.  REPRESENTATIVE KELLY replied the           
 restitution recipient may enforce payment of the restitution order            
 against the minor under AS 09.35.                                             
 REPRESENTATIVE KELLY explained the last change is the creation of             
 Chapter 14 which gives the Department of Health and Social Services           
 purview over both children in need of aid and delinquent minors.              
 Number 400                                                                    
 SENATOR ADAMS asked Representative Kelly's recommendation on the              
 proposed amendment regarding the two-year probation period.                   
 REPRESENTATIVE KELLY stated he agreed to the amendment although he            
 prefers a four-year time period to give the court system a longer             
 period of time to monitor the progress of juveniles who commit                
 offenses at younger ages.                                                     
 Number 421                                                                    
 LAURIE OTTO, Deputy Attorney General with the Criminal Division of            
 the Department of Law, thanked the sponsor for his time and                   
 patience in the complicated effort it took to split the juvenile              
 code.  The bill provides a good foundation for the recommendations            
 the Governor's Conference hopes to bring to the legislature next              
 year.  The Department of Law feels the proposed amendment dealing             
 with the probation period is important because it tracks with the             
 rest of the bill.                                                             
 SENATOR GREEN asked who submitted the proposed amendment.  MS. OTTO           
 answered the Department did, with the consent of Representative               
 DIANE WORLEY, Director of the Division of Family and Youth                    
 Services, stated support for HB 387 as the bill will help the                 
 Division prepare for future changes.                                          
 There being no further testimony, SENATOR GREEN announced HB 387              
 would be held until CHAIRMAN TAYLOR returned.                                 
         HB  18 STATUTE OF LIMITATIONS:POLICE/CORONERS                        
 WILDA WHITAKER, staff to Representative Therriault, sponsor of HB
 18, explained the bill is intended to bring the statute of                    
 limitations for civil actions brought against peace officers and              
 coroners into conformity with the statute of limitations for civil            
 actions brought against private persons.  It reduces from three               
 years to two the period in which civil actions can be brought                 
 against police officers and coroners.  Alaska statutes are based on           
 Oregon statutes which are based on New York statutes.  New York's             
 laws originally set the statute of limitations for civil suits                
 brought against a private person at six years, and against a peace            
 officer at three years.  The statute of limitations for peace                 
 officers was shorter because it was recognized that police officers           
 need to be free from excessive harassment to carry out their                  
 duties.  After adopting New York statutes, the State of Oregon                
 reduced the time for bringing civil suits against private persons             
 from six years to two, but failed to correspondingly reduce the               
 statute of limitations against peace officers, which remained at              
 three.  This is how the Oregon law stood when Congress enacted it             
 for Alaska.  What was intended to provide a shorter statute of                
 limitations for peace officers is now longer than that against the            
 general public.  HB 18 would bring an antiquated statute into                 
 conformity with more recent law.  HB 18 is one of the Alaska Peace            
 Officers Association's priority pieces of legislation.  The measure           
 passed the House Judiciary Committee with seven "Do Pass"                     
 recommendations and passed the full House 38 to 0.                            
 SENATOR ADAMS moved HB 18 out of committee with individual                    
 recommendations.  There being no objection, the motion carried.               
 Senator Ellis arrived at 2:15 p.m.                                            
         SB 296 NURSING HOME & ASSTD LIVING EMPLOYEES                         
 SENATOR ELLIS, sponsor of SB 296, noted the proposed committee                
 substitute is a modification of his original idea to require                  
 greater accountability of the employees who work with vulnerable              
 adults in Alaska.  The bill requires criminal background checks and           
 fingerprint checks of individuals who will be providing direct care           
 to vulnerable adults.  The committee substitute addresses a number            
 of concerns expressed by the state agencies involved regarding                
 public employee contracts, provisional hires, and private sector              
 facilities.  It proposes that this be a prospective requirement at            
 the negotiation of the next collective bargaining agreement and               
 gives to the DHSS the discretion to determine the kinds of job                
 classifications this requirement would apply to.  The committee               
 substitute also allows provisional hire so that people can be hired           
 before the criminal background check is completed but can be fired            
 if the check revealed a prior conviction.  There is also a proposal           
 to adopt in statute the regulations of the Division of Senior                 
 Services that relate to background checks.                                    
 SENATOR MILLER asked why this bill would not apply to current                 
 Number 543                                                                    
 SENATOR ELLIS commented he would prefer that, but prior attempts to           
 have similar legislation take effect immediately were struck down             
 by the courts because of collective bargaining agreements.                    
 KATHLEEN STRASBAUGH, Assistant Attorney General, gave the following           
 example.   Prior legislation required airport safety officers to              
 become certified police officers because they used guns in their              
 employment.  At the time the legislation was enacted it was known             
 that several existing employees would not be able to meet                     
 provisional requirements within the two-year grandfather period.              
 Those people sued, and because they were able to adequately perform           
 their jobs without certification, the court ruled they could keep             
 their jobs.  In the case of people working with vulnerable adults,            
 if they have been performing their jobs satisfactorily, there will            
 not be just cause to fire them.                                               
 Number 573                                                                    
 SENATOR MILLER asked if the bargaining unit covering these                    
 employees has been asked if its members would voluntarily comply.             
 SENATOR ELLIS answered the bargaining unit has not been approached            
 with that suggestion due to a lack of time.                                   
 SENATOR MILLER said he supports the bill but hopes this requirement           
 isn't used as a bargaining tool.                                              
 SENATOR ELLIS thought it would be embarrassing for a bargaining               
 unit to argue this issue at the table.                                        
 MS. STRASBAUGH commented the union supported the airport safety law           
 but could not ultimately control the litigation.                              
 TAPE 96-38, SIDE B                                                            
 MS. STRASBAUGH believed the state would use this opportunity to               
 examine job specifications for the relevant departments.  If a new            
 contract came forward and an employee wished to transfer, he/she              
 would most likely have to reapply for the new job.  Additionally,             
 if it was revealed that a current employee had lied on an                     
 application, that employee could be terminated.  Finally, the                 
 requirement would have to be accepted if it is a statutory change,            
 as long as employees are not fired without just cause.                        
 Number 573                                                                    
 SENATOR GREEN asked how new hires would be affected.  MS.                     
