Legislature(2003 - 2004)

04/07/2004 08:09 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SB 308-DOMESTIC VIOLENCE PROTECTIVE ORDERS                                                                        
                                                                                                                                
SENATOR HOLLIS FRENCH, sponsor of  SB 308, told members that he                                                                 
reviewed the Rules  of Professional Conduct in  response to the                                                                 
question of  whether attorneys are  or might  encourage divorce                                                                 
clients  to run  to court  to get  a restraining  order against                                                                 
their spouses. The rules state  that a lawyer shall not counsel                                                                 
or assist a  client to engage in conduct that  the lawyer knows                                                                 
is  criminal or  fraudulent.  Therefore, an  attorney would  be                                                                 
risking his  or her professional  license if he or  she engaged                                                                 
in such activity.                                                                                                               
                                                                                                                                
SENATOR  THERRIAULT asked  how he  would  seek a  remedy if  he                                                                 
suspected his wife's divorce attorney  was recommending she get                                                                 
a restraining order against him.                                                                                                
                                                                                                                                
SENATOR FRENCH said  he would file a complaint  with the Alaska                                                                 
Bar Association.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT asked  if he would have to  hire an attorney                                                                 
to do so.                                                                                                                       
                                                                                                                                
SENATOR FRENCH said he would not  have to but would probably be                                                                 
better  off  doing so.  He  noted  the Alaska  Bar  Association                                                                 
prosecutes   the   complaints   in-house.  The   bar   collects                                                                 
information  from  the complainant,  asks  the  attorney for  a                                                                 
statement, looks into the matter and makes a decision.                                                                          
                                                                                                                                
CHAIR SEEKINS commented that  domestic violence complaints seem                                                                 
to  show up  very  quickly in  ugly  divorces, especially  with                                                                 
young  people.   While  it   may  be   against  the   rules  of                                                                 
professional conduct for  an attorney to encourage  a client to                                                                 
get  a  restraining  order  for  bogus  reasons,  it  might  be                                                                 
difficult  to  prove  the attorney's  motives.  He  added  that                                                                 
sometimes a spouse is even baited  into an argument so that the                                                                 
other  spouse can  get a  restraining order.  He said  he would                                                                 
lean toward  giving the court  discretion to determine  what is                                                                 
going on. He  stated, "It just seems to me  that any order that                                                                 
would automatically  be effective for  one year may  be leaning                                                                 
outside  of the  discretion  of  the court.  I  don't have  any                                                                 
problem with  the court saying that  they have a leeway  - they                                                                 
can make  that effective  for six months  to 12  months, rather                                                                 
than making it one or the other."                                                                                               
                                                                                                                                
SENATOR FRENCH  offered the  following amendment  [Amendment 1]                                                                 
to page 1, lines 13 and 14, to read:                                                                                            
                                                                                                                                
     (2) (c)(2)-(16) of this section are effective for a                                                                        
        minimum of six months or up to one year unless                                                                          
     earlier dissolved by court order.                                                                                          
                                                                                                                                
CHAIR SEEKINS responded  that makes him feel  better because in                                                                 
talking to  some people  off the record,  they would  prefer to                                                                 
have some discretion rather than a fixed limit.                                                                                 
                                                                                                                                
SENATOR FRENCH  amended his amendment  to change the  word "or"                                                                 
to "and" so  that it reads "a  minimum of six months  and up to                                                                 
one year...".                                                                                                                   
                                                                                                                                
SENATOR THERRIAULT questioned the reason for the change.                                                                        
                                                                                                                                
SENATOR FRENCH withdrew the amendment to Amendment 1.                                                                           
                                                                                                                                
CHAIR  SEEKINS announced  that without  objection, Amendment  1                                                                 
was adopted.                                                                                                                    
                                                                                                                                
SENATOR OGAN offered Amendment 2, which reads as follows:                                                                       
                                                                                                                                
                                                                                                                                
                     A M E N D M E N T  2                                                                                   
                                                                                                                                
OFFERED IN THE SENATE                           BY SENATOR OGAN                                                                 
     TO:  SB 308                                                                                                                
                                                                                                                                
