04/27/2004 08:15 AM Senate JUD

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ALASKA STATE LEGISLATURE SENATE JUDICIARY STANDING COMMITTEE April 27, 2004 8:15 a.m. TAPE(S) 04-53 MEMBERS PRESENT Senator Ralph Seekins, Chair Senator Scott Ogan, Vice Chair Senator Hollis French MEMBERS ABSENT Senator Gene Therriault Senator Johnny Ellis COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 385(JUD) "An Act relating to awarding child custody; and providing for an effective date." MOVED SCS CSHB 385(JUD) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 227(JUD) "An Act increasing the jurisdictional limit for small claims and for magistrates from $7,500 to $10,000; increasing the jurisdictional limit of district courts in certain civil cases from $50,000 to $100,000; expanding the jurisdiction of district courts; limiting magistrates from hearing certain small claims cases; and amending Rule 11(a)(4), Alaska District Court Rules of Civil Procedure, relating to service of process for small claims." MOVED CSHB 227(JUD) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 428(JUD) am "An Act relating to civil liability for acts related to obtaining alcohol for persons under 21 years of age or for persons under 21 years of age being on licensed premises." MOVED CSHB 428(JUD)am OUT OF COMMITTEE PREVIOUS COMMITTEE ACTION BILL: HB 385 SHORT TITLE: AWARDING CHILD CUSTODY SPONSOR(s): REPRESENTATIVE(s) MCGUIRE 01/20/04 (H) READ THE FIRST TIME - REFERRALS

01/20/04 (H) JUD 02/25/04 (H) JUD AT 1:00 PM CAPITOL 120 02/25/04 (H) <Bill Hearing Postponed> 02/27/04 (H) JUD AT 1:00 PM CAPITOL 120 02/27/04 (H) <Bill Hearing Postponed> 03/01/04 (H) JUD AT 1:00 PM CAPITOL 120 03/01/04 (H) Moved CSHB 385(JUD) Out of Committee 03/01/04 (H) MINUTE(JUD) 03/03/04 (H) JUD RPT CS(JUD) 6DP 03/03/04 (H) DP: OGG, GRUENBERG, SAMUELS, HOLM, 03/03/04 (H) GARA, MCGUIRE 04/01/04 (H) TRANSMITTED TO (S) 04/01/04 (H) VERSION: CSHB 385(JUD) 04/02/04 (S) READ THE FIRST TIME - REFERRALS 04/02/04 (S) HES, JUD 04/16/04 (S) HES AT 1:30 PM BUTROVICH 205 04/16/04 (S) Moved CSHB 385(JUD) Out of Committee 04/16/04 (S) MINUTE(HES) 04/19/04 (S) HES RPT 3DP 04/19/04 (S) DP: DYSON, GUESS, DAVIS 04/27/04 (S) JUD AT 8:00 AM BUTROVICH 205 BILL: HB 227 SHORT TITLE: DISTRICT COURTS & SMALL CLAIMS SPONSOR(s): JUDICIARY 03/28/03 (H) READ THE FIRST TIME - REFERRALS 03/28/03 (H) L&C, JUD 05/14/03 (H) L&C AT 3:15 PM CAPITOL 17 05/14/03 (H) Scheduled But Not Heard 05/16/03 (H) L&C AT 3:15 PM CAPITOL 17 05/16/03 (H) -- Meeting Canceled -- 05/17/03 (H) L&C AT 12:00 AM CAPITOL 17 05/17/03 (H) -- Meeting Postponed to Sun. 5/18/03 --

01/21/04 (H) L&C AT 3:15 PM CAPITOL 17

01/21/04 (H) Moved Out of Committee

01/21/04 (H) MINUTE(L&C)

01/23/04 (H) L&C RPT 3DP 3NR 1AM

01/23/04 (H) DP: GUTTENBERG, GATTO, ANDERSON;

