Legislature(1999 - 2000)
03/29/2000 09:30 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE BILL NO. 366 An Act relating to the rights of crime victims, the crime of violating a protective order or injunction, mitigating factors in sentencing for an offense, and the return of certain seized property to victims; expanding the scope of the prohibition of compromise based on civil remedy of misdemeanor crimes involving domestic violence; amending Rules 10, 11, 13, 16, and 17, Alaska District Court Rules of Civil Procedure and Rule 9, Alaska Rules of Administration. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, stated that HB 366 deals with victims' rights. It does not adopt any major changes in the law, but does adopt changes that are important to victims' suffering the circumstances which the bill addresses. The bill does four things: ? Allows a mitigated presumptive sentence for speedy no contest or guilty pleas; ? Simplifies procedures for victims to recover stolen property; ? Establishes a crime for violating protective injunctions in child in need of aid cases; ? Extends current disallowance of civil compromise in some domestic violence cases to all domestic violence cases. Ms. Carpeneti noted that a court can not issue an injunction for a child in need of aid case unless it makes a finding that the individual has abused the child physically or sexually. Representative G. Davis stated that portion concerned him given the "subjective present danger". Ms. Carpeneti explained that would not be affected in this bill. Co-Chair Therriault clarified that on Page 2, new language was being added which was a reference to the domestic violence section. Ms. Carpeneti added that was a provision contained in Title 11,which makes it a crime to violate a domestic violence protective order. Co-Chair Mulder commented that Section 3 was a different focus from the rest of the bill. Ms. Carpeneti replied that Section 3 deals with victims of property crimes. It provides a simplified procedure for getting the property back. That section addresses only those cases where the property is in the possession of the law enforcement. The language provides for a simplified procedure. It would allow the pawnbroker to have their say and due process and the right to present his or her case. Co-Chair Mulder asked how the court would make a decision involving the pawnbroker. Ms. Carpeneti replied that the owner of the property has a higher interest than the pawnbroker. Co-Chair Therriault interjected that "victims' rights" brings the bill together. Ms. Carpeneti added that the bill would adopt as a statutory mitigator, if the defendant acted after being charged with a crime, to alleviate the effect of the crime on the victim, by pleading guilty within 30 days of the charges. The mitigator would have already been recognized by the Court of Appeals as a non-statutory mitigator. There is a provision in law which allows for civil compromise of certain misdemeanor charges. Right now, the law allows civil compromise but it does not allow it in about 98% of the domestic violence cases. The new language would make that clear. Representative G. Davis referenced the "mitigating" stipulation. He asked if the judge would have the option of reducing the mandatory sentence. Ms. Carpeneti responded that mitigatory sentencing applies to presumptive sentencing. That would apply to first time classified felonies, first time unclassified felonies and second time felonies. Co-Chair Therriault referenced the Department of Law's, Public Defender fiscal note. He believed that there would be less work for the mitigator. Ms. Carpeneti commented that she did not understand the new roll of the mitigator position, which is being requested. She stated that law currently allows for a civil compromise and admitted that this request would be minor change to current law. Ms. Carpeneti added that a court would have to approve a civil compromise, regardless. Representative J. Davies MOVED to adopt Amendment #1, 1- GH2024\A.1, Luckhaupt, 3/28/00. [Copy on File]. Co-Chair Mulder OBJECTED. Representative J. Davies explained that the Council on Domestic Violence had submitted the amendment. The amendment speaks to a time when a person commits a crime, violating a protective order. The intent of the amendment would be to relax the requirement that the order needs to be filed. Given that, if there was a valid protective order issued in another state, it would provide that same standard in Alaska. At this time, filing could be an issue. The amendment would fit under the order of protecting victims of crime. Co-Chair Mulder asked if this concern had been presented to the Department before this meeting. Ms. Carpeneti clarified that it had not. Co-Chair Therriault asked if there was a Department position on the amendment. Ms. Carpeneti stated that philosophically, it would be a good idea, however, the civil provision of the domestic violence law provides that a protective order from another state has to be filed to be enforced civilly. By allowing it to be criminal would present an anomaly in law which needs to be fixed. She noted that the federal government does not require filing of protective orders for them to be enforced. Representative G. Davis asked if Alaska was more stringent than other states. Ms. Carpeneti replied that the way the amendment was written, it requires protective orders. In order for it to be a violation of crime, it would have to come under the statutes. (TAPE CHANGE, HFC 00 - 87, Side 2). Co-Chair Mulder stated that ultimately, the victim would have to have contact with the enforcement agency at some point. Otherwise, they would have false protection. Ms. Carpeneti commented that a problem could result if someone came to our State and did not know that they had to file a protective order or did not have time to file it before they were victimized. Representative Phillips asked why the amendment was not considered when the bill was drafted or discussed in the House Judiciary Committee. LAUREE HOGONIN, DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT (ANDVSA), JUNEAU, explained that ANDVSA was not aware that out-of-state orders could not be prosecuted until ten days ago. This concern came up at a national meeting, as an active piece of law right now, enforcing out-of-state protective orders across the nation. The discussion came up about prosecuting the out-of-state orders. It had been left out of this area of protective orders issued from other states. This could happen because the victim was not familiar with the Alaska Statute or because in several other states, filing is not a requirement. When this came to the attention of the ANDVSA staff, Ms. Hogonin noted that she spoke with Ms. Carpeneti and Representative J. Davies to help fix the problem. Representative Phillips asked if the Alaska orders include a phrase noting that if you transfer out of the state, you must make contact with the public safety officers of the state that you are going to. Ms. Hogonin replied that does not happen because there are two functions at looking at protective orders with full faith and credit. The issuing state is responsible for determining who is protected, the terms and conditions of the order and how long that order is in effect. The enforcing state is responsible for how that order is enforced, the arresting authority of responding to it, and the notification and penalty of procedures. It would not be necessary or practical for the Alaska order to indicate that you have to contact law enforcement or the court in the state you are moving to as that may not be the law for that state which may not require filing. Ms. Carpeneti stated that, AS 18.66.140 would require a change in order to comply with the need. She acknowledged that the amendment could fit under the content of the proposed bill. Ms. Hogonin stated that there is work being done by two different national groups in the process of developing a model code for enforcement of protective orders, one through the United States Attorney General and the other through the Department of Justice. She noted that this would be an opportunity for Alaska to include a tool to take care of situations so to have a valid protective order from another state for those victims who either don't know that they are suppose to file or have not had the opportunity to file. If they had a confrontation, inclusion of this language would allow for a prosecution if they were violated. Co-Chair Mulder questioned if there should be a fiscal note submitted by Department of Public Safety. HB 366 was HELD in Committee for further discussion.