 STRASBAUGH replied SB 296 could cover new hires if the                        
 specifications were changed, and it would cover new hires in the              
 private sector.                                                               
 SENATOR GREEN asked if the legislation would apply post haste to              
 someone in the private sector or someone not covered by a                     
 bargaining unit.  MS. STRASBAUGH stated it is designed to require             
 newly hired employees, private or public, to comply.  She believed            
 it would be easier to administer in the private sector because it             
 is less likely there are unions involved in those facilities.                 
 SENATOR MILLER moved to adopt CSSB 296 (version K).  There being no           
 objection, the motion carried.                                                
 CONNIE SIPE, Director of the Division of Senior Services, stated              
 the division is very supportive of this bill.  The division, by               
 regulation, uses similar requirements when hiring employees at                
 assisted living homes, but the fingerprinting requirement has never           
 been in state regulations for nursing homes.                                  
 SENATOR GREEN moved CSSB 296 (JUD) out of committee with individual           
 recommendations.  There being no objection, the motion carried.               
 CHAIRMAN TAYLOR returned and the committee revisited HB 387.                  
                 HB 387 JUVENILE CODE REVISION                                
 SENATOR ADAMS noted amendment #1, requested by DHSS, was before the           
 committee: it decreases the probation period from four to two                 
 years.  SENATOR ADAMS moved adoption of amendment #1.  SENATOR                
 TAYLOR asked for further clarification of the amendment.                      
 LAURIE OTTO, Deputy Attorney General, explained the bill has been             
 changed substantially: the original four year probation period is             
 inconsistent with the current version of the bill.  The amendment             
 is technical.                                                                 
 CHAIRMAN TAYLOR noted there was no objection to the motion,                   
 therefore amendment #1 was adopted.                                           
 SENATOR MILLER moved CSSSHB 387 (JUD) as amended out of committee             
 with individual recommendations.  There being no objection, the               
 motion carried.                                                               
         HB 341 TAX APPEALS/ASSESSMENT/LEVY/COLLECTION                        
 REPRESENTATIVE JOE GREEN, sponsor of the measure, informed                    
 committee members he and department officials met over the weekend            
 and prepared a proposed amendment to resolve one of the three                 
 issues of contention.  Headway was made on the other two issues,              
 but no resolution was reached.  He planned to offer amendments on             
 the other two issues as well.                                                 
 REPRESENTATIVE GREEN explained proposed amendment #1 separates the            
 appeal from the taxing authority by establishing an administrative            
 law judge through a nomination procedure.  The Alaska Judicial                
 Council would nominate at least two names for the chief                       
 administrative law judge for the governor to choose from.                     
 Subsequent administrative law judges would be chosen in the same              
 manner.  The last two to three pages of the amendment are technical           
 to change from the board concept to the administrative law judge              
 concept.  Although he and other legislators prefer to maintain                
 control through legislative approval of the nominees, in the                  
 interest of cooperation he agreed to this method as it accomplishes           
 the purpose of keeping the appeal body away from the taxing                   
 REPRESENTATIVE GREEN discussed amendment #2 which deals with the              
 judicial bypass issue.  The department does not concur with this              
 amendment.  Amendment #2 allows the taxpayer to go from the                   
 informal review straight to Superior Court if the taxpayer prepays            
 the total amount due.  Failure to deposit those funds would dismiss           
 the taxpayer's appeal.  Interest that accrues on the deposited                
 funds would be added to the principal and awarded to the winning              
 party.  If the judicial decision determines a fractional                      
 settlement, both parties would receive an award proportional to the           
 decision.  Using that method, the taxpayer would receive the same             
 amount of interest he/she would have had the prepayment not been              
 Number 437                                                                    
 SENATOR GREEN asked for an example of an amount of a prepayment.              
 REPRESENTATIVE GREEN responded it could be millions of dollars, and           
 possibly as high as hundreds of millions.  He pointed out this                
 procedure does not only apply to oil companies but to all                     
 REPRESENTATIVE GREEN clarified that the amendments labeled "Z.5,              
 Z.6 and Z.7" are amendments 1, 2, and 3.  Amendment #3 addresses              
 the transition issue and gives any taxpayer who filed an appeal,              
 before the act takes effect, 45 days to either prepay the disputed            
 tax amount and go to court, or have a formal appeal within the                
 department.  A party currently undergoing a formal appeal would               
 still have the right to go to trial, but not have a de novo trial.            
 Section 18 was added to the bill at the recommendation of the                 
 Division of Legal Services and does not change the intent of the              
 transition provision.                                                         
 Number 387                                                                    
 CHAIRMAN TAYLOR returned.                                                     
 BOB BRIGGS, Assistant Attorney General, stated the Department of              
 Law supports amendment #1.  With regard to amendment #2, he                   
 believed it would be unwise for the committee to contemplate a                
 payment provision that allows a taxpayer to essentially save money            
 by filing an appeal.  If the interest rate for monies deposited in            
 the registry of the court is lower than the interest rate provided            
 under AS 43.05.225, it would be to the taxpayer's advantage to file           
 an appeal.                                                                    
 CHAIRMAN TAYLOR asked why that would occur.  MR. BRIGGS answered              
 the amendment does not specify what interest rate the money                   
 deposited in the registry of the court will earn.  Assuming that              
 interest rate is lower than the interest rate accruing to a                   
 taxpayer under AS 43.05.225 the taxpayer could simply file an                 
 appeal and save money.                                                        
 SENATOR MILLER asked if the taxpayer has to prepay the tax on                 
 appeal at present.  MR. BRIGGS answered no.  SENATOR MILLER noted             
 amendment #2 would require the taxpayer to pay the tax upfront to             
 the court.  He questioned how that would benefit the taxpayer since           
 that money could not be used for other purposes.                              
 MR. BRIGGS explained under the current system, if a taxpayer does             
 not pay a delinquency, the interest accrues on that delinquency               
 under a rate defined by statute, which is a minimum of 11 percent.            
 Under amendment #2 there is no interest rate specified therefore it           
 is possible for a taxpayer to gain a benefit from depositing the              
 money in the registry of the court and pursuing an appeal.                    
