Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/28/2017 03:30 PM COMMUNITY & REGIONAL AFFAIRS
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HB 8-ENFORCEMENT OF FOREIGN PROTECTIVE ORDERS CHAIR BISHOP announced consideration of HB 8. SENATOR MACKINNON moved Amendment 1, labelled 30-LS0127\A.3 30-LS0127\A.3 Wallace 3/16/17 AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR MACKINNON TO: HB 8 Page 4, following line 22: Insert a new bill section to read: "* Sec. 8. AS 22.35.030 is amended to read: Sec. 22.35.030. Publication of Records [RECORDS CONCERNING CRIMINAL CASES RESULTING IN ACQUITTAL OR DISMISSAL]. The Alaska Court System may not publish a court record [OF A CRIMINAL CASE] on a publicly available website (1) in a criminal case if 60 days have elapsed from the date of acquittal or dismissal and (A) [(1)] the defendant was acquitted of all charges filed in the case; (B) [(2)] all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case under Rule 11, Alaska Rules of Criminal Procedure; (C) [(3)] the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or (D) [(4)] all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078; (2) of a protective order under AS 18.66.100 - 18.66.180, restraining order, or injunction in a case involving domestic violence if the publication would likely reveal the identity or location of the party protected under the order." Renumber the following bill sections accordingly. CHAIR BISHOP objected for discussion purposes. 3:39:41 PM BRITTANY HUTCHISON, staff to Senator MacKinnon, Alaska State Legislature, Juneau, Alaska, explained that Amendment 1 would put Alaska in further compliance with the Federal Violence Against Women Act (VAWA). It requires that all protective orders, restraining orders, or injunctions in cases involving domestic violence, sexual assault, or stalking shall not be published on the Internet if they would likely reveal the identity or location of the party protected under the order. She said the bulk of the amendment is in section 2 and everything else is conforming changes. Section 2 was written to comply with Title 18 of US Code Section 22.65 (d)(2), entitled "No Prior Registration or Filing as a Prerequisite for Enforcement." However, right below that (d)(3), entitled "Limits on Internet Publication or Registration Information" is what the amendment seeks to be in compliance with. The amendment is worded exactly the same. 3:41:26 PM NANCY MEADE, General Counsel, Alaska Court System, Juneau, Alaska, explained that using this language means that the court system would remove the public version that people can access from home from CourtView and it applies to all records of domestic violence protective orders, as well as stalking and sexual assault protective orders. This is because any record of a protective order would likely [inadvertently] reveal the identity or location of a protected party. Just removing the petitioners' names could leave clues as to the other information. If something is left on CourtView like unpublished or anonymous versus Click Bishop with a Fairbanks case number, that does in fact reveal the identity of the person bringing it as well as the location. She said the court system can remove everything with no fiscal impact. SENATOR MACKINNON asked what language about protecting a victim's identity would instruct the court to adequately comply with the federal law. MS. MEADE answered the problem is that by saying "to remove anything that reveals the identity or location of the person who files," makes it very easy to figure out the information that is left out. The court system could be instructed to remove all names or one name, but removing just one name (thus leaving enough information to figure out other names) would be violating federal statute. She explained that in the past, the court system applied VAWA to foreign (non-Alaskan) domestic violence protective orders, because it is in federal law. That meant they didn't post anything about protective orders that came from other jurisdictions. The legislature can tell the court to do more if it thinks VAWA requires more and they will do it. She just wanted to make sure they know how language would be implemented. 3:45:05 PM SENATOR MACKINNON asked if Alaska protects out-of-state orders more vigorously than in-state orders in compliance issues. MS. MEADE answered that provision of VAWA deals with full faith and credit to be given to foreign protective orders. They can do the same thing for Alaskan protective orders, which this language would tell them to do. SENATOR MACKINNON said they are trying to come into federal compliance with victims who petition the court for protection, and HB 8 takes them one step closer, but the amendment is trying to put the state in full compliance. The courts are asserting today that there is only one way to do it, and that is to remove all data. They have contacted the Council on Domestic Violence and Sexual Assault, as well as the Alaska Network on Domestic Violence and Sexual Assault. They are all inclined to have the perpetrator, or the accused have their names public so that the general public knows there could be harm associated with those individuals that are being at least accused if not prosecuted. If this amendment fails, she wanted to be able to craft new, compliant legislation with help from the court. 3:47:21 PM SENATOR GARDNER asked if there is a proposal to fix Senator MacKinnon's concern without the unintended consequence. MS. MEADE answered that she worked with Senator MacKinnon's staff and it would be simple if the statute said that the court system may not publish a petitioner's name in a domestic violence, stalking, or sexual assault protective order. That would be easy and perhaps would get to where they want to go if what they want is to keep petitioner's names off the Internet but leave respondent's names. That is not difficult to draft. 3:48:09 PM At ease 3:48:51 PM SENATOR MACKINNON said her staff had the language "petitioner" and when it was submitted to Legislative Legal they were given a legal opinion that said it would not be in compliance. So, she wanted to ask Megan Wallace to speak to the reasons why she believes it would still be out of compliance. 3:49:21 PM MEGAN WALLACE, Legislative Legal Counsel, Legislative Legal Services, Legislative Affairs Agency, Alaska State Legislature, Juneau, Alaska, said in regard to changing the amendment so that only the petitioner's name would appear on CourtView, her concern is that the federal statute states that to be in compliance the publication cannot reveal the identity or the location of the party. She was not certain if they take out the language relating to revealing the identity of or location of the party, if it doesn't leave room for non-compliance with that federal law. Federal statute states that publications cannot reveal identification or location of the party. SENATOR MACKINNON said her goal is to comply with federal law and protect victims of domestic violence and asked to hear from Ms. Meade. MS. MEADE said she didn't think her legal opinion on this really matters, but if your legal conclusion is that just writing "petitioners" would not be compliant with federal law, then you would go with this wording. But with this wording and perhaps what Ms. Wallace is trying to say is that nothing would be posted about a case on their Internet site. It is difficult to research what other states do definitively. A Michigan Supreme Court opinion at least implies that nothing can be posted about domestic violence protective orders on the Internet under VAWA. She wasn't saying that is the standard in the U.S. and she wasn't proffering her legal opinion, but rather she is saying how the wording in the statute would be implemented should this amendment pass. 3:51:54 PM SENATOR STEDMAN said this is about as clear as mud and that the committee should proceed with caution so they understand what they are voting on. He asked to clarify that they can't by federal law publish the names of the accused. MS. MEADE said it is Legislative Legal's conclusion that the portion of federal law that says that petitioners' names ought to be protected in protective order proceedings was interpreted by the court previously to apply only to orders coming in from other states. Legislative Legal has determined that applies to all protective orders filed in the state, as well. Now the question is how to write that into an amendment. You could write "never put a petitioner's name on CourtView" and that can be done. But Legislative Legal thinks that wouldn't go far enough towards putting the state into compliance with federal law, which says "can't put anything on there that would reveal the identity or location." That is the wording in Senator MacKinnon's amendment. However, in practice the CourtView can't show anything, because displaying a domestic violence case in Fairbanks with anonymous versus Click Bishop, alerts people to whom the other party is. CHAIR BISHOP, finding no further comments, held HB 8 in committee.