Legislature(2003 - 2004)

05/07/2003 01:32 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              HB   1-STALKING & PROTECTIVE ORDERS                                                                           
CHAIR SEEKINS announced HB 1 to  be up for consideration. He said                                                               
there was a proposed amendment.                                                                                                 
SENATOR THERRIAULT  moved to adopt  amendment, \H.3  for purposes                                                               
of discussion.                                                                                                                  
                       A M E N D M E N T                                                                                    
OFFERED IN THE HOUSE                     BY REPRESENTATIVE HOLM                                                                 
     TO:  CSHB 1(JUD)                                                                                                           
Page 1, line 1:                                                                                                                 
     Delete "stalking and to violating a protective order"                                                                    
     Insert "protective orders"                                                                                               
Page 2, line 17:                                                                                                                
     Delete "The registry"                                                                                                      
     Insert "Except as provided in (f) of this section, the                                                                 
registry [THE REGISTRY]"                                                                                                    
Page 2, following line 18:                                                                                                      
     Insert a new bill section to read:                                                                                         
   "* Sec. 5.  AS 18.65.540 is amended by adding a new                                                                      
subsection to read:                                                                                                             
          (f)  The Department of Public Safety shall remove from                                                                
     the registry an                                                                                                            
               (1)  an ex parte protective order issued under                                                                   
     AS 18.65.855 that                                                                                                          
                    (A)  is dissolved by the court; or                                                                          
                    (B)  expires without a protective order                                                                     
          under AS 18.65.850 being issued;                                                                                      
               (2)  an emergency protective order issued under                                                                  
     AS 18.65.855 that                                                                                                          
                    (A)  is dissolved by the court; or                                                                          
                    (B)  expires without an ex parte protective                                                                 
          order under AS 18.65.855 or a protective order under                                                                  
          AS 18.65.850 being issued;                                                                                            
               (3)  a protective order issued under AS 18.65.850                                                                
     that is dissolved by the court before the expiration of the                                                                
               (4)  an ex parte protective order issued under                                                                   
     AS 18.66.110 that                                                                                                          
                    (A)  is dissolved by the court; or                                                                          
                    (B)  expires without a protective order                                                                     
          under AS 18.66.100 being issued;                                                                                      
               (5)  an emergency protective order issued under                                                                  
     AS 18.66.110 that                                                                                                          
                    (A)  is dissolved by the court; or                                                                          
                    (B)  expires without an ex parte protective                                                                 
          order under AS 18.66.110 or a protective order under                                                                  
          AS 18.66.100 being issued; or                                                                                         
               (6)  a protective order issued under AS 18.66.100                                                                
     that is dissolved by the court before the expiration of the                                                                
Renumber the following bill sections accordingly.                                                                               
Page 6, line 16:                                                                                                                
     Delete "sec. 5"                                                                                                            
     Insert "sec. 6"                                                                                                            
Page 6, line 20:                                                                                                                
     Delete "sec. 5"                                                                                                            
     Insert "sec. 6"                                                                                                            
SENATOR FRENCH objected.                                                                                                        
REPRESENTATIVE HOLM,  sponsor of the  amendment, said there  is a                                                               
20-day waiting  period during  which a person  who is  accused is                                                               
put in  a registry and it  isn't purged. One hundred  and seventy                                                               
state agencies  have access to  that registry for the  purpose of                                                               
ascertaining whether or not the  person has a history of breaking                                                               
the law. He  was concerned about protecting a basic  tenet of law                                                               
that a person is innocent until proven guilty.                                                                                  
TAPE 03-39, SIDE B                                                                                                            
SENATOR OGAN said he knew there was  a process for a person to go                                                               
through to purge an arrest and asked if he knew about it.                                                                       
REPRESENTATIVE HOLM  said he didn't know  of it, but he  would be                                                               
interested in finding out how it is done.                                                                                       
MR. TODD LARKIN,  Staff to Representative Holm, said  he has read                                                               
the statute that  creates the registry and  discovered that there                                                               
is  no  mechanism so  far  to  purge  a  name from  the  archived                                                               
registry.  This  is  a  section   of  the  ALASKA  PUBLIC  SAFETY                                                               
