Legislature(2017 - 2018)GRUENBERG 120

02/08/2017 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
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Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved HCR 1 Out of Committee
         HB 8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS                                                                      
2:41:29 PM                                                                                                                    
CHAIR CLAMAN announced that the  final order of business would be                                                               
HOUSE BILL NO. 8, "An Act relating to protective orders."                                                                       
2:42:01 PM                                                                                                                    
TIM  CLARK,  Staff,  Representative Brice  Edgmon,  Alaska  State                                                               
Legislature, explained that HB 8  will align Alaska Statutes with                                                               
federal law,  which supersede some  existing contradictions.   In                                                               
2014, the elimination  of what was known as  the Alaska Exemption                                                               
from the Federal Violence Against  Women Act brought attention to                                                               
the state's  obligation to enforce  protective orders  from other                                                               
jurisdictions,  including other  states,  territories, or  tribal                                                               
courts.   Under existing statutes,  law enforcement  is compelled                                                               
to enforce another jurisdiction's  protective order if filed with                                                               
a clerk  of an Alaska  court.   However, he advised,  with Alaska                                                               
now subject to the Violence  Against Women Act (VAWA), the filing                                                               
of  those protective  orders is  not  necessary for  enforcement.                                                               
This legislation follows the recommendation  of the Department of                                                               
Law (DOL)  to amend  conflicting statutes  and bring  Alaska into                                                               
compliance with  federal law.   He pointed  out that it  will not                                                               
only clarify the  duties of state law enforcement,  but also will                                                               
eliminate   potential  lawsuits   that   could   stem  from   the                                                               
contradictions currently  in statute, and  possible complications                                                               
in prosecution.   He explained  that HB  8 adds a  presumption of                                                               
validity  for law  enforcement by  encouraging  enforcement of  a                                                               
protective order, issued  in another jurisdiction, so  long as it                                                               
appears authentic  on its face.   He  commented that it  could be                                                               
construed as erroring  on the side of caution when  it comes to a                                                               
situation of someone  possibly in danger.  The  bill more clearly                                                               
specifies in statute that other  jurisdictions include: courts of                                                               
another  state, territories,  United  States military  tribunals,                                                               
and tribal  courts.   Although, he  explained, the  Department of                                                               
Law  (DOL)  continues  to encourage  registration  of  protective                                                               
orders from other jurisdictions.   "The Attorney General noted in                                                               
his opinion,"  that the state's  central registry  gives officers                                                               
access  to  tribal  and foreign  protective  orders  anywhere  in                                                               
Alaska, even if the  victim does not have a copy  of the order at                                                               
hand, he stated.                                                                                                                
2:45:28 PM                                                                                                                    
REPRESENTATIVE KOPP asked  whether there is anything  in the bill                                                               
dealing  with   child  custody  orders,  or   whether  it  solely                                                               
addresses domestic violence protective orders.                                                                                  
MR. CLARK responded  that bill's various sections  go into almost                                                               
all relevant  parts of  state law where  the current  or previous                                                               
existence of  a protective order  could bear on  decision making.                                                               
For  example, he  opined,  Sec.  4 of  the  bill  relates to  the                                                               
requirements  of  the  Alaska  Child  Fatality  Review  Team  [AS                                                               
12.65.120], to review  the death of a child  and consider whether                                                               
anyone in  the child's  immediate household  was a  petitioner or                                                               
respondent  to  a  protective order  within  the  previous  year,                                                               
because it plays a part in its deliberation.                                                                                    
MR.  CLARK acknowledged  that  Representative  Kopp was  speaking                                                               
more in terms of child custody considerations.                                                                                  
2:47:42 PM                                                                                                                    
REPRESENTATIVE  KOPP agreed,  and he  advised that  it has  to do                                                               
with  protective orders  that are  issued  by all  levels of  the                                                               
judiciary  [branch],   including  a  magistrate  with   no  legal                                                               
training all  the way up to  a superior court judge.   He offered                                                               
that  protective orders  "are great,"  but are  more limited  and                                                               
narrow in scope,  as opposed to child custody  issues relating to                                                               
situations where people may be  leaving an abusive situation, and                                                               
then a  court order follows  them to Alaska directing  the person                                                               
to  go back  and bring  the  children.   In such  a situation,  a                                                               
person  may want  the state  to have  the ability  to examine  it                                                               
carefully before  jumping in.   He acknowledged  he had  not read                                                               