 Number 357                                                                    
 SENATOR MILLER discussed the opposite scenario in which the                   
 taxpayer goes to court and has lost the ability to invest the money           
 deposited with the court registry.  If that taxpayer appeals                  
 through the administrative law judge, no money has to be prepaid,             
 therefore the taxpayer is free to invest it in a project that may             
 be earning 20 percent.                                                        
 MR. BRIGGS noted he is not speaking against the concept of                    
 prepayment, which is a policy matter the Department of Revenue                
 should address, but he expressed concern that amendment #2 could              
 encourage frivolous appeals.                                                  
 CHAIRMAN TAYLOR commented the current version of the bill allows              
 the taxpayer to continue to play in the administrative process, or            
 opt out and go to Superior Court.  He asked Mr. Briggs if the                 
 taxpayer should be allowed to opt out for free.  MR. BRIGGS                   
 repeated he was not speaking against the concept of prepayment,               
 just the method used in amendment #2, however the Department of Law           
 is opposed to the concept of a separate direct appeal track to                
 Superior Court.                                                               
 MR. BRIGGS addressed amendment #3 regarding the transitional                  
 provision.  There are 31 cases at the formal appeal stage.  The               
 total amount of money at stake in those cases is $1.224 billion.              
 Those cases are in various stages of the formal hearing process; in           
 some a notice of appeal has been filed; in some there has been                
 motion practice and discovery; in other cases there has been a                
 formal hearing and the taxpayers are awaiting decisions.  A few               
 cases will go to a formal hearing process within the next month.              
 The state has invested resources in those cases, attorney time and            
 other resources: those resources would be wasted if the taxpayers             
 were allowed to bypass the formal hearing and go to court.  He                
 preferred the approach in HB 427 which provides that existing rules           
 apply to pending cases at the formal appeal stage, unless the                 
 taxpayer and Departments of Revenue and Law reach an agreement as             
 to how the new procedures should apply to those cases.                        
 CHAIRMAN TAYLOR asked Mr. Briggs if he knew of any cases worth $50            
 or $60 million that the state has taken to judgment and settled,              
 and if so whether the state received interest.  MR. BRIGGS replied            
 he was unsure, but thought only one case has gone to a formal                 
 hearing.  In that case the taxpayer and Departments of Revenue and            
 Law resolved the situation.                                                   
 CHAIRMAN TAYLOR clarified his concern is that if cases are settled            
 within the Department of Revenue no one will know how much the                
 state lost in interest and penalties since those are usually the              
 first things given up as the parties work towards a settlement.               
 MR. BRIGGS felt the idea of prepayment is a good one if the direct            
 to court option is allowed.  CHAIRMAN TAYLOR stated he wants to               
 place a hurdle to the taxpayer from getting a free ticket to the              
 court system but believes having to prepay the full amount to be a            
 MR. BRIGGS believed the state would be getting the benefit of a tax           
 delinquency based on the presumption the tax assessment is valid.             
 There will be a lot of delay if taxpayers are allowed to take a tax           
 case directly to a Superior Court judge because the judge will not            
 have the benefit of the administrative record.  As a practical                
 matter, that will slow the case down and take longer to resolve               
 than if the case is first heard by an administrative tribunal and             
 then appealed on the record to a Superior Court judge.                        
 SENATOR MILLER asked what the delinquency rates are charged by the            
 Department of Revenue.  MR. BRIGGS answered those rates are set by            
 AS 43.05.225, and have an 11 percent floor.  SENATOR MILLER said              
 that statute is referred to in (B).  MR. BRIGGS deferred to Ms.               
 Vogt to answer that question.                                                 
 DEBORAH VOGT, Deputy Commissioner of the Department of Revenue,               
 discussed the proposed amendments.  She reiterated the parties have           
 agreed that amendment #1 is the preferred alternative to the                  
 existing provisions regarding method of appointment.  Regarding               
 amendment #2, she believed a prepayment requirement is a great                
 improvement.  In her interpretation of paragraph (B), interest                
 under AS 43.05.225 is tolled, and the interest that accrues on the            
 escrow account substitutes for that interest.  The interest rate              
 under AS 43.05.225 is five percent above the federal rate with an             
 11 percent floor.  That rate applies to any amount refunded by the            
 state resulting from an overpayment, as well as to any amount owed            
 by the taxpayer.  Amendment #2 does not set out investment                    
 standards and she presumed the court system would use a                       
 conservative strategy for a liquid account.  In response to an                
 earlier comment made by Chairman Taylor, she noted the Department             
 of Revenue is prohibited from forgiving interest in settlements.              
 Issues are negotiated, the parties agree to an amount each issue is           
 worth, and the statutory interest is applied to that amount.  She             
 repeated that a prepayment provision is an improvement but the                
 state might get substantially less using an escrow account rather             
 than the statutory interest rate.                                             
 Regarding amendment #3, MS. VOGT shared Mr. Briggs' concerns.  The            
 cases currently before the hearing officer include fisheries                  
 business tax, mining license tax, corporate income tax, a few oil             
 and gas cases, but most of those cases do not involve any of the              
 parties that have negotiated this legislation.  They are primarily            
 small taxpayers owing small amounts.  There are a couple of big               
 cases which amount to over $1 billion.  Amendment #3 would permit             
 a person who has gone through a hearing and lost, to have a hearing           
 before the new hearing officer, or to go to court.   The department           
 prefers the language that makes the cutoff date the effective date            
 of the act; appeals after that use the new system, existing cases             
 stay within the department unless both parties agree to use the new           
 system.  At this time there is only one taxpayer concerned about              
 the transition provision.                                                     
 Number 164                                                                    
 CHAIRMAN TAYLOR stated the $1 billion currently in dispute has                
 taken years to accumulate.  This bill will only have prospective              
 effect and then only to those taxpayers who have high enough                  
 amounts in dispute they want to go to court.  MS. VOGT could not              
 speak to particular cases because of confidentiality requirements,            
 but noted the retroactive provision is not of concern to the                  
 biggest taxpayer.  She repeated there is one problem, and the                 
 department is trying to resolve the situation without drafting a              
 provision which allows taxpayers to take a second or third bite.              
 CHAIRMAN TAYLOR asked if there was objection to amendment #1.                 
 There being no objection, the amendment was adopted.                          