INFORMATION NETWORK  (APSIN) system  and you  can be  purged from                                                               
the regular system  (active orders that are in  force now) except                                                               
from the moment the order is  put in place, the statute instructs                                                               
the officers and officers of the  court to put you in the archive                                                               
and there is  no mechanism to purge a name  from the archive. The                                                               
archive is only  expired orders and the amendment  only speaks to                                                               
SENATOR  THERRIAULT thought  it  applies to  ex parte  protective                                                               
orders  that are  ex parte  as well  as other  regular protective                                                               
MR.  LARKIN replied  that it  does deal  with regular  protective                                                               
orders in  one case -  if you  missed your original  hearing date                                                               
and  petitioned the  court  to  come back  at  a  later date  and                                                               
present evidence that  proves the order was  meritless, the court                                                               
can dissolve it.                                                                                                                
LIEUTENANT MATT LEVEQUE, State Trooper, said:                                                                                   
     The   proposed   amendment   would  affect   not   only                                                                    
     protective  orders  that  would be  granted  under  the                                                                    
     provisions  of HB  1, but  would also  include domestic                                                                    
     violence  (DV)  protective  orders that  are  currently                                                                    
     granted under Alaska state law.  As a consequence, that                                                                    
     provision in the  proposed amendment would dramatically                                                                    
     undo  protections  that  exist  for  domestic  violence                                                                    
     victims in Alaska and it  would also reverse to a great                                                                    
     degree training  that we have  provided over  the years                                                                    
     since the  Alaska domestic  violence laws  were revised                                                                    
     in the  mid-90s to  peace officers  and to  the general                                                                    
     public victims, in particular.  This amendment seems to                                                                    
     be based on  the idea that an ex parte  or an emergency                                                                    
     order that  is not converted  to a regular order  is on                                                                    
     its  face meritless  or was  applied  for through  some                                                                    
     sort of malicious intent.  As police officers...we know                                                                    
     that  there are  dozens and  dozens of  very compelling                                                                    
     reasons  that  the  victims of  domestic  violence  and                                                                    
     potentially non domestic  violence victims of stalking,                                                                    
     as envisioned in  HB 1, would choose not  to convert an                                                                    
     emergency  order to  an ex  parte or  regular order  or                                                                    
     alternatively would  choose not to convert  an ex parte                                                                    
     order to a regular protective order.                                                                                       
LIEUTENANT  LEVEQUE  said  there  are currently  three  types  of                                                               
orders: emergency  orders, which  would be applied  for by  a law                                                               
enforcement  officer  on behalf  of  a  victim (they  last  three                                                               
days);  ex  parte orders,  which  are  applied  for by  a  victim                                                               
without the responding party present; and, protective orders.                                                                   
     The standard,  which the judge  makes a  decision about                                                                    
     issuing protective  orders if  they're emergency  or ex                                                                    
     parte, is that there be  probable cause to believe that                                                                    
     the  victim has  been  a victim  of  a crime  involving                                                                    
     domestic violence. The standard  that the judge applies                                                                    
     is higher  when an  actual regular protective  order is                                                                    
     being considered.  In the event the  committee chose to                                                                    
     accept this  proposed amendment, what happens  is we're                                                                    
     telling  law enforcement  officers  that  many, if  not                                                                    
     most,  domestic  violence  victims   are  in  fact  not                                                                    
     telling   the  truth   when  they   are  filing   their                                                                    
     petitions, because  the amendment would say,  'Look, we                                                                    
     don't trust  that you're serious about  this event that                                                                    
     you allege,  that we don't  believe you unless  you are                                                                    
     willing to  come back and  convert this into  a regular                                                                    
     order. That's  a dangerous message  to send  to victims                                                                    
     and  to   police  officers  that  we've   struggled  to                                                                    
     reorient regarding  what we  know about  victimology of                                                                    
     domestic violence victims.                                                                                                 
     This  amendment   would  also  remove   a  tremendously                                                                    
     important  investigative  tool   that  law  enforcement                                                                    
     officers in this  state are in fact required  by law to                                                                    
     avail  themselves  of.  Before   a  trooper  or  police                                                                    
     officer  makes   a  decision  regarding  arrest   in  a                                                                    
     domestic violence  case, they are required  to consider                                                                    
     prior  complaints. That's  under AS  18.65.530. One  of                                                                    
     the best  methods for  establishing whether  there have                                                                    
     been  prior  complaints is  to  be  able to  check  the                                                                    
     historical  record  within  the registry  to  determine                                                                    