the  bill word-for-word,  and he  would like  to know  whether it                                                               
gets into child custody issues.                                                                                                 
MR. CLARK deferred to the Department of Law (DOL).                                                                              
2:49:53 PM                                                                                                                    
MARY  LUNDQUIST,  Senior  Assistant Attorney  General,  Opinions,                                                               
Appeals  &  Ethics  Section,  Office  of  the  Attorney  General,                                                               
Department of Law (DOL), explained  that protective orders govern                                                               
certain  child custody  orders, but  only with  respect to  their                                                               
domestic  violence protection  aspect.   Therefore, a  protective                                                               
order can have  a child custody component to it  but, she opined,                                                               
Representative Kopp  was addressing  a true child  custody order,                                                               
and  this   bill  does  not  cover   the  type  of  law   he  was                                                               
2:50:46 PM                                                                                                                    
REPRESENTATIVE KOPP  reiterated the  importance of  the committee                                                               
being aware that protective orders  are issued by individuals who                                                               
do  not have  the  same  standard of  training  the public  would                                                               
expect across the board.   He opined that with protective orders,                                                               
the state should always default  on the side of protecting people                                                               
in harm's  way, and  the bill  does not  appear to  be addressing                                                               
that  issue.   Those  issues,  he  remarked, are  certainly  more                                                               
volatile and the  state does want to be  consistent with domestic                                                               
violence protective  orders with federal statute,  he agreed, and                                                               
also be aware of the situations it may cover, he remarked.                                                                      
2:52:26 PM                                                                                                                    
MR. CLARK offered  that the definition of  "protection order" can                                                               
be found in  the Violence Against Women Act  (VAWA), Section 204,                                                               
paragraph 5, and he paraphrased as follows:                                                                                     
     The protection order  means any injunction, restraining                                                                    
     order, or  other order  issued by  a civil  or criminal                                                                    
     court  for  the  purpose   of  preventing  violence  or                                                                    
     threatening acts or  harassment against sexual violence                                                                    
     against  contact  or  communication  with  or  physical                                                                    
     proximity  to   another  person.    And   includes  any                                                                    
     temporary or final order issued  by a civil or criminal                                                                    
     court whether obtained by  filing an independent action                                                                    
     or  as   a  pendente   lite  vitae  order   in  another                                                                    
     proceeding if  the civil or  criminal order  was issued                                                                    
     in response  to a complaint, petition,  or motion filed                                                                    
     by or on behalf of a person seeking protection.                                                                            
MR. CLARK opined it is a narrower definition than ...                                                                           
REPRESENTATIVE KOPP agreed.                                                                                                     
2:53:48 PM                                                                                                                    
REPRESENTATIVE   EASTMAN   surmised  that,   currently,   statute                                                               
recognizes and enforces protective orders  from other states.  He                                                               
asked  the main  difference in  how it  is currently  enforced as                                                               
opposed to what would happen under this bill.                                                                                   
MR. CLARK responded  that the intent of the bill  is to reconcile                                                               
the  requirement  that  a protective  order  issued,  in  another                                                               
jurisdiction,  be   registered  with  an  Alaskan   court  before                                                               
enforcement.   Whereas,  he  explained, the  intent  of VAWA  and                                                               
reconciling  these statutes,  is so  that if  someone were  being                                                               
menaced  against  someone  whom   they  had  a  protective  order                                                               
against,  they  would  receive   immediate  assistance  from  law                                                               
enforcement.  That assistance would  occur even though the person                                                               
had not yet  taken the time to register the  protective order, or                                                               
were unaware  their protective order should  have been registered                                                               
with the state, he said.                                                                                                        
2:55:20 PM                                                                                                                    
REPRESENTATIVE EASTMAN  noted that  he could think  of situations                                                               
wherein protective  orders are  filed with  good reason  and then                                                               
perhaps with  less good  reason, a  reciprocity is  filed against                                                               
the person  who filed the protective  order.  In that  case there                                                               
are protective  orders going both  ways.  He asked  whether there                                                               
is a safety measure  here so, in the event there  is a state with                                                               
less than ideal  laws, that Alaska doesn't  find itself enforcing                                                               
something that  is not a good  idea.  He commented  that it would                                                               
appear the assumption can go to  a perceived victim who is filing                                                               