 CHAIRMAN TAYLOR asked if there was objection to the adoption of               
 amendment #2.  SENATOR ADAMS objected.  The motion carried with               
 Senators Green, Miller, and Taylor voting "yea," and Senator Adams            
 voting "nay."                                                                 
 CHAIRMAN TAYLOR asked if there was objection to the adoption of               
 amendment #3.  SENATOR ADAMS objected.  Amendment #3 was adopted              
 with Senators Miller, Green and Taylor voting "yea," and Senator              
 Adams voting "nay."                                                           
 CHAIRMAN TAYLOR announced that he planned to hold the bill until              
 Friday to give the sponsor and Department of Revenue more time to             
 work on the disputed issues.                                                  
 SENATOR ADAMS asked Ms. Vogt if the Governor will veto HB 341 with            
 amendments #2 and #3.  MS. VOGT replied it is her understanding the           
 Governor will veto a bill that allows the taxpayer to avoid the new           
 administrative process and go straight to court.                              
           HB 314 VIOLATING DOMESTIC VIOLENCE ORDERS                          
 REPRESENTATIVE SEAN PARNELL, sponsor of HB 314, highlighted the               
 bill.  The original bill, as passed to the Senate, revised statutes           
 related to violations of domestic violence restraining orders, and            
 included a prohibition against tape recording by defense attorneys            
 of the victim or a witness without the victim's or witness' consent           
 by defense attorneys.  At the request of many interested                      
 individuals and groups, the proposed committee substitute presents            
 a more comprehensive approach to domestic violence in Alaska.  The            
 committee substitute is based, in part, on the Model Code on                  
 Domestic and Family Violence and is focussed on victim protection             
 and domestic violence prevention.                                             
 The bill provides for three types of protective orders: an                    
 emergency protective order for 72 hours that can be obtained by a             
 peace officer; an ex parte order which is a 20 day protective                 
 order; and a protective order that is issued after notice and a               
 hearing that offers some protections for one year, or until changed           
 by the court.  It also allows an opportunity for the respondent to            
 attempt to modify an ex parte protective order after three days               
 notice and a hearing.                                                         
 The act rewrites the crime of violating a protective order which,             
 as under current law, is a class A misdemeanor.  The act also                 
 creates a central registry of protective orders.  It provides for             
 mandatory arrest of the primary physical aggressor if the violence            
 has occurred within 12 hours of the call to law enforcement                   
 officers.  The act requires the courts and correctional system to             
 consider the safety of the victims during all aspects of the case,            
 from conditions of release to notifying the victim of furloughs and           
 prereleases.  Before entering a plea agreement, it requires the               
 prosecutor to make a reasonable effort to concur with the domestic            
 violence code.  It also adds training requirements in domestic                
 violence for all law enforcement and public employees who deal with           
 domestic violence victims.  With respect to divorce and child                 
 custody, it tightens requirements of when the court can order                 
 mediation.  He urged the committee's support of the measure.                  
 SENATOR ADAMS moved the committee adopt SCSCSHB 314(JUD) am                   
 (version W).  SENATOR GREEN objected.                                         
 CHAIRMAN TAYLOR commented the original bill was 4 pages, and the              
 proposed committee substitute is about 50 pages.  He asked why the            
 legislation has grown over tenfold.                                           
 TAPE 96-39, SIDE A                                                            
 Number 005                                                                    
 REPRESENTATIVE PARNELL explained the original legislation expanded            
 and clarified the crime of violating a domestic violence                      
 restraining order.  It also included a surreptitious taping                   
 component, which said a person working for the defense cannot                 
 secretly tape record a crime victim or witness without consent.  He           
 introduced the bill last April but became familiar with the Model             
 Code during the interim, which the new draft is based on.  He also            
 watched closely the Governor's work with respect to domestic                  
 violence legislation.  He offered his bill as a vehicle to members            
 of the Administration to help aid in the process of getting a                 
 comprehensive approach to domestic violence on the table, which is            
 why the bill has grown.                                                       
 CHAIRMAN TAYLOR asked which provisions of the draft were in the               
 original bill.  REPRESENTATIVE PARNELL responded Sections 18 - 21             
 were the original bill.                                                       
 SENATOR GREEN asked if the bill contains a definition section.                
 REPRESENTATIVE PARNELL answered there are two definition sections;            
 Section 990 on page 29 contains the domestic violence definitions.            
 REPRESENTATIVE PARNELL asked committee members if they had                    
 amendments in their packets that he planned to propose.  CHAIRMAN             
 TAYLOR acknowledged the amendments were made available to the                 
 SENATOR ELLIS asked Chairman Taylor if he planned to hold the                 
 amendments at this time.  CHAIRMAN TAYLOR responded he planned to             
 hold them, as the committee substitute has not even been adopted              
 yet.  He planned to incorporate all changes at one time.                      
 LAURIE OTTO, Deputy Attorney General, Department of Law, discussed            
 her background as a prosecutor, and the frustration prosecutors               
 experience because of their inability to do anything to stop the              
 flood of cases they receive.  A high percentage of homicides in               
 Alaska are related to domestic violence, and Alaska has a high rate           
 of child abuse and neglect.  Nationwide, children that grow up in             
 homes with domestic violence are 1500 times more likely to be                 
 abused.  The abuse and neglect comes from both the perpetrator and            
 the victim.  Abused or neglected children are 40 percent more                 
 likely to become involved with the criminal justice system.  She              
 emphasized something needs to be done to stop the flood of people             
 coming into the criminal justice system and to stop the number of             
 children accounting for the rise in juvenile crime so that we can             
 spend our resources on education rather than prisons.  Merely                 
 locking people up for domestic violence does not treat the problem.           
 Good laws are not useful unless people are trained to use them.               
 This bill takes the best provisions of the Model Code which was               
 drafted after the National Council of Juvenile and Family Court               
 judges spent three years working on this issue.  The bill also                
 includes training and prevention components, as well as civil and             
 criminal components.  She appreciated the work put into the bill by           
 the sponsor.                                                                  
 Number 179                                                                    
 CHAIRMAN TAYLOR asked what percentage of the people who initiate a            
 domestic violence restraining order reconcile with their partners.            
 MS. OTTO did not know.  CHAIRMAN TAYLOR asked if she would estimate           
 an amount.  MS. OTTO said she could not give an answer, but she has           
 consistently seen people who are trying to get out of abusive                 
 relationships cycle through the system more than once.  The choice            
 of being out on the street with your children or returning to a               
 violent relationship is a hard one.  Additionally, many of the                
 victims grew up in violent homes and think that is an acceptable              
 form of behavior.                                                             
 CHAIRMAN TAYLOR asked Ms. Otto to explain Section 6 on page 3.  MS.           