     whether  in  fact  there have  been  prior  complaints.                                                                    
     Taking that  away means that  police officers  are kind                                                                    
     of  punching  around  in the  dark  and  victims  don't                                                                    
     always think  in a moment  of crisis that, 'Oh  yeah, I                                                                    
     had applied  for an  order six months  or two  years or                                                                    
     three years ago.'                                                                                                          
     There's also,  I believe,  some confusion  with respect                                                                    
     to  terminology.  Respondents  are  what  we  call  the                                                                    
     individuals  who have  protective orders  filed against                                                                    
     them and  sometimes we hear the  expression that people                                                                    
     are charged with a protective  order. Charging, and Ms.                                                                    
     Carpeneti can  correct me if  I'm mistaken, is  a legal                                                                    
     term that  describes the  process whereby  somebody has                                                                    
     formal criminal  charges presented at the  court either                                                                    
     through an  arrest or a complaint  process, indictment,                                                                    
     etc.  The protective  orders are  civil orders  that do                                                                    
     not  show  up  in   an  individual's  criminal  history                                                                    
     records because there is no  arrest; there is no charge                                                                    
     and consequently no conviction.                                                                                            
     We know on another point  of concern to law enforcement                                                                    
     statewide that  domestic violence  calls are  among the                                                                    
     most  dangerous  that   police  officers  and  troopers                                                                    
     routinely  respond   to  across  the  state.   And  the                                                                    
     inability,  as  an  officer responding  to  a  domestic                                                                    
     violence call, for  a dispatcher to go  ahead and check                                                                    
     a  historical record  about prior  complaints involving                                                                    
     the  victim and  or  the suspect  as we're  responding,                                                                    
     takes away  a huge  officer safety consideration.  To a                                                                    
     certain degree,  officers lined  up walking  into these                                                                    
     situations would  be blinded if the  committee chose to                                                                    
     adopt the amendment that's before it.                                                                                      
LIEUTENANT LEVEQUE explained the registry is a component in                                                                     
     The  Alaska  Public   Safety  Information  Network  has                                                                    
     information related  to our drivers'  licenses, vehicle                                                                    
     registrations,  whether,  when  we  were  younger,  our                                                                    
     parents  reported  us  as  a  run  away  or  a  missing                                                                    
     individual  - a  whole gigantic  volume of  information                                                                    
     about us,  none of which  may be released  except under                                                                    
     the  most specific  circumstances established  in state                                                                    
     law  and in  policy.  Of course,  the consequences  for                                                                    
     release of that information  are dramatic. There are, I                                                                    
     believe, criminal  penalties and at the  least a member                                                                    
     could expect  to lose  his or her  job. The  records of                                                                    
     protective orders are in  fact public records available                                                                    
     at  the courthouse.  If there  was  a protective  order                                                                    
     against me  in Anchorage,  one of you  could go  to the                                                                    
     courthouse and get the complete  record. So having this                                                                    
     record in  the historical archive, if  you will, within                                                                    
     APSIN,  is  actually   not  shielding  an  individual's                                                                    
     reputation in  any manner because we  can't release the                                                                    
     APSIN  information  to  the  general  public,  but  the                                                                    
     general  public can  get that  information regarding  a                                                                    
     protective order from the court house.                                                                                     
     I'd  like to  remind  the committee  that a  protective                                                                    
     order is proof of no  wrong doing whatsoever. It's only                                                                    
     an allegation, which  a judge in his or  her wisdom has                                                                    
     made an attempt  to make a decision about.  When I have                                                                    
     spoken  with some  individuals over  the course  of the                                                                    
     past couple of days about  this amendment, I know there                                                                    
     are concerns  that somehow  or another  police officers                                                                    
     will make  decisions solely  on the  basis of  the fact                                                                    
     that there's  a prior  history. It's  a component  in a                                                                    
     process  whereby  in   subsequent  investigations  that                                                                    
     might involve  domestic violence that we  would access,                                                                    
     but otherwise, it is largely meaningless.                                                                                  
He concluded by saying that  the department strongly opposes this                                                               
particular provision.                                                                                                           
SENATOR  OGAN   said  a  police   officer  must   consider  prior                                                               
complaints before  they make  a decision on  an arrest,  but they                                                               
are required  to make an  arrest in a  DV case and  that troubles                                                               
LIEUTENANT LEVEQUE replied  that the law requires  an arrest only                                                               
in cases where the officer  determines probable cause exists that                                                               