the protective order, but then if  orders are going both ways and                                                               
the  perpetrator is  filing a  protective order  ... he  does not                                                               
want to see Alaskans hemmed up because of that.                                                                                 
MR. CLARK suggested that Representative  Eastman may be referring                                                               
to a  protective order  that could be  construed as  frivolous or                                                               
unjust in some manner.  He  advised there is specific criteria in                                                               
Section 2265, of  the Violence Against Women  Act, that specifies                                                               
certain  protective orders  from other  jurisdictions must  meet,                                                               
and paraphrased the following:                                                                                                  
     The issue in court must have jurisdiction and parties                                                                      
     and the matter under the laws of the state, territory,                                                                     
     or tribe, and  the issue in court  must give reasonable                                                                    
     notice and opportunity to the  person against whom that                                                                    
     order is sought in order  for that person's due process                                                                    
     to be protected.                                                                                                           
MR. CLARK opined  that it goes a long way  toward eliminating the                                                               
possibility of frivolousness.  He deferred to Ms. Lundquist.                                                                    
2:57:44 PM                                                                                                                    
MS. LUNDQUIST added  that the protective order  must appear valid                                                               
on its  face for law enforcement  to enforce it.   In addition to                                                               
the  protection,  there must  be  a  consistent order,  that  the                                                               
issuing entity had jurisdiction,  and due process was recognized.                                                               
Although, she related,  those issues are not looked  at up front,                                                               
the person against whom the  violation of the protective order is                                                               
brought  has an  opportunity to  object  in court  as to  whether                                                               
there   was  jurisdiction   in   the   issuing  court,   personal                                                               
jurisdiction, subject matter jurisdiction,  and whether they were                                                               
given due  process.  Therefore, she  said, there will be  a ready                                                               
opportunity to challenge a protective order once it's in court.                                                                 
2:58:42 PM                                                                                                                    
REPRESENTATIVE EASTMAN asked whether  any sort of recent analysis                                                               
had been performed  as to how those laws differ  in other states,                                                               
because he would like to  identify the most restrictive state and                                                               
its dealings  with protective  orders to get  a better  handle on                                                               
how it might  apply to Alaskans, particularly in a  case where it                                                               
was  frivolous.   He  said  he understands  that  courts are  not                                                               
always  able to  make that  determination immediately,  and often                                                               
the  tie does  go  to the  person  filing for  an  order and  the                                                               
details are  sorted out  later.  He  reiterated his  question and                                                               
asked what  analysis had been  done of other states,  and whether                                                               
there  are   any  outliers   of  states   handling  these   in  a                                                               
particularly extreme manner.                                                                                                    
MS.  LUNQUIST  responded  that the  Violence  Against  Women  Act                                                               
(VAWA) requires the state to enforce  a protective order as if it                                                               
was an  order of  the enforcing state.   Therefore,  Alaska would                                                               
enforce the  protective order  as if  it was  a state  order, and                                                               
that would improve  the State of Alaska's  arrests for violations                                                               
of a  protective order.   The DOL  has not performed  an in-depth                                                               
review  of  protective order  statutes  in  other states  because                                                               
Alaska  is  required  to enforce  protective  orders  from  other                                                               
states, and other tribes under VAWA.                                                                                            
3:00:51 PM                                                                                                                    
CHAIR  CLAMAN  noted  that  related  to  full  faith  and  credit                                                               
provisions  in   the  Constitution  of  the   United  States,  it                                                               
recognizes that  Alaska's job is  not to second guess  the courts                                                               
of  other states,  and that  Alaska  is to  treat it  as a  valid                                                               
judgement of that particular jurisdiction.                                                                                      
3:01:49 PM                                                                                                                    
REPRESENTATIVE  REINBOLD noted  several  deletions  in the  bill,                                                               
including  the  deletion  of  "filed   in  court"  replaced  with                                                               
"recognized  in  another jurisdiction."    She  requested a  deep                                                               
explanation  as  to  whether specific  jurisdiction  need  to  be                                                               
defined,  and  if not,  what  exactly  is the  jurisdiction,  and                                                               
whether it impacts tribal courts.                                                                                               
MR. CLARK  answered that  the best way  to understand  the actual                                                               
mechanics of  the bill is to  read Sec. 5 and  6 first [beginning                                                               
page  3], and  that the  language  inserted or  deleted in  other                                                               