 OTTO responded one of the things that happens in trials is that               
 defendants, who are operating under a court order to not have                 
 contact with another person, claim as a defense that they did not             
 initiate the contact.  The victim will disagree and the situation             
 becomes a "he said-she said" swearing match.  The state needs to              
 prove beyond a reasonable doubt what occurred, therefore                      
 prosecutors are left hard pressed to protect people who have gotten           
 protective orders when the person ordered has the obligation to               
 stay away.                                                                    
 Number 225                                                                    
 CHAIRMAN TAYLOR discussed a common scenario where an abused wife              
 comes before the court and requests an emergency order to protect             
 her from the violent husband.  The court issues the order which               
 prohibits any contact with the wife.  After things cool down, he              
 has seen in his experience as a judge, a large percent of those               
 people attempt to reconcile.  The wife contacts the husband.  Under           
 this provision, the husband would be in violation of the order.               
 MS. OTTO responded this bill makes it very easy for people to get             
 modifications to protective orders: all either party needs to do is           
 ask the court for modifications.  It is far more desirable, if                
 people are reconciling, that they ask that the protective order be            
 lifted.  She noted she would be uncomfortable with people picking             
 and choosing which court orders they would obey.                              
 CHAIRMAN TAYLOR commented that according to the bill, it would not            
 matter what the factual circumstances were, or who had initiated              
 the contact: the other party would still be at fault.  MS. OTTO               
 pointed out the respondent would be under a specific court order to           
 not have contact but if either side wanted to initiate contact,               
 they would request the court to lift the order.  The court would do           
 so if it was acceptable to both sides.                                        
 CHAIRMAN TAYLOR asked why not put the hammer on both sides.  The              
 respondent would be ordered to have no contact, but how is that               
 person to know which phone calls to answer before picking up the              
 phone.  Most people involved in these situations cannot act                   
 rationally and maintain total emotional control.  It is unlikely              
 the respondent will actually require the wife to go to court to               
 lift the restraining order before speaking.  He guessed the                   
 percentage of couples who reconcile is very high.  This bill would            
 make a criminal out of the respondent for attempting to respond to            
 the wife's contact. If people routinely got orders changed, the               
 Child Support Enforcement Division would not be chasing people all            
 over the country.                                                             
 MS. OTTO felt that situation is different because to get a child              
 support order changed is complicated: standards are based on a                
 complicated body of case law.  CHAIRMAN TAYLOR  replied all it                
 takes is a 10 percent decrease in income.  If the father loses his            
 job for four months he has probably lost 10 percent of his income             
 and does not have the money to hire an attorney and go to court.              
 Additionally, it is not easy to go to court if the court only comes           
 to town once a month.                                                         
 MS. OTTO stated she understood Chairman Taylor's point, however has           
 seen the opposite situation more often than not: cases where the              
 victim has not initiated contact and wants nothing to do with the             
 respondent.  The respondent claims the victim is the one who                  
 initiated contact, and even though it is a lie, it becomes an                 
 impossible burden to overcome and disprove.  That means people go             
 to court seeking protection and expect the system to back up the              
 order, but get no help if the respondent lies and asserts the                 
 victim initiated contact, because the state cannot provide                    
 evidence.  Because protective orders are used to protect peoples'             
 lives they need to be enforceable.  Based on the Department of                
 Law's limited resources it would not take a case if a victim                  
 contacted an offender.                                                        
 CHAIRMAN TAYLOR said he has seen, over many years, a terrible cycle           
 of abusive relationships where the couple goes through an abusive             
 experience, then has a strong desire to reconcile, does so for a              
 short period of time, and then something triggers another violent             
 episode, and the cycle repeats itself.  Depending on what phase of            
 the cycle the parties are in, the wife either desires the order, or           
 does not.  She either listens to the advice of counselors, or does            
 not.  She either files for divorce, or dismisses the case and                 
 returns to the relationship.  He did not believe the Department of            
 Law would not prosecute in such a case.                                       
 MS. OTTO said she was speaking to the example he gave of the wife             
 calling her husband on the phone even though he was under a                   
 protective order.  She repeated she has never seen a case like that           
 prosecuted and she does not believe such cases are prosecuted.                
 CHAIRMAN TAYLOR clarified they are not being prosecuted because to            
 date such situations have been handled as violations of a domestic            
 relations order, not crimes.  MS. OTTO responded a violation of a             
 domestic relations order is a crime at present.  CHAIRMAN TAYLOR              
 pointed out that in the past it was considered a civil matter which           
 came before the court civilly.  MS. OTTO said it has been a crime             
 for approximately five years.  CHAIRMAN TAYLOR said he knew that,             
 but he is speaking to the evolution of this process.  He noted                
 there was a case in Wrangell about five years ago where a woman got           
 a restraining order against a man, but then kept following him                
 around town in her car.  He complained to police about it, but no             
 one believed him until two police officers witnessed it happening.            
 CHAIRMAN TAYLOR emphasized people use and misuse the system.  He              
 noted two cases where policemen were beat up by the victim after              
 stopping a domestic violence dispute.  Emotions in these situations           
 run very high, and it is important to separate those involved, but            
 to create a process which gives one side the right to have the                
 other side revoked because they initiated the contact would not               
 work unless both parties are rational and objective.                          
 Number 390                                                                    
 SENATOR GREEN referred to definitions of crimes on page 19 which              
 use active language, and the list of crimes related to domestic               
 violence which use passive descriptions.  She asked if assault is             
 classified as assault whether it occurs in the home or elsewhere,             
 and whether it is treated differently under this bill.                        
 MS. OTTO referred to the definition of a crime involving domestic             
 violence on page 29 and the list of crimes that are on page 19.               
 The difference between the two lists is the criminal mischief under           
 (E) which contains vandalism offenses that commonly occur in                  
 domestic violence situations.  There was no desire to pick up                 
 criminal mischief except in domestic violence situations because it           
 is often a precursor to physical violence.  Harassment offenses are           
 also limited to the domestic violence context.  She clarified                 
 assault is assault: if one is charged with a domestic violence                
 assault, the DPS computer system will list assault, not a crime               
 involving domestic violence, but a domestic violence flag would               
 accompany the offense in the computer system.                                 
 Number 428                                                                    
 SENATOR GREEN asked if domestic violence would be classified as a             
 felony.  MS. OTTO answered domestic violence is not a separate                
 offense.  The bill has taken the kinds of offenses people commit as           
 part of domestic violence, and grouped them together and called               
 them crimes involving domestic violence.  Once an offense occurs,             
 a number of things would happen according to the bill, but some of            
 the offenses are misdemeanors and some are felonies.                          