01/23/04 (H) NR: DAHLSTROM, LYNN, CRAWFORD;

01/23/04 (H) AM: ROKEBERG

01/23/04 (H) BILL: HB SHORT TITLE: CIVIL PENALTY: MINORS & ALCOHOL SPONSOR(s): REPRESENTATIVE(s) MEYER WITNESS REGISTER Ms. Vanessa Tondini Staff to Representative McGuire Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented CSHB MS. VANESSA TONDINI, staff to the House Judiciary Committee, explained that CSHB current jurisdiction of both small claims and district courts. The jurisdictional limit for district courts was last raised in limit to $100,000, allowing for inflation and increased flexibility for litigants. The jurisdictional limit on small claims court and magistrate court was last raised in 1997 from $5,000 to $7,500. Small claims court offers many advantages over district court to litigants, including less formal discovery requirements, lower filing fees and relaxed evidentiary rules. CSHB 227(JUD) prohibitions against district court hearing claims for false imprisonment, libel, slander and malicious prosecution because district court judges are well qualified to hear those kinds of cases. Last, CSHB over out-of-state defendants. Current law only allows small claims actions against out-of-state defendants under the landlord/tenant act and certain other statutes that authorize service of process against owners or operators of motor vehicles involved in accidents in Alaska. CSHB REPRESENTATIVE KEVIN MEYER, sponsor of 428(JUD)am minimum drinking age law. It is a civil measure that will further limit illegal underage drinking access to alcohol, thereby reducing youth involvement in alcohol-related traffic accidents. In addition, MADD supports community policing and brings liquor licensees into the fight to prevent underage drinking. She noted she has heard from many liquor store clerks who are frustrated that they can do nothing to prevent adult males from purchasing alcohol for underage teen girls. This legislation provides the same motivational tool as a bill introduced by Representative Meyer that passed the legislature two years ago. It will provide an incentive to store clerks or bar bouncers by offering a financial reward and satisfaction from knowing they are being responsible citizens. Their jobs will become more of a career and those employees often get more training. MADD believes this bill will deter adults from purchasing alcohol for minors, particularly sexual predators and friends and family members of underage drinkers who think they are doing a favor for a minor. MR. O.C. MADDEN, owner of Brown Jug Liquors in Anchorage, informed members that an Anchorage ordinance allows businesses to take a $1,000 civil penalty against those who order and receive beverages from a licensee for the purpose of giving those beverages to a minor and against minors who solicit adults. He provides rewards to employees who intervene in those cases and waives $700 of the fine if the offender agrees to take an alcohol awareness class. He pointed out that virtually 100 percent of the minor offenders take the class, which has been a very effective tool. To address concerns raised by members, MR. MADDEN said a sale does not have to occur for an arrest or stop to be made. Alaska law currently prohibits an adult from ordering or receiving a beverage from a licensee for distribution to a minor. Brown Jug Liquors has made about 120 arrests or stops so far, and has found that what the court has accepted to be an order is when an adult takes a product at the request of a minor and places in a cart for the purpose of giving that product to the minor. The adult does not actually have to make the purchase. Regarding luring a minor in to make a purchase, it is a criminal offense for a licensee to knowingly allow minors into the premise. Under AS 04.16.049, the licensee can stop the minor at the door and the minor, at that point in time, is liable for the $1,000 civil penalty so it is not beneficial for the licensee to allow a minor to enter. He feels that law has been a very good tool. After the Anchorage Daily News did an article on the program, he received calls from other licensees around the state questioning how they could replicate that program. SENATOR OGAN commented that