a domestic violence  crime has occurred. It's not  just that they                                                               
respond to  a domestic violence  report and must  arrest someone.                                                               
AS 18.65.530  says which person to  arrest and number one  on the                                                               
list is to consider prior complaints of domestic violence.                                                                      
SENATOR OGAN  said that answers  his question, but he  has talked                                                               
to  troopers  in  the  field  who  resent  that  sometimes  their                                                               
judgment  is circumvented  by  a mandatory  arrest.  He was  also                                                               
concerned about  an ex  parte protective  order because  only one                                                               
side  can argue  and the  other is  denied due  process and  that                                                               
right can  be abused  by the  APSIN. Some  people in  the capitol                                                               
building believe  there have been  abuses of the APSIN  system in                                                               
the  past  that have  been  swept  under  the rug  for  political                                                               
REPRESENTATIVE  HEINZE said  one of  her concerns  is that  there                                                               
could  be a  loophole where  a vindictive  person could  use this                                                               
against another person.                                                                                                         
LIEUTENANT  LEVEQUE replied  yes.  They know  those abuses  would                                                               
happen sometimes, but they would  be few and far between. Someone                                                               
could fabricate a story and  present a compelling argument to the                                                               
judge and get a protective order against him, for instance.                                                                     
REPRESENTATIVE  HEINZE asked  if there  was any  way to  mitigate                                                               
that in this bill.                                                                                                              
LIEUTENANT LEVEQUE  replied that he  didn't know. He  thought the                                                               
issue  was  balancing  the  safety  and  protection  of  domestic                                                               
violence victims and victims of  stalkers against the possibility                                                               
that  eventually,   malicious  people  will  attempt   to  obtain                                                               
protective orders against innocent people.                                                                                      
SENATOR OGAN  said he has  seen this  happen the most  in custody                                                               
disputes where someone tries to  build a record against a spouse.                                                               
He wanted  to err  on the  side of the  stalking victims,  but he                                                               
didn't know  how to do  that without trampling  on constitutional                                                               
REPRESENTATIVE  HOLM said  that was  the reason  he brought  this                                                               
issue forward.                                                                                                                  
SENATOR  FRENCH  asked  if  every APSIN  inquiry  comes  with  an                                                               
identifier so they could find out who was accessing the records.                                                                
LIEUTENANT LEVEQUE said  he didn't know for sure,  but he thought                                                               
that  was the  case.  People  who do  have  access probably  keep                                                               
meticulous logs  about who requested  a particular check  and for                                                               
what purpose.                                                                                                                   
CHAIR SEEKINS  asked how a  trooper responding to a  DV situation                                                               
could be allowed  to have that information within  the time frame                                                               
necessary for  him to make a  determination of whether or  not he                                                               
was entering a potentially violent situation.                                                                                   
LIEUTENANT  LEVEQUE  replied the  dispatcher  the  trooper is  in                                                               
contact with has access to the  historical archive and he can get                                                               
that information at the speed of  electrons and provide it to the                                                               
CHAIR  SEEKINS  asked if  the  information  is transmitted  in  a                                                               
confidential manner.                                                                                                            
LIEUTENANT LEVEQUE  replied that  in most cases,  police channels                                                               
are not encrypted.                                                                                                              
CHAIR SEEKINS  said in that  case, this information  could become                                                               
public with the speed of an electron.                                                                                           
MS.  MARY WELLS,  past  stalking  victim, said  she  went to  the                                                               
courthouse the previous day and looked  at the first 100 cases of                                                               
applicants  applying  for  protective  order and  found  that  in                                                               
Anchorage, as  of May 5 for  2003, there have already  been 1,040                                                               
applications.  Of  the first  100  cases  she accessed,  87  were                                                               
clearly  defined as  domestic violence,  13 of  them fell  into a                                                               
similar  classification  as  hers  (stalked by  someone  with  no                                                               
direct  relationship  to  her).   Of  the  100  applications,  75                                                               
children's  names were  added  to the  list  for that  protective                                                               
order; 35  were complaints  of stalking  and they  included words                                                               
like "followed, hang around, and telephoning excessively."                                                                      
Of the 100 applicants, 62 were  denied a protective order. Of the                                                               
13 applications  that didn't  get protective  orders and  had the                                                               
same qualifications  as she did,  12 children were added  to that                                                               
list. Of  the 13 applicants,  7 people were  actually complaining                                                               
that  they were  stalked.  Of the  13 people  that  had the  same                                                               
qualifications as  she did, three  were almost identical  in that                                                               
there were  threats of  violence, attempts to  go into  the home,                                                               
leaving  sexual connotations  on  the phone,  etc.  On a  lighter                                                               
note,  she said  of  the  100 applications,  one  was a  domestic                                                               