 SENATOR GREEN asked if the new list is duplicative of what is in              
 existing statute.  MS. OTTO clarified the bill does not create new            
 crimes; it does create a new name for the violation of a protective           
 SENATOR GREEN asked if a neighbor assaulted her versus a person she           
 lived with, whether the penalty would be the same and whether she             
 could get a protective order against the neighbor.  MS. OTTO                  
 answered a protective order is not a penalty, it is a device to               
 protect oneself.  The penalty would be the same for both: fourth              
 degree assault.  Crimes are charged under existing law.                       
 SENATOR GREEN asked if the same standard would apply to a neighbor            
 using a weapon against her.  MS. OTTO stated that would carry a               
 different penalty.  If a person is convicted of assaulting his/her            
 spouse with a weapon, HB 314 calls for mandatory forfeiture of the            
 weapon; that would not apply to the neighbor.  She emphasized a               
 spouse would actually have to be using the weapon in the assault              
 for forfeiture to be mandatory.                                               
 SENATOR GREEN asked about line 6 on page 22.  MS. OTTO clarified              
 page 22 only applies to protective orders and noted Representative            
 Parnell has a proposed amendment to narrow that section, which the            
 Department of Law supports.                                                   
 SENATOR GREEN recounted a situation she was involved in years ago             
 in which she helped a victim of domestic violence get out of an               
 abusive relationship.  At the time she found it cumbersome that the           
 standard for prosecution was so high because the perpetrator no               
 longer lived with the victim.  She asked what the first line of               
 protection is for a domestic violence victim who calls the police.            
 MS. OTTO replied if a victim calls police to the house, and is                
 being assaulted at that time, the bill requires the person                    
 committing the assault to be arrested and removed from the home.              
 If the victim calls the day after the assault, an investigation               
 will occur before any action is taken because the evidence is not             
 as readily available.                                                         
 SENATOR GREEN asked what evidence would be required of the victim's           
 statement if the victim contacted police one day after an assault.            
 MS. OTTO clarified to get a protective order, the victim would need           
 to appear in court, fill out forms, and provide the court with                
 evidence that the crime of domestic violence was committed against            
 her.  If the evidence is produced, the court will order a                     
 protective order.  If you are seeking to have someone prosecuted              
 for assaulting you, the prosecutor would have to conclude there is            
 sufficient evidence to prove to a trial jury beyond a reasonable              
 doubt that a crime was committed against you.                                 
 SENATOR GREEN asked when issuing the protective order based on the            
 victim's statement, what penalties or restrictions can be imposed             
 on the respondent.  MS. OTTO replied the victim would need to swear           
 to the facts and provide evidence that is acceptable to the court.            
 When that occurs, the court can issue an order that contains the              
 provisions on page 23, line 22.  There are broader protections the            
 court can order after notice and a hearing is provided to the                 
 person who is accused of assault.                                             
 CHAIRMAN TAYLOR referred to page 25 and asked why the bill would              
 prevent the court from imposing conditions on both parties during             
 the hearing for the restraining order.  MS. OTTO answered that is             
 because as a predicate to entering an order, the finding that                 
 domestic violence was committed against another person needs to be            
 established.  If a person has not committed domestic violence,                
 there is nothing to trigger court jurisdiction.  Because protective           
 orders are designed to protect people, the protection proceeding              
 focusses on protection from violence, not counseling or behavior              
 CHAIRMAN TAYLOR discussed a situation where a woman goes to a                 
 shelter and files a complaint for divorce.  The court, under                  
 divorce jurisdiction, has all kinds of authority to separate                  
 people.  On page 26, the bill says the petitioner is not barred               
 from seeking an order under this chapter because of the existence             
 of another civil action between the petitioner and the respondent.            
 That means even though orders are in place when a divorce case is             
 pending, either party is free to go into court to seek an                     
 additional protective order.                                                  
 Number 599                                                                    
 MS. OTTO stated one of the things the bill requires of a person               
 seeking a protective order is that the person disclose to the court           
 any outstanding civil or criminal matters to avoid forum shopping             
 and duplication of effort.  CHAIRMAN TAYLOR believed the system               
 could be easily abused in that process.                                       
 CHAIRMAN TAYLOR asked why the bill prevents the court from entering           
 an order against the petitioner or referring the parties into                 
 MS. OTTO explained the problem with mediation is that unlike                  
 arbitration, where a neutral third party makes the decision after             
 hearing evidence from both sides, mediation has a neutral third               
 party who does not express an opinion.  The mediator attempts to              
 help the parties come to a mutual agreement.  It is premised on the           
 idea that the parties have equal footing.  In domestic violence               
 situations, the parties are not on equal footing, and nationwide it           
 has been discovered that mediation often triggers domestic violence           
 incidents.  For that reason, both the American and Canadian                   
 mediation societies have recommended against mediation for domestic           
 violence issues.  The Department of Law has taken the middle ground           
 on this issue except for mediation directly related to domestic               
 violence issues.  If mediation is occurring in another context                
 between parties where there is ongoing domestic violence, the bill            
 provides that mediation can take place only if protections for the            
 victim are in place.                                                          
 TAPE 96-39, SIDE B                                                            
 MS. OTTO stated that is the approach recommended by the National              
 Council on Juvenile and Family Court Judges.                                  
