HB 76 - STALKING/SEXUAL ASSAULT PROTECTIVE ORDERS  1:04:14 PM VICE CHAIR THOMPSON announced that the first order of business would be HOUSE BILL NO. 76, "An Act relating to costs and fees for stalking and sexual assault protective orders." REPRESENTATIVE HOLMES, speaking as the sponsor, explained that HB 76 is intended to fix a loophole in the statutes pertaining to protective orders for stalking and sexual assault. When the statutes pertaining to protective orders for domestic violence (DV) were created, they included a provision that allowed the court to order a perpetrator of DV to pay the costs and fees incurred by the victim for the protective order. However, when the statutes pertaining to protective orders for stalking and sexual assault were created, no such similar provision was included. She characterized this as an oversight that HB 76 would correct. 1:06:31 PM JAMES R. WALDO, Staff, Representative Lindsey Holmes, Alaska State Legislature, on behalf of the sponsor, Representative Holmes, explained that Section 1 of HB 76 would add a new paragraph (5) to AS 18.65.850(c) that would allow the court, when issuing a protective order for stalking or sexual assault, to also require the respondent to pay the costs and fees incurred by the petitioner in bringing the action. Section 2 would alter AS 18.65.855 such that proposed AS 18.65.850(c)(5) would not apply in situations involving ex parte and emergency protective orders for stalking and sexual assault; this exemption mirrors one in the statutes pertaining to ex parte and emergency protective orders for DV. REPRESENTATIVE LYNN asked what a protective order typically costs. MR. WALDO suggested that others might be better able to address that question, but surmised that there could be a number of costs associated with a protective order. In response to a question, he explained that the change proposed by Section 1 of HB 76 would allow the stipulation about paying costs and fees to be included in the protective order itself, whereas, in contrast, recovering such costs and fees under the Alaska Rules of Civil Procedure - specifically Rule 79 pertaining to costs and Rule 82 pertaining to attorney fees - would require additional court filings from the victim, and these could be fairly onerous, particularly when the victim is a pro se petitioner. REPRESENTATIVE GRUENBERG, noting that he supports HB 76, questioned whether the changes proposed by HB 76 constitute an indirect court rule change. MR. WALDO offered that HB 76's proposed new language simply mirrors language already existing in the statutes pertaining to protective orders for DV. REPRESENTATIVE HOLMES added that the proposed changes have already been vetted by both the Department of Law (DOL) and Alaska Court System (ACS), and neither raised concerns about potential court rule changes. MR. WALDO, in response to a question, explained that under current Alaska law, protective orders for stalking and sexual assault may only contain those items listed in AS 18.65.850(c), which currently reads: (c) A protective order issued under this section may (1) prohibit the respondent from threatening to commit or committing stalking or sexual assault; (2) prohibit the respondent from telephoning, contacting, or otherwise communicating directly or indirectly with the petitioner or a designated household member of the petitioner specifically named by the court; (3) direct the respondent to stay away from the residence, school, or place of employment of the petitioner, or any specified place frequented by the petitioner; however, the court may order the respondent to stay away from the respondent's own residence, school, or place of employment only if the respondent has been provided actual notice of the opportunity to appear and be heard on the petition; (4) order other relief the court determines to be necessary to protect the petitioner or the designated household member. 1:17:42 PM MR. WALDO again explained that Section 1's proposed AS 18.65.850(c)(5) would allow the court, if it so chooses, to also include in the protective order a requirement that the respondent pay the costs and fees incurred by the petitioner in bringing the action. In response to a further question, he relayed that the language in proposed paragraph (5) mirrors that found under existing AS 18.66.100(c)(14), which pertains to protective orders for DV. Again, HB 76 would merely be addressing an oversight in the statutes pertaining to protective orders for stalking and sexual assault, and because the proposed provisions are already part of existing law as it pertains to protective orders for DV, the courts have already dealt with such provisions. MR. WALDO, in response to questions, reiterated that Section 2 would alter AS 18.65.855 such that proposed AS 18.65.850(c)(5) would not apply in situations involving ex parte and emergency protective orders for stalking and sexual assault; and that this exemption mirrors one pertaining to ex parte and emergency protective orders for DV. In situations involving ex parte and emergency protective orders, the respondent wouldn't be present or have knowledge of the proceeding, and so there would be significant due process issues raised if the court were to require the respondent to pay costs and fees when he/she wasn't present to defend himself/herself. He then recounted his understanding of the various types of protective orders available in Alaska. 1:29:05 PM LISA A. MARIOTTI, Policy Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), explained that last summer the ANDVSA became aware of two cases in which the respondent of a stalking and sexual assault protective order came to the proceeding with a lawyer and essentially turned it into a mini- trial in order to thwart the process. [The magistrates in those cases] felt it was appropriate to order the respondent to pay for the costs and fees incurred by the petitioner, but current statute didn't allow for it. The ANDVSA thought this odd because the law already allows the court to order a respondent of a protective order for DV to pay costs and fees incurred by the petitioner, and so the ANDVSA approached the sponsor about introducing a bill to remedy the situation, the result being HB 76. MS. MARIOTTI, too, pointed out that when the statutes pertaining to protective orders for DV were created, they included a provision that allowed the court to order the respondent to pay costs and fees, and offered her understanding that the inclusion of that provision didn't result in an indirect court rule change. House Bill 76 would bring some parity to the statutes pertaining to protective orders, and, under the bill, it would not be mandatory for the court to order a respondent of a protective order for stalking or sexual assault to pay the costs and fees incurred by the petitioner, but would instead be left up to the court to determine on a case-by-case basis whether such would be appropriate. In conclusion, she relayed that the ANDVSA fully supports HB 76, and agreed to provide the committee with information about typical costs and fees associated with protective orders. REPRESENTATIVE GRUENBERG, in response to information provided him, expressed disfavor with the fact that protective orders for stalking and sexual assault are only in effect for six months, and relayed that he would be researching that issue further. 1:42:04 PM DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), in response to questions, provided information about the lengths of the various types of protective orders available in Alaska. VICE CHAIR THOMPSON, after ascertaining that no one else wished to testify, closed public testimony on HB 76, and announced that HB 76 would be held over.