HB 12-PROTECTIVE ORDERS  2:18:16 PM CHAIR CLAMAN announced that the next order of business would be HOUSE BILL NO. 12 "An Act relating to protective orders." [Before the committee was CSHB 12(STA), version 31-LS0103\K.] He announced that the committee would take up amendments. He stated for the record that Legislative Legal Services has permission to make any technical and conforming changes to the bill. 2:19:26 PM REPRESENTATIVE KOPP moved to adopt Amendment 1, labeled 31- LS0103\K.2, Radford, 3/18/19, which read as follows: Page 1, line 10, following "section": Insert ", if the petition alleges a change in  circumstances since the court's previous finding" Page 2, line 15, following "section": Insert ", if the petition alleges a change in  circumstances since the court's previous finding" REPRESENTATIVE LEDOUX objected for purposes of discussion. 2:20:00 PM REPRESENTATIVE KOPP explained that Amendment 1 addresses a concern raised by the court system. He said Amendment 1 relates to the issue of a person denied a protective order renewal returning immediately to the court to request reconsideration. He explained that the petitioner would have to allege a change of circumstance since the court's previous finding. 2:21:02 PM REPRESENTATIVE EASTMAN asked if the passage of HB 12 would qualify as "a sufficient change in circumstance" for purposes of this type of request. He clarified that changes in law could be construed as a changing circumstance. REPRESENTATIVE KOPP answered that it is conceivable, but he does not know if it is possible. He noted that the petitioner, regardless of whether his/her order has expired, would still need to establish to the court that a protective order is necessary. CHAIR CLAMAN said Representative Eastman's query raises an interesting question about for whom the new law would qualify as a change in circumstances. He established a hypothetical in which two people one whose protective order expired many months prior and another whose order expired a few days prior - claim the newly passed law as a change in circumstances. 2:24:11 PM KEN TRUITT, Staff, Representative Chuck Kopp, Alaska State Legislature, said one concrete answer to that question can be found in HB 12's applicability clause on page 2 starting at line 28. He said it stipulates that, should HB 12 become law, its provisions would apply to all protective orders in effect on the date of passage and all those issued after the date of passage. He clarified that qualifying protective orders would be those within 30 days of lapsing or those that have lapsed in the past 60 days. He addressed the hypothetical scenario in which HB 12 becomes law the day after a petitioner is denied a protective order, and the petitioner returns the day after to request reconsideration. He said a solution to that situation would likely be at the discretion of the judge. 2:25:52 PM REPRESENTATIVE LEDOUX withdrew her objection. There being no further objection, Amendment 1 was adopted. 2:26:48 PM REPRESENTATIVE EASTMAN moved to adopt Amendment 2, labeled 31- LS0103\K.3, Radford, 3/26/19, which read as follows: Page 1, line 8: Delete "or" Page 1, line 10, following "section": Insert "; or  (4) the petitioner appears telephonically at the  protective order hearing" REPRESENTATIVE LEDOUX objected for purposes of discussion. REPRESENTATIVE EASTMAN said Amendment 2 would clarify that the fact a petitioner is calling in telephonically is not a reason to deny a protective order. He shared a personal experience in which he accompanied a friend to a courthouse to deal with a protective order issue. He said his friend was told by the court clerk that her request would not be accepted if she was not present in the courtroom to sign the necessary documents. He explained that his friend, not wanting to confront her abuser, left without being issued a protective order. He said that people who are not able to or do not wish to confront their abuser or attorney should not be disqualified from obtaining a protective order. 2:28:34 PM REPRESENTATIVE KOPP shared that he has personally helped many people obtain protective orders over the phone. He said he believes there is nothing in Alaska law that prevents or discourages telephonic applications. He noted that emergency protective orders are almost always done over the phone. He stated it is his understanding that ex parte orders, which are for 20 days, are also routinely handled telephonically. He called the amendment unnecessary. CHAIR CLAMAN asked Representative Eastman about the protective order his friend was pursuing. He asked what kind of order it was. REPRESENTATIVE EASTMAN answered that it was a long-term order. CHAIR CLAMAN said he is confused by Representative Eastman's anecdote because the first protective order is typically an ex parte order and requires no confrontation with the accuser. REPRESENTATIVE EASTMAN clarified that the situation he was referring to was "a follow-up." CHAIR CLAMAN said that there would typically be no new documents to sign for a long-term protective order because those documents get signed upon the granting of the ex parte order. 