he believes one of the most prevalent problems in the state is underage drinking. SENATOR FRENCH thanked Mr. Madden for showing community leadership in its role in this program, particularly in his efforts to waive part of the fine in lieu of treatment. He asked whether this bill should provide more stimuli for treatment, rather than leaving that up to the licensee. MR. MADDEN said that basically the way it works right now, when a Brown Jug Liquor employee catches a person under the Anchorage ordinance, it sends the offender a demand letter. He likes the $1,000 penalty and the fact that treatment is not mandatory because that provides a substantial hammer to encourage that minor to get on board with the treatment program. If the minor knows the outcome will be the same, whether he accepts the deal or fights it in court, he will choose to fight it in court. If that were the case, the licensee would not have the time to invest in pursuing these cases. He has found that requiring the educational component is not necessary because the minors sign up for it right away to lower the fine. He noted that offenders learn quickly that it will cost them more than $300 to get an attorney to fight the case. SENATOR FRENCH said his perspective is that not all licensees will be as enlightened as Brown Jug Liquors and many may see this as an opportunity to put cash in their employees' pockets. He agrees that may have a positive effect in that employees will be more alert to these kinds of sales. He said he would like to see that the minors who get caught learn something other than that it was an expensive mistake. MR. MADDEN responded that right now there is no incentive in current state law providing for a licensee to not sell to an adult who is purchasing for a minor. The licensee is not obligated to monitor areas outside the premise. At the present time, a licensee can actually profit from wearing blinders. This bill will encourage licensees to be more vigilant about what is going on outside of their establishments and will address a very, very serious problem. This bill has no enforcement costs so the only costs involved are paid completely by the offender. MR. DAVID LAMBERT, the owner of two dispensary licenses in Fairbanks, stated strong support for CSHB 428(JUD)am deterrents and intervention. MADD believes if it saves one life, it is worthwhile. She said if this bill becomes law, it will help to set in place programs similar to the one in Anchorage in other communities, and eventually provide for an educational component. With no further participants, CHAIR SEEKINS closed public testimony. SENATOR FRENCH said he can see how this program is a win-win situation in Anchorage with Brown Jug Liquors, but he is not sure it will have the same benefit if no educational component is required. He said that a $1,000 fine will be a big deterrent for a minor but he would prefer to have some of that money turned into an educational program that would make for a better learning experience. CHAIR SEEKINS felt some teenagers will learn from an education class, others won't, and some will endure the class for the benefit of a lower fine. He noted that the military prefers to have 18 and 19-year-old foot soldiers because those soldiers believe that consequences belong to someone other than them. That same attitude sometimes prevails in the use of dangerous substances with young people, due to the physiology of their development, particularly males. He would prefer to require a $1,000 fine and an education class. He said the committee has heard time and again that 90 percent of the cases heard in the court system have a drug and alcohol aspect to them. TAPE 04-53, SIDE B REPRESENTATIVE MEYER said he appreciates Senator French and Chair Seekins' concern and that the same concerns were expressed on the House side. He pointed out that because the program is just getting started, he wants the bill to have enough flexibility for licensees to work with their situations to get a program going. If licensees abuse the program, the statute can be tightened. He noted it is so hard to get licensees to pursue action against minors because it is easier to make the sale. He said the