violence situation over a dog visitation.                                                                                       
SENATOR FRENCH  thanked her for  doing that research and  said if                                                               
he had to  guess what percentage of ex parte  orders were denied,                                                               
he would have guessed a much lower percentage.                                                                                  
CHAIR SEEKINS  noted that no one  was against the bill,  but they                                                               
don't  want  to  make a  victim  out  of  the  person who  has  a                                                               
complaint filed against them.                                                                                                   
MS.  LAURIE  HUGONIN, Alaska  Network  on  Domestic Violence  and                                                               
Sexual Assault,  said that  this bill  was introduced  last year,                                                               
but  didn't  make it  to  the  Senate  floor  before the  end  of                                                               
     Victims of stalking  have been waiting for  over a year                                                                    
     to  try to  get a  way into  civil courts  to get  some                                                                    
     protection. They  hope concerns with  domestic violence                                                                    
     orders  don't outweigh  the  necessity  for victims  of                                                                    
     stalking to be able to get some protection this year.                                                                      
She urged  them to move  the bill  this year and  questioned that                                                               
there may  be the  need for  a title change  if the  amendment is                                                               
added.  The   bill  is  geared  toward   stalking,  not  domestic                                                               
violence.  She  said  a  Supreme   Court  committee  on  domestic                                                               
violence in Anchorage  found that of all  the petitions submitted                                                               
in  Anchorage,  only  40  percent  were  granted  -  despite  the                                                               
perception that all you have to do is go to court and get one.                                                                  
While it  is true that ex  parte protective order means  only one                                                               
person has to be there in order  for the judge to be able to make                                                               
a decision, it  has to list on the petition  any attempts made to                                                               
contact  the respondent.  There is  a belief  that there  must be                                                               
some kind of  effort if your safety  is not at great  risk to let                                                               
the respondent  know that this is  going to go forward.  Also, if                                                               
you have been  granted an ex-parte order, you get  your copy, law                                                               
enforcement  gets  a  copy,  law enforcement  serves  it  on  the                                                               
respondent and that person has  an opportunity to come before the                                                               
court and say  they don't think it is right  or whatever. With an                                                               
ex  parte order,  the  court  is required  within  three days  or                                                               
sooner to actually have a  hearing on the respondent's issues. If                                                               
the  order   is  modified  or   dissolved,  the  court   has  the                                                               
responsibility to  get that change  to law enforcement  and they,                                                               
then, have a responsibility to  get that change into the registry                                                               
as soon  as possible. Orders in  the registry are supposed  to be                                                               
One of  the helpful things  about having  ex parte orders  in the                                                               
registry is that  a person may accidentally  leave the protective                                                               
order somewhere  and the respondent  is breaking the  order. When                                                               
law enforcement  responds and  if she doesn't  have the  order on                                                               
her and if they don't have  access to the registry, they won't be                                                               
able to act in an expeditious manner.                                                                                           
She was  concerned with Representative Holm's  amendment, because                                                               
it  seems to  imply that  there  is some  connection between  the                                                               
three types of orders.                                                                                                          
     It's very  clear in the Domestic  Violence and Victim's                                                                    
     Protection  Act of  1996 that  we meant  to have  three                                                                    
     distinct  and separate  borders.  They  are not  linked                                                                    
     together; they're  not supposed to be  linked together.                                                                    
     If I  need a 20-day  order to  keep me safe  and that's                                                                    
     all I  need, that's all  I need. If  I just want  to go                                                                    
     for  a regular  order first,  I  can just  go for  that                                                                    
     regular  order first.  One  isn't  contingent upon  the                                                                    
     other  one and  I think  that's an  important principal                                                                    
     and  it's actually  one that  we litigated  against the                                                                    
     court  system after  the passage  of the  Act in  1996,                                                                    
     because the court system had  structured their forms in                                                                    
     such a  way that...  you had  to apply  for two  at the                                                                    
     same time. That  was not the intent  of the legislature                                                                    
     and we  actually won that  litigation. There  are three                                                                    
     separate and distinct orders.  So, we're concerned with                                                                    
     this concept  of somehow linking them  together at this                                                                    
     Also, if there is a  concern that there are orders that                                                                    
     are meritless on their face  being granted, the statute                                                                    
     provides ability  for a  judge or  magistrate to  go no                                                                    
     further with that hearing...                                                                                               
MS. HUGONIN  repeated that  the amendment should  not get  in the                                                               
way of victims of stalking, which is what HB 1 is about.                                                                        
CHAIR SEEKINS said he would hold this bill for further work.                                                                    

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