Legislature(1995 - 1996)
04/15/1996 01:30 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 None 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 amendment 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 amendment Lauree Hugonin ANDVSA 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 election. 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 initiative. 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 Kelly. 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 employees. 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 authority. 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 required. 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 taxpayers. 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 penalty. 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 committee. 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 order. 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 correction. 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 mediation. 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 help. 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 violence." 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.