Page 1, line 1, following "Act":                                                                                              
     Insert "relating to warnings on domestic violence forms                                                                  
and"                                                                                                                          
                                                                                                                                
Page 1, following line 14:                                                                                                      
     Insert a new bill section to read:                                                                                         
   "*  Sec.  2.    AS 18.66.150  is amended  by  adding  a  new                                                             
subsection to read:                                                                                                             
          (e)  Forms and instructions for petitions and                                                                         
     requests to  modify petitions  must contain  a conspicuous                                                                 
     warning  that the  petitions  and  requests are  submitted                                                                 
     under  oath under  penalty of  perjury and  that a  person                                                                 
     making  a false  statement may  be prosecuted  for perjury                                                                 
     and, if found  guilty, may be punished for  violation of a                                                                 
     felony."                                                                                                                   
                                                                                                                                
CHAIR  SEEKINS   objected  for  the   purpose  of   hearing  an                                                                 
explanation.                                                                                                                    
                                                                                                                                
SENATOR OGAN explained  that Amendment 2 changes  the title and                                                                 
adds a new  section that simply says  that forms, instructions,                                                                 
petitions,  and requests  to modify  petitions  must contain  a                                                                 
conspicuous warning,  for the purpose of  informing people that                                                                 
if  they make  a false  statement, they  could be  charged with                                                                 
perjury and, if  found guilty, could be punished  for a felony.                                                                 
He maintained  that Amendment 2  would put people on  notice so                                                                 
that if  they plan to manipulate  the system by making  a false                                                                 
statement to gain an advantage, they are committing perjury.                                                                    
                                                                                                                                
SENATOR FRENCH  believed that petition statements  are sworn to                                                                 
now so  Amendment 2 would  comport with the way  the statements                                                                 
are currently  made and  the penalty  for false  statements. He                                                                 
was unsure whether protective order  statements are given under                                                                 
oath.                                                                                                                           
                                                                                                                                
CHAIR   SEEKINS  said   the  key   word  in   Amendment  2   is                                                                 
"conspicuous" because  the notice would  have to stand  out and                                                                 
be easily noticed.                                                                                                              
                                                                                                                                
SENATOR OGAN affirmed that is his intent.                                                                                       
                                                                                                                                
SENATOR THERRIAULT  clarified that the [protective  order] form                                                                 
is signed before a notary.                                                                                                      
                                                                                                                                
CHAIR SEEKINS said the notary  is notarizing the signature, not                                                                 
the statement.                                                                                                                  
                                                                                                                                
SENATOR  THERRIAULT  noted  the petitioner  swears  or  affirms                                                                 
under penalty  of perjury. He  asked whether the font  would be                                                                 
made larger and/or bolder.                                                                                                      
                                                                                                                                
CHAIR SEEKINS said  he doesn't read it to say  the person could                                                                 
be punished for the violation of  a felony. He pointed out that                                                                 
most conspicuous statements are required to be in larger,                                                                       
bolder or a different font type that is easily recognizable.                                                                    
                                                                                                                                
SENATOR THERRIAULT said if the effect of Amendment 2 is to                                                                      
flesh that statement out and make it bolder, he sees no                                                                         
problem with it.                                                                                                                
                                                                                                                                
SENATOR OGAN affirmed that is his intent.                                                                                       
                                                                                                                                
CHAIR SEEKINS removed his objection and, with no further                                                                        
objection, Amendment 2 was adopted.                                                                                             
                                                                                                                                
SENATOR OGAN moved to adopt Amendment 3, which reads as                                                                         
follows:                                                                                                                        
                                                                                                                                
                     A M E N D M E N T  3                                                                                   
                                                                                                                                
OFFERED IN THE SENATE                           BY SENATOR OGAN                                                                 
     TO:  SB 308                                                                                                                
                                                                                                                                
Page 1, line 1, following "Act":                                                                                              
     Insert  "relating to  warnings  on  domestic violence  and                                                               
stalking forms and"                                                                                                           
                                                                                                                                