2:30:42 PM REPRESENTATIVE EASTMAN, to Representative Kopp's comment, said he would agree with Representative Kopp's assessment of Amendment 2 if HB 12 dealt solely with ex parte protective orders. He remarked that the broader nature of HB 12 may require such an amendment. CHAIR CLAMAN noted that telephonic appearances are allowed by the Alaska Rules of Court. He said he shares Representative Kopp's assessment that Amendment 2 is unnecessary. REPRESENTATIVE KOPP said he would support the amendment if he felt it would do good or "enhance the process." He stated the court system currently permits telephonic appearances for emergency protective, ex parte protective orders, and long-term protective orders. REPRESENTATIVE WOOL requested confirmation from the Alaska Court System that the amendment is not needed. 2:32:27 PM NANCY MEADE, General Counsel, Alaska Court System, said Representative Kopp is correct that the court system routinely hears and grants protective orders through telephonic hearings. REPRESENTATIVE EASTMAN asked, as HB 12 stands now, if the court could deny a protective order based on the circumstance of a telephonic appearance. MS. MEADE answered that the court cannot deny a protective order just because the petitioner is appearing telephonically and not in person. 2:33:33 PM CHAIR CLAMAN suggested that not allowing the respondent to appear at a long-term domestic violence protective order would run into constitutional issues about the confrontation clause. MS. MEADE confirmed that the respondent is present at a long- term order hearing for due process reasons. REPRESENTATIVE EASTMAN asked if a telephonic appearance would not be permitted for a long-term order hearing. MS. MEADE said a respondent could appear telephonically; he/she has the right to appear. She noted that respondents sometimes do not appear at all. Similarly, she added, the petitioner can also appear telephonically at any hearing. 2:34:53 PM REPRESENTATIVE LEDOUX said she is confused about telephonic allowances and requested clarification. MS. MEADE apologized. She clarified that petitioners have the right to appear telephonically at any hearing for any protective order. She said respondents those accused of committing domestic violence, stalking, or sexual assault are not typically notified about 72-hour or short-term protective order hearings. She said respondents have a right to be "present" for long-term protective order hearings and thus receive notice because of due process requirements. She said respondents can choose to be present telephonically. She noted that respondents have the constitutional right to know a proceeding is occurring against them because it could result in a grave consequence against them. 2:36:30 PM REPRESENTATIVE LEDOUX considered that respondents do not have the right in a long-term protective order case to confront their accusers in person, as they would in a criminal case. MS. MEADE answered correct. She said a protective order hearing is not a criminal proceeding where the respondent is a criminal defendant, so different protections apply. She clarified that these hearings are civil proceedings. She added that due process rights apply [for the long-term order hearings] and respondents can opt to come and defend themselves. She noted that respondents can do this by telephone. She said the respondent does not have the right to insist the petitioner appear for cross-examination. 2:37:43 PM REPRESENTATIVE EASTMAN said he feels Amendment 2 is necessary because the language is of use to the public. He said it would reassure and encourage people who may not be able to apply for an order in person to still file the request. 2:38:40 PM A roll call vote was taken. Representative Eastman voted in favor of Amendment 2. Representatives LeDoux, Wool, Shaw, Kopp, and Claman voted against it. Therefore, Amendment 2 was not adopted by a vote of 1-5. 2:39:11 PM REPRESENTATIVE EASTMAN moved to adopt Amendment 3, labeled 31- LS0103\K.4, Radford, 3/26/19, which read as follows: Page 1, line 7: Delete "for" Insert "of or a contributing factor for granting" Page 1, line 8: Delete "or" Page 1, line 10, following "section": Insert "; or  (4) the petitioner appears telephonically at the  protective order hearing" REPRESENTATIVE WOOL objected for purposes of discussion. REPRESENTATIVE EASTMAN explained that the amendment would expand the language of HB 12 so that if an act of stalking or sexual assault was a contributing portion of the basis for a previous protective order, that [an extension] could not be denied on those grounds." He said the amendment would further protect those in need of protective orders. 2:40:16 PM REPRESENTATIVE KOPP opined that the amendment only adds confusion. He noted that a protective order cannot be issued without a probable cause finding that an act of stalking or sexual assault has occurred. He pointed to the murkiness of the amendment's language. REPRESENTATIVE SHAW said, "I read [the amendment] five times and then I got an interpretation of it, and I'm still confused." MS. MEADE echoed the previous representatives' confusion about the intent of the amendment. CHAIR CLAMAN asked Representative Eastman to clarify the amendment. REPRESENTATIVE EASTMAN said he is concerned that the court could potentially deny a protective order because an act of domestic violence or stalking was a contributing factor rather than the primary factor. He clarified that the amendment essentially replaces the definite article "the" with the indefinite article 2:44:19 PM MS. MEADE restated that protective orders get issued because a court found there was "an incident" and there was "an act" of domestic violence, sexual assault, or stalking. She said the court identifies the incident that was the impetus for issuing the protective order. She said she is still unclear