 SENATOR GREEN commented that in other testimony taken on mediation,           
 mediators informed committee members that mediation does not need             
 to occur with all parties in the same room, and it has been                   
 successful.  MS. OTTO repeated the Department of Law has agreed to            
 take a middle ground, so that in cases where the victim is                    
 agreeable to mediation, it can occur.                                         
 JAYNE ANDREEN, Executive Director of the Council on Domestic                  
 Violence and Sexual Assault, stated more than 25 percent of Alaskan           
 woman have been physically or emotionally abused by a spouse or               
 live-in partner.  More than 10 percent of women report their                  
 abusers used a gun or knife against them, in addition to being                
 bitten or burned by the abuser.  Up to 90 percent of their children           
 witness abuse and between 35 to 75 percent of those children are              
 also abused.  Intervention is very complex.  As a society, we view            
 domestic violence as a women's issue rather than the serious                  
 criminal behavior that it actually is.  Domestic violence is a                
 series of controlling behaviors that lead to physical abuse.  The             
 behaviors develop and evolve over a period of time.  Victims and              
 offenders often fear the stigma that's attached to reaching out for           
 help.  We have many problems in our criminal justice system that              
 hinder our ability to respond to these crimes.  Cultural factors              
 often prohibit victims from seeking help.  The system does not hold           
 offenders accountable, and is slow and cumbersome in responding to            
 these crimes.  Victims are not aware of their civil and criminal              
 options and the effect of domestic violence on children is too                
 often forgotten.  The current civil restraining order time is                 
 limited, leaving victims vulnerable to additional abuse after 90              
 days.  In order to make real changes, the system must respond in a            
 timely fashion and provide immediate consequences for domestic                
 violence.  She urged committee members to support the proposed                
 committee substitute.  If this legislation passes, everyone will              
 operate with the same level of understanding when it comes to                 
 domestic violence.  This bill represents the establishment of a               
 statewide, public policy against domestic violence at both the                
 state and local level.  It gives everyone concerned about these               
 problems the opportunity to respond rather than react to domestic             
 violence.  This bill does not change Alaska's laws on domestic                
 violence: it restructures the approach to domestic violence.                  
 Number 570                                                                    
 CHAIRMAN TAYLOR asked Ms. Andreen if she could answer his previous            
 question about the percent of people who cycle back through the               
 system.  MS. ANDREEN estimated a victim of domestic violence will             
 reach out for help between five and twelve times to end the abuse             
 in the relationship.  Those attempts include contact with a                   
 shelter, with the police, or with family members.  Victim advocates           
 try to maintain a safe educational approach that allows the victim            
 to make the choices she needs to make and continue to reach out for           
 CHAIRMAN TAYLOR asked if economics play a role in domestic                    
 violence.  MS. ANDREEN verified economics do play a role for                  
 victims, but that does not mean victims at the low end of the                 
 economic scale are more prone to be involved in an abusive                    
 relationship.  CHAIRMAN TAYLOR clarified he was referring to                  
 economic cycles within the family unit.  MS. ANDREEN stated she was           
 not aware of any specific research along those lines, but indicated           
 domestic violence can be impacted by outside stressors.  Economic             
 changes, whether significant increases or decreases, can be a                 
 contributor to a change in the level of violence.  The same can be            
 said for substance abuse and alcoholism.                                      
 Number 548                                                                    
 CHAIRMAN TAYLOR stated that many studies conclude the single                  
 causative factor of many divorces is lack of money, or financial              
 problems due to job loss.  He noted the increase in domestic                  
 violence cases appears to be directly related to job loss in                  
 Wrangell and Sitka.  He expressed concern that the bill does not              
 address family counseling.                                                    
 MS. OTTO commented at every juncture, whether it be part of the               
 probation condition, parole condition, or in the domestic violence            
 restraining order context, rehabilitation is included.  At the                
 bottom of page 22, there is a provision to order the respondent, at           
 the respondent's expense, to participate in a program for the                 
 rehabilitation of perpetrators for domestic violence that meets               
 standards set by the Department of Corrections.                               
 SENATOR GREEN asked if the court ever pays for offender                       
 rehabilitation.  MS. OTTO indicated the system pays for people in             
 custody.  The bill contains a provision that allows treatment                 
 providers to garnish the offender's permanent fund dividend to                
 recapture the cost of treatment.                                              
 MS. OTTO disagreed that economics is a direct underlying cause of             
 domestic violence.  She believed the issue to be one of power and             
 control in the relationship, which tends to escalate from verbal              
 abuse.  By the time physical violence occurs, the dynamic of                  
 control has already been developed in the relationship.                       
 CHAIRMAN TAYLOR stated there seems to be a relationship between               
 economic stress and the way in which people act out.  MS. OTTO                
 clarified she does not disagree that stress causes problems, but              
 believes the root of a domestic violence relationship is a power              
 and control dynamic.                                                          
 CHAIRMAN TAYLOR commented that all victims that get a protective              
 order do not get divorced.  He expressed concern that this method             
 will not work well for couples that reconcile, and that by                    
 providing more punitive measures, the bill does not provide any               
 incentive for couples to break the cycle of domestic violence.  He            
 believed that if 30 percent of people involved in domestic violence           
 disputes go through the cycle more than once, it would be                     
 beneficial to mandate training for the perpetrator.                           
 MS. ANDREEN responded the bill does address rehabilitation for the            
 perpetrator.  Most victims commonly say they return to the                    
 relationship because the system has not adequately worked for them.           
 This bill will not make the problem go away, but will make the                
 criminal justice system more responsive to the immediate needs of             
 victims.  The system will ensure that immediate response will                 
 occur, and sends the message that this behavior is a crime, not               
 merely a family problem.                                                      
 CHRIS CHRISTENSEN, general counsel to the judicial branch, stated             
 the Supreme Court takes no position on this issue and feels the               
 issues in the bill are matters of public policy best left to the              
 legislature.  The court system has attached a fiscal note which               
 reflects minor additional costs for implementation.  He thanked the           
 sponsor for the many hours he spent working with the court system             
 to ensure the effect of the bill will not result in an understaffed           
 judiciary spinning its wheels.                                                
 MR. CHRISTENSEN discussed mediation.  There are several existing              
 statutes which authorize a judge to order mediation in different              
 kinds of cases, including divorce and child custody cases.  Civil             
 Rule 100 provides in part that a court may order mediation in                 
 response to a motion by a party, or on its own motion, when it                
 determines that mediation may result in an equitable settlement.              
 When making this determination the court may consider whether there           
 is a history of domestic violence between the parties, which could            
 be expected to affect the fairness of the mediation process, or the           
 physical safety of the domestic violence victim.  The Supreme Court           
 believes that Civil Rule 100, in its current form, strikes a good             
 balance between public policy, as expressed by the legislature,               
 which favors alternative dispute resolution, and the need to                  
 protect victims of domestic violence.  The Court does not agree               
 with one of the changes to mediation that has been made to Civil              
 Rule 100 in HB 314, specifically the conditions under which                   
 mediation may be ordered by a court on pages 34-36 (Sections 41,              
 44, and 47).   Language on page 34, line 22, prevents a mediator              
 who receives a court referral from engaging in mediation if                   
 domestic violence has occurred unless three conditions are met.               