House decided to provide the program with enough flexibility so that it can grow and come back to make changes if need be later. SENATOR OGAN said he believes some abuse will occur, but he would like to get data on the amount of liquor that is sold to minors on weekends. He bets that is a significant amount. He suggested putting some coercion language in the bill or stating on the record that the intent of this legislation is not to allow liquor salespeople to coerce minors to buy liquor to be able to fine them. CHAIR SEEKINS agreed that is not the intent. REPRESENTATIVE MEYER noted that MADD will be watching this program closely and that MADD wants the education component very much. However, MADD is willing to forego requiring the education component just to get the program started. He said he would prefer to leave the bill as is and have MADD monitor how it works. CHAIR SEEKINS agreed with that approach. SENATOR OGAN repeated that he would prefer that the committee stated that its intent is not to entrap people. CHAIR SEEKINS noted that all agree that is not the intent of the sponsor or anyone who has taken action on this bill to this point, as well as all committee members present. SENATOR OGAN moved A M E N D M E N T 1 (Page 3, Line 31 - Page 4, Line 1) DELETE "committed an act of" INSERT "a history of perpetrating" Rationale: In (h) below (Page 4, lines 4-7) "A history of perpetrating domestic violence" is given specific meaning. This amendment would make the language consistent in the two sections. SENATOR FRENCH objected for the purpose of discussion. CHAIR SEEKINS felt that Amendment 1 makes subsection (g) conform with the remainder of the section. REPRESENTATIVE McGUIRE said that is exactly correct. She said the intent is to make sure that when this process is being abused, there is a documented history of it. It is not to apply to a single allegation. CHAIR SEEKINS said it almost seems predictable in certain contested divorce cases that both parties rush to file a [domestic violence and/or sexual abuse of a minor] complaint when there is no basis in fact for the allegation. However, one complaint based on a documented history of domestic violence could lead to this conclusion. REPRESENTATIVE McGUIRE agreed and clarified that she meant that the two be read together. She explained: So, we've always meant for it to be more than an act but when we looked back at it we realized it wasn't consistent in both parts so it's just to reaffirm that basic public policy that we had before and it's just what you said. CHAIR SEEKINS said the committee has heard testimony that complaints of domestic violence can be used as a weapon and not for the best interests of the child. REPRESENTATIVE McGUIRE clarified: So Mr. Chairman, what we're doing now is we're saying that - and these are difficult subjects to talk about because there will be some people that would say to you yea, the incidents of false complaints of domestic violence are rare and so on, but I think we all understand what we're talking about, which is that it can be used that way. What this bill is doing now is it is still asking that the best interest of the child be considered. It's also asking that the court consider a variety of other factors but it's simply saying now that the fact that someone has been a recipient of serious bodily injury, that there's a history of domestic violence, it is a thing that we want the courts to consider and.... CHAIR SEEKINS interjected, "All of which is meant to try to serve the best interests of the child." REPRESENTATIVE McGUIRE said that is the point. She noted the victim of serious bodily injury would not want that abuse to be used against him or her in a custody battle but the root of the issue is what is best for the child. She pointed out the evidence is overwhelming that in a household where domestic violence occurred, the child is likely to have been abused as well. About 10 years ago, the legislature acknowledged the fact that witnessing domestic violence has psychological implications for children. She noted the judge would have to consider a list of factors and if there is a history of domestic violence and serious bodily injury, there is