Page 1, following line 3:                                                                                                       
     Insert a new bill section to read:                                                                                         
   "* Section. 1.  AS 18.65.865(b) is amended to read:                                                                      
          (b)  The Alaska Court System shall prepare forms for                                                                  
     petitions  and  protective  orders  and  instructions  for                                                                 
     their use  by a  person seeking  a protective  order under                                                                 
     AS 18.65.850 - 18.65.860.   The forms must  conform to the                                                                 
     Alaska Rules  of Civil Procedure, except  that information                                                                 
     on  the forms  may be  filled in  by legible  handwriting.                                                                 
     Filing fees may not be  charged in any action seeking only                                                                 
     the  relief provided  in AS 18.65.850  - 18.65.870.   Each                                                                 
     protective order  form must contain the  following warning                                                                 
     in  boldface  type: "Violation  of  this  order may  be  a                                                                 
     misdemeanor,   punishable   by   up   to   one   year   of                                                                 
     incarceration  and a  fine of  up to  $5,000."   Forms and                                                             
     instructions   for  petitions   and  requests   to  modify                                                             
     petitions  must contain  a  conspicuous  warning that  the                                                             
     petitions  and requests  are  submitted  under oath  under                                                             
     penalty  of  perjury and  that  a  person making  a  false                                                             
     statement  may be  prosecuted for  perjury  and, if  found                                                             
     guilty, may be punished for violation of a felony."                                                                    
                                                                                                                                
Page 1, line 4:                                                                                                                 
     Delete "Section 1"                                                                                                       
     Insert "Sec. 2"                                                                                                          
                                                                                                                                
Page 1, following line 14:                                                                                                      
     Insert a new bill section to read:                                                                                         
   "*  Sec.  3.    AS 18.66.150  is amended  by  adding  a  new                                                             
subsection to read:                                                                                                             
          (e) Forms and instructions for petitions and                                                                          
     requests to  modify petitions  must contain  a conspicuous                                                                 
     warning  that the  petitions  and  requests are  submitted                                                                 
     under  oath under  penalty of  perjury and  that a  person                                                                 
     making  a false  statement may  be prosecuted  for perjury                                                                 
     and, if found  guilty, may be punished for  violation of a                                                                 
     felony."                                                                                                                   
                                                                                                                                
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
                                                                                                                                
SENATOR  OGAN explained  that Amendment  3 would  add the  same                                                                 
conspicuous warning onto domestic violence stalking forms.                                                                      
                                                                                                                                
There   being  no   discussion,  CHAIR   SEEKINS  removed   his                                                                 
objection. With no further objection, Amendment 3 was adopted.                                                                  
                                                                                                                                
SENATOR  THERRIAULT asked  if the  intent of  the committee  is                                                                 
that any existing forms be thrown  out on the effective date of                                                                 
this bill or to allow existing forms to be used up.                                                                             
                                                                                                                                
SENATOR OGAN said  to save state resources and  trees, he would                                                                 
not object to  using up the existing forms  within a reasonable                                                                 
time  but  not  to  print new  forms  without  the  conspicuous                                                                 
notice.                                                                                                                         
                                                                                                                                
SENATOR THERRIAULT  thought it would  lower the fiscal  note to                                                                 
make the change when the next group of forms is printed.                                                                        
                                                                                                                                
No member objected.                                                                                                             
                                                                                                                                
SENATOR  OGAN offered  to draft  a  letter of  intent from  the                                                                 
committee to address on the Senate floor.                                                                                       
                                                                                                                                
CHAIR SEEKINS noted  he would indicate the letter  of intent is                                                                 
the will of the committee.                                                                                                      
                                                                                                                                
There  being no  further  discussion, SENATOR  OGAN moved  CSSB                                                                 
308(JUD)  from committee  with  individual recommendations  and                                                                 
attached fiscal notes.                                                                                                          
                                                                                                                                
CHAIR  SEEKINS announced  that with  no  objection, the  motion                                                                 
carried.                                                                                                                        

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