about what might be considered "a contributing factor." CHAIR CLAMAN opined that Representative Eastman has "done little to lift the confusion." REPRESENTATIVE EASTMAN reframed his explanation around a hypothetical person coming to the court to fill out a request for a protective order. He asked if that person is restricted to listing just one incident on the form, or whether the person has the right to list multiple reasons and incidences that may have piled up. MR. MEADE said she is beginning to understand his intent. She confirmed that petitioners often list multiple incidents that they want to rely upon at the hearing. She explained that court-issued orders include checkboxes for each crime committed by the respondent. If more than one box is checked, which is to say there are multiple crimes that have provided the impetus for the order, each would be treated as a basis for the order rather than as "a contributing factor." She said the language of HB 12 as written already covers this situation. REPRESENTATIVE EASTMAN withdrew the motion to adopt Amendment 3. 2:47:13 PM REPRESENTATIVE EASTMAN moved to adopt Amendment 4, labeled 31- LS0103\K.5, Radford, 3/26/19, which read as follows: Page 1, line 7: Delete "for" Insert "of or a contributing factor for granting" Page 1, line 8: Delete "or" Page 1, line 10, following "section": Insert "; or  (4) the petitioner appears telephonically at the  protective order hearing" Page 2, line 11: Delete "for" Insert "of or a contributing factor for granting" Page 2, line 12: Delete "or" Page 2, line 15, following "section": Insert "; or  (4) the petitioner appears telephonically at the  protective order hearing" REPRESENTATIVE LEDOUX objected for purposes of discussion. REPRESENTATIVE EASTMAN said Amendment 4 combines Amendments 2 and 3 and makes them applicable to each of the protective order classes. He withdrew his motion to adopt Amendment 4, citing the committee's reluctance to adopt Amendments 2 and 3. 2:47:44 PM REPRESENTATIVE EASTMAN moved to adopt Amendment 5, labeled 31- LS0103\K.6, Radford, 3/26/19, which read as follows: Page 1, line 7: Delete "for" Insert "of or a contributing factor for granting" Page 1, line 8: Delete "or" Page 1, line 10, following "section": Insert ";  (4) the petitioner appears telephonically at the  protective order hearing; or  (5) of the current geographic location of the  respondent" Page 2, line 11: Delete "for" Insert "of or a contributing factor for granting" Page 2, line 12: Delete "or" Page 2, line 15, following "section": Insert ";  (4) the petitioner appears telephonically at the  protective order hearing; or  (5) of the current geographic location of the  respondent" REPRESENTATIVE LEDOUX objected for purposes of discussion. REPRESENTATIVE EASTMAN said the language of Amendment 5 deals with geography. He established a scenario in which a petitioner is denied a protective order because the court believes the respondent, who has left the state, does not pose enough of a risk. He argued that, given the ease with which the respondent could travel from out of state to confront the petitioner, it is important to clarify to the court that the respondent's geographic location is not a reason to deny a protective order. 2:49:45 PM CHAIR CLAMAN established a scenario in which a petitioner requests a 6-month protective order against a respondent who is imprisoned out of state and will continue to be incarcerated for the next year. He asked why the court should not be able to deny the request based on a lack of geographic risk. REPRESENTATIVE EASTMAN said the amendment would not limit that situation because of the element of incarceration. He noted that the reason for the denial would not be because the respondent is out of state, but because the respondent is incarcerated. He said courts would continue to be able to deny orders for that reason. REPRESENTATIVE KOPP characterized the amendment as "a solution in search of a problem. He noted that, to grant a protective order, the court must establish that an order is necessary to protect the safety of the petitioner. He said the court weighs factors such as the type of crime committed, the identity of the respondent, the respondent's location, and whether there is currently an investigation. He validated Representative Eastman's concerns about "a mobile society," but stressed that the court is always tasked with determining the probability of the petitioner being hurt. He suggested that the language in Amendment 5 could confuse the court and interfere with its "common sense application" of making causal determinations about a petitioner's risk status. He opined that the amendment is unnecessary. 2:52:40 PM REPRESENTATIVE EASTMAN said if the argument holds that the court can come up with its own justification based on common sense and that it does not need the legislature to list out particulars, then there is no purpose to supporting HB 12. He insisted that there is value to putting this sort of language into statute to encourage and inform people who may pursue protective orders. 2:53:59 PM A roll call vote was taken. Representative Eastman voted in favor of adopting Amendment 5. Representatives LeDoux, Wool, Shaw, Kopp, and Claman voted against it. Therefore, Amendment 5 was not adopted by a vote of 1-5. 2:55:45 PM REPRESENTATIVE LEDOUX moved to report HB 12 as amended out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 12(JUD) was reported out of the House Judiciary Standing Committee.