the presumption that can be overcome by a preponderance of the evidence. CHAIR SEEKINS noted that a loving parent may not necessarily be a good parent and asked how to balance other negative habits or conditions that may be present. REPRESENTATIVE McGUIRE said the original language - the desire of each parent to provide a "loving, frequent relationship between the child" was an odd standard. She tried to put a more legally defensible and neutral standard into the standard so used "the willingness and ability of each parent to facilitate and encourage a close and continuing relationship...." She pointed to the language on line 20 and said that gets to the root of Chair Seekins' concern, that being that a history of domestic violence will endanger the health or safety of the child. However, she wants to keep that as one of the factors for the court to determine because it is for the benefit of the child. SENATOR FRENCH thought the bill strikes a good balance between the needs of both parties regarding child custody issues. He said in his experience, he has not found that most people use the filing of a domestic violence complaint as a weapon in custody battles. He finds legal professionals, for the most part, to be an ethical bunch. He then referred to the phrase "serious bodily injury" on page 4 and asked why she chose that phrase rather than "serious physical injury" and whether they are the same in her mind. CHAIR SEEKINS asked that Amendment 1 be addressed first. SENATOR FRENCH withdrew his objection to the adoption of Amendment 1, therefore it was adopted. REPRESENTATIVE McGUIRE said Representative Gruenberg suggested that phrase and that she would be amenable to changing the phrase to "serious physical injury". She meant the two to be the same. She then suggested including the definition of that phrase to improve the bill. SENATOR FRENCH noted that because the phrase "serious physical injury" has been used in the criminal statutes for decades, he would move to change the word "bodily" on line 6 of page 4 to "physical" [Amendment 2]. CHAIR SEEKINS announced that without objection, Amendment 2 was adopted. MS. PAIGE HODSIN, representing herself, told members she could provide them with the results of a 1988 American Bar Association study of 12 states in which 9,000 custody cases were reviewed. Less than 2 percent of those cases involved allegations of sexual abuse so the false allegation concern is low incidence. She then explained that she is a divorced single mother of two children and is a court-appointed special advocate for abused and neglected children, PTA president and a domestic violence survivor. She was in a verbally and physically abusive marriage for 11 years; most of the abuse occurred in front of her children, which is what the bill addresses. As her daughter grew older, she began to see the impact of witnessing abuse on her more clearly. As her daughter grew older, the father became abusive of her as well and she felt it was her responsibility to protect her children's well being and serve as an appropriate role model. Her ex-husband had threatened to use whatever action necessary to prove her to be an unfit mother and take custody of the children, who she would never see again. During the custody battle, she found that her role had been turned upside down. Her common sense told her that she was responsible for getting out of the marriage to protect the children, yet she was pressured to not raise those concerns during the custody battle. Some of the statutes resulted in equal blame for the violence. Her children's fears about their father's abuse were pathologized and the court strongly implied that if she did not accept a shared physical custody arrangement, the court would give full custody to the father. MS. HODSIN said as time went on, she found the toll on her daughter of unsupervised visitation with the father became enormous. She would scream, kick and cry when taken from her home and had trouble at school. Her daughter reached out to many trusted adults yet the court failed to respond. Her son, a toddler, would be returned dehydrated and unclean, and once with a black eye. She went through two full custody trials