sections of the  bill will become clear.  He  offered to walk the                                                               
committee through Sec. 5 and 6, if it would be helpful.                                                                         
REPRESENTATIVE REINBOLD  asked whether  that is  necessary before                                                               
Mr. Clark  can answer  the question  of why  "filed in  court" is                                                               
being deleted and "recognized in another jurisdiction" inserted.                                                                
MR. CLARK replied  that the language accomplishes  the purpose of                                                               
the bill,  to eliminate  the requirement  for a  protective order                                                               
from another jurisdiction  being filed in an  Alaska court before                                                               
enforcement can act on it.                                                                                                      
3:03:48 PM                                                                                                                    
REPRESENTATIVE REINBOLD asked Mr. Clark  to go through Sec. 5 and                                                               
MR.  CLARK referred  to the  [Sectional Summary],  Sec. 5  and 6,                                                               
[page  1,  paragraphs  5-7,  and  page  2,  paragraphs  1-2]  and                                                               
paraphrased as follows [original punctuation provided]:                                                                         
     Section 5 adds a new  section to statute, AS 18.65.867,                                                                  
     regarding   the   enforcement    and   recognition   of                                                                    
     protective  orders issued  in other  jurisdictions that                                                                    
     have  to do  with stalking  or sexual  assault but  not                                                                    
     with domestic violence.                                                                                                    
     A  protective  order  related  to  stalking  or  sexual                                                                    
     assault  issued "by  a court  of the  United States,  a                                                                    
     court of  another state or  territory, a  United States                                                                    
     military  tribunal, or  a tribal  court"  has the  same                                                                    
     effect and must be recognized  and enforced in the same                                                                    
     manner as a protective order  issued by an Alaska state                                                                    
     This section  also cites United  States Code  Title 18,                                                                    
     Chapter  2265,  which  is  the  part  of  the  Violence                                                                    
     Against  Women  Act  that addresses  protection  orders                                                                    
     originating  in   other  jurisdictions.   Chapter  2265                                                                    
     expressly   states   that   orders  issued   in   other                                                                    
     jurisdictions do  not have to be  filed (registered) in                                                                    
     an Alaska  state court  in order  to be  enforced here.                                                                    
     Chapter  2265  also   describes  certain  criteria  the                                                                    
     issuing  jurisdiction needs  to meet  in order  for its                                                                    
     protection order to  be given full faith  and credit by                                                                    
     another jurisdiction.                                                                                                      
     Section  5 further  instructs  law  enforcement that  a                                                                    
     stalking-  or  sexual-assault-related protection  order                                                                    
     issued in  another jurisdiction that  appears authentic                                                                    
     on its face  should be (HB 8 Sectional  Summary, Page 2                                                                    
     of 3.) presumed valid.  (This might be characterized as                                                                    
     erring on  the side of  caution when it comes  to those                                                                    
     in need of protection.)                                                                                                    
     Section  6  addresses  protective  orders  relating  to                                                                  
     domestic  violence. It  amends  AS  18.66.140 to  state                                                                    
     that  (just  as  with  protective  orders  relating  to                                                                    
     stalking and sexual assault in  the absence of domestic                                                                    
     violence, addressed  in Section  5) a  protection order                                                                    
     related   to  domestic   violence  issued   in  another                                                                    
     jurisdiction must  be recognized  and enforced  just as                                                                    
     if it  were issued by  an Alaskan court,  regardless of                                                                    
     whether   the   protection   order   has   been   filed                                                                    
     (registered) with an Alaskan court.                                                                                        
     This section  also cites United  States Code  Title 18,                                                                    
     Chapter  2265,  which  includes  certain  criteria  the                                                                    
     issuing  jurisdiction needs  to meet  in order  for its                                                                    
     protection order to be given full faith and credit.                                                                        
3:06:50 PM                                                                                                                    
MR.  CLARK advised  that when  turning to  other sections  of the                                                               
bill, the  changes found bring  those various sections  into line                                                               
with  what was  established in  Sec.  5 and  6, in  terms of  the                                                               
registration requirement or lack thereof in this case.                                                                          
3:07:22 PM                                                                                                                    
REPRESENTATIVE  REINBOLD stated  that  her  question was  whether                                                               
jurisdiction  needed  to  be  defined,  whether  it  was  clearly                                                               
defined enough there, and how it impacts tribal [courts].                                                                       
MR.  CLARK offered  that it  does not  necessarily impact  tribal                                                               