 One of the conditions is if the victim initiates the request for              
 mediation.  As written, the court would be unable to suggest to the           
 parties that they consider mediation.  He proposed language be                
 added to line 26 that reads "mediation is requested, or proposed by           
 the court and agreed to, by the victim of the alleged domestic                
 CHAIRMAN TAYLOR asked Mr. Christensen to submit the draft amendment           
 to committee staff.                                                           
 LAUREE HUGONIN, representing the Alaska Network on Domestic                   
 Violence and Sexual Assault (ANDVSA), testified in support of HB
 314 as it is a comprehensive approach toward eradicating domestic             
 violence in Alaska.  ANDVSA particularly supports the protective              
 order registry, the expansion of the protective orders, training              
 required of professionals who interact with victims, victim                   
 notification by the parole board and Department of Corrections, and           
 of the anti-surreptitious taping language in the bill.  ANDVSA                
 opposes court ordered mediation in cases involving domestic                   
 violence as it is an inappropriate method for settling disputes               
 when domestic violence has occurred.  Unfortunately, separation               
 does not end violence: almost 75 percent of domestic violence                 
 recently reported to the U.S. Dept. of Justice was inflicted after            
 the separation.  Mediation is based on several assumptions, the               
 first being that the parties involved will have equal power in                
 their ability to bargain and reach agreements equitable to both               
 sides.  It also assumes that a mediator will offer impartial                  
 assistance to both parties.  Both of these assumptions are                    
 problematic when working with people involved in domestic violence            
 situations.  If a mediator is unaware of the many issues involved             
 in domestic violence situations, he/she cannot assure a fair and              
 equitable outcome.  If the mediator does not understand the pattern           
 of power, control and dominance used by the abusive person, not               
 only will the outcome of the mediation be compromised, but the                
 victim can be placed in further danger.  Mediation is also                    
 dangerous to mediators themselves.  California was the first state            
 to order mediation, but because some abusers carried guns to the              
 hearings, guards are often required to accompany people to the                
 mediation process.  Violence distorts the balance of power in the             
 relationship.  Abusers are able to exert control by signals only              
 the victim will notice.  The American Bar Association recommends              
 that mediation not be used in domestic violence cases, and The                
 National Council of Family and Juvenile Court Judges opposed                  
 mediation in 1990, but has included ways to work with mediation in            
 the Model Code, possibly to accommodate those states that use it.             
 The Academy of Family Mediators, the Family Mediation Association             
 of Canada, and The Society of Professionals in Dispute Resolution             
 have also come together in a 1993 report and agreed there should be           
 a rebuttable presumption in cases involving domestic violence for             
 mediation, and that presumption should stay in place until research           
 is done that repudiates the data showing this is a dangerous                  
 situation to place victims of domestic violence in.                           
 CHAIRMAN TAYLOR asked Ms. Hugonin the number of couples involved in           
 domestic violence who reconcile.  MS. HUGONIN was unaware of the              
 number.  She believed parts of the protections in the bill will               
 give people the opportunity to make the break easier because there            
 are requirements for direct intervention.  Part of the problem is             
 that, as a society and justice system, we have not done a quick and           
 thorough job of putting sanctions in place to reinforce the premise           
 that this activity is criminal.                                               
 CHAIRMAN TAYLOR asked Ms. Hugonin how long she has been in this               
 business.  MS. HUGONIN answered 11 years.  CHAIRMAN TAYLOR noted              
 the people who work in the trenches are anguished over the fact               
 that the victims have so much difficulty breaking out of the cycle.           
 MS. HUGONIN felt it is important to recognize that the question               
 always focusses on why the victim remains in an abusive                       
 relationship, rather than why the abuser continues to abuse.  She             
 believed it would be more useful to question what we are doing as             
 a society to stop abusive behavior.  Many victims do leave abusive            
 relationships but that does not solve the problem.                            
 CHAIRMAN TAYLOR stated that is why he is concerned that there are             
 only one or two sentences in a 50 page bill that talk about                   
 addressing the perpetrator's problem, rather than 50 pages                    
 addressing the perpetrator's problem.                                         
 MS. HUGONIN noted the bill does address the perpetrator's problem,            
 not in a treatment modality, but with criminal consequences.  The             
 bill provides for mandatory arrest, more provisions of the                    
 protective orders, and sends the message to the abuser that this              
 behavior is considered criminal.                                              
 CHAIRMAN TAYLOR asked Ms. Hugonin if she thought the mandatory                
 arrest provision will have a chilling effect upon the filing of               
 petitions.  MS. HUGONIN stated she was not aware whether that has             
 happened in states that have mandatory arrest.  CHAIRMAN TAYLOR               
 stated there is a pattern in enforcement where the victim refuses             
 to sign a complaint against her abuser if it would result in an               
 arrest.  MS. HUGONIN stated under HB 314, the police officer would            
 determine whether or not a crime has occurred.                                
 MS. HUGONIN emphasized she feels strongly about the removal of the            
 mediation provision, as she honestly believes it is dangerous.                
 People who abuse are not able to successfully mediate as they do              
 not have cooperative attitudes.  She did not support the Court                
 System's amendment.                                                           
 CHAIRMAN TAYLOR repeated the Court System's amendment would still             
 require the consent of the victim.  MS. HUGONIN stated her concern            
 is that people take a judge's recommendation very seriously                   
 therefore feel they should comply.  It also puts a victim in a                
 position to have to declare, in front of her abuser, that she will            
 not agree to mediation.  That could prove dangerous.                          
 MS. OTTO commented in response to an earlier question about the               
 potentially chilling effect of mandatory arrest: mandatory arrest             
 is only triggered when a police officer is responding to a crime              
 that occurred within the last 12 hours.                                       
 CHAIRMAN TAYLOR noted there was a lengthy period of time in our               
 recent history where unless the victim was willing to sign a                  
 complaint, nothing happened.                                                  
 MS. OTTO agreed that if a police officer responded to a call, and             
 the victim did not want to file a complaint, the police did not do            
 so.  Police officers also tried to mediate at the scene.  The Model           
 Code recommends mandatory arrest because it sends the message that            
 violent behavior is no longer a family problem, it is illegal.                
 CHAIRMAN TAYLOR thanked all of the people who worked on this                  
 legislation.  He announced the committee would take action on the             
 bill at the next hearing.                                                     

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