and five years of litigation. She now has full legal and physical custody of her children but her ex-husband still has unsupervised visitation rights. Ultimately, she found her case to be representative of systemic failure in the court system to protect domestic violence victims and their children. She found women and children all over the country with similar experiences and she found an alarming number of abusive parents being awarded full custody of their children. She said CSHB 227(JUD) Out of Committee 02/09/04 (H) MINUTE(JUD) 02/12/04 (H) JUD RPT CS(JUD) NT 1DP 4NR 02/12/04 (H) DP: MCGUIRE; NR: SAMUELS, HOLM, 02/12/04 (H) GARA, OGG 04/06/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519 04/06/04 (H) Moved CSHB 227(JUD) Out of Committee 04/06/04 (H) MINUTE(FIN) 04/07/04 (H) FIN RPT CS(JUD) NT 4DP 3NR 04/07/04 (H) DP: CHENAULT, FATE, FOSTER, HARRIS; 04/07/04 (H) NR: HAWKER, STOLTZE, JOULE 04/19/04 (H) TRANSMITTED TO (S) 04/19/04 (H) VERSION: CSHB 227(JUD) 04/20/04 (S) READ THE FIRST TIME - REFERRALS 04/20/04 (S) JUD, FIN 04/27/04 (S) JUD AT 8:00 AM BUTROVICH 205 428 02/04/04 (H) READ THE FIRST TIME - REFERRALS 02/04/04 (H) L&C, JUD 02/25/04 (H) L&C AT 3:15 PM CAPITOL 17 02/25/04 (H) Moved Out of Committee 02/25/04 (H) MINUTE(L&C) 02/26/04 (H) L&C RPT 5DP 02/26/04 (H) DP: CRAWFORD, LYNN, ROKEBERG, 02/26/04 (H) GUTTENBERG, GATTO 03/18/04 (H) JUD AT 1:00 PM CAPITOL 120 03/18/04 (H) Heard & Held 03/18/04 (H) MINUTE(JUD) 03/19/04 (H) JUD AT 1:00 PM CAPITOL 120 03/19/04 (H) Moved CSHB 428(JUD) Out of Committee 03/19/04 (H) MINUTE(JUD) 03/24/04 (H) JUD RPT CS(JUD) 4DP 1AM 03/24/04 (H) DP: SAMUELS, ANDERSON, GRUENBERG, 03/24/04 (H) MCGUIRE; AM: GARA 03/29/04 (H) DIVIDE THE AMENDMENT WITHDRAWN 03/29/04 (H) TRANSMITTED TO (S) 03/29/04 (H) VERSION: CSHB 428(JUD) AM 03/31/04 (S) READ THE FIRST TIME - REFERRALS 03/31/04 (S) L&C, JUD 04/13/04 (S) L&C AT 1:30 PM BELTZ 211 04/13/04 (S) -- Meeting Canceled -- 04/15/04 (S) L&C AT 1:30 PM BELTZ 211 04/15/04 (S) Scheduled But Not Heard 04/20/04 (S) L&C AT 2:00 PM BELTZ 211 04/20/04 (S) Moved CSHB 428(JUD)am Out of Committee 04/20/04 (S) MINUTE(L&C) 04/21/04 (S) L&C RPT 5DP 04/21/04 (S) DP: BUNDE, SEEKINS, DAVIS, 04/21/04 (S) FRENCH, STEVENS G 04/27/04 (S) JUD AT 8:00 AM BUTROVICH 205 /Bill/Detail/23?Root=HB227'>HB 227 for the sponsor 303 K St. of HB 227 is/Bill/Detail/23?Root=HB428'>HB 428 /Bill/Detail/23?Root=HB428'>HB 428 /Bill/Detail/23?Root=HB428'>HB 428 /Bill/Detail/23?Root=HB428'>HB 428 s/Bill/Detail/23?Root=HB385'>HB 385 /Bill/Detail/23?Root=HB385'>HB 385 /Bill/Detail/23?Root=HB385'>HB 385 name='HB227' href='/basis/Bill/Detail/23?Root=HB227'>HB 227. 227(JUD)-DISTRICT COURTS & SMALL CLAIMS 227(JUD) makes necessary changes to the 1990 from $35,000 to $50,000. CSHB 227(JUD) will raise that raises that limit to $10,000 and removes 227(JUD) will expand small claims jurisdiction ll/Detail/23?Root=HB227'>CSHB 227(JUD) will allow small href='/basis/Bill/Detail/23?Root=HB227'>HB 227, added that this small claims can be l/Detail/23?Root=HB227'>CSHB 227(JUD) will be another. ot=HB227'>CSHB 227(JUD). etail/23?Root=HB227'>CSHB 227(JUD) will change the oot=HB227'>CSHB 227(JUD) from committee with individual href='/basis/Bill/Detail/23?Root=HB227'>CSHB 227(JUD) 428(JUD)am-CIVIL PENALTY: MINORS & ALCOHOL href='/basis/Bill/Detail/23?Root=HB428'>HB 428, told members the ?Root=HB428'>HB 428. The Brown Jug waives $700 of the CSHB because it will be an effective way to enforce the href='/basis/Bill/Detail/23?Root=HB428'>CSHB 428(JUD)am. He said is not a treatment bill. This bill deals with 23?Root=HB428'>CSHB 428(JUD)am from committee with oot=HB385'>CSHB 385(JUD)-AWARDING CHILD CUSTODY href='/basis/Bill/Detail/23?Root=HB385'>HB 385, gave the href='/basis/Bill/Detail/23?Root=HB385'>HB 385 is the ill/Detail/23?Root=HB385'>CSHB 385(JUD)am. il/23?Root=HB385'>CSHB 385(JUD) from committee with s"> id="docLink">Open document in new windowX ght:100%;min-height:600px" id="docFrame"> width="105" height="107" bills, locate ist-whos-who.php">contact information. g.gov/webmaster.php">help

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04/27/2004 08:15 AM Senate JUD

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