courts,  and  it  could  be  construed  as  a  "welcomed  further                                                               
legitimization of  the tribal courts."   Substantively,  he said,                                                               
it accomplishes  the removal  of the  requirement for  the tribal                                                               
court protections  order to be  registered with the  state before                                                               
enforcement can take place.                                                                                                     
3:08:21 PM                                                                                                                    
REPRESENTATIVE REINBOLD  surmised that his testimony  was that it                                                               
increased  legitimation  of  the  tribal courts,  and  asked  how                                                               
tribal courts are funded.                                                                                                       
MR. CLARK  responded that  he does not  feel qualified  to answer                                                               
that question thoroughly.                                                                                                       
MR.  CLARK,  in response  to  Chair  Claman,  agreed that  he  is                                                               
certainly not an  expert in tribal court funding.   Although, for                                                               
example,  the Civil  Legal  Services, Corp.  in  Alaska works  to                                                               
assist tribal  courts to build  and strengthen  its institutions.                                                               
He  offered   that  the  Alaska   Court  System  is   in  greater                                                               
collaboration  with tribal  courts  and is  undertaking the  same                                                               
activities in terms of building and fortifying its institutions.                                                                
CHAIR CLAMAN advised  Representative Reinbold that it  is fair to                                                               
say Mr. Clark can't really answer her question.                                                                                 
3:09:54 PM                                                                                                                    
REPRESENTATIVE  REINBOLD  asked  that someone  offer  information                                                               
about tribal courts before the bill moves out of committee.                                                                     
CHAIR CLAMAN asked  that Mr. Clark locate an  individual to offer                                                               
more insight  as to how tribal  courts are funded.   Chair Claman                                                               
surmised that Representative Reinbold  would like to know whether                                                               
funds  from  the state  budget  are  directed to  tribal  courts,                                                               
including the court system and executive branch.                                                                                
REPRESENTATIVE REINBOLD replied, "Yes, and more."                                                                               
3:10:47 PM                                                                                                                    
REPRESENTATIVE KOPP encouraged the  committee members to read the                                                               
detailed 7/30/2015 memo from  Attorney General Richards, included                                                               
within  their bill  packet.    He related  that  it answers  99.9                                                               
percent of  the questions asked here  today regarding reconciling                                                               
VAWA with Alaska statutes.   He explained that a protective order                                                               
is not  an arrest warrant,  it protects people and  allows Alaska                                                               
law enforcement to arrest if  a protective order is violated, and                                                               
that due  process is required  for the orders  to be valid.   Law                                                               
enforcement's perspective is  "if they're not in  the registry it                                                               
is  hard because  different formats  are used  in many  different                                                               
jurisdictions," and  he encouraged  registration of  these orders                                                               
in the Central Alaska Public Safety Information Network.                                                                        
3:12:37 PM                                                                                                                    
CHAIR CLAMAN noted  that Congress decided to, and  what this bill                                                               
incorporates to  be in compliance  with the federal law,  is that                                                               
in terms  of protecting women,  in particular, "we want  to error                                                               
on the  side of protection."   The reality is that  someone hands                                                               
law  enforcement a  piece  of paper  that appears  to  be a  duly                                                               
enacted court order, and asks law  enforcement to enforce it.  In                                                               
that  situation, he  explained,  law  enforcement, under  federal                                                               
rules and this  law, would be expected to follow  that order, and                                                               
the purpose of  registering the order is to  give law enforcement                                                               
some degree  of confidence.   He described that the  committee is                                                               
making  a policy  decision "to  provide  greater protection  than                                                               
that allows," he said.                                                                                                          
[HB 8 was held over.]                                                                                                           

Document Name Date/Time Subjects
HB008 ver A 1.18.17.pdf HJUD 2/8/2017 1:30:00 PM
HB008 Sponsor Statement 1.20.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/13/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HB008 Sectional Analysis 1.20.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/13/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HB008 Additional Documentation-7.30.15 VAWA Enforcement Dept. of Law Opinion 1.20.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/13/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HB008 Additional Documentation-2014 Repeal of Alaska Exemption to VAWA 1.20.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/13/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HB008 Additional Documentation-USCODE Title 18 Chapter 2265--Full Faith and Credit 1.20.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/13/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HB008 Additional Documentation-18 USCA Section 2265 Full Faith and Credit Given to Protection Orders 2.7.17.pdf HJUD 2/8/2017 1:30:00 PM
HB 8
HB008 Fiscal Note LAW-CRIM 1.27.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HB008 Fiscal Note DPS-DET 1.27.17.pdf HCRA 1/31/2017 8:00:00 AM
HJUD 2/8/2017 1:30:00 PM
HJUD 2/13/2017 1:30:00 PM
HJUD 2/15/2017 1:30:00 PM
HB 8
HCR001 Fiscal Note LEG-SESS 2.6.17.pdf HJUD 2/8